An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-982
                       NORTH CAROLINA COURT OF APPEALS

                                Filed:    6 May 2014


STATE OF NORTH CAROLINA

      v.                                      McDowell County
                                              No. 12 CRS 51028
DWAYNE L. ANTHONY



      Appeal by defendant from judgment entered 27 March 2013 by

Judge Gary Gavenus in McDowell County Superior Court.                    Heard in

the Court of Appeals 31 March 2014.


      Roy Cooper, Attorney General, by Scott Stroud, Assistant
      Attorney General, for the State.

      Mary March Exum for defendant-appellant.


      DAVIS, Judge.


      Dwayne L. Anthony (“Defendant”) was convicted by a jury of

malicious conduct by a prisoner.               On appeal, Defendant argues

that he did not receive a fair trial because he was required to

wear prison garb and shackles during his trial.                    After careful

review, we conclude that Defendant received a fair trial free

from error.

                              Factual Background
                                            -2-
         On 1 June 2012, Defendant was a prisoner housed at the

Marion Correctional Institution.                  Defendant went to the prison’s

“med     window”     to     pick   up     his    prescribed    medication            but    was

informed that the order for his blood pressure medication had

expired.      Thus, Defendant could not be given the medication at

that time.         In response, Defendant became irate and verbally

abusive.

         Defendant was handcuffed and escorted to segregation.                             Upon

arrival at segregation, he continued to be verbally abusive and

disruptive.        Defendant was escorted to the prison showers for a

strip     search,     per    prison       policy.       Upon   his    arrival         in    the

showers,      Defendant       turned       around      and   spat    on       two    of     the

correctional officers.

         Defendant was arrested and charged with malicious conduct

by   a    prisoner.         Defendant      was    convicted    of    this      charge       and

sentenced to a term of 33 to 49 months imprisonment.                                Defendant

appeals to this Court.

                                          Analysis

         Defendant    argues       that    he    was   deprived      of   a    fair       trial

because he was required to wear (1) a prison uniform; and (2)

shackles during his trial.

I. Prison Uniform
                                            -3-
     Pursuant      to   N.C.    Gen.    Stat.       §   15-176,     “[i]t     shall    be

unlawful for any sheriff, jailer or other officer to require any

person    imprisoned    in     jail    to    appear     in   any    court    for   trial

dressed in the uniform or dress of a prisoner or convict . . .

.”   N.C. Gen. Stat. § 15-176 (2013) (emphasis added).                               This

Court has consistently held that while N.C. Gen. Stat. § 15-176

prohibits requiring a defendant to appear in court dressed in

prison garb, it is not unlawful for a defendant to so appear.

State v. Smith, 155 N.C. App. 500, 507, 573 S.E.2d 618, 623

(2002),    disc.   review      denied,       357    N.C.     255,   583     S.E.2d    287

(2003); State v. Johnson, 128 N.C. App. 361, 364, 496 S.E.2d

805, 807 (1998), cert. denied, 350 N.C. 842, 538 S.E.2d 581

(1999).

     Here, Defendant never objected at trial to appearing in

court in his prison uniform.            As such, he has failed to preserve

this issue for appellate review.                  See State v. Gainey, 355 N.C.

73, 97, 558 S.E.2d 463, 479 (“In order to preserve an issue for

appellate review, a party must have presented the trial court

with a timely request, objection or motion, stating the specific

grounds for the ruling sought if the specific grounds are not

apparent.”), cert. denied, 537 U.S. 896, 154 L.Ed.2d 165 (2002);

State v. Tolley, 290 N.C. 349, 372, 226 S.E.2d 353, 370 (1976)
                                       -4-
(“[T]he right not to be tried in any court while dressed in

prison garb may be waived by failure to object at trial.”).

Moreover, our Court has recently explained that the issue of

whether a trial court erred in requiring a defendant to wear

prison garb is “not appropriate for plain error review because

the alleged error [is] not instructional or evidentiary.”                 State

v. Miles, ___ N.C. App. ___, ___, 727 S.E.2d 375, 378 (2012)

(citing State v. Woodard, 210 N.C. App. 725, 728, 709 S.E.2d

430, 433 (2011), disc. review improvidently allowed per curiam,

365 N.C. 464, 722 S.E.2d 508 (2012)).              Because Defendant failed

to properly preserve this issue, he has waived his right to

appellate review.

II. Shackles

       Generally,    shackling    is     to   be    avoided    except     where

“reasonably necessary to maintain order, prevent the defendant’s

escape, or provide for the safety of persons.”                N.C. Gen. Stat.

§ 15A-1031 (2013); see Tolley, 290 N.C. at 366, 226 S.E.2d at

367.     In Tolley, our Supreme Court explained that although a

criminal defendant is “ordinarily constitutionally entitled to

appear   at   his   own   trial   free   of   shackles,   [he]    must,   when

shackling is suggested, object to the proposed restraint, and .

. . failure to do so will ordinarily preclude the shackling as
                                        -5-
an issue on appeal.”              Id. at 371-72, 226 S.E.2d at 370.                  At

trial,      Defendant     never     objected    to    appearing     in      shackles.

Consequently, Defendant has waived his right to appellate review

on this issue as well.          Id.

III. Failure to Establish Prejudice

       Even if Defendant had properly preserved his argument for

appellate review on either of these two issues, we are convinced

that   no    prejudice     to   Defendant      occurred.     First,         there   was

overwhelming        evidence      of   Defendant’s      guilt     in        that    two

correctional        officers      testified    that   Defendant     entered         the

prison shower, turned around, and spat on them.                        Second, the

jury was already aware of Defendant’s incarceration because it

was an element of the offense for which he was being tried.

Third, the trial court gave clear instructions to the jury to

disregard Defendant’s shackles and prison clothing.                         See State

v. Lee, ___ N.C. App. ___, ___, 720 S.E.2d 884, 891 (trial

court’s     error    in   requiring     defendant     to   remain      in    shackles

during his trial was “not fundamentally unfair” and was harmless

where “the trial court clearly and emphatically instructed the

jury not to consider defendant’s restraints in any manner[.]”),

disc. review improvidently allowed per curiam, 366 N.C. 329, 734

S.E.2d 571 (2012); State v. Banks, 210 N.C. App. 30, 41, 706
                                -6-
S.E.2d 807, 816 (2011) (“The jury is presumed to follow the

instructions of the trial court.”).       Accordingly, we find no

error.

                             Conclusion

    For the reasons stated above, we conclude that Defendant

received a fair trial free from error.

    NO ERROR.

    Judges McGEE and ELMORE concur.

    Report per Rule 30(e).
