An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-689
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 20 January 2015


STATE OF NORTH CAROLINA

      v.                                      Person County
                                              No. 12 CRS 51878
DWIGHT BRADSHER POOLE



      Appeal by defendant from judgment entered 19 November 2013

by Judge Henry W. Hight, Jr., in Person County Superior Court.

Heard in the Court of Appeals 15 December 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Colin A. Justice, for the State.

      Geeta N. Kapur for defendant-appellant.


      STEELMAN, Judge.


      Where the trial court correctly gave the jury supplemental

instructions on the law of fixtures, the trial court did not

express an opinion as to the facts of the case.

                      I. Factual and Procedural Background

      In   August     2012,    Dwight    Bradsher     Poole    (defendant)      was

operating Greater Looks Clothing Store on property rented from

Hall’s Agri-Business (“Hall’s”) in Roxboro, North Carolina. On
                                              -2-
13 August 2012, Joe Berryhill, a manager with Hall’s, visited

defendant’s store. Berryhill testified that Hall’s was in the

process     of     terminating         defendant’s        lease       because        he   was

delinquent in the payment of his rent, and that defendant was in

the process of moving out of the building. Berryhill noticed

that defendant was “taking down the rails and the shelves” and

he   told    defendant        that     they     belonged       to    Hall’s.       Defendant

disagreed        and    stated   that      he    owned   the        rails    and   shelves.

Berryhill visited the premises on two other occasions; each time

he   told   defendant         that   the    shelves      belonged       to    Hall’s,     and

defendant disagreed. Defendant took the shelves with him when he

vacated the property, and Berryhill reported the theft of the

shelves to the sheriff’s office.

      On    14    January      2013,     defendant       was    indicted       for    felony

larceny. A superseding indictment was returned on 14 October

2013. Defendant was found guilty as charged by the jury. The

trial court sentenced defendant to a term of 10 to 21 months

imprisonment.          This   sentence     was      suspended,       and    defendant     was

placed on supervised probation for twenty-four months. Defendant

was ordered to pay restitution, attorneys’ fees, costs, and a

community service fee.

      Defendant appeals.

                   II. Trial Court’s Response to Jury Question
                                      -3-
      In his sole argument on appeal, defendant contends that the

trial court’s response to the jury’s question about fixtures

constituted an improper expression of opinion as to a material

factual issue. We disagree.

                          A. Standard of Review

      N.C. Gen. Stat. § 15A-1222 provides that “[t]he judge may

not express during any stage of the trial, any opinion in the

presence of the jury on any question of fact to be decided by

the jury.”       N.C. Gen. Stat. § 15A-1222 (2013). N.C. Gen. Stat. §

15A-1232 further provides that “[i]n instructing the jury, the

judge shall not express an opinion as to whether or not a fact

has been proved and shall not be required to state, summarize or

recapitulate the evidence, or to explain the application of the

law   to   the    evidence.”   N.C.   Gen.   Stat.   §   15A-1232   (2013).

However, not every       remark by     the judge, if an impermissible

expression of opinion, is so prejudicial as to require a new

trial.     State v. Herrin, 213 N.C. App. 68, 72, 711 S.E.2d 802,

806 (2011).

                                B. Analysis

      During the jury’s deliberations, the jury submitted to the

trial court the following question: “If something is affixed to

the building, is it considered property of the said building?”

Over defendant’s objection, the trial court called the jury back
                                           -4-
into the courtroom and instructed them:

            Um, the law of North Carolina provides,
            “Unless there is something else appearing,
            that property that becomes affixed to a
            structure belongs to the owner of the
            structure.” With that, ladies and gentlemen,
            you    may   retire   and    continue   your
            deliberations.

We hold that the trial court’s supplemental instruction to the

jury    constituted      a    statement      of    law,   not     fact.     The    jury

requested that the trial court give further instructions on the

law relating to fixtures              on   real property.        In response, the

trial    court     did   not     state,      summarize    or     recapitulate      the

evidence, or attempt to explain the application of the law to

the evidence. See N.C. Gen. Stat. § 15A-1232. Instead, the trial

court responded by summarily instructing the jury on the law of

fixtures.      See Little by Davis v. Nat’l Servs. Indus., Inc., 79

N.C. App. 688, 694-95, 340 S.E.2d 510, 514 (1986) (“It is a

well-recognized      rule      that   when    articles    of     personal    property

which    are     especially     adapted      and    designed      to   be   used    in

connection with the realty, and essential to the convenient and

profitable enjoyment of the estate, are affixed to it, with an

intention to make them a permanent accession to the land, they

become a part of the realty, though not so fastened as to be

incapable of removal without serious injury to themselves or the

freehold.”)       (quoting      1     Thompson     on     Real     Property,       1980
                                 -5-
Replacement, § 62, at 221-22 (1980)).

Accordingly, we find no error.

    NO ERROR.

    Judges ELMORE and DILLON concur.

    Report per Rule 30(e).
