An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1172
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 19 August 2014


STATE OF NORTH CAROLINA


      v.                                      Gaston County
                                              No. 11CRS007117, 12CRS003437
TARAS M. McGIRTH
     Defendant.


      Appeal by Defendant from judgments entered 16 May 2013 by

Judge James W. Morgan in Gaston County Superior Court.                    Heard in

the Court of Appeals on 24 April 2014.


      Attorney General Roy A. Cooper, III, by Assistant Attorney
      General Matthew L. Boyatt, for the State.

      Bryan Gates, for Defendant-appellant.


      DILLON, Judge.


      Taras M. McGirth (“Defendant”) appeals from convictions for

felony death by vehicle and involuntary manslaughter, arguing

that the trial court erred in denying his motion for a mistrial

based on comments made by a potential juror during the jury

selection.       For   the   following     reasons,     we   find   no   error    in

Defendant’s trial.
                                               -2-
      Defendant was indicted for one count of felony death by

vehicle and one count of second-degree murder.                             He was tried on

these charges at the 13 May 2013 Criminal Session of Gaston

County Superior Court.                The State’s evidence tended to show that

on the night of 10 November 2010, Defendant took prescription

Ambien medication, and the next morning, on 11 November 2010,

Defendant’s vehicle was observed in Gaston County, swerving from

one side of a public highway to another, driving approximately

45   to   50       miles      per    hour,    hitting       mailboxes,        running    other

motorists off the road, and crossing over the center line into

oncoming traffic numerous times.                        At some point, Defendant’s

vehicle crashed head-on into a vehicle driven by Andrew Hovis.

Mr. Hovis died a short time later from “massive blunt force

trauma    .    .    .    to    his    head,    his      chest,       and   his    abdomen[,]”

resulting      from        the       collision.            Following       the     collision,

Defendant tested positive for                      prescription       Ambien      medication.

Expert    testimony           was    presented      that    Defendant       was    “severely”

impaired from Ambien that morning and the manner in which he was

described as driving was consistent with the effects of a person

impaired by ingestion of Ambien.

      Defendant         testified       that       he   took    Ambien     medication        the

night     before        the    accident       to     help      him    sleep      but   had   no
                                        -3-
recollection      of    the     accident.            He     admitted   to    taking

prescription Ambien since 2005.                 He also testified that two

weeks prior to this incident he was standing in his driveway and

then woke up in his neighbor’s house, not remembering how he got

there or what he had being doing for an hour.

    On 16 May 2013, a jury found Defendant guilty of felony

death by vehicle, and the trial court sentenced Defendant to an

active term of 25 to 39 months of imprisonment.1                   Defendant gave

timely     written     notice    of     appeal       from    the   trial    court’s

judgments.

    ___________________________________________________________

    In his only argument on appeal, Defendant contends that the

trial     court   should      have    granted    a    mistrial     following   the

comments from a potential juror during jury selection that her

son was one of the persons following Defendant, Defendant nearly

ran the juror’s son off the road, and Defendant had killed the

victim.    We disagree.

    “It is well settled that the decision of whether to grant a

mistrial rests in the sound discretion of the trial judge and

will not be disturbed on appeal absent a showing of an abuse of

1
     Defendant was also found guilty of involuntary manslaughter
but the trial court arrested judgment and dismissed this
conviction following Defendant’s election to serve an active
sentence for the felony death by vehicle conviction.
                                           -4-
discretion.”        State v. Barts, 316 N.C. 666, 682, 343 S.E.2d 828,

839 (1986), overruled on other grounds by State v. Jackson, 340

N.C. 301, 457 S.E.2d 862 (1995).                  “Abuse of discretion results

where the court’s ruling is manifestly unsupported by reason or

is so arbitrary that it could not have been the result of a

reasoned decision.”            State v. Hennis, 323 N.C. 279, 285, 372

S.E.2d 523, 527 (1988)             (citation omitted).           “The judge must

declare a mistrial upon the defendant’s motion if there occurs

during the trial an error or legal defect in the proceedings, or

conduct     inside        or     outside    the     courtroom,     resulting       in

substantial and irreparable prejudice to the defendant’s case.”

N.C. Gen. Stat. § 15A-1061 (2010).

    Our      Supreme      Court     has    held     that    “[w]hen   a   jury    is

instructed     to     disregard      improperly      admitted     testimony,      the

presumption is that it will disregard the testimony.”                     State v.

McCraw, 300 N.C. 610, 620, 268 S.E.2d 173, 179 (1980).                      “It is

well established in this jurisdiction that if the court properly

withdraws    incompetent         evidence    from    jury    consideration,       and

instructs the jury not to consider it, this cures error in its

admission    in     all    but    exceptional      circumstances.”        State    v.

Miller, 26 N.C. App. 190, 192, 215 S.E.2d 181, 182 (1975).
                                          -5-
    Here,    during      jury      selection      a   potential       juror    made    the

comment   that    “her       son   was   one     of   the    people    following       the

[Defendant’s] vehicle” and Defendant “almost ran him off the

road, and killed the deceased.”2                 Defense counsel objected; the

trial   court    gave    a    curative        instruction;     and    jury    selection

continued.       When    Court      broke      for    recess    at    lunch,    defense

counsel raised a motion for mistrial, arguing that Defendant was

prejudiced by these comments because they were made in front of

the whole pool of potential jurors.                         Defendant’s motion was

denied.   During the charge conference, defense counsel renewed

his motion for mistrial, which was also denied.

    The    juror’s      statement        in    this   case     does   not     amount   to

“substantial and irreparable prejudice”                     because Defendant did

not challenge the State’s allegations that he hit the victim and

that the victim died; the potential juror’s son was allowed to

testify regarding his observations and actions on the day in

2
     We note that none of the jury selection was recorded,
transcribed, or included in the record on appeal. This portion
of what the potential juror said was reconstructed by defense
counsel during his argument for mistrial which was transcribed
and is part of the record. N.C. Gen. Stat. § 15A-1241(c)(2010)
states that it is “the judge [that] must reconstruct for the
record, as accurately as possible, the matter to which objection
was made.”    However, the record suggests that the State, in
responding to defense counsel’s argument, conceded that the
statement as represented by defense counsel was made; and,
consequently, we choose to examine the merits of Defendant’s
appeal.
                                           -6-
question      as    a    witness   for   the     State   with     no   objection   from

Defendant;         and   defense   counsel     was   also    permitted     to    cross-

examine this witness regarding his testimony.

       Further, after the potential juror made the comment, the

trial court instructed the jury to disregard her statement and

that   “her    comments      are   not    evidence,       [and]    are   not    [to]   be

considered as evidence.”                 The trial       court further asked the

potential jurors and audience members if the statement “had any

[effect] . . . whatsoever on their ability to fairly consider

the evidence or follow the instructions of the [c]ourt” to which

no one replied that it did.

       Accordingly, because Defendant was not substantially and

irreparably prejudiced by the juror’s statement, the trial court

did not abuse its discretion in denying Defendant’s motion for a

mistrial.      We find no error in Defendant’s trial.

       NO ERROR.

Judge STROUD and Judge HUNTER, JR. concur.

Report Per Rule 30(e).
