An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-735
                       NORTH CAROLINA COURT OF APPEALS

                                Filed:    6 May 2014

STATE OF NORTH CAROLINA

      v.                                       Currituck County
                                               Nos. 10 CRS 50796; 50914
LATEISHA MARIA JANDREAU



      Appeal    by    defendant    from    judgments     entered    28   September

2012 by Judge Jerry R. Tillett                in Currituck County Superior

Court.     Heard in the Court of Appeals 9 December 2013.


      Attorney General Roy Cooper, by Special                   Deputy     Attorney
      General H. Dean Bowman, for the State.

      Appellate   Defender  Staples   S.   Hughes,  by   Assistant
      Appellate Defender Charlesena Elliot Walker, for defendant.


      McCULLOUGH, Judge.


      Lateisha       Maria   Jandreau     (“defendant”)      appeals     from    her

convictions for first degree murder and larceny of a firearm.

For the following reasons, we find no prejudicial error.

                                  I. Background

      This case was called for jury trial at the 24 September

2012 Criminal Session of Currituck County Superior Court, the
                                        -2-
Honorable Jerry R. Tillett, Judge presiding, upon indictments

charging defendant with one count of first degree murder and one

count of larceny of a firearm.

      Evidence during the presentation of the State’s case tended

to show the following:          Co-workers of defendant’s husband, Paul

Jandreau       (the   “victim”),    became       concerned    and     called     the

Currituck County Sheriff’s Department on the morning of 30 June

2010 when the victim did not show up for work and did not answer

their phone calls.           Deputy Sheriff Lisa Starcher responded to

the victim’s and defendant’s residence at 100 Armstead Court to

perform    a     welfare   check   at   approximately      7:44     a.m.      Deputy

Starcher testified that the victim’s truck was in the driveway

but   no   one    answered   the   door.        Deputy   Starcher    then     looked

around the house and through some windows.                She noticed two cars

in the garage but did not see any movement inside the house.

After Deputy Starcher’s call to the residence went unanswered,

Starcher was able to reach defendant through defendant’s place

of employment.        At Deputy Starcher’s request, defendant returned

home at approximately 8:30 a.m. and allowed Deputy Starcher to

check the house.       Deputy Starcher found nothing suspicious.

      Deputy      Starcher    returned     to    the     residence    later     that

afternoon to see if the victim had returned.                 The victim’s truck
                                         -3-
was still in the driveway but no one answered the door.                          Deputy

Starcher    testified      that    windows       which       had    previously     been

uncovered   were    now    covered      with     a    blue    tarp,    tin    foil,    or

frosting.

       The following day, 1 July 2010, Deputy Starcher continued

to check on the residence.              At approximately 11:40 a.m., Deputy

Starcher and Detective Swany Dudley returned to the residence

and saw the victim’s truck backed up to the front door with

furniture in the back.             Detective Dudley testified she spoke

with defendant.          Defendant informed Detective Dudley that she

had last talked to the victim on 29 June 2010 and that she and

the victim lived together, but led separate lives.                            Detective

Dudley   further    testified      that    defendant         avoided    eye   contact,

kept   rubbing     her    head    and    neck,       and   seemed     frustrated      and

agitated that they were there.

       Detective Sergeant Ray Matusko testified that on 1 July

2010, he and another officer went to Elizabeth City after they

received information that the victim’s cell phone was hitting

off a tower in the area.                That afternoon, the victim’s cell

phone was found near a construction site in Elizabeth City and

turned over to police.             Detective Matusko recovered the cell
                                           -4-
phone   and    met     with   the   man     that      found    the    cell   phone   at

approximately 2:30 p.m.

      At     approximately     5:30       p.m.   on    2    July     2010,   Detective

Dudley, Detective Matusko, and others returned to the residence

for a pre-arranged meeting with defendant.                     No one answered the

door, but a note near the door indicated defendant had walked to

River’s Edge, an adjacent neighborhood.                     Officers tried calling

defendant’s cell phone and searched River’s Edge but did not

locate defendant.        During this search, Detective Dudley received

information from the dispatcher that defendant had just called

911 wondering why officers were at her residence and informing

911 she was in Chesapeake, Virginia.                   Defendant said she would

not be home until the following day.                    The dispatcher, however,

was   able    to   determine    that      defendant’s         call   originated   from

inside the residence.          The information from the dispatcher was

supported     by   a   neighbor     who    informed        Detective    Matusko   that

defendant was home.            The neighbor further informed Detective

Matusko that the victim told him about a month ago that he was

going to file for divorce and had asked defendant to move out.

      At that point, the officers determined they had gathered

enough information and applied for and obtained a warrant to

search the house.
                                           -5-
       Officers returned to the residence just after midnight on 3

July 2010 to execute the search warrant.                   When no one responded

to their knocks, the officers made a forced entry through a

garage      door.        During    their   sweep    to    secure    the     residence,

defendant was found hiding in the back of a closet covered by a

blanket and clothes.               After defendant was secured and served

with the warrant, the officers performed a more thorough search

of the residence.

       During the search, the victim’s body was discovered wrapped

in plastic and duct tape and stuffed inside a large tote under a

pile   of    trash   in     the     garage.      Officers    also    found     various

cleaning supplies in the residence and noted that it looked like

the hardwood floor in the                master bedroom had been scrubbed.

There were bloodstains on a large rug in the master bedroom and

bullet   holes      in    and     near   the   master    bedroom    which    had   been

filled with caulk.          Spent bullets were recovered from the scene.

It was determined that the projectile paths for all the bullets

originated from the interior of the bedroom out.                      Plastic wrap,

foil, duct tape, paint, caulking, paint brushes, and frosted

glass spray were found in the kitchen.                      A witness noted that

these items appeared out of place in the kitchen and seemed to

have had a role in the events of the week.
                                       -6-
       Two   vehicles   in   the   driveway     were   also   searched.     The

search of a BMW registered to the victim and defendant resulted

in the recovery of a .45 caliber handgun from a small black bag

in the rear passenger side seat.               The magazine in the handgun

was empty.       Two additional magazines recovered             from the bag

contained live rounds.         The search of a truck in the driveway

resulted in the recovery of a Lowe’s receipt dated 1 July 2010

evidencing the purchase of a large tote.

       A forensics firearms examiner testified that he had been of

the opinion that        the spent bullets recovered from the crime

scene were fired from the .45 caliber handgun recovered from the

BMW.     The handgun belonged to Lyle Koenig, with whom defendant

worked    and   had   become   very    close    personal   friends.       Koenig

testified he never gave defendant permission to take the .45

caliber handgun.

       An autopsy performed on the victim’s body revealed he was

shot five times:        in the chest, abdomen, thigh, hand, and neck.

The wound to the victim’s neck appeared to have been inflicted

from close range.        The autopsy further revealed that the victim

suffered     approximately     a      dozen    lacerations    to   his    head,

consistent with being struck by a blunt hard object such as a

pistol.
                                              -7-
       Testimony      from       neighbors,         co-workers,     and    an   attorney

revealed that both defendant and the victim had mentioned the

victim wanted a divorce.                The victim also told a co-worker and

his attorney that he had awaken one night to find defendant

crawling around his room in the middle of the night.                               He told

his attorney that, as a result, he was sleeping with his door

locked.

       Following the presentation of the State’s case, defendant

took    the    stand      in     her    own     defense      and   testified       to    the

following:          She     moved      into    the     victim’s    residence       at    100

Armstead      Court    after      they       married    on   28    June    2003.        They

attempted to start a family together, but grew apart after they

were   unsuccessful         in    their       attempts    to    have     children.        In

January    2010,      she      and     the    victim     decided    they    would       live

together      but   lead     separate        lives.      Defendant       testified      that

after the decision was made to live separate lives, they only

communicated by text and rarely saw each other.

       Defendant testified that the victim was always angry with

her and in early June 2010, the victim informed her that he

wanted her out of the house by the end of the month.                            Defendant

told    the    victim       she      was     not     leaving.       It    appears       from
                                  -8-
defendant’s testimony that their relationship had been volatile

from that point forward.

    Defendant testified that the victim would kick her door

early every morning and tell her that he wanted her out of the

house.   The situation then escalated when, on 20 June 2010, the

victim accused defendant of keying his car.         Defendant testified

that after speaking with an officer,          the victim     entered the

house, poked her head with his index finger, and told her he

wanted to put a bullet through her thick skull.            That evening,

defendant went to retrieve a gun from a toolbox in the garage.

When the gun was not in the toolbox, defendant drove to Koenig’s

house and took his .45 caliber handgun, which she kept with her

at all times thereafter.

    At   approximately    4:00   p.m.   on   29   June   2010,   defendant

knocked on the victim’s door to tell him she would not be out of

the house by the end of the month.       Defendant testified that the

victim opened his door screaming, got in her face, and told her

that he wanted her out.    Defendant left and did not return until

approximately 11:00 p.m.     When she returned all the lights were

out and she went straight to her bedroom to get ready for work.

Defendant testified she went to sleep around 3:00 a.m. on 30

June 2010.
                                -9-
       Defendant claims she was awakened at approximately 4:00 or

4:30 a.m. when the victim entered her room telling her he wanted

her out of the house.     Defendant testified the victim grabbed

her by her feet and dragged her down the hallway before he let

go and returned to his bedroom.       Defendant then went back to

bed.    Defendant testified that shortly thereafter, the victim

returned to her bedroom with a long gun and told her she had

five minutes to get out of the house or he would kill her.      The

victim, again, returned to his bedroom.     Defendant testified she

thought the victim was going to kill her.

       According to defendant’s testimony, defendant jumped     up,

got the .45 caliber gun from the side of her bed, and ran down

the hallway.    When defendant got near the victim’s bedroom door,

she saw a shadow and shot at it.      She then walked further into

the victim’s bedroom and shot in the direction of the victim.

Defendant testified that the victim backed away, dropped his

gun, and then walked forward and jumped towards her, falling on

top of her.    Defendant kept shooting and hitting victim with the

gun.    Defendant was able to crawl out from underneath the victim

after a couple of seconds.    Defendant testified when she got up

and saw the blood on the floor, she started cleaning.
                                        -10-
      When asked to describe the days following the incident,

defendant stated that during those days her mind was blank and

she could not focus.            Defendant also testified that she did not

recall detectives coming to her house in the days following the

incident.

      On cross-examination, defendant admitted to having lied to

officers and the victim’s co-workers when she told them she did

not know where the victim was.                  Defendant testified that she

remembered cleaning the residence after the incident, renting a

storage      unit,    and   purchasing    a     larger    tote     for      the    body.

Defendant also acknowledged that she had dumped the victim’s

phone in Elizabeth City.

      The jury was given the case on 28 September 2012 and on the

same day returned verdicts finding defendant guilty of first

degree murder and larceny of a firearm.                   The trial court then

entered separate judgments sentencing defendant to a term of six

to   eight    months    imprisonment      for    the     larceny       of    a   firearm

conviction      and    to   a    consecutive     term     of    life     imprisonment

without      parole     for     the    first     degree        murder       conviction.

Defendant      gave    notice     of   appeal    in    open     court       immediately

following sentencing.

                                  II. Discussion
                                       -11-
    On      appeal,     defendant          challenges        the     trial      court’s

instructions to the jury concerning the issue of her guilt of

first degree murder and the way the trial court handled her

objection and motion to strike alleged 404(b) evidence.

          1. and 2. Jury Instructions on First Degree Murder

    During the charge conference, the trial court informed the

parties that it would “instruct generally using pattern 206.10

regarding first degree murder where a deadly weapon is used

which covers lesser included offenses and self-defense.”                              The

parties    were   in   agreement     that     the    possible        lesser    included

offenses were second degree murder and voluntary manslaughter;

involuntary manslaughter was excluded.                      The trial court also

indicated    it    “intend[ed]        to     give     all     of      the     potential

parenthetical     issues     for     the     jury     under    the     second       issue

regarding self-defense[]” such as size, age, and strength of the

defendant.        Neither    party         took     issue     with     the     proposed

instructions.

    Thereafter,        the   trial     court        instructed       the     jury    with

respect to first degree murder and self-defense, excluding a no

duty to retreat instruction and including an initial aggressor

instruction.
                              -12-
    Defendant did not object to the jury instructions at trial.

Yet, in the first two issues on appeal, defendant contends the

trial court plainly erred in instructing the jury with respect

to first degree murder.    Specifically, defendant contends the

trial court should have given a no duty to retreat instruction

and should not have issued an initial aggressor instruction.

    As provided in the appellate rules,

         [i]n criminal cases, an issue that was not
         preserved by objection noted at trial and
         that is not deemed preserved by rule or law
         without any such action nevertheless may be
         made the basis of an issue presented on
         appeal when the judicial action questioned
         is specifically and distinctly contended to
         amount to plain error.

N.C.R. App. P. 10(a)(4)   (2014).    The North Carolina Supreme

Court “has elected to review unpreserved issues for plain error

when they involve either (1) errors in the judge’s instructions

to the jury, or (2) rulings on the admissibility of evidence.”

State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).

         For error to constitute plain error, a
         defendant    must    demonstrate   that   a
         fundamental error occurred at trial.     To
         show that an error was fundamental, a
         defendant must establish prejudice that,
         after examination of the entire record, the
         error had a probable impact on the jury's
         finding that the defendant was guilty.
         Moreover, because plain error is to be
         applied   cautiously   and    only  in  the
         exceptional case, the error will often be
         one that seriously affects the fairness,
                                          -13-
             integrity or public reputation of judicial
             proceedings[.]

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(citations and quotation marks omitted).

                  Lack of a No Duty to Retreat Instruction

       Defendant first argues the trial court plainly erred in

failing to give a no duty to retreat instruction as part of the

instructions       on    self-defense     because        such    an    instruction       was

mandated     by    the    evidence.       While    we     hold    the    trial    court’s

failure to give a no duty to retreat instruction was erroneous,

it was not plain error.

       “Where the defendant's or the State's evidence when viewed

in the light most favorable to the defendant discloses facts

which are ‘legally sufficient’ to constitute a defense to the

charged crime, the trial court must instruct the jury on the

defense.          If     an     instruction       is     required,       it      must     be

comprehensive.”           State v. Everett, 163 N.C. App. 95, 100, 592

S.E.2d 582, 586 (2004) (quotation marks and citations omitted).

       In   this        case,   the     trial     court        instructed     the       jury

concerning        self-defense.           This         Court     has    stated,         “[a]

comprehensive          self-defense      instruction         requires     instructions

that   a    defendant      is   under    no   duty      to   retreat     if   the   facts

warrant it, and it is error for the trial court not to give this
                                   -14-
instruction if it is requested.”          State v. Davis, 177 N.C. App.

98, 102, 627 S.E.2d 474, 477 (2006) (citing Everett, 163 N.C.

App. at 100, 592 S.E.2d at 586).          “Where a defendant's right to

stand his ground and shoot an assailant in self-defense is a

‘substantial feature’ of a defense, it is error for the trial

court to fail to give the instruction, even in the absence of a

special   request   therefor.”      Id.   at   103,    627   S.E.2d    at   478

(quotation marks omitted).

           “There is no duty to retreat when (1) the
           person assaulted is confronted with an
           assault that threatens death or great bodily
           harm or (2) the person assaulted is not
           confronted with an assault that threatens
           death or great bodily harm and the assault
           occurs in the dwelling, place of business,
           or   premises   of  the   person   assaulted,
           provided the person assaulted is free from
           fault in bringing on the difficulty.”

Everett, 163 N.C. App. at 100, 592 S.E.2d at 586 (quoting State

v. Allen, 141 N.C. App. 610, 618-19, 541 S.E.2d 490, 497 (2000),

disc.   review   denied,   353   N.C.   382,   547    S.E.2d   816    (2001)).

“‘[A] person is not obliged to retreat when he is assaulted

while in his dwelling house . . . whether the assailant be an

intruder or another lawful occupant of the premises.’”                 Id. at

100-01, 592 S.E.2d at 586 (quoting State v. Browning, 28 N.C.

App. 376, 379, 221 S.E.2d 375, 377 (1976)).
                                  -15-
    In   support   of   her   argument   that   a   no   duty   to   retreat

instruction was mandated by the evidence, defendant compares the

facts of her case to those in State v. Everett, 163 N.C. App.

95, 592 S.E.2d 582 (2004).

    In Everett, the defendant was convicted of second degree

murder for shooting her husband in their home.            Id. at 96, 592

S.E.2d at 584.     During the trial, the defendant claimed self-

defense and specifically requested an instruction that she had

no duty to retreat.     The trial court, however, refused to give

the instruction while instructing the jury on self-defense.              Id.

at 99, 592 S.E.2d at 586.      On appeal, this Court summarized the

evidence as follows:

          In the case before us, the evidence shows
          that the argument and altercation that
          occurred between Everett and defendant began
          when   Everett    returned    home    and   asked
          defendant if she had brought all of her
          things   back   from    her    mother's    house.
          Everett and defendant began to argue and
          Everett pushed defendant down onto the couch
          after   she   announced     she    was   leaving.
          Everett held defendant down by placing his
          hand on her neck and his knee in her
          shoulder.      As   Everett     was   restraining
          defendant, he told her that the only way she
          would leave the house would be on a
          stretcher. Everett got up and went into the
          kitchen. Defendant grabbed the gun in order
          to keep Everett off of her.             Defendant
          walked towards the kitchen and Everett
          threatened to go get his gun and “kill
          everything in here.” Defendant fired the gun
                                        -16-
            only after Everett started coming towards
            her. She initially fired a warning shot but
            Everett continued in her direction.     She
            then shot him several times as he was going
            down the hallway because she feared he was
            going to get the other gun.

Id. at 101, 592 S.E.2d at 587.

      Guided by our prior decision in State v. Brown, 117 N.C.

App. 239, 450 S.E.2d 538 (1994) (ordering a new trial because

the defendant was entitled to a no duty to retreat instruction),

this Court granted the defendant in Everett a new trial, holding

the defendant was entitled to a no duty to retreat instruction

because   “[t]he    evidence     in     the    case    .    .   .   [was]   legally

sufficient    to   support   a   conclusion      that      [the]    defendant    was

attacked by her husband in her own home and that she was not at

fault.”     Everett, 163 N.C. App. at 102, 592 S.E.2d at 587.                     In

coming to its conclusion, this Court noted that in both Brown

and Everett there were histories of domestic problems, killings

in the marital home after the defendants attempted to leave, and

the   defendants    did   not    kill    until   the       threat   of   death   was

imminent.    Id.

      In response to defendant’s argument, the State attempts to

distinguish the present case from Everett and Brown on the basis

that there was no immediacy to the threat to defendant where the

victim had left the defendant and returned to his own bedroom.
                                         -17-
The State further asserts there was no evidence that defendant

simply stood her ground or failed to retreat, but that defendant

took affirmative action and pursued the victim.

       Although we agree with the State that the present case is

distinguishable from Everett and Brown, we hold the evidence,

when   viewed   in    the    light     most     favorable   to    the     defendant,

mandated a no duty to retreat instruction, even absent a special

request.     Self-defense was a substantial feature of defendant’s

case and evidence was presented tending to show that the victim

assaulted    and     threatened        defendant     in   their    home,     leading

defendant to fear for her life.               On these facts, the trial court

erred by failing to give an instruction that defendant had no

duty to retreat.

       Yet, we are not convinced the trial court’s failure to give

the instruction in question amounts to plain error.                        Defendant

cites State v. Davis, 177 N.C. App. 98, 627 S.E.2d 474 (2006),

to argue the error was sufficiently prejudicial.                       In Davis this

Court held that where the defendant’s “right to stand his ground

was at least a ‘substantial feature’ of his defense of self-

defense[]” and “[t]he jury found the defendant guilty of second

degree murder[,]” the trial court’s failure to instruct the jury

that   the   defendant      had   no    duty    to   retreat     was    plain   error
                                      -18-
entitling the defendant to a new trial.                Id. at 103, 627 S.E.2d

at   478.      This    Court    reasoned     that,   based   on    the     record,

“[w]ithout an instruction that [the] defendant had the right to

stand his ground when met with deadly force, the jury may have

believed that [the] defendant acted with malice, requiring it to

return a verdict of guilty of second degree murder.”                 Id.

       In this case, the jury convicted defendant of first degree

murder on the basis of premeditation and deliberation.                       Thus,

the jury not only determined the defendant acted with malice,

but defendant acted with premeditation and deliberation.                     While

self-defense     and   defendant’s     right   to    stand   her   ground     were

substantial      features      of   defendant’s      case,   given    that     the

evidence of defendant’s guilt was so substantial that the jury

found defendant guilty of first degree murder based on malice,

premeditation and deliberation, we find the trial court’s error

did not have a “probable impact on the jury’s finding that the

defendant was guilty.”         Lawrence, 365 N.C. at 518, 723 S.E.2d at

334.    Instead, a review of the entire record reveals compelling

evidence against defendant supporting the jury’s determination

that     defendant      acted       with     malice,      premeditation        and

deliberation.

            Instruction on Defendant as the Initial Aggressor
                                      -19-
      Defendant next argues the trial court erred by giving an

instruction about the extent to which defendant was the initial

aggressor.      Defendant contends there was no evidence to support

such an instruction.

      “The prime purpose of a court’s charge to the jury is the

clarification of issues, the elimination of extraneous matters,

and a declaration and an application of the law arising on the

evidence.”      State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186,

191   (1973),    cert.    denied,   418   U.S.   905,   41   L.   Ed.   2d   1153

(1974).    “[A] trial judge should not give instructions to the

jury which are not supported by the evidence produced at the

trial.”   Id.

      Regardless     of     whether       the    evidence     supported      the

instruction about defendant as the initial aggressor in this

case, the instruction did not amount to plain error.                     As our

Supreme Court has explained,

           [t]he    first-aggressor     instruction    is
           relevant    to  the   finding   of   voluntary
           manslaughter.      The jury would consider
           whether defendant was the aggressor if it
           first found that defendant killed because
           [s]he believed it necessary to kill in order
           to save [her]self and that defendant's
           belief was reasonable. In finding defendant
           guilty of first-degree murder, the jury must
           have found that defendant acted without just
           cause    or    excuse   and    with    malice,
           specifically intending to kill the deceased
                                       -20-
           after premeditation and with deliberation.

           Thus, by finding both that the killing was
           without just cause or excuse and with
           malice, the jury must have found either that
           defendant did not believe it was necessary
           to kill . . . in order to save [her]self
           from death or great bodily harm or that, if
           [s]he did, such a belief was not reasonable
           under the circumstances.    Having so found,
           the jury never reached the question whether
           defendant was the aggressor in bringing on
           the affray; or, if the jury did reach it,
           the answer became immaterial.   Any error in
           the   instruction  on   the   first-aggressor
           theory must have been harmless.

State v. Reid, 335 N.C. 647, 672-73, 440 S.E.2d 776, 790 (1994)

(citations omitted).

                              3. Character Evidence

      In the final issue on appeal, defendant argues the trial

court erred by failing to sustain her objection to, or grant her

motion to strike, evidence about her prior bad acts.                     Defendant

contends this alleged error was prejudicial and she is entitled

to a new trial.       Upon review of the transcript, we disagree.

      Pursuant   to     the    North   Carolina     Rules   of   Evidence,        only

relevant evidence is admissible.              N.C. Gen. Stat. § 8C-1, Rule

402   (2013).     “‘Relevant      evidence’     means      evidence    having      any

tendency   to    make     the    existence     of    any    fact      that   is    of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.”                    N.C. Gen.
                                              -21-
Stat. § 8C-1, Rule 401 (2013).                   Rule 404(b) provides “[e]vidence

of other crimes, wrongs, or acts is not admissible to prove the

character      of     a    person       in   order   to    show    that    he    acted     in

conformity therewith.”                  N.C. Gen. Stat. §           8C-1, Rule 404(b)

(2013).

    The evidence defendant challenged as improper under N.C.

Gen. Stat. § 8C-1, Rule 404(b) was admitted into evidence during

testimony by Valerie Johnston, a co-worker of the victim.                                When

questioned      by    the       State    about   whether     she    was    aware    of   the

status    of    the       victim’s      relationship       with    defendant,      Johnston

answered affirmatively and testified the victim had told her on

29 June 2010 that he was filing for divorce.                              When the State

sought clarification that the victim had informed Johnston he

filed for divorce on 28 June 2010, Johnston stated:

               [The victim] went to talk to the lawyer,
               then he said he had to go to the courthouse,
               and that [defendant] saw him when he was
               gone, when he was at the court. He mentioned
               that -- some information about previous
               problems they had that she believed she had
               stolen some articles --

As soon as Johnston mentioned stolen articles, defense counsel

objected and moved to strike the testimony.                            When the trial

court    inquired         as    to   the     basis   for    the    objection,      defense

counsel responded:

               Judge,      it    was    my   understanding        before    we
                                      -22-
            started the trial that there was not going
            to be a tender or offer of any 404(b)
            [e]vidence.   I would contend that where she
            is going now would be that and if, in fact,
            that’s the case, then I would request a voir
            dire and see what she is going to say.

The trial court then conducted a voir dire, during which the

State    made   clear   it   did    not   intend    to   elicit   testimony    of

defendant’s prior conduct or pending lawsuits; instead the State

sought only to inquire about the marriage.               In response, defense

counsel indicated he “thought that was [the State’s] position[]”

but “had to object because that’s where we were going.”                      Both

parties then informed the court that they were “happy to just

move forward with the jury.”

       Citing State v. Alford, 339 N.C. 562, 572, 453 S.E.2d 512,

517 (1995) (holding the trial court technically erred in failing

to rule on an objection to an argument because failing to rule

was tantamount to overruling the objection, but determining the

error to be harmless), defendant now argues that, although no

further    testimony      about    her    prior    bad    acts    was   elicited

following the voir dire, the trial court’s failure to rule on

her objection and motion to strike was tantamount to overruling

her objection and denying her motion to strike, thereby allowing

the jury to consider the evidence.                Defendant further contends

this    alleged   error   was     prejudicial     because   the   evidence    was
                                           -23-
irrelevant to the issue of whether she was guilty of the crimes

charged and tended to suggest she was a bad person who was

predisposed to commit other criminal acts.

       Although Johnston’s statement was irrelevant to the issue

of defendant’s guilt of first degree murder and larceny of a

firearm, we hold the trial court’s failure to explicitly rule on

defendant’s objection and motion to strike was not tantamount to

a     decision     to     overrule      defendant’s              objection      and     deny

defendant’s      motion     to    strike    in      this     case.      The    transcript

reveals that the trial court adequately addressed defendant’s

concerns    during      the      voir   dire      and      did    not   make    a     ruling

following the voir dire because the defense indicated it was

“happy to just move forward with the jury.”                          It is conceivable

that, where the challenged evidence was a single statement which

would not be pursued further, the decision to “move forward with

the    jury[]”    was   a     strategic     move        by   the     defense    to    avoid

revisiting, and thereby highlighting, Johnston’s testimony.

       Moreover,    assuming       error,      we    hold     the    brief     mention   of

stolen articles was harmless error given the evidence against

defendant.       In fact, the trial court’s inquiry in the voir dire

resolved the issue and served the same purpose as sustaining
                                -24-
defendant’s   objection,    since   no   further   testimony   about

defendant’s prior bad acts was introduced before the jury.

                           III. Conclusion

    For the reasons discussed above, we hold defendant received

a fair trial free of prejudicial error.

    No prejudicial error.

    Chief Judge MARTIN and Judge ERVIN concur.

    Report per Rule 30(e).
