An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-297
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 2 December 2014


STATE OF NORTH CAROLINA

      v.                                      Mecklenburg County
                                              No. 12CRS230845
JAMES RONALD SNIPES



      Appeal by Defendant from judgment entered 14 August 2013 by

Judge Linwood O. Foust in Mecklenburg County Superior Court.

Heard in the Court of Appeals 10 September 2014.


      Attorney General Roy A. Cooper, III, by Assistant Attorney
      General Lauren T. Earnhardt, for the State.

      Wait Law, P.L.L.C., by John L. Wait, for Defendant.


      DILLON, Judge.


      James Ronald Snipes (“Defendant”) appeals from a judgment

entered upon a jury verdict finding him guilty of failing to

register as a sex offender.

                                 I. Background

      The evidence tended to establish the following:                   Defendant

pleaded    guilty     to   second-degree       rape    in   1995.       In    2008,

Defendant signed a form acknowledging his obligation under the
                                          -2-
sexual offender registration law to update his address on file

with   the    Sheriff’s       Office    within       three   days    of   a    change     of

address.

       In 2012, a deputy with the Mecklenburg County Sheriff’s

Office attempted to locate Defendant at his Mecklenburg County

address that was on file at the Sheriff’s Office.                         However, the

deputy   discovered          that    Defendant       no    longer    resided     at     that

location.         Further,     there    was     no    record    of    Defendant         ever

updating his address with the Sheriff’s Office.

       Defendant       was    indicted     for       the     felonious        failure     to

register     as    a   sex    offender.       Defendant        pleaded    not     guilty,

declining to stipulate to his 1995 rape conviction.                             Defendant

was tried by a jury, who found him guilty of the charge.                                The

trial court sentenced him to imprisonment for twenty-five to

thirty-nine months.            Defendant filed his notice of appeal in

open court.

                                     II. Analysis

       In Defendant’s sole argument on appeal, he contends that

the trial court erred by making certain remarks                           during jury

selection which had the effect of relieving the State of its

burden   of       proving     that    Defendant       had    been    previously         been

convicted of a reportable offense.                        While we agree that the
                                        -3-
trial court’s comments were erroneous, Defendant must show that

the error was prejudicial.          He has failed to meet this burden.

      Defendant    was    convicted     for   willfully          failing        to   comply

with the sex offender registration law, codified at N.C. Gen.

Stat. § 14-208.11.         One of the elements of that crime is that

the   defendant    had    previously     been    convicted          of    a     reportable

offense which required the defendant to register.                          Id.       In the

present case, Defendant did not stipulate as to this element.

Accordingly,      the    State   bore   the   burden        of   proving         beyond   a

reasonable doubt that Defendant had committed a crime requiring

him to register.

      Defendant     argues       that   the     trial       court        made    improper

comments during jury selection which amounted to the court’s

opinion   that     Defendant      had   committed       a    reportable           offense.

Specifically, Defendant points to the following colloquy between

a potential juror and the trial court:

           THE COURT: Do either of you know any reason
           why you can’t sit on this jury where the
           defendant   is   charged  with   failing to
           register as a sex offender? Can you be fair
           to both the State and the defendant?

           JUROR NO. 6: I – one of the questions that
           was asked was if you checked the registry.
           I do.   I work as a secretary at a school.
           That’s part of my responsibilities [sic] so
           I do check it regularly.   And I have very
           close family members and friends who are
                                      -4-
            victims of sexual abuse.

            THE COURT: Okay. This defendant is charged
            with failure to register as a sex offender.
            So one thing that is – you can take it as
            true that the defendant has been convicted
            of being a sex offender.   Is there anything
            about that, that he is a sex offender, that
            would cause you not to be able to be fair to
            him and the State in determining another
            issue, which would be whether or not he
            registered?

            JUROR NO. 6: To be honest, I don’t think so
            because it’s a, frankly, closeness I have
            with family members and friends. And I know
            what they went through.

            THE COURT:   All right. You may stand down.

(emphasis added).

      We follow the well-established rule that a trial court may

not assume the existence of a material fact in                  controversy.

N.C. Gen. Stat. § 15A-1232 (2013); State v. Cuthrell, 235 N.C.

173, 174, 69 S.E.2d 233, 234 (1952).            This rule applies not only

to   the   court’s   charge   to   the   jury    after   the   close   of   the

evidence,    but   throughout   the   proceedings,       beginning   with   the

court’s preliminary qualification of jurors.               State v. Canipe,

240 N.C. 60, 64, 81 S.E.2d 173, 176-77 (1954).              Nonetheless, the

existence of a single errant statement by the trial court does

not necessarily compel a new trial.             State v. Foster, 284 N.C.

259, 276, 200 S.E.2d 782, 795 (1973).              Instead, “an appellate
                                        -5-
court    must    consider       the     circumstances        under   which   the

instructions     were    made     and     the    probable      impact   of   the

instructions on the jury.”            State v. Alston, 294 N.C. 577, 593,

243 S.E.2d 354, 364-65 (1978).

    An impermissible expression of opinion on the evidence is

fully reviewable on appeal regardless of a defendant’s failure

to raise an objection at trial and preserve the issue.                  State v.

Young,   324    N.C.   489,   494,     380    S.E.2d   94,   97   (1989).    The

defendant bears the burden of demonstrating that the remarks of

the trial judge were prejudicial.             State v. Lofton, 66 N.C. App.

79, 84-85, 310 S.E.2d 633, 636-37 (1984).               That is, “[a] remark

by the court is not grounds for a new trial if, when considered

in the light of the circumstances under which it was made, it

could not have prejudiced defendant’s case.”                 State v. King, 311

N.C. 603, 618, 320 S.E.2d 1, 11 (1984).

    Defendant cites State v. Swaringen, 249 N.C. 38, 105 S.E.2d

99 (1958), for the proposition that the establishment of an

element of a crime by the trial court entitles the defendant to

a new trial, arguing that the court’s errant remark in this case

relieved the State of its burden to prove the existence of the

underlying sexual offense, an element of the crime of failing to

register.      In Swaringen, the defendant was charged with driving
                                         -6-
while intoxicated and the court instructed the jury that “the

defendant [] was the driver of the vehicle,” thus removing one

of the facts controverted by the defendant’s plea of not guilty

from the jury’s determination.            Id. at 40-41, 105 S.E.2d at 101.

Accordingly, our Supreme Court concluded that the defendant was

entitled to a new trial.           Id. at 41, 105 S.E.2d at 101.

      Of the fifteen cases cited in Defendant’s brief, in only

one   was    a    new   trial   granted    because   the   trial   judge    made

inappropriate remarks during jury selection.                 See Canipe, 240

N.C. at 65-66, 81 S.E.2d at 177-78.            In Canipe, to ascertain the

potential        jurors’   views    on    capital    punishment,   the     judge

referenced two examples of particularly horrendous and highly

publicized crimes and asked the potential jurors whether they

believed capital punishment would have been appropriate in those

cases.      Id. at 60-62, 81 S.E.2d at 174-76.             Although the judge

was cautious to disclaim any comparison of the facts of those

cases to the one at bar, our Supreme Court granted the defendant

a new trial, explaining that

             the questions had a logical tendency to
             implant in the minds of the trial jurors the
             convictions   that   the    presiding  judge
             believed that the prisoner had killed his
             wife in an atrocious manner, that the
             prisoner was guilty of murder in the first
             degree, and that the prisoner ought to
             suffer death for his crime.
                                          -7-


Id. at 65, 81 S.E.2d at 178.              Thus, our Supreme Court in Canipe

concluded that the very nature of the questions in that case

were such that the prejudice resulting from them was immediate

and incurable.        See id. at 66, 81 S.E.2d at 178.

      However, in the overwhelming majority of cases where the

appellate courts of this State have granted new trials based on

the   improper       expression     of    judicial       opinion,    the     erroneous

expression        occurred    during     the   jury     charge,   not     during     jury

selection.        See, e.g., State v. Mason, 268 N.C. 423, 425, 150

S.E.2d 753, 755 (1966); State v. Mitchell, 260 N.C. 235, 238-39,

132 S.E.2d 481, 483 (1963); State v. Covington, 48 N.C. App.

209, 211-12, 268 S.E.2d 231, 233 (1980).                      The cases cited in

Defendant’s brief bear this out.                  See, e.g., State v. Minton,

228   N.C.    15,    17-18,    44   S.E.2d      346,    348-49    (1947);    State     v.

Ellison, 226 N.C. 628, 631, 39 S.E.2d 824, 827 (1946); State v.

Brinkley, 10 N.C. App. 160, 161, 177 S.E.2d 727, 728 (1970);

State v. Patton, 2 N.C. App. 605, 606-07, 163 S.E.2d 542, 543-44

(1968).      We do not suggest that it is never appropriate to

overturn a jury verdict based on inappropriate questioning by

the trial judge            during jury selection;          indeed, Canipe          is an

example      of     just     such   a    case.         However,     the     burden    of

demonstrating        the     prejudicial       effect    of   the    trial     court’s
                                      -8-
erroneous remarks always remains with the defendant.                  See King,

311 N.C. at 618, 320 S.E.2d at 11.

    We    are   not    persuaded   that     the   trial    judge’s    isolated,

errant   remark    referenced      above    during    jury     selection    was

prejudicial.      Rather, the State offered overwhelming evidence

that Defendant had been convicted of the 1995 rape.                   Defendant

never objected to the introduction of the self-authenticating

indictment,     arrest     warrant,    judgment      and     commitment,    and

transcript of plea agreement for his conviction                  of   the 1995

rape.    Nor did he object to the introduction into evidence of

his signed acknowledgement of his duty to register, or dispute

the authenticity of his signature on a 2005 document that lists

his address as the address which was then on file with the

Sheriff’s Office.        Nor did he object to the introduction of his

signed acknowledgement of the 2008 notice informing him of the

three-day time frame to update changes of address in the sex

offender registry, or dispute the authenticity of his signature

on that document.        Further, in its instruction to the jury, the

trial court was unequivocal that the State bore the burden to

prove beyond a reasonable doubt that “[D]efendant had previously

been convicted of a reportable offense for which the [D]efendant

must register.”       Given the overwhelming, uncontradicted evidence
                               -9-
regarding Defendant’s prior conviction and the jury instruction,

we fail to see how the remark by the trial court during jury

selection could have prejudiced Defendant’s case.     See King, 311

N.C. at 618, 320 S.E.2d at 11.       Accordingly, this argument is

overruled.

                         III. Conclusion

    For the reasons stated above, we conclude that Defendant

received a fair trial, free from prejudicial error.

    NO ERROR.

    Judge HUNTER, Robert C. and Judge DAVIS concur.

    Report per Rule 30(e).
