An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-297 NORTH CAROLINA COURT OF APPEALS
Filed: 2 December 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County No. 12CRS230845 JAMES RONALD SNIPES
Appeal by Defendant from judgment entered 14 August 2013 by
Judge Linwood O. Foust in Mecklenburg County Superior Court.
Heard in the Court of Appeals 10 September 2014.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Lauren T. Earnhardt, for the State.
Wait Law, P.L.L.C., by John L. Wait, for Defendant.
DILLON, Judge.
James Ronald Snipes (“Defendant”) appeals from a judgment
entered upon a jury verdict finding him guilty of failing to
register as a sex offender.
I. Background
The evidence tended to establish the following: Defendant
pleaded guilty to second-degree rape in 1995. In 2008,
Defendant signed a form acknowledging his obligation under the -2- sexual offender registration law to update his address on file
with the Sheriff’s Office within three days of a change of
address.
In 2012, a deputy with the Mecklenburg County Sheriff’s
Office attempted to locate Defendant at his Mecklenburg County
address that was on file at the Sheriff’s Office. However, the
deputy discovered that Defendant no longer resided at that
location. Further, there was no record of Defendant ever
updating his address with the Sheriff’s Office.
Defendant was indicted for the felonious failure to
register as a sex offender. Defendant pleaded not guilty,
declining to stipulate to his 1995 rape conviction. Defendant
was tried by a jury, who found him guilty of the charge. The
trial court sentenced him to imprisonment for twenty-five to
thirty-nine months. Defendant filed his notice of appeal in
open court.
II. Analysis
In Defendant’s sole argument on appeal, he contends that
the trial court erred by making certain remarks during jury
selection which had the effect of relieving the State of its
burden of proving that Defendant had been previously been
convicted of a reportable offense. While we agree that the -3- trial court’s comments were erroneous, Defendant must show that
the error was prejudicial. He has failed to meet this burden.
Defendant was convicted for willfully failing to comply
with the sex offender registration law, codified at N.C. Gen.
Stat. § 14-208.11. One of the elements of that crime is that
the defendant had previously been convicted of a reportable
offense which required the defendant to register. Id. In the
present case, Defendant did not stipulate as to this element.
Accordingly, the State bore the burden of proving beyond a
reasonable doubt that Defendant had committed a crime requiring
him to register.
Defendant argues that the trial court made improper
comments during jury selection which amounted to the court’s
opinion that Defendant had committed a reportable offense.
Specifically, Defendant points to the following colloquy between
a potential juror and the trial court:
THE COURT: Do either of you know any reason why you can’t sit on this jury where the defendant is charged with failing to register as a sex offender? Can you be fair to both the State and the defendant?
JUROR NO. 6: I – one of the questions that was asked was if you checked the registry. I do. I work as a secretary at a school. That’s part of my responsibilities [sic] so I do check it regularly. And I have very close family members and friends who are -4- victims of sexual abuse.
THE COURT: Okay. This defendant is charged with failure to register as a sex offender. So one thing that is – you can take it as true that the defendant has been convicted of being a sex offender. Is there anything about that, that he is a sex offender, that would cause you not to be able to be fair to him and the State in determining another issue, which would be whether or not he registered?
JUROR NO. 6: To be honest, I don’t think so because it’s a, frankly, closeness I have with family members and friends. And I know what they went through.
THE COURT: All right. You may stand down.
(emphasis added).
We follow the well-established rule that a trial court may
not assume the existence of a material fact in controversy.
N.C. Gen. Stat. § 15A-1232 (2013); State v. Cuthrell, 235 N.C.
173, 174, 69 S.E.2d 233, 234 (1952). This rule applies not only
to the court’s charge to the jury after the close of the
evidence, but throughout the proceedings, beginning with the
court’s preliminary qualification of jurors. State v. Canipe,
240 N.C. 60, 64, 81 S.E.2d 173, 176-77 (1954). Nonetheless, the
existence of a single errant statement by the trial court does
not necessarily compel a new trial. State v. Foster, 284 N.C.
259, 276, 200 S.E.2d 782, 795 (1973). Instead, “an appellate -5- court must consider the circumstances under which the
instructions were made and the probable impact of the
instructions on the jury.” State v. Alston, 294 N.C. 577, 593,
243 S.E.2d 354, 364-65 (1978).
An impermissible expression of opinion on the evidence is
fully reviewable on appeal regardless of a defendant’s failure
to raise an objection at trial and preserve the issue. State v.
Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989). The
defendant bears the burden of demonstrating that the remarks of
the trial judge were prejudicial. State v. Lofton, 66 N.C. App.
79, 84-85, 310 S.E.2d 633, 636-37 (1984). That is, “[a] remark
by the court is not grounds for a new trial if, when considered
in the light of the circumstances under which it was made, it
could not have prejudiced defendant’s case.” State v. King, 311
N.C. 603, 618, 320 S.E.2d 1, 11 (1984).
Defendant cites State v. Swaringen, 249 N.C. 38, 105 S.E.2d
99 (1958), for the proposition that the establishment of an
element of a crime by the trial court entitles the defendant to
a new trial, arguing that the court’s errant remark in this case
relieved the State of its burden to prove the existence of the
underlying sexual offense, an element of the crime of failing to
register. In Swaringen, the defendant was charged with driving -6- while intoxicated and the court instructed the jury that “the
defendant [] was the driver of the vehicle,” thus removing one
of the facts controverted by the defendant’s plea of not guilty
from the jury’s determination. Id. at 40-41, 105 S.E.2d at 101.
Accordingly, our Supreme Court concluded that the defendant was
entitled to a new trial. Id. at 41, 105 S.E.2d at 101.
Of the fifteen cases cited in Defendant’s brief, in only
one was a new trial granted because the trial judge made
inappropriate remarks during jury selection.
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-297 NORTH CAROLINA COURT OF APPEALS
Filed: 2 December 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County No. 12CRS230845 JAMES RONALD SNIPES
Appeal by Defendant from judgment entered 14 August 2013 by
Judge Linwood O. Foust in Mecklenburg County Superior Court.
Heard in the Court of Appeals 10 September 2014.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Lauren T. Earnhardt, for the State.
Wait Law, P.L.L.C., by John L. Wait, for Defendant.
DILLON, Judge.
James Ronald Snipes (“Defendant”) appeals from a judgment
entered upon a jury verdict finding him guilty of failing to
register as a sex offender.
I. Background
The evidence tended to establish the following: Defendant
pleaded guilty to second-degree rape in 1995. In 2008,
Defendant signed a form acknowledging his obligation under the -2- sexual offender registration law to update his address on file
with the Sheriff’s Office within three days of a change of
address.
In 2012, a deputy with the Mecklenburg County Sheriff’s
Office attempted to locate Defendant at his Mecklenburg County
address that was on file at the Sheriff’s Office. However, the
deputy discovered that Defendant no longer resided at that
location. Further, there was no record of Defendant ever
updating his address with the Sheriff’s Office.
Defendant was indicted for the felonious failure to
register as a sex offender. Defendant pleaded not guilty,
declining to stipulate to his 1995 rape conviction. Defendant
was tried by a jury, who found him guilty of the charge. The
trial court sentenced him to imprisonment for twenty-five to
thirty-nine months. Defendant filed his notice of appeal in
open court.
II. Analysis
In Defendant’s sole argument on appeal, he contends that
the trial court erred by making certain remarks during jury
selection which had the effect of relieving the State of its
burden of proving that Defendant had been previously been
convicted of a reportable offense. While we agree that the -3- trial court’s comments were erroneous, Defendant must show that
the error was prejudicial. He has failed to meet this burden.
Defendant was convicted for willfully failing to comply
with the sex offender registration law, codified at N.C. Gen.
Stat. § 14-208.11. One of the elements of that crime is that
the defendant had previously been convicted of a reportable
offense which required the defendant to register. Id. In the
present case, Defendant did not stipulate as to this element.
Accordingly, the State bore the burden of proving beyond a
reasonable doubt that Defendant had committed a crime requiring
him to register.
Defendant argues that the trial court made improper
comments during jury selection which amounted to the court’s
opinion that Defendant had committed a reportable offense.
Specifically, Defendant points to the following colloquy between
a potential juror and the trial court:
THE COURT: Do either of you know any reason why you can’t sit on this jury where the defendant is charged with failing to register as a sex offender? Can you be fair to both the State and the defendant?
JUROR NO. 6: I – one of the questions that was asked was if you checked the registry. I do. I work as a secretary at a school. That’s part of my responsibilities [sic] so I do check it regularly. And I have very close family members and friends who are -4- victims of sexual abuse.
THE COURT: Okay. This defendant is charged with failure to register as a sex offender. So one thing that is – you can take it as true that the defendant has been convicted of being a sex offender. Is there anything about that, that he is a sex offender, that would cause you not to be able to be fair to him and the State in determining another issue, which would be whether or not he registered?
JUROR NO. 6: To be honest, I don’t think so because it’s a, frankly, closeness I have with family members and friends. And I know what they went through.
THE COURT: All right. You may stand down.
(emphasis added).
We follow the well-established rule that a trial court may
not assume the existence of a material fact in controversy.
N.C. Gen. Stat. § 15A-1232 (2013); State v. Cuthrell, 235 N.C.
173, 174, 69 S.E.2d 233, 234 (1952). This rule applies not only
to the court’s charge to the jury after the close of the
evidence, but throughout the proceedings, beginning with the
court’s preliminary qualification of jurors. State v. Canipe,
240 N.C. 60, 64, 81 S.E.2d 173, 176-77 (1954). Nonetheless, the
existence of a single errant statement by the trial court does
not necessarily compel a new trial. State v. Foster, 284 N.C.
259, 276, 200 S.E.2d 782, 795 (1973). Instead, “an appellate -5- court must consider the circumstances under which the
instructions were made and the probable impact of the
instructions on the jury.” State v. Alston, 294 N.C. 577, 593,
243 S.E.2d 354, 364-65 (1978).
An impermissible expression of opinion on the evidence is
fully reviewable on appeal regardless of a defendant’s failure
to raise an objection at trial and preserve the issue. State v.
Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989). The
defendant bears the burden of demonstrating that the remarks of
the trial judge were prejudicial. State v. Lofton, 66 N.C. App.
79, 84-85, 310 S.E.2d 633, 636-37 (1984). That is, “[a] remark
by the court is not grounds for a new trial if, when considered
in the light of the circumstances under which it was made, it
could not have prejudiced defendant’s case.” State v. King, 311
N.C. 603, 618, 320 S.E.2d 1, 11 (1984).
Defendant cites State v. Swaringen, 249 N.C. 38, 105 S.E.2d
99 (1958), for the proposition that the establishment of an
element of a crime by the trial court entitles the defendant to
a new trial, arguing that the court’s errant remark in this case
relieved the State of its burden to prove the existence of the
underlying sexual offense, an element of the crime of failing to
register. In Swaringen, the defendant was charged with driving -6- while intoxicated and the court instructed the jury that “the
defendant [] was the driver of the vehicle,” thus removing one
of the facts controverted by the defendant’s plea of not guilty
from the jury’s determination. Id. at 40-41, 105 S.E.2d at 101.
Accordingly, our Supreme Court concluded that the defendant was
entitled to a new trial. Id. at 41, 105 S.E.2d at 101.
Of the fifteen cases cited in Defendant’s brief, in only
one was a new trial granted because the trial judge made
inappropriate remarks during jury selection. See Canipe, 240
N.C. at 65-66, 81 S.E.2d at 177-78. In Canipe, to ascertain the
potential jurors’ views on capital punishment, the judge
referenced two examples of particularly horrendous and highly
publicized crimes and asked the potential jurors whether they
believed capital punishment would have been appropriate in those
cases. Id. at 60-62, 81 S.E.2d at 174-76. Although the judge
was cautious to disclaim any comparison of the facts of those
cases to the one at bar, our Supreme Court granted the defendant
a new trial, explaining that
the questions had a logical tendency to implant in the minds of the trial jurors the convictions that the presiding judge believed that the prisoner had killed his wife in an atrocious manner, that the prisoner was guilty of murder in the first degree, and that the prisoner ought to suffer death for his crime. -7-
Id. at 65, 81 S.E.2d at 178. Thus, our Supreme Court in Canipe
concluded that the very nature of the questions in that case
were such that the prejudice resulting from them was immediate
and incurable. See id. at 66, 81 S.E.2d at 178.
However, in the overwhelming majority of cases where the
appellate courts of this State have granted new trials based on
the improper expression of judicial opinion, the erroneous
expression occurred during the jury charge, not during jury
selection. See, e.g., State v. Mason, 268 N.C. 423, 425, 150
S.E.2d 753, 755 (1966); State v. Mitchell, 260 N.C. 235, 238-39,
132 S.E.2d 481, 483 (1963); State v. Covington, 48 N.C. App.
209, 211-12, 268 S.E.2d 231, 233 (1980). The cases cited in
Defendant’s brief bear this out. See, e.g., State v. Minton,
228 N.C. 15, 17-18, 44 S.E.2d 346, 348-49 (1947); State v.
Ellison, 226 N.C. 628, 631, 39 S.E.2d 824, 827 (1946); State v.
Brinkley, 10 N.C. App. 160, 161, 177 S.E.2d 727, 728 (1970);
State v. Patton, 2 N.C. App. 605, 606-07, 163 S.E.2d 542, 543-44
(1968). We do not suggest that it is never appropriate to
overturn a jury verdict based on inappropriate questioning by
the trial judge during jury selection; indeed, Canipe is an
example of just such a case. However, the burden of
demonstrating the prejudicial effect of the trial court’s -8- erroneous remarks always remains with the defendant. See King,
311 N.C. at 618, 320 S.E.2d at 11.
We are not persuaded that the trial judge’s isolated,
errant remark referenced above during jury selection was
prejudicial. Rather, the State offered overwhelming evidence
that Defendant had been convicted of the 1995 rape. Defendant
never objected to the introduction of the self-authenticating
indictment, arrest warrant, judgment and commitment, and
transcript of plea agreement for his conviction of the 1995
rape. Nor did he object to the introduction into evidence of
his signed acknowledgement of his duty to register, or dispute
the authenticity of his signature on a 2005 document that lists
his address as the address which was then on file with the
Sheriff’s Office. Nor did he object to the introduction of his
signed acknowledgement of the 2008 notice informing him of the
three-day time frame to update changes of address in the sex
offender registry, or dispute the authenticity of his signature
on that document. Further, in its instruction to the jury, the
trial court was unequivocal that the State bore the burden to
prove beyond a reasonable doubt that “[D]efendant had previously
been convicted of a reportable offense for which the [D]efendant
must register.” Given the overwhelming, uncontradicted evidence -9- regarding Defendant’s prior conviction and the jury instruction,
we fail to see how the remark by the trial court during jury
selection could have prejudiced Defendant’s case. See King, 311
N.C. at 618, 320 S.E.2d at 11. Accordingly, this argument is
overruled.
III. Conclusion
For the reasons stated above, we conclude that Defendant
received a fair trial, free from prejudicial error.
NO ERROR.
Judge HUNTER, Robert C. and Judge DAVIS concur.
Report per Rule 30(e).