Opinion
No. COA12–850.
2012-12-4
STATE of North Carolina v. Robin Elaine PETTICE.
Roy Cooper, Attorney General, by Richard A. Graham, Assistant Attorney General, for the State. Winifred H. Dillon for defendant-appellant.
Appeal by defendant from judgment entered 10 February 2012 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 November 2012. Roy Cooper, Attorney General, by Richard A. Graham, Assistant Attorney General, for the State. Winifred H. Dillon for defendant-appellant.
MARTIN, Chief Judge.
Defendant Robin Elaine Pettice appeals from a judgment entered upon a jury verdict finding her guilty of larceny after breaking or entering and misdemeanor breaking or entering. She contends the trial court committed reversible error by failing to intervene ex mero motu during the State's closing argument. We find no error.
The State's evidence tended to show that in June of 2010 Susan Sowell (Sowell), a resident of South Carolina, was staying at the home of Johnny Addison (Addison) to care for him during his illness. Sowell befriended Bianca Little (Little) whom Sowell paid to show her around Charlotte and perform housekeeping at the Addison home. Sowell also met Little's friend, defendant. Sowell called Little on 7 June 2010 and asked her to come over the next day and show her the location of the Brian Center, where Addison's girlfriend lived.
Little did not show up the next day as agreed, so Sowell locked up the Addison house at 1:30 p.m., and left with Addison to find the Brian Center on her own. Soon after she left, Sowell received a phone call from Little, and Sowell told Little she would be back in an hour. Sowell returned around 7:00 p.m. and discovered her laptop computer and jewelry missing, and the back door ajar. Sowell later realized that her hair kit and a box of loose change were also missing. A Charlotte–Mecklenburg police officer responded to the breaking and entering call and found that the rear door had been “forced in.” Sowell informed the officer that she suspected Little.
Upon further investigation, police determined that defendant had pawned two rings for $150 and attempted to pawn a laptop computer on 8 June 2010. Sowell identified the pawned rings as the ones that were taken. An officer subsequently interviewed defendant who admitted she drove Little to the Addison home, that Little went into the Addison home while she remained in the van, and that Little returned to the van with a laptop, rings, and a box of change.
A jury convicted defendant of misdemeanor felony breaking and/or entering, felonious larceny after breaking and/or entering, and felonious possession of stolen goods. After arresting judgment on the possession of stolen goods conviction, the trial court sentenced defendant to a suspended term of ten to twelve months imprisonment and placed her on probation. Defendant appeals.
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Defendant contends the trial court erred by failing to intervene ex mero motu when, during closing arguments, the prosecutor stated that the back door had been “kicked in.” Defendant challenges the following statements during the prosecutor's closing argument:
There is no evidence that the defendant broke in the house, that she was the one that actually was the one that kicked in the door. All of the evidence does point to Bianca Little. And I'd submit to you Bianca Little is the one that kicked open the back door and went in and took the rings.
....
The defendant doesn't have to do every step of the actual kicking in of the door and taking items to be guilty of this crime of breaking or entering and also larceny after breaking or entering.
....
Defendant knew she was not entitled to take the property. Well, if a defendant knew they were entitled to take it, they would not have to kick in a back door to take it.
....
The property was stolen pursuant to a breaking or entering. It was taken when Bianca Little went around back, kicked in the door and took the rings and the laptop and the change box.
Defendant asserts the remarks prejudiced her because the “prosecutor's mischaracterization of the evidence was designed to mislead the jury into deciding the guilt of [her] based on feelings of fear and personal violation, rather than on logical assessment of the facts presented.” Defendant did not object to the prosecutor's statement, but argues the trial court erred by not intervening ex mero motu.
“The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.” State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002). This generally requires a showing that “the prosecutor's comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair.” State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998), cert. denied,526 U.S. 1161, 144 L.Ed.2d 219 (1999).
Here, the prosecutor's use of the phrase “kicked in” does not amount to a grossly improper statement where the police officer testified that the back door was “forced in.” Further, given the overwhelming evidence of defendant's guilt, it did not render the conviction fundamentally unfair such that a new trial is warranted. See State v. Tirado, 358 N.C. 551, 581, 599 S.E.2d 515, 536 (2004) (assuming, arguendo, that the prosecutor's closing argument was erroneous, error was not reversible where substantial evidence supported the guilty verdict), cert. denied,544 U.S. 909, 161 L.Ed.2d 285 (2005).
We hold defendant received a fair trial free of prejudicial error.
No error. Judges STROUD and HUNTER, Jr. concur.
Report per Rule 30(e).