{
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  "name": "STATE OF NORTH CAROLINA v. AARON MICHAEL BURKE, Defendant",
  "name_abbreviation": "State v. Burke",
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    "judges": [
      "Judges HUNTER and GEER concur."
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      "STATE OF NORTH CAROLINA v. AARON MICHAEL BURKE, Defendant"
    ],
    "opinions": [
      {
        "text": "ELMORE, Judge.\nAdam Michael Burke (defendant) was required to pay child support since 2002 for his minor children, a responsibility that included providing health insurance pursuant to a 19 March 2002 family court \u201cConsent Agreement and Order to Modify Child Support Order\u201d (consent order). During the years 2004 and 2005, Jackie Capps oversaw defendant\u2019s child support responsibilities on behalf of the Brunswick County Department of Social Services (DSS). Previously, defendant had been issued show cause orders for contempt for failure to pay child support, and a hearing for one such order was held on 30 August 2004.\nIn February, 2005, DSS sent Southport Concrete, defendant\u2019s then employer, a National Medical Support Notice seeking health insurance for defendant\u2019s minor children. On 23 February 2005, Southport Concrete sent DSS a response stating that \u201cAdam Burke is not required to have health insurance on his children,\u201d attached to which was a purported copy of the 30 August 2004 order. Ms. Capps noticed that the attached order differed from the copy she had from the hearing on 30 August 2004. The copy from Southport Concrete included handwritten portions relieving defendant of his obligation to provide medical insurance to his children through his employer. Ms. Capps also knew that an order from a show cause hearing would not have an effect on defendant\u2019s obligations regarding his children\u2019s medical insurance through his employer. Ms. Capps went to the Clerk of Court and found the original order, which did not contain the hand-written language, made copies of it, and had a clerk in the civil department stamp each page to certify that it was a true copy.\nOn 3 March 2005, Ms. Capps was summoned to the clerk\u2019s office, where she learned that the order in the file had been changed to match the one sent to her by Southport Concrete. Defendant was asked to provide handwriting samples, which Captain John P. Roggina of the New Hanover County Sheriff\u2019s Department analyzed. Upon Captain Roggina\u2019s written opinion that the handwriting of the altered portion of the court order was consistent with defendant\u2019s handwriting samples, defendant was arrested and charged with the felony of intentionally and materially altering an official case record.\nDuring the ensuing trial, the trial judge asked Ms. Capps two questions regarding testimony that she had just given during redirect examination; defendant did not object to these questions. Also, when giving jury instructions, the trial judge added the following to the pattern jury instruction: \u201cA reasonable doubt is not a vain doubt; it\u2019s not a fanciful doubt; it\u2019s not proof beyond all doubt; it\u2019s not proof beyond a shadow of a doubt. There are few things in human existence we can prove beyond all doubt and a shadow of a doubt.\u201d Defendant did not object to this instruction. The jury found defendant guilty and defendant now appeals.\nThe State contends that defendant violated the North Carolina Rules of Appellate Procedure and that for this reason, defendant\u2019s appeal should be dismissed. The State argues that defendant violated Rule 28(b)(6), which states, in relevant part:\nImmediately following each question shall be a reference to the assignments of error pertinent to the question, identified by their numbers and by the pages at which they appear in the printed record on appeal. Assignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\nN.C.R. App. P. 28(b)(6) (2007). In his brief, defendant cited the transcript rather than the record for the assignments of error. The State argues that our Supreme Court has stated that an appellate court may not create an appeal for a defendant who violates the Rules of Appellate Procedure. Viar v. N.C. Dep\u2019t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). However, our Supreme Court has more recently noted that although \u201ccompliance with the Rules is required[,] . . . every violation of the rules does not require dismissal of the appeal or the issue, although some other sanction may be appropriate, pursuant to Rule 25(b) or Rule 34 of the Rules of Appellate Procedure.\u201d State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007) (citations omitted). Further, defendant\u2019s mistake does not prevent this Court or the litigants from a full understanding of the issues at hand, nor does it obstruct the process of this appeal. We therefore address the merits of defendant\u2019s appeal.\nDefendant first argues that the trial court erred in denying his motion to dismiss for insufficiency of the evidence. The standard of review for ruling on a defendant\u2019s motion to dismiss is whether \u201cthe state has presented substantial evidence on each element of the crime and substantial evidence that the defendant is the perpetrator.\u201d State v. Replogle, 181 N.C. App. 579, 580-81, 640 S.E.2d 757, 759 (2007) (quoting State v. Fowler, 353 N.C. 599, 621, 548 S.E.2d 684, 700 (2001)). \u201cSubstantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion.\u201d State v. Peoples, 167 N.C. App. 63, 67, 604 S.E.2d 321, 324 (2004) (citations and quotations omitted). The evidence should be considered \u201cin the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.\u201d State v. Combs, 182 N.C. App. 365, 368, 642 S.E.2d 491,-(2007).\nThe State makes three contentions: (1) that the second page of the court order was swapped with another page between 23 February and 2 March 2005; (2) that the swap was a material alteration; and (3) that defendant swapped the pages. Defendant argues that the State\u2019s evidence is insufficient to prove any of the above, while the State counters that, looking at the undisputed facts in the light most favorable to the State, a jury could rationally conclude that all three of the State\u2019s contentions are correct. We agree with the State.\nBased on the undisputed facts, a jury could rationally have concluded that defendant was the individual who swapped the pages in the court order. First, the handwriting expert\u2019s opinion was that defendant wrote the handwritten parts of the altered page. Second, defendant was the only one who had a motive to swap the documents; the swap gave him a benefit that he sought before the swap occurred. Finally, defendant\u2019s communication with an employee at Southport Concrete revealed that he was aware of the language that was added to the altered order and the benefit it accorded him. On these facts, we hold that there was sufficient evidence to take the case to a jury. Accordingly, the trial court properly denied defendant\u2019s motion to dismiss.\nDefendant next argues that the trial judge abused his discretion in asking Ms. Capps two questions of clarification while she was on the stand. However, \u201cit is well recognized that a trial judge has a duty to question a witness in order to clarify his testimony or to elicit overlooked pertinent facts.\u201d State v. Fleming, 350 N.C. 109, 126, 512 S.E.2d 720, 732 (1999) (citations and quotations omitted). Likewise, it is \u201cwell settled\u201d that a trial judge may question witnesses in the interests of supervising and controlling the course of a trial. State v. Rushdan, 183 N.C. App. 281, 284, 644 S.E.2d 568, 571 (2007).\nThe 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. In evaluating whether a judge\u2019s comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized.\nId. at 283-84, 644 S.E.2d at 571 (quoting N.C. Gen. Stat. \u00a7 15A-1222 (2005); State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995)). \u201cA new trial is not required if, considering the totality of the circumstances under which the remark was made, defendant fails to show prejudice.\u201d Id. at 284, 644 S.E.2d at 571 (citation omitted).\nDefendant contends that the trial judge\u2019s questions were not made for the purpose of clarification, but reiterations of certain facts. Defendant argues that these facts therefore received undue weight in the eyes of the jury. The interchange between the trial judge and Ms. Capps is as follows:\nA. He has never said that but there has been some testimony as to he has never seen an order that ordered him to provide medical insurance.\nTHE COURT: BY \u201cTHERE\u2019S BEEN SOME TESTIMONY,\u201d YOU MEAN IN PERHAPS A CHILD SUPPORT CASE?\nA. Yes.\nTHE COURT: YOU MEAN TESTIMONY BY HIM?\nA. Yes.\nWe find that these questions were intended to clarify the witness\u2019s testimony because of the ambiguity in the phrase \u201cthere has been some testimony.\u201d It was not clear to what case or type of case Ms. Capps was referring. Nor was it clear to whose testimony she referred. The trial judge\u2019s questions did not communicate any opinion or prejudice defendant\u2019s case in any way. Because defendant is unable to show prejudice as a result of the trial judge\u2019s questioning, we find no error.\nFinally, defendant argues that the trial court committed plain error in its charge to the jury, which he argues contained a material addition in the instruction on reasonable doubt. Though defendant acknowledges that he did not object to the jury instruction and that this Court may therefore decline to review this issue, he claims that the \u201crhetorical imbalance\u201d caused by the judge\u2019s jury instruction prejudiced his case. Defendant\u2019s contention is without merit.\nBecause defendant failed to preserve this issue on appeal by neglecting to object to the jury instruction during the trial, \u201cwe may review it only for plain error.\u201d State v. Walters, 357 N.C. 68, 91, 588 S.E.2d 344, 358 (2003) (citations omitted). \u201c[I]t is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury.\u201d State v. Wiley, 182 N.C. App. 437, 444, 642 S.E.2d 717, 722 (2007). Defendant must prove that the error was \u201cso prejudicial, so lacking in its elements that justice cannot have been done, ... or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial.\u201d State v. Steward, 183 N.C. App. 492,-, 645 S.E.2d 231,-(2007).\n\u201c[A] jury instruction is unconstitutional if there is a reasonable likelihood that the jury understood the instruction to allow conviction without proof beyond a reasonable doubt.\u201d Tyler v. Cain, 533 U.S. 656, 658, 150 L. Ed. 2d 632, 640 (2001). Our Supreme Court has held that \u201cno particular formation of words is necessary to properly define reasonable doubt, but rather, the instructions, in their totality, must not indicate that the State\u2019s burden is lower than \u2018beyond a reasonable doubt.\u2019 \u201d State v. Taylor, 340 N.C. 52, 59, 455 S.E.2d 859, 862-63 (1995) (citing Victor v. Nebraska, 511 U.S. 1, 5, 127 L. Ed. 2d 583, 590 (1994)). In Taylor, our Supreme Court affirmed a previous holding in which language substantially similar to the jury instruction in the instant case was approved. Id. at 69, 455 S.E.2d at 863 (citing State v. Bryant, 337 N.C. 298, 446 S.E.2d 71 (1994)). The jury instruction given in Bryant was, in relevant part:\nA reasonable doubt is not a mere possible doubt, for most things that relate to human affairs are open to some possible or imaginary doubt.\nA reasonable doubt is not a vain, imaginary or fanciful doubt, but it is a sane, rational doubt arising out of the evidence or lack of evidence or from its deficiency.\nWhen it is said that the jury must be satisfied of the defendant\u2019s guilt beyond a reasonable doubt, it is meant that they must be fully satisfied or entirely convinced or satisfied to a moral certainty of the truth of the charge.\nIf, after considering, comparing and weighing all the evidence, the minds of the jurors are left in such condition that they cannot say they have an abiding faith to a moral certainty in the defendant\u2019s guilt, then they have a reasonable doubt; otherwise not.\nA reasonable doubt, as that term is employed in the administration of criminal law, is an honest substantial misgiving generated by the insufficiency of the proof. An insufficiency which fails to convince your judgment and confidence and satisfy your reasons as to the guilt of the defendant.\nBryant, 337 N.C. at 302, 446 S.E.2d at 73. The portion of the jury instruction in the instant case to which defendant takes issue is as follows: \u201cA reasonable doubt is not a vain doubt; it\u2019s not a fanciful doubt; it\u2019s not proof beyond all doubt; it\u2019s not proof beyond a shadow of a doubt. There are few things in human existence we can prove beyond all doubt and a shadow of a doubt.\u201d The added language on reasonable doubt is substantially the same as that which our Supreme Court has upheld. We therefore find no error in the instruction.\nMoreover, even if we were to find the additional language in error, which we do not, defendant fails to prove either that the error affected the instruction as a whole, or that it prejudiced his case. We find it highly unlikely that the altered jury instruction changed the outcome of defendant\u2019s trial. Defendant has therefore failed to establish plain error.\nHaving conducted a thorough review of the record, we find both that there was sufficient evidence to take the case to the jury, and that the trial judge\u2019s questions and instructions were appropriate under the circumstances. Accordingly, we find no error in defendant\u2019s trial.\nNo error.\nJudges HUNTER and GEER concur.\n. Captain Roggina is certified in handwriting analysis and has over thirty-two years of experience in this area.",
        "type": "majority",
        "author": "ELMORE, Judge."
      }
    ],
    "attorneys": [
      "Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, for defendant.",
      "Attorney General Roy Cooper, by Assistant Attorney General David D. Lennon, for the State."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. AARON MICHAEL BURKE, Defendant\nNo. COA06-1327\n(Filed 7 August 2007)\n1. Appeal and Error\u2014 assignments of error \u2014 citation to transcript rather than record \u2014 merits addressed\nThe merits of defendant\u2019s appeal were addressed even though he violated Appellate Rule 28(b)(6) by citing the transcript rather than the record for the assignments of error. Defendant\u2019s mistake does not prevent a full understanding of the issues at hand or obstruct the process of the appeal.\n2. Public Records\u2014 alteration of child support order \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss for insufficient evidence a charge of altering an official record (a child support record).\n3. Trials\u2014 questioning by judge \u2014 clarification of testimony\nThe trial court did not abuse its discretion by asking a witness two questions which were intended to clarify the witness\u2019s testimony. The questions did not communicate any opinion or prejudice defendant\u2019s case.\n4. Criminal Law\u2014 instructions \u2014 reasonable doubt \u2014 no plain error\nThere was no plain error in the trial court\u2019s jury instruction on reasonable doubt in a prosecution for altering an official document. The language to which defendant takes issue is substantially the same as that which the N.C. Supreme Court has upheld. Moreover, defendant did not prove that any error affected the instruction as a whole or prejudiced his case.\nAppeal by defendant from judgment entered 14 December 2005 by Judge D. Jack Hooks, Jr. in Brunswick County Superior Court. Heard in the Court of Appeals 25 April 2007.\nCheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, for defendant.\nAttorney General Roy Cooper, by Assistant Attorney General David D. Lennon, for the State."
  },
  "file_name": "0115-01",
  "first_page_order": 147,
  "last_page_order": 154
}
