State v. Watlington

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-480
NORTH CAROLINA COURT OF APPEALS

Filed: 4 March 2014

STATE OF NORTH CAROLINA

v. Rockingham County
Nos. 11 CRS 51074-75
TREVOR TYRONE WATLINGTON

Appeal by defendant from judgment entered 16 August 2012 by

Judge Richard W. Stone in Rockingham County Superior Court.

Heard in the Court of Appeals 10 October 2013.

Roy Cooper, Attorney General, by Anne Goco Kirby, Assistant
Attorney General, for the State.

Staples Hughes, Appellate Defender, by Jillian Katz,
Assistant Appellate Defender, for defendant-appellant.

DAVIS, Judge.

Defendant Trevor Tyrone Watlington (“Defendant”) appeals

from his convictions for second degree kidnapping, common law

robbery, and resisting, delaying, or obstructing a public

officer. On appeal, he argues that the trial court erred in (1)

denying his motion to dismiss all of the charges that had been

lodged against him based on the insufficiency of the evidence;
 -2-
and (2) instructing the jury concerning flight. After careful

review, we conclude that Defendant received a fair trial free

from prejudicial error.

Factual Background

The State presented evidence at trial tending to establish

the following facts: Around 6:00 p.m. or 7:00 p.m. on the

evening of 6 April 2011, Tara Taylor (“Ms. Taylor”) was driving

a blue Chevrolet Trailblazer. While she was stopped at the

intersection of South Scales Street and Sands Road in

Reidsville, North Carolina, she saw Defendant standing beside

her passenger-side car door. Shocked and frightened, Ms. Taylor

told Defendant: “I don't know you. Get out of my . . . get off

of my truck!” She then pulled out in front of oncoming traffic

in an attempt to prevent Defendant from getting into her

vehicle. However, Defendant had already stepped onto the

running board on the side of her vehicle, and he then proceeded

to reach through the open passenger-side window and open the

door from the inside, thereby forcing his way into the

Trailblazer.

Defendant told Ms. Taylor: “I don't have anything to live

for. We're going to die today.” Ms. Taylor pleaded with

Defendant: “Please don't kill me . . . I'm a Christian. I'm a
 -3-
single mom. I need to be here for my mom and my kids.”

Defendant responded by instructing Ms. Taylor to “keep driving.”

She continued to drive in the direction indicated by Defendant.

Upon entering a residential area, she pulled her vehicle into a

grass driveway in front of a house, put the vehicle in park, and

began honking her horn in the hope that someone would come out

of the residence to assist her.

When no one came out of the house, Ms. Taylor opened the

driver-side door of the Trailblazer, stuck her head and the left

side of her body out of the vehicle, and proceeded to scream for

help while continuing to hold onto the steering wheel and honk

the horn. Defendant exited the passenger-side door, walked

around to the front of the vehicle, screamed at Ms. Taylor that

she was drawing attention to him, and demanded that she get back

inside.

Ms. Taylor then tried to maneuver her body all the way back

into the Trailblazer for the purpose of trying to drive away

from Defendant. However, Defendant got back into the vehicle

first. As Ms. Taylor continued to hold onto the steering wheel,

he hit her torso with his left hand. Ms. Taylor pleaded with

Defendant to stop hitting her. However, Defendant continued to

do so and began pushing and otherwise “dominating her” as he
 -4-
climbed over her into the driver's seat and grabbed the steering

wheel. Defendant then pushed Ms. Taylor out of the Trailblazer

as she begged him: “Please don't do this.” Defendant drove the

vehicle over Ms. Taylor's foot as he hurriedly backed the

vehicle out of the grass driveway and quickly sped away.

Shortly thereafter, Ms. Taylor saw Defendant “flying” back

down the street after having circled back in her direction in

her blue Trailblazer. She jumped into a ditch and hid until

Defendant was out of sight and then got up to run for help.

After a few minutes, Tai Ashe, who was driving through the area,

saw Ms. Taylor and stopped to help her.

Officer Jamie Bayne (“Officer Bayne”), an officer with the

Reidsville Police Department who was on patrol in the area,

observed a blue Trailblazer coming towards him at a high rate of

speed. Officer Bayne turned around, activated his blue lights

and siren, and began pursuing the Trailblazer. Officer Bayne

observed the Trailblazer driving away from him on Vance Street,

heading back towards the area of Harrison Street. Officer Bayne

was unable to catch up to the Trailblazer because it was going

so fast, and he ultimately lost sight of it.

Robert Jackson (“Mr. Jackson”) was driving his two children

from their home on Lindsey Street. As he approached a stop sign
 -5-
on Lindsey Street, a blue SUV (later identified as Ms. Taylor’s

Trailblazer) ran through the stop sign and struck his vehicle on

the driver’s side. After hitting Mr. Jackson's vehicle, the SUV

lost control in the middle of the street and rolled over several

times before landing in a neighbor's yard. Mr. Jackson got out

of his car and saw that Defendant had exited the wrecked SUV and

was walking up the street. When Defendant got to the street

corner, he turned right and continued walking, yelling

obscenities to people he encountered.

Officer Bayne was dispatched to Lindsey Street from the

area where he had been searching for the Trailblazer. As he

was sitting in his patrol car, a man — who Officer Bayne later

learned was Defendant — walked up to Officer Bayne and asked him

for a ride. Officer Bayne told the man “no” and proceeded to

turn right onto Lindsey Street while continuing to search for

the Trailblazer.

Officer Bayne thereafter heard radio traffic stating that

there had been a wreck on Lindsey Street near Ware Street and

that the driver, a black male wearing a black cap, white T-

shirt, and blue jeans, had fled the scene on foot. Upon hearing

this description, Officer Bayne realized that it matched the

appearance of the man who had just approached him and asked him
 -6-
for a ride. Officer Bayne turned around and drove back to the

area of Lindsey and Vance Streets in search of Defendant.

Upon turning left onto Vance Street, Officer Bayne saw

Defendant walking westbound towards Harrison Street. Officer

Bayne pulled his patrol vehicle over, got out, and yelled at

Defendant to stop because he needed to speak with him. Because

Defendant did not stop, Officer Bayne yelled several more times:

“Hey, stop. I need to speak with you. Come here. Where are

you going? Stop.” Defendant continued walking away from

Officer Bayne. At that point, Officer Bayne grabbed Defendant

by the arm, turned him around, and again told Defendant that he

needed to talk to him.

Officer Bayne subsequently placed Defendant under arrest

for resisting a public officer. On 6 June 2011, the Rockingham

County grand jury returned bills of indictment charging

Defendant with second degree kidnapping and common law robbery.

Defendant was also charged by warrant with resisting, delaying,

or obstructing a public officer. The charges came on for trial

at the 13 August 2012 criminal session of Rockingham County

Superior Court.

Defendant did not testify or present evidence at trial. On

16 August 2012, a jury found Defendant guilty of second degree
 -7-
kidnapping, common law robbery, and resisting, obstructing, or

delaying a public officer. Defendant was sentenced as a

habitual felon to an aggravated, consolidated term of 120 to 153

months.

Defendant sent a pro se handwritten notice of appeal dated

21 August 2012 to the Rockingham County Clerk of Superior Court.

However, the notice of appeal failed to meet the requirements

set out in Rule 4 of the North Carolina Rules of Appellate

Procedure. On 20 September 2012, the Appellate Defender’s

Office was assigned to represent Defendant, and on 5 June 2013,

appellate counsel filed a petition for a writ of certiorari with

this Court.1 We elect to grant Defendant’s petition and consider

the merits of his appeal.

Analysis

I. Denial of Motion To Dismiss

Defendant argues that the trial court erred in denying his

motion to dismiss all of the charges that had been lodged

against him based on the insufficiency of the evidence. Whether

evidence is sufficient to withstand a motion to dismiss is a

question of law that is reviewed de novo on appeal. State v.

Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007). A

1
Defendant’s appellate counsel subsequently withdrew as counsel.
 -8-
defendant’s motion to dismiss should be denied if there is

substantial evidence of (1) each essential element of the

offense charged; and (2) the defendant being the perpetrator of

the offense. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866,

868 (2002). “Substantial evidence is such relevant evidence as

a reasonable mind might accept as adequate to support a

conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d

164, 169 (1980).

In ruling on a motion to dismiss, the trial court is

required to view all the evidence – whether direct,

circumstantial, or both – in the light most favorable to the

State, drawing all the reasonable inferences from the evidence

in favor of the State. State v. Kemmerlin, 356 N.C. 446, 473,

573 S.E.2d 870, 889 (2002). Contradictions and discrepancies of

fact are for the jury to resolve and, consequently, do not

warrant dismissal. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d

114, 117 (1980).

A. Kidnapping

N.C. Gen. Stat. § 14-39 states:

(a) Any person who shall unlawfully confine,
restrain, or remove from one place to
another, any other person 16 years of age or
over without the consent of such person . .
. shall be guilty of kidnapping if such
confinement, restraint[,] or removal is for
 -9-
the purpose of:

. . . .

(2) Facilitating the commission of any
felony or facilitating flight of any person
following the commission of a felony; or

(3) . . . terrorizing the person so
confined, restrained or removed . . . .

N.C. Gen. Stat. § 14-39 (2013).

In this context, the term “restrain” means to restrict by

force, threat, or fraud, with or without confinement. State v.

Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978).

Consequently, proof of the use of physical force is not required

in establishing the “restraint” prong of second degree

kidnapping; rather, evidence of a threat or intimidation will

suffice in certain circumstances.

[T]he use of actual physical force is not
essential to the commission of the offense,
and the crime of kidnapping may be committed
“by threats and intimidation and appeals to
the fears of the victim which are sufficient
to put an ordinarily prudent person in fear
for his life or personal safety, and to
overcome the will of the victim and secure
control of his person without his consent
and against his will, and are equivalent to
the use of actual physical force or
violence.”

State v. Ballard, 28 N.C. App. 146, 148, 220 S.E.2d 205, 206

(1975) (quoting State v. Bruce, 268 N.C. 174, 182-83, 150 S.E.2d
 -10-
216, 223 (1966)). Once the restraint prong of second degree

kidnapping has been established, the State may successfully

satisfy the remaining requirements of the offense by

demonstrating either that (1) the defendant restrained the

victim in “[f]acilitating the commission of any felony or

facilitating flight of any person following the commission of a

felony;” or (2) the defendant “terroriz[ed] the person so

confined, restrained or removed.” N.C. Gen. Stat. § 14-39.

Kidnapping is a specific intent crime,
therefore the State must prove that the
defendant unlawfully confined, restrained,
or removed the victim for one of the
specified purposes outlined in the statute.
Although an indictment may allege multiple
purposes, the State need only prove one of
the alleged purposes in order to sustain a
conviction of kidnapping.

State v. Surrett, 109 N.C. App. 344, 348-49, 427 S.E.2d 124, 126

(1993). In the present case, while proof of either would have

sufficed, the State successfully established both that (1)

Defendant restrained Ms. Taylor for the purpose of facilitating

the commission of the felony of common law robbery; and (2) he

terrorized her. We discuss each in turn.

i. Facilitating the Commission of a Felony

Our Supreme Court has made clear that “certain felonies

(e.g., forcible rape and armed robbery) cannot be committed
 -11-
without some restraint of the victim” and that restraint “which

is an inherent, inevitable feature of [the] other felony” may

not be used to convict a defendant of kidnapping. Fulcher, 294

N.C. at 523, 243 S.E.2d at 351.

Cases since Fulcher have held that the key
question is whether the kidnapping charge is
supported by evidence from which a jury
could reasonably find that the necessary
restraint for kidnapping exposed the victim
to greater danger than that inherent in the
underlying felony itself. See State v.
Beatty, 347 N.C. 555, 559, 495 S.E.2d 367,
369 (1998). Evidence that a defendant
increased the victim's helplessness and
vulnerability beyond what was necessary to
enable the robbery or rape is sufficient to
support a kidnapping charge. Id.

State v. Muhammad, 146 N.C. App. 292, 295, 552 S.E.2d 236, 237

(2001).

Defendant argues that the State’s evidence of restraint

failed to prove more than that degree of restraint inherent in

common law robbery. Specifically, he contends that he did not

remove, restrain, or confine Ms. Taylor. In support of this

argument, he claims that Ms. Taylor’s will was never overcome

and that she maintained complete control of her Trailblazer at

all times, pointing to the fact that she did not follow all of

his directions once he was inside the vehicle. We disagree.
 -12-
At trial, the State presented evidence that (1) Ms. Taylor

was sitting alone in her vehicle; (2) Defendant stood on the

running board and reached through the window to open the door;

(3) Defendant then told Ms. Taylor: “I don’t have anything to

live for. We are going to die today;” (4) Ms. Taylor responded:

“Please don’t kill me. I’m a Christian. I’m a single mom;” (5)

Defendant ordered Ms. Taylor to “keep driving;” (6) Ms. Taylor

drove to a residential area and began honking the horn while

simultaneously sticking half of her body outside the opened

driver-side door and screaming for help; (7) Defendant then

proceeded to climb into the driver’s side of the vehicle and

began hitting her; and (8) Defendant then pushed her out of the

car.

In holding that this evidence was sufficient to establish

restraint beyond that inherent in common law robbery, we are

guided by our decision in State v. Parker, 81 N.C. App. 443, 344

S.E.2d 330 (1986). In Parker, the defendant emerged from the

back seat of the victim’s car where he had been hiding as she

began to drive out of a parking lot and ordered the victim to

“just drive.” Id. at 444, 344 S.E.2d at 331. The defendant

then directed the victim to drive to a motel parking lot where

he proceeded to rob her of her jewelry. Id. We held that the
 -13-
defendant’s conduct in forcing the victim to drive to the back

of the motel “was not necessary to the accomplishment of the

robbery and did, in fact, expose the victim to danger greater

than that inherent in the robbery itself.” Id. at 447, 344

S.E.2d at 333.

In the present case, the State’s evidence that Defendant

entered Ms. Taylor’s vehicle and instructed her to “keep

driving” was sufficient to allow a jury to infer that Defendant

intended to keep her in the vehicle after he gained entry into

the Trailblazer. Requiring her to remain in the vehicle and

continue driving was not an act necessary to accomplish the

underlying theft of the vehicle since Defendant could have

allowed Ms. Taylor to exit the Trailblazer when he first gained

entry. Thus, Defendant’s removal and restraint of Ms. Taylor

was a separate and distinct act beyond the scope of the

underlying robbery, thereby satisfying the second prong of

second degree kidnapping.

ii. Terrorizing

Defendant also argues that the evidence was insufficient to

show that Defendant intended to terrorize Ms. Taylor. While

proof of this element was not necessary in light of our

conclusion that the State offered sufficient evidence that
 -14-
Defendant restrained Ms. Taylor for the purpose of facilitating

the commission of a felony, we nevertheless conclude that

sufficient evidence of terrorizing also existed as a separate

ground for the kidnapping charge.

“Terrorizing is defined as more than just putting another

in fear. It means putting that person in some high degree of

fear, a state of intense fright or apprehension.” State v.

Boozer, 210 N.C. App. 371, 375-76, 707 S.E.2d 756, 761 (2011)

(citation and quotation marks omitted), disc. review denied, ___

N.C. ___, 720 S.E.2d 667 (2012). “In determining the

sufficiency of the evidence, the test is not whether

subjectively the victim was in fact terrorized, but whether the

evidence supports a finding that the defendant's purpose was to

terrorize the victim.” Id. (citation, quotation marks, and

emphasis omitted). Moreover, “[t]he presence or absence of the

defendant's intent or purpose to terrorize [the victim] may be

inferred by the fact-finder from the circumstances surrounding

the events constituting the alleged crime.” State v. Baldwin,

141 N.C. App. 596, 605, 540 S.E.2d 815, 821 (2000).

We find our decision in Ballard instructive. In Ballard,

the victim was a young woman seated alone in her car which was

stopped at a red light. Ballard, 28 N.C. App. at 147, 220
 -15-
S.E.2d at 206. The defendant, a stranger to her, got in the car

on the passenger side and ordered her “just to drive.” Id. The

victim testified that she was afraid that if she did not do what

he said, he would harm her in some way. Id. When they drove by

a country club, she started blowing the horn and screaming for

help. Id. As she pulled the keys from the ignition and opened

her door, the defendant pulled her back into the car by her

hair, retrieved an object from his pocket, and said: "I'm going

to cut you." Id. The defendant then bit her hand until she let

go of the keys, pushed her out of the car to the ground, and

then drove away in the car. Id.

This Court held that the evidence of restraint present in

Ballard was sufficient in and of itself to constitute terror,

and was therefore sufficient to support the defendant’s

kidnapping conviction.

Threats by actions may be more effective
than when made by mere words, and
defendant's uninvited entrance into the car
under these circumstances in itself
constituted a threat. . . . We find the
evidence sufficient to support a jury
finding that defendant's conduct on first
entering the car and in directing [the
victim] where to drive under the
circumstances here disclosed constituted
such a threat as to put an ordinarily
prudent person in fear for her life or
personal safety so as to secure control of
her person against her will. From that
 -16-
point on there was an ample showing of
asportation to constitute the crime of
kidnapping. Defendant's subsequent conduct
establishes that [the victim’s] fears, first
aroused when defendant got into her car,
were far from groundless.

Id. at 148-49, 220 S.E.2d at 207; see also Surrett, 109 N.C.

App. at 349-50, 427 S.E.2d at 127 (holding that requirement of

terrorizing for second degree kidnapping charge was satisfied

where victim was physically forced by defendant into defendant’s

car, was told to remain quiet, and quickly escaped through

window before car left parking lot).

In the present case, the State introduced evidence that

after entering Ms. Taylor’s vehicle by force, Defendant told

her: “I have nothing to live for” and then said that “[w]e are

going to die today.” The ominous implication of Defendant’s

statements, taken in conjunction with the forceful and sudden

manner in which Defendant gained entry into her vehicle, was

clearly sufficient for the jury to infer that Defendant intended

to terrorize the victim.

We therefore hold that under either a theory of (1)

exposing the victim to danger greater than that inherent in the

robbery itself; or (2) terrorizing the victim, Defendant’s

motion to dismiss the charge of second degree kidnapping was

properly denied.
 -17-
B. Common Law Robbery

Defendant also contends that his motion to dismiss the

charge of common law robbery should have been granted based upon

his argument that he did not intend to permanently deprive Ms.

Taylor of her car – an element of common law robbery. We

disagree.

Common law robbery is defined as the
felonious, non-consensual taking of money or
personal property from the person or
presence of another by means of violence or
fear. The felonious taking element of common
law robbery requires a taking with the
felonious intent on the part of the taker to
deprive the owner of his property
permanently and to convert it to the use of
the taker.

State v. Shaw, 164 N.C. App. 723, 728, 596 S.E.2d 884, 888

(citation omitted), disc. review denied, 358 N.C. 737, 602

S.E.2d 676 (2004).

In the present case, the State presented evidence that

Defendant hit and pushed Ms. Taylor out of her Trailblazer and

then drove off with her vehicle. In State v. Hill, 139 N.C.

App. 471, 483, 534 S.E.2d 606, 614 (2000), this Court upheld the

trial court’s denial of a motion to dismiss in the face of a

similar argument, holding that “a rational trier of fact could

find that defendant, by forcing his way into the victim’s car at

gunpoint, driving the car to another location, and subsequently
 -18-
forcing the victim out of her car and driving away with it,

intended to permanently deprive the victim of her car.” We

further noted that “[t]he fact that defendant later abandoned

the car a short distance away is not dispositive of the intent

issue.” Id. at 484, 534 S.E.2d at 614. As in Hill, we conclude

that there was sufficient evidence for the jury to rationally

find that Defendant possessed the requisite intent to

permanently deprive Ms. Taylor of her vehicle. As such, the

trial court properly denied his motion to dismiss as to this

charge.

C. Resisting, Delaying, or Obstructing a Public Officer

Defendant further challenges the denial of his motion to

dismiss the charge of resisting, delaying, or obstructing a

public officer. N.C. Gen. Stat. § 14-223 provides that “[i]f

any person shall willfully and unlawfully resist, delay or

obstruct a public officer in discharging or attempting to

discharge a duty of his office, he shall be guilty of a Class 2

misdemeanor.” N.C. Gen. Stat. § 14-223 (2013). The elements of

this offense are “1) that the victim was a public officer; 2)

that the defendant knew or had reasonable grounds to believe

that the victim was a public officer; 3) that the victim was

lawfully discharging or attempting to discharge a duty of his
 -19-
office; 4) that the defendant resisted, delayed, or obstructed

the victim in discharging or attempting to discharge a duty of

his office; and 5) that the defendant acted willfully and

unlawfully, that is intentionally and without justification or

excuse.” State v. Sinclair, 191 N.C. App. 485, 488-89, 663

S.E.2d 866, 870 (2008). In State v. Lynch, 94 N.C. App. 330,

332, 380 S.E.2d 397, 398 (1989), we held that “[t]he conduct

proscribed under G.S. 14-223 is not limited to resisting an

arrest but includes any resistance, delay, or obstruction of an

officer in the discharge of his duties.”

Here, the State’s evidence tended to show that (1) Officer

Bayne pulled his patrol car over and yelled at Defendant to

stop; (2) Defendant ignored Officer Bayne and continued walking;

(3) Officer Bayne yelled several more times to Defendant: “Hey,

stop. I need to speak with you. Come here. Where are you

going? Stop;” and (4) Defendant continued walking until Officer

Bayne grabbed him by the arm, turned him around, and told him

again that he needed to talk to him.

Defendant contends that the fact that he approached Officer

Bayne’s vehicle and asked for a ride is inconsistent with the

notion that he violated N.C. Gen. Stat. § 14-223. However, that

action does not negate the events which occurred during
 -20-
Defendant’s subsequent encounter with Officer Bayne during which

– upon Officer Bayne finally being made aware that the person

who had asked him for a ride was, in fact, the person he was

seeking as the driver of the Trailblazer – Defendant repeatedly

ignored Officer Bayne’s commands for him to stop and kept

walking away until Officer Bayne was forced to grab Defendant’s

arm and turn him around.

In Lynch, officers attempting to stop a suspect so as to

ascertain his identity had to chase him down in order to do so.

In upholding his conviction for resisting, obstructing, or

delaying an officer, we stated that “[i]n this case . . .

defendant fled from a lawful investigatory stop. Such flight

may provide probable cause to arrest an individual for violation

of G.S. 14-223.” Id. at 334, 380 S.E.2d at 399.

Here, while Officer Bayne did not have to chase Defendant

on foot, Defendant willfully continued to walk away from Officer

Bayne and ignore his lawful commands to stop, ultimately

requiring Officer Bayne to take hold of his arm and physically

turn him around. Therefore, when viewed in the light most

favorable to the State, we believe this charge was properly

submitted to the jury.

II. Jury Instruction on Flight
 -21-
Defendant’s final argument is that the trial court erred by

including in its jury instructions the following instruction

regarding flight:

The State contends, and the defendant
denies, that the defendant fled. Evidence
of flight may be considered by you, together
with all other facts and circumstances in
this case, in determining whether the
combined circumstances amount to an
admission or show a consciousness of guilt.
However, proof of this circumstance is not
sufficient in itself to establish the
defendant’s guilt.

An instruction concerning flight “is appropriate where

there is some evidence in the record reasonably supporting the

theory that defendant fled after commission of the crime.”

State v. Kornegay, 149 N.C. App. 390, 397, 562 S.E.2d 541, 546

(citation and internal quotation marks omitted), appeal

dismissed and disc. review denied, 355 N.C. 497, 564 S.E.2d 51

(2002). “‘The relevant inquiry concerns whether there is

evidence that defendant left the scene of the [crime] and took

steps to avoid apprehension.’” Id. (quoting State v. Levan, 326

N.C. 155, 165, 388 S.E.2d 429, 434 (1990)). If we find “some

evidence in the record reasonably supporting the theory that

defendant fled after commission of the crime charged, the

instruction is properly given. The fact that there may be other

reasonable explanations for defendant's conduct does not render
 -22-
the instruction improper.” State v. Irick, 291 N.C. 480, 494,

231 S.E.2d 833, 842 (1977). However, this Court has held that

“[m]ere evidence that defendant left the scene of the crime is

not enough to support an instruction on flight. There must also

be some evidence that defendant took steps to avoid

apprehension." State v. Westall, 116 N.C. App. 534, 549, 449

S.E.2d 24, 33 (emphasis added), disc. review denied, 338 N.C.

671, 453 S.E.2d 185 (1994).

The State argues that a flight instruction was warranted

based on the evidence that when Officer Bayne observed Defendant

speeding past his patrol car and pursued Defendant with lights

and siren activated, Defendant drove so fast that Officer Bayne

was unable to catch up with him. Defendant, conversely,

contends that his act of walking up to Officer Bayne’s police

car shortly after the incident and asking for a ride is the

antithesis of trying to avoid apprehension.

Even assuming, without deciding, that the flight

instruction was erroneous, we are satisfied that any such error

was not prejudicial.

A defendant is prejudiced by errors relating
to rights arising other than under the
Constitution of the United States when there
is a reasonable possibility that, had the
error in question not been committed, a
different result would have been reached at
 -23-
the trial out of which the appeal arises.
The burden of showing such prejudice under
this subsection is upon the defendant.

N.C. Gen. Stat. § 15A-1443(a) (2013). In the present case, the

evidence of guilt offered at trial was overwhelming.

Consequently, any error arising from the instruction on flight

would have been harmless.

Conclusion

For the reasons stated above, we hold that Defendant

received a fair trial free from prejudicial error.

NO PREJUDICIAL ERROR.

Judges HUNTER, JR. and ERVIN concur.

Report per Rule 30(e).