State v. Alston , 111 N.C. App. 416 ( 1993 )

432 S.E.2d 385 (1993)

STATE of North Carolina
v.
Timothy Allan ALSTON.

No. 9225SC989.

Court of Appeals of North Carolina.

August 3, 1993.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Valerie L. Bateman, Raleigh, for the State.

Beach, Correll and Beach, P.A. by J. Michael Correll, Lenoir, for defendant-appellant.

WELLS, Judge.

We note initially that defendant sets forth five generalized assignments of error for our review, taking issue with the trial court's rulings on its admission of evidence, its comments, acts and statements, its rulings on defendant's motions, its determination of defendant's sentence, and the overall conduct of the proceedings, which defendant asserts, violated his constitutional rights.

By his first assignment of error, defendant lists six sub-arguments, excepting to certain of the trial court's findings and admissions of evidence. Defendant cites no authority for his first, second, fourth and fifth arguments; therefore, they are deemed abandoned. N.C.R.App.P. 28(a).

Defendant's sixth argument challenges the sufficiency of certain evidence locating the boundaries of the school property in relation to the place the State alleges defendant sold the drugs to Agent Carleton. Specifically, defendant argues that because there was only verbal evidence in the form of testimony from Earl Bradshaw and no maps or plats were introduced to locate the distance of the school from the drug sale, such evidence was nothing more than conjecture and was insufficient to prove an essential element of a crime. We disagree.

Defendant's argument goes to the weight of the evidence admitted. While it is true that evidence which merely raises a suspicion or conjecture as to an element of an offense warrants dismissal, such is not the case here. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). Here, Mr. Bradshaw testified that he had worked for the Caldwell County Board of Education for approximately 23 years and that, as a part of his job, he was required to be familiar with the property owned by the school system. Mr. Bradshaw clearly testified as to the location of the school and about the experience upon which his knowledge was based. His testimony was also corroborated by the testimony of Agent Carleton, who used a diagram to specifically illustrate that the drug sale occurred 100 feet from the school boundary. We hold that there was plenary evidence that the drug sale, for which defendant was charged, took place within 300 feet of the school boundary in violation of G.S. § 90-95(e)(8). Defendant's contention is without merit.

Although he couches his third sub-argument in terms of error based upon the erroneous admission of evidence, defendant is more precisely challenging the trial court's conduct in interrupting the trial to introduce District Attorney Thomas to the jury. Defendant contends that the trial court's remarks deprived defendant of a fair trial in violation of G.S. § 15A-1222. We disagree.

During the course of the trial, the district attorney apparently entered the courtroom. Judge Guice interrupted the trial, and the following exchange took place:

THE COURT: Pardon me. Mr. Thomas, you need to come down you may do so. We'll be glad to—ladies and gentlemen, the District Attorney for the District, Mr. Thomas.

MR. THOMAS: Just wanted to see how it was going.

THE COURT: We're working.

MR. THOMAS: I can see that. Thank you, Your Honor.

THE COURT: Yes, sir.

MR. JENNINGS: Judge, tell him I need a pay raise while you're here.

THE COURT: He just went out the door.

A little bit late for that.

G.S. § 15A-1222 prohibits a judge from expressing "during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury." Not every improper comment by a judge, however, warrants a new trial. State v. King, 311 N.C. 603, 320 S.E.2d 1 (1984). The defendant must prove he was prejudiced by the trial judge's remarks in order to show a violation of G.S. § 15A-1222 and reversible error. Id.

In this case, the colloquy between the trial judge and the district attorney did not constitute an expression of opinion on any fact to be proved in the case and therefore did not constitute a violation of G.S. § 15A-1222. Our appellate courts have repeatedly stated, however, that every criminal defendant is entitled to a trial before an impartial court. See, e.g. State v. Staley, 292 N.C. 160, 232 S.E.2d 680 (1977). While we view Judge Guice's conduct as showing some degree of partiality toward the State's attorney, and therefore may have arguably conveyed to the jury a degree of partiality towards the State's case, in light of the strong evidence of defendant's guilt, we cannot agree that Judge Guice's arguably inappropriate conduct was sufficiently prejudicial to require a new trial. This assignment is overruled.

After carefully reviewing defendant's remaining assignments of error, we find them to be without merit and therefore do not address them.

Although not raised by defendant, we have discovered an error which appears on the face of the record. Defendant was charged in separate indictments for the sale of cocaine on school property (91CRS7640); felonious possession of cocaine (91CRS7641, Count I); possession of cocaine with intent to sell and deliver (91CRS7641, Count II); and sale of cocaine (91CRS7641, Count III). The trial court submitted separate verdicts for sale of cocaine and sale of cocaine within 300 feet of school property. This was error. The sale on school property constituted an aggravated sale pursuant to G.S. § 90-95(e)(8). Since that was the only sale made, defendant could be punished for but one sale. Accordingly, the conviction for the sale of cocaine appearing in the judgment is arrested.

No error in the trial.

Judgment arrested in 91CRS7641 for sale of cocaine.

ORR and McCRODDEN, JJ., concur.