Opinion
No. COA09-1265
Filed 1 June 2010 This case not for publication
Appeal by defendant from judgment entered 27 February 2009 by Judge Linwood O. Foust in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 April 2010.
Attorney General Roy Cooper, by Assistant Attorney General John P. Scherer, II, for the State. John Keating Wiles for defendant-appellant.
Mecklenburg County No. 07 CRS 235911-14.
On 27 February 2009, a jury found defendant Laura Anne Shelley guilty on three counts of hit and run with property damage and one count of possession of drug paraphernalia. The trial court sentenced defendant to: 45 days in custody, suspended, with supervised probation for 18 months for one count of hit and run with property damage; a consolidated term of 45 days in custody, suspended, with supervised probation for 18 months for the remaining two counts of hit and run with property damage; and 45 days in custody, suspended, with supervised probation for 18 months for possession of drug paraphernalia. Defendant appeals. We find no prejudicial error.
Facts
The evidence tended to show the following. On the afternoon of 3 August 2007, defendant drove into a Target parking lot, crashed her vehicle into one car, backed into another car, then pulled over the median and crashed into a third car before leaving the scene. Two cars were unoccupied at the time, but the occupant of the third car got defendant's license plate number and called 911. Officers located defendant's residence and discovered a damaged car, still warm, parked in the driveway. Officers asked defendant for permission to search the apartment for the keys to the vehicle, and defendant consented. During the search, officers found the keys to the vehicle in the pocket of defendant's coat as well as boxes containing about 19 marijuana seeds, screens, rolling papers, a roach clip, and a marijuana bowl on the coffee table directly in front of defendant. Officers arrested defendant for possession of drug paraphernalia and drove her to the scene of the accident, where a witness identified defendant as the person she had seen crash into the three cars earlier that day.
Defendant contends the trial court erred by denying her (I) motion for a mistrial, and (II) motion to dismiss two of the hit and run with property damage charges and the possession of drug paraphernalia charge for insufficient evidence. We find no prejudicial error.
I
Defendant first contends the trial court erred by denying defendant's motion for a mistrial. We disagree.
The trial court "must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case." N.C. Gen. Stat. § 15A-1061 (2009). "A mistrial is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law." State v. Wood, 168 N.C. App. 581, 583, 608 S.E.2d 368, 370, disc. review denied, 359 N.C. 642, 614 S.E.2d 923 (2005) (quoting State v. Blackstock, 314 N.C. 232, 243-44, 333 S.E.2d 245, 252 (1985)). Further, a trial court's ruling on a motion for a mistrial will be disturbed on appeal only if it is so clearly erroneous as to amount to a manifest abuse of discretion. Wood, 168 N.C. App. at 583, 608 S.E.2d at 370 (citation omitted).
Immediately after the jury was empaneled, the bailiff informed the court that juror No. 3 indicated "she has some issues with regard to her ability to sit in this case." In the absence of the other jurors, the trial court briefly questioned juror No. 3 about those circumstances, and the juror stated that she was not sure she would be fair to defendant because she had previously been the victim of a hit and run. Counsel for both parties also briefly questioned juror No. 3. After the juror left the courtroom, defendant asked the court to dismiss juror No. 3 and conduct jury selection for another alternate, or, in the alternative, to order a mistrial, stating "I still had two peremptory strikes available," and "I would have exercised one of them" on juror No. 3. In response, the court stated "jury selection is closed," denied defendant's motion for a mistrial, excused juror No. 3, and replaced her with the alternate.
"If the judge at any point allows the attorneys to question the juror directly, voir dire has necessarily been reopened[,]" and as a result, "the parties have an absolute right to exercise any remaining peremptory challenges to excuse such a juror." State v. Boggess, 358 N.C. 676, 683, 600 S.E.2d 453, 457 (2004) (internal quotations and citation omitted). Thus, the trial court here was mistaken in stating that jury selection was closed after allowing counsel for both parties to question juror No. 3. However, this error did not result in substantial and irreparable prejudice to defendant's case, and, thus, the trial court did not abuse its discretion in denying defendant's motion for a mistrial.
In Boggess, the trial court "permitted counsel to question [a] juror [] but did not allow defendant thereafter to exercise one of his remaining peremptory challenges [to remove the objectionable juror]." 358 N.C. at 683, 600 S.E.2d at 457-58. As a result, the trial court's error in that case prejudiced the defendant, who was convicted by a panel which included a juror whom he should have been able to remove by peremptory challenge. Id. As a result, we reversed the defendant's conviction. Id.
Here, the trial court excused juror No. 3 and replaced her with an alternate whom defendant had passed upon previously. Thus, in contrast to Boggess, the jury that ultimately heard defendant's case was entirely composed of jurors to whom defendant had no objection. Although the trial court erred in stating that jury selection was closed and in not allowing defendant to exercise her peremptory challenges, this error did not result in substantial and irreparable prejudice to defendant's case. See N.C.G.S. § 15A-1061 (stating that a mistrial is proper when "there occurs during the trial an error or legal defect in the proceedings . . . resulting in substantial and irreparable prejudice to the defendant's case"). Therefore, the trial court did not abuse its discretion in denying her motion for a mistrial. Wood, 168 N.C. App. at 584, 608 S.E.2d at 370. Defendant's argument is overruled.
II
Defendant next argues the trial court erred in denying defendant's motion to dismiss two of the hit and run with property damage charges and the possession of drug paraphernalia charge for insufficient evidence. We disagree.
When ruling on a defendant's motion to dismiss, the trial court is to consider the evidence in the light most favorable to the State. State v. Davis, 325 N.C. 693, 696, 386 S.E.2d 187, 189 (1989). "The State is entitled to every reasonable inference which can be drawn from the evidence presented[,]" and the trial court is to resolve all contradictions and discrepancies in the State's favor. See Davis, 325 N.C. 693, 696, 386 S.E.2d at 189. "If there is substantial evidence-whether direct, circumstantial, or both-to support a finding that the offense charged has been committed and that defendant committed it, a case for the jury is made and nonsuit should be denied." State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 582 (1975).
Our General Statutes define the offense of hit and run with property damage:
The driver of any vehicle, when the driver knows or reasonably should know that the vehicle which the driver is operating is involved in a crash . . . result[ing] . . . in damage to property[,] . . . shall immediately stop the vehicle at the scene of the crash. [T]he driver . . . shall give his or her name, address, driver's license number and the license plate number of his vehicle to . . . any person whose property is damaged in the crash.
N.C. Gen. Stat. § 20-166(c) and (c1) (2009).
Defendant first contends that because the State presented no evidence that "positively showed that it was Ms. Shelley's car that hit and damaged the cars belonging to Michelle Brown and Tracy McClain," the trial court should have granted defendant's motion to dismiss the two charges for hit and run with property damage.
At trial, the State's evidence included testimony from a witness that she saw defendant hit her vehicle and two other vehicles, the witness's identification of defendant as the individual who hit all three vehicles, testimony from Ms. Brown and Ms. McClain that their cars suffered damage from an accident in the Target parking lot on the day of the offense, and defendant's testimony that she struck three vehicles in the parking lot that day and failed to stop for each. Drawing all reasonable inferences from this evidence in favor of the State, there was substantial evidence that defendant hit and damaged Ms. Brown's and Ms. McClain's vehicles. The trial court did not err by denying defendant's motion to dismiss for insufficient evidence on the charges for hit and run with property damage.
Defendant also contends that, because the State presented no evidence that defendant "possessed [drug paraphernalia] with the criminal intent to smoke marijuana," the trial court should have granted defendant's motion to dismiss the charge of possession of drug paraphernalia.
Our General Statutes make it "unlawful for any person to knowingly use, or to possess with intent to use, drug paraphernalia . . . to inject, ingest, inhale, or otherwise introduce into the body a controlled substance which it would be unlawful to possess." N.C. Gen. Stat. § 90-113.22(a) (2009). In order to sustain a conviction under § 90-113.22(a), the State must prove both (1) possession of drug paraphernalia and (2) "the intent to use [the paraphernalia] in connection with controlled substances." See State v. Hedgecoe, 106 N.C. App. 157, 163-64, 415 S.E.2d 777, 781 (1992).
Drawing all reasonable inferences in favor of the State, the State's evidence showed that: boxes containing rolling papers, a roach clip, a marijuana smoking pipe, and marijuana seeds lay on a table directly in front of defendant; defendant knew the contents of the boxes; defendant claimed that her grandmother who had passed away five years prior owned the marijuana smoking pipe; and defendant admitted that she knew the pipe was used for smoking marijuana. This was sufficient evidence of defendant's possession of drug paraphernalia with the intent to use it in connection with controlled substances to send the charge to the jury. See Davis, 186 N.C. App. 242, 247-48, 650 S.E.2d 612, 617, review dismissed by 362 N.C. 89, 656 S.E.2d 280 (2007). Thus, the trial court did not err by denying defendant's motion to dismiss for insufficient evidence on the charge of possession of drug paraphernalia.
No prejudicial error.
Judges Elmore and Ervin concur.
Report per Rule 30(e).