Opinion
No. COA02-1346
Filed 18 November 2003 This case not for publication
Appeal by defendant from judgments entered 30 May 2002 by Judge Sanford L. Steelman, Jr. in Union County Superior Court. Heard in the Court of Appeals 6 October 2003.
Attorney General Roy Cooper, by Special Deputy Attorney General Ted R. Williams, for the State. Jon W. Myers, for defendant-appellant.
Union County Nos. 01 CRS 4126, 01 CRS 4127.
In this appeal, defendant Jerome Rorie argues that the trial court erred in admitting evidence that he failed to appear at an earlier trial date and in giving an instruction to the jury on flight. We hold that this case is controlled by State v. Williamson, 122 N.C. App. 229, 468 S.E.2d 840, disc. review denied, 344 N.C. 637, 477 S.E.2d 54 (1996), and find no error.
Defendant was convicted of possession of cocaine with intent to sell or deliver, sale of cocaine, and delivery of cocaine. The trial court sentenced defendant to consecutive sentences of 13 to 16 months on the possession charge and 23 to 28 months on the sale of cocaine charge. The court arrested judgment on defendant's conviction for delivery of cocaine in accordance with State v. Moore, 327 N.C. 378, 383, 395 S.E.2d 124, 128 (1990).
Defendant, relying upon N.C.R. Evid. 404(b), claims that the trial court erred in allowing the State to present evidence that he failed to appear at his initially scheduled trial date of 4 April 2002. It is well-established "that flight of an accused may be admitted as some evidence of guilt." State v. Lampkins, 283 N.C. 520, 523, 196 S.E.2d 697, 698 (1973). In Williamson, 122 N.C. App. at 232, 468 S.E.2d at 843, this Court held that evidence of a defendant's failure to appear for trial is admissible as evidence of flight because "defendant, by failing to appear for trial, attempted to avoid prosecution for the offenses charged." Accordingly, this assignment of error is overruled.
Defendant also challenges the trial court's jury instruction that his failure to appear at his initial trial date could be considered as evidence of flight. Defendant acknowledges that he failed to object to the instruction at trial, but argues that the instruction constitutes plain error. In Williamson, however, this Court specifically held that evidence of a failure to appear at trial is "sufficient to support an instruction on flight." Id.
Further, before finding that an error constitutes plain error, this Court "must be convinced that absent the error the jury probably would have reached a different verdict." State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). Although defendant bears the burden of showing plain error, defendant has made no attempt to demonstrate that the jury would likely have reached a different result had the court not instructed on flight. Our review of the record does not reveal any likely harm from the instruction.
Finally, although defendant asserts that his constitutional rights were violated by the instruction on flight, he cites no authority and, therefore has abandoned that argument. N.C.R. App. P. 28(b)(6). The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6), we deem them abandoned as well.
No error.
Judges McGEE and HUDSON concur.
Report per Rule 30(e).