An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-560
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 18 November 2014


STATE OF NORTH CAROLINA

      v.                                      Rockingham County
                                              No. 12 CRS 053123, 053125
JOSEPH WOODROW TURNER



      Appeal by defendant from judgments entered 1 October 2013

by Judge     L. Todd Burke        in Rockingham       County Superior Court.

Heard in the Court of Appeals 22 October 2014.


      Roy Cooper, Attorney General, by Yvonne B. Ricci, Assistant
      Attorney General, for the State.

      Law Offices of John            R.   Mills,     by    John   R.   Mills    for
      defendant-appellant.


      STEELMAN, Judge.


      Defendant failed to demonstrate that evidence admitted at

trial was prejudicial.          As such, the admission of this evidence

did not rise to the level of plain error.                 Where the defendant’s

intoxicated and disruptive conduct occurred in the front yard of

a private residence, the trial court erred in not dismissing

this charge.
                                           -2-
                    I. Factual and Procedural Background

      On    17    September      2012,     Elsie    Turner      (Ms.    Turner)     was

attacked in the front yard of the residence she shared with her

son, Jamie Turner.          Both of her sons, Jamie Turner (Jamie) and

Joseph Turner (defendant) were present when the attack occurred.

Jamie and defendant had been drinking that day.                        The assailant

had knocked Ms. Turner to the ground and repeatedly struck her

about the head.       A passerby notified authorities of the attack.

      Steven Hunter (Hunter), a parole officer, was the first to

arrive at Ms. Turner’s home.                Jamie and defendant were in the

front yard, and defendant was standing over Ms. Turner.                          Hunter

did   not   witness       the   assault,    but    testified     that     defendant’s

hands were red.           Defendant asserted that he had been checking

Ms. Turner for injuries.

      Officer John Deane (Officer Deane) spoke with Ms. Turner at

her residence.        At that time, she said that she was unsure of

whether     Jamie    had    attacked       her,    but   she    was    certain     that

defendant did not attack her.                    Ms. Turner had serious brain

injuries    and     was    treated   overnight      at   a     hospital    for    brain

hemorrhages.        At trial, she testified that defendant hit her in

the jaw and repeatedly kicked her in the head.
                                           -3-
      As     Hunter     entered      the     property,       defendant     approached

Hunter, pointing and clenching his fist.                     Hunter told defendant

to stop.        Defendant then repeatedly called Hunter a “nigger” and

swore at him, telling Hunter to get off the property.                               When

defendant repeatedly ignored               Hunter’s instructions to desist,

Hunter pepper sprayed defendant.

      Defendant then went inside the residence, into the kitchen,

and   used      water   to   clean     the    pepper     spray    from     his     eyes.

Officers misunderstood his statement, that “I am cleaning my

eyes,”     to    be   “cleaning   my       knives,”    and    arrested     defendant.

Defendant       resisted     being     handcuffed.           During      the    arrest,

officers smelled alcohol on his breath.

      Defendant was taken outside and placed in a lawn chair.

While outside, he informed officers he was a member of the Ku

Klux Klan.        He remained uncooperative when paramedics attempted

to treat him for a cut he had received during the arrest.

      Defendant was charged with assault with a deadly weapon

with intent to kill inflicting serious injury with respect to

Ms. Turner, intoxicated and disruptive conduct with respect to

his use of loud and profane language during his arrest, and

resisting a public officer.1               He was found guilty on all three



1
    Defendant     was also    charged       with   interfering with            emergency
                                         -4-
charges by the jury.         Defendant was sentenced to an active term

of 110-144 months imprisonment on the assault charge, 20 days

imprisonment on the intoxicated and disruptive charge, and 60

days imprisonment on the resisting a public officer charge, to

be served consecutively.

    Defendant appeals.

                               II. Plain Error

    In     his    first,     second,     and    third   arguments,   defendant

contends   that    the     trial   court   committed    plain   error   (1)   in

permitting the State to ask defendant whether he was calling the

State’s    witness   a     liar;   (2)     in   admitting   Detective   Webb’s

testimony that defendant refused to speak while in custody; and

(3) in admitting evidence of defendant’s use of racial epithets

and references to his membership in the Klan.               We disagree.

                            A. Standard of Review

    We 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).

            [T]he plain error rule ... is always to be
            applied   cautiously   and  only   in   the
            exceptional case where, after reviewing the


communication. At the close of the State’s evidence, the court
dismissed this charge.
                              -5-
         entire record, it can be said the claimed
         error is a “fundamental error, something so
         basic, so prejudicial, so lacking in its
         elements that justice cannot have been
         done,” or “where [the error] is grave error
         which amounts to a denial of a fundamental
         right of the accused,” or the error has
         “‘resulted in a miscarriage of justice or in
         the denial to appellant of a fair trial’” or
         where the error is such as to “seriously
         affect the fairness, integrity or public
         reputation of judicial proceedings” or where
         it can be fairly said “the instructional
         mistake had a probable impact on the jury's
         finding that the defendant was guilty.”

    State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326,

333 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d

375, 378 (1983)).

           B. State’s Cross-Examination of Defendant

    First, defendant contends that the trial court committed

plain error by permitting the State to ask defendant whether the

State’s witness was a liar.   Specifically, defendant testified

that his brother, not defendant, was the assailant.     The State

then asked defendant about the testimony of Hunter: “Now, this –

this gentleman, with all his training and experience as a police

officer and probation officer, was he lying?”   The State later

asked about Hunter again: “We’ve got a probation officer who

testified, former Greensboro police officer who said you were

advancing toward him in an aggressive manner.     That’s a lie,
                                        -6-
right?”      The State also asked defendant, with regard to the

testimony of Sgt. Earles, an officer who examined Jamie’s knife:

“Do you know why that – so when Sgt. Earles was testifying there

was no blood on that knife, he was lying, too, wasn’t he?”                          At

no point did defendant object to these questions, and our review

is limited to plain error.

      We have held that it is highly improper to ask a witness

whether another witness is lying.                State v. Campbell, 30 N.C.

App. 652, 656, 228 S.E.2d 52, 55 (1976).                  We held, in Campbell,

that it is for the jury, not another witness, to determine the

credibility of witnesses.        Id.

      Defendant    compares      this     case     with    that      of   State     v.

Locklear,    294   N.C.   210,   241    S.E.2d     65    (1978),     in   which   the

prosecutor accused a defense witness of perjury.                     In that case,

our   Supreme   Court     held   that    such    an     accusation    was   grossly

improper, and granted a new trial.                    However, in the instant

case, the State did not accuse defendant of lying; rather, it

asked   defendant,    rhetorically,       to     compare    his    testimony      with

conflicting testimony from other witnesses.

      Even   assuming     arguendo      that    the     State’s    inquiries      were

improper,    however,     defendant     has     presented     no    argument      that

suggests that, absent these questions, the jury would probably
                                      -7-
have   reached   a   different   verdict.         Even    absent   the    State’s

active contrast of defendant’s testimony with that of Hunter and

Sgt.   Earles,   the   jury   heard   and   was    able    to   rely     upon   the

testimony of all three witnesses.            We hold that defendant has

not shown that these questions prejudiced his case.                    The trial

court did not commit plain error.

       This argument is without merit.

            C. Commenting on the Right to Remain Silent

       Second, defendant contends that the trial court committed

plain error in permitting Detective Webb to testify concerning

defendant’s exercise of his right to remain silent.

       At trial, Detective Webb testified:

           After the initial visit, I did leave the
           hospital, come back to Rockingham County,
           stopped at the crime scene and then I
           proceeded to the sheriff's office.

           I went back into the jail area to speak with
           Mr. Turner. I always like to give them the
           option if they would like to give a
           statement, or if they would like to provide
           additional information, check on his well-
           being.

           I did step back over to the jail to see if
           everything was okay back there. Mr. Turner
           did not wish to speak with me at that point
           in time.

       Defendant did not object to this testimony at trial.                     On

appeal, defendant contends that this testimony was an improper
                                         -8-
comment on defendant’s exercise of his right to remain silent,

and that the trial court committed plain error in admitting it.

     A     defendant’s         post-arrest      silence   is   inadmissible     as

substantive evidence.             Doyle v. Ohio, 426 U.S. 610, 619, 49

L.Ed.2d 91, 98 (1976); State v. Mendoza, 206 N.C. App. 391, 395,

698 S.E.2d 170, 174 (2010).             The bar on admitting such evidence

includes any comment on a defendant’s silence.                    State v. Ward,

354 N.C. 231, 266, 555 S.E.2d 251, 273 (2001).

     Even assuming arguendo that the admission of this testimony

was an improper remark on defendant’s silence, defendant has

failed to show that this prejudiced his case before the jury.

Defendant’s       bare    contention     that    “[t]he    jury   likely   viewed

[defendant]’s refusal to talk to Detective Webb as evidence that

he   was    guilty”       is    insufficient,     when    contrasted   with    the

eyewitness testimony of officers and those present during the

assault,     to    rise    to    the    level    of   prejudice    necessary    to

establish plain error.             We hold that the trial court did not

commit plain error in admitting Detective Webb’s testimony.

     This argument is without merit.

           D. Evidence of Racial Epithets and Klan Membership

     Third, defendant contends that the trial court committed

plain    error    in     admitting     into    evidence   testimony    concerning
                                          -9-
statements made by defendant during his arrest, consisting of

racial epithets and his assertion of Klan membership.

       At trial, Hunter testified about defendant’s use of racial

epithets during his arrest.               An officer testified that, during

his arrest, defendant stated that he was a member of the Ku Klux

Klan.     Defendant contends that these facts were not relevant to

the     case    before     the    jury,    and    “evoked       some    of     the      most

incendiary issues in our State’s history.”                      Defendant failed to

object to this testimony at trial, and contends on appeal that

the trial court committed plain error in admitting it.

       Irrelevant evidence is not admissible.                      N.C. R. Evid. 402.

Even    if     evidence      is   relevant,      it    may    be     excluded    if     its

probative value is substantially outweighed by the danger of

unfair prejudice.            N.C. R. Evid. 403.             Defendant contends that

his use of racial epithets and membership in the Klan is not

relevant,      and    that    even   if   it    were    relevant,      the     danger    of

unfair prejudice substantially outweighs any probative value of

the comments made during his arrest.

       Even     assuming      arguendo    that        the    trial    court     erred    in

admitting      this    testimony,     however,         defendant      has     once    again

failed to show prejudice.                 The evidence at trial shows that

defendant was present during the assault of his mother, and that
                                     -10-
defendant swore at officers and resisted arrest.                Even in the

absence of the statements at issue, there was ample evidence

from which the jury could determine defendant’s guilt.                We hold

that the trial court did not commit plain error in admitting

these statements.

    This argument is without merit.

                II. Intoxicated and Disruptive Conduct

    In his fourth argument, defendant contends that the trial

court   erred   in   denying   his   motion    to   dismiss   the   charge   of

intoxicated and disruptive conduct.           We agree.

                         A. Standard of Review

    “This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).

    “‘Upon defendant’s motion for dismissal, the question for

the Court is whether there is substantial evidence (1) of each

essential element of the offense charged, or of a lesser offense

included therein, and (2) of defendant’s being the perpetrator

of such offense. If so, the motion is properly denied.’” State

v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting

State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)),

cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).
                                          -11-
                                     B. Analysis

      Defendant contends that the trial court should have granted

his motion to dismiss the charge of intoxicated and disruptive

conduct,     due   to     the   fact    that     the    location     of     the   alleged

offenses was not a public place.

      N.C.    Gen.      Stat.    §     14-444,    under      which    defendant       was

sentenced, provides in relevant part:

             (a) It shall be unlawful for any person in
             a public place      to be intoxicated and
             disruptive in any of the following ways:

             . . .

             (3) Grabbing, shoving, pushing or fighting
             others or challenging others to fight, or

             (4) Cursing or shouting                   at   or    otherwise
             rudely insulting others[.]

N.C. Gen. Stat. § 14-444(a) (2013) (emphasis added).

      A public place is defined to be “[a]ny location that the

local, state, or national government maintains for the use of

the   public,      such    as   a    highway,     park,      or    public    building.”

Black’s Law Dictionary 1351 (9th Ed. 2009).                       We have previously

held that an altercation which took place in the front yard of a

group home for juveniles               was private property,              and that the

trial court in that case erred in denying a motion to dismiss.

In re May, 153 N.C. App. 299, 303, 569 S.E.2d 704, 708 (2002).
                                   -12-
In   the   instant   case,   as   in   May,   all   interactions   between

defendant and police officers occurred in the front yard of a

private residence.     We hold that this was not a location “that

the . . . government maintains for the use of the public,” and

that it was not a public place.           Accordingly, the State failed

to demonstrate that defendant’s conduct occurred in a public

place, and the trial court erred in denying defendant’s motion

to dismiss the charge of intoxicated and disruptive conduct.           We

reverse the trial court’s judgment on that charge.

      NO ERROR IN PART, REVERSED IN PART.

      Judges CALABRIA and McCULLOUGH concur.

      Report per Rule 30(e).
