An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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
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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
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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
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Replacement, § 62, at 221-22 (1980)).
Accordingly, we find no error.
NO ERROR.
Judges ELMORE and DILLON concur.
Report per Rule 30(e).