An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-344
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 October 2014


STATE OF NORTH CAROLINA


      v.                                      Cleveland County
                                              Nos. 12 CRS 56659
                                                  13 CRS 386
ANGELA WELCH HILL


      Appeal by defendant from judgment entered 17 October 2013

by Judge Timothy S. Kincaid in Cleveland County Superior Court.

Heard in the Court of Appeals 11 September 2014.


      Attorney General Roy Cooper by Assistant Attorney General
      Jane L. Oliver for the State.

      Russell J. Hollers III for defendant-appellant.


      STEELMAN, Judge.


      Even assuming arguendo that the trial court erred in its

comments to the jury about the availability of a transcript for

its review, defendant failed to show prejudice as a result of

these comments.

                      I. Factual and Procedural Background
                                         -2-
      In December 2012 Rick Rippy had romantic relationships with

Karen Mobley and with Angela Hill (defendant). On the evening of

3 December 2012 Mr. Rippy, his son, Brandon Huffman, and Ms.

Mobley ate supper together in a camper trailer in the King’s

Mountain area of Cleveland County, North Carolina. After supper

defendant entered the trailer and began arguing and fighting

with Ms. Mobley. In the course of the altercation, Ms. Mobley’s

hand was injured. After the fight, defendant left the trailer

and damaged Ms. Mobley’s car.

      On 11 February 2013 defendant was indicted for the felony

of assault with a deadly weapon inflicting serious injury and

for the misdemeanor of injury to personal property. Defendant

was   tried    before    a   jury   at   the   13   October   2013   Session   of

Criminal      Superior   Court      of   Cleveland    County.   In   her   trial

testimony, defendant admitted committing simple assault on Ms.

Mobley and damaging her car, but denied possessing or using a

knife. Witness testimony was in conflict as to whether defendant

or Ms. Mobley was Mr. Rippy’s current girlfriend at the time of

the incident, and whether it was defendant or Ms. Mobley who

held a knife during the fight. On 17 October 2013 the jury

returned guilty verdicts against defendant for assault with a

deadly weapon inflicting serious injury and injury to personal
                                    -3-
property.   The   trial    court   sentenced   defendant    to   an   active

prison term of 38 to 55 months.

    Defendant appeals.

                          II. Petition for Certiorari

    During the sentencing proceeding, defendant’s trial counsel

informed the trial court that defendant was “adamant that she’s

not guilty” and that “she is going to want to appeal.” However,

defendant neither noted an appeal in open court nor filed a

written notice of appeal. On 25 April 2014 defendant’s appellate

counsel filed a petition for writ of certiorari seeking review

of the judgment entered in this matter. In our discretion, we

grant defendant’s petition for writ of certiorari.

          III. Court’s Statement Concerning Review of Transcript

    Defendant’s sole argument on appeal is that the trial court

violated N.C. Gen. Stat. § 15A-1233(a) by failing to exercise

its discretion regarding whether to allow the jury to review

witness   testimony.   Defendant    contends   that   the   court’s    error

entitles her to a new trial. We disagree.

                            A. Standard of Review

    N.C. Gen. Stat. § 15A-1233(a) provides in part that:

            If the jury after retiring for deliberation
            requests a review of certain testimony or
            other evidence, the jurors must be conducted
            to   the   courtroom.  The   judge  in   his
            discretion, after notice to the prosecutor
            and defendant, may direct that requested
                                         -4-
               parts of the testimony be read to the jury
               and may permit the jury to reexamine in open
               court the requested materials admitted into
               evidence. In his discretion the judge may
               also have the jury review other evidence
               relating to the same factual issue so as not
               to give undue prominence to the evidence
               requested.

       “This statute imposes two duties upon the trial court when

it receives a request from the jury to review evidence. First,

the court must conduct all jurors to the courtroom. Second, the

trial court must exercise its discretion in determining whether

to permit requested evidence to be read to or examined by the

jury[.] . . . Insofar as the statute requires the judge to

exercise discretion, it is merely a codification of the common

law rule.” State v. Ashe, 314 N.C. 28, 34, 331 S.E.2d 652, 656

(1985) (citations omitted). “The trial court must uphold its

duty   to   ‘exercise       its   discretion    in    determining      whether   to

permit   requested     evidence     to   be    read   to    or   examined   by   the

jury[.]’” State v. Presson, __ N.C. App. __, __, 747 S.E.2d 651,

656 (quoting State v. Hinton, __ N.C. App. __ , __, 738 S.E.2d

241, 248 (2013) (quoting Ashe, 314 N.C. at 34, 331 S.E.2d at

656)), disc. review denied, 367 N.C. 274, 752 S.E.2d 150 (2013).

       “When    a   trial   court   violates     this      statutory   mandate    by

denying the jury’s request to review the transcript ‘upon the

ground that the trial court has no power to grant the motion in

its discretion, the ruling is reviewable,’ and the alleged error
                                     -5-
is preserved by law even when the defendant fails to object.”

State v. Starr, 365 N.C. 314, 317, 718 S.E.2d 362, 365 (2011)

(quoting State v. Barrow, 350 N.C. 640, 646, 517 S.E.2d 374, 378

(1999) (internal quotation omitted)).

    However, to obtain relief, a defendant must show prejudice

as a result of the trial court’s error. “This prejudice may be

shown by demonstrating ‘a reasonable possibility that, had the

error in question not been committed, a different result would

have been reached at the trial out of which the appeal arises.’”

Hinton, __ N.C. App. at __, 738 S.E.2d at 248 (quoting N.C. Gen.

Stat. § 15A-1233).

                                B. Analysis

    Just before the jury retired to deliberate, the trial court

stated the following to the jury:

             Just a few things that have commonly come up
             recently and I’ll instruct you as follows.
             Often the juries will ask for the transcript
             of a witness and we can provide that. It’s
             going to take us about four weeks and you’ll
             have   to  be   here  while  we   prepare  a
             transcript and proof read and get it ready
             but we can do that if you want it. Generally
             speaking I deny those requests. It is
             discretionary with the Court but that’s just
             to let you know before you ask how long it
             takes.

    Defendant argues that the trial court erred by warning the

jury that it would have to wait in court for a month in order to

review   a   transcript,   thereby    “chilling   the   jury’s   right   to
                                            -6-
review    trial       testimony”       and     “prevent[ing]           the    jury     from

reviewing” “confusing, contradictory testimony by threatening to

keep   the     jury    in    the    courthouse       for     a    month      waiting   for

preparation of a transcript.” However, defendant does not argue

that   the   court’s        alleged    error      affected       the   outcome    of    the

trial. Therefore, even if we assume that (1) the court erred;

(2) but for the court’s error, the jury would have asked to

review testimony, and; (3) the court would have granted the

jury’s request, defendant has failed to articulate any argument

that   the   jury’s     hypothetical         review    of    testimony        would    have

changed the outcome of the trial.

       Defendant attempts to distinguish the facts of the present

case from those of State v. Johnson, 164 N.C. App. 1, 595 S.E.2d

176 (2004), where we held that the defendant was not prejudiced

by the trial court’s failure to comply with N.C. Gen. Stat. §

15A-1233,      contending      that        “[u]nlike   in        Johnson,     there     was

confusing and contradictory evidence [in this case] that the

jury   would    have    wanted        to   review.”    Assuming,          arguendo,     the

accuracy of defendant’s speculation that the jury would have

wanted to review trial testimony,                   a defendant does not               show

prejudice      simply       based     on    the    existence       of     confusing      or

contradictory testimony:

             The test to determine whether a defendant
             should receive a new trial due to the trial
                                 -7-
          court’s failure to exercise discretion has
          two parts. First, we “must consider if the
          trial   court    failed    to   exercise   its
          discretion.” . . . Second, we must “consider
          whether this error was prejudicial.” The
          error is prejudicial if the testimony was
          “material to the determination of [the]
          defendant’s guilt or innocence.” Testimony
          is material if “the defendant can show that
          (1) such testimony or evidence involved
          issues of some confusion and contradiction,
          and (2) it is likely that a jury would want
          to review such testimony.” If the defendant
          satisfies    this    requirement,    we   will
          determine [if] the error was prejudicial
          because    there    exists    “a    reasonable
          possibility that, had the error in question
          not been committed, a different result would
          have been reached at the trial out of which
          the appeal arises. N.C. Gen. Stat. § 15A-
          1443(a).”

(emphasis added). State v. Hatfield, __ N.C. App. __, __, 738

S.E.2d 236, 239-240 (2013) (quoting State v. Long, 196 N.C. App.

22, 28, 674 S.E.2d 696, 700 (2009) (internal citation omitted),

State v. Johnson, 346 N.C. 119, 126, 484 S.E.2d 372, 377 (1997)

(internal quotation omitted), and Johnson, 164 N.C. App. at 20,

595 S.E.2d at 187 (internal quotation omitted)). Hatfield is

clear that a defendant must demonstrate prejudice resulting from

the court’s error.

    In State v. Starr our Supreme Court first “determined that

there was error and that defendant’s failure to object at trial

did not bar appellate review” and then “consider[ed] whether the

trial   court’s   failure   to    exercise   its   discretion   was
                                             -8-
prejudicial.”          Starr,    365     N.C.    at     319,    718     S.E.2d      at   366.

Although the defendant in Starr argued that the “jury’s review

of [a witness’s] testimony could have reasonably resulted in not

guilty verdicts for Mr. Starr on one or more of the [charges,]”

he   “d[id]      not     explain       how     the     review    of     [the       witness’s]

testimony would have created a reasonable possibility that a

different result would have been reached at his trial.” Id. The

Court     held        that   “Defendant         thus     has     not    demonstrated         a

reasonable possibility that a different result would have been

reached    at    his     trial    had    the    error     not    been       committed”      and

denied the defendant relief based on the trial court’s error.

     In this case, defendant does not even make the conclusory

assertion proffered by the defendant in Starr that review of

trial   testimony        “would       have   created     a     reasonable      possibility

that a different result would have been reached at his trial.”

Defendant       has    failed    to     establish,      or     even    to    put    forth   an

argument, that the trial court’s comments to the jury affected

the ultimate outcome of the trial. As a result, she has not

demonstrated reversible error.

     NO ERROR.

     Judges GEER and DIETZ concur.

     Report per Rule 30(e).
