{ "id": 4161736, "name": "STATE OF NORTH CAROLINA, Plaintiff v. TIMOTHY FRANKLIN BALLARD, III, Defendant", "name_abbreviation": "State v. Ballard", "decision_date": "2008-11-04", "docket_number": "No. COA08-196", "first_page": "551", "last_page": "560", "citations": [ { "type": "official", "cite": "193 N.C. App. 551" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "637 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637184, 12637182, 12637183 ], "year": 2006, "pin_cites": [ { "parenthetical": "citation, quotation marks, ellipsis, and bracket omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0180-03", "/se2d/637/0180-01", "/se2d/637/0180-02" ] }, { "cite": "632 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636327 ], "year": 2006, "pin_cites": [ { "page": "554", "parenthetical": "citation, quotation marks, ellipsis, and bracket omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0551-01" ] }, { "cite": "643 S.E.2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638055 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0034-01" ] }, { "cite": "628 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635674, 12635675 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/628/0009-01", "/se2d/628/0009-02" ] }, { "cite": "362 N.C. 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12641530 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/663/0433-02" ] }, { "cite": "620 S.E.2d 903", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634259 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "909-10" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0903-01" ] }, { "cite": "651 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639560 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/651/0256-01" ] }, { "cite": "658 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640625 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/se2d/658/0309-01" ] }, { "cite": "635 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636817 ], "year": 2006, "pin_cites": [ { "page": "534", "parenthetical": "citing State v. Anthony, 354 N.C. 372, 395, 555 S.E.2d 557, 575 (2001)" } ], "opinion_index": 0, "case_paths": [ "/se2d/635/0532-01" ] }, { "cite": "453 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2520644, 2521382, 2520494, 2517361, 2518303 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0671-03", "/nc/338/0671-02", "/nc/338/0671-04", "/nc/338/0671-05", "/nc/338/0671-01" ] }, { "cite": "449 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "33" }, { "page": "33" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 534", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524822 ], "pin_cites": [ { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0534-01" ] }, { "cite": "388 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "433-34", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "326 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305404 ], "year": 1990, "pin_cites": [ { "page": "164-65", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0155-01" ] }, { "cite": "360 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797632, 3787328, 3791939, 3788678, 3796552, 3797070, 3795089, 3789426, 3798133 ], "year": 2006, "pin_cites": [ { "parenthetical": "citation, quotation marks, ellipsis, and bracket omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0651-08", "/nc/360/0651-09", "/nc/360/0651-05", "/nc/360/0651-07", "/nc/360/0651-06", "/nc/360/0651-04", "/nc/360/0651-03", "/nc/360/0651-01", "/nc/360/0651-02" ] }, { "cite": "178 N.C. App. 689", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8379695 ], "year": 2006, "pin_cites": [ { "page": "693", "parenthetical": "citation, quotation marks, ellipsis, and bracket omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0689-01" ] }, { "cite": "329 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724129 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0404-01" ] }, { "cite": "517 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132055 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0640-01" ] }, { "cite": "182 N.C. App. 698", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8175807 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc-app/182/0698-01" ] }, { "cite": "651 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "174 N.C. App. 289", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351857 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/174/0289-01" ] }, { "cite": "186 N.C. App. 373", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8156879 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc-app/186/0373-01" ] }, { "cite": "189 N.C. App. 502", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156592 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc-app/189/0502-01" ] }, { "cite": "555 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "354 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138413 ], "year": 2001, "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0372-01" ] }, { "cite": "179 N.C. App. 827", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8240162 ], "year": 2006, "pin_cites": [ { "page": "829", "parenthetical": "citing State v. Anthony, 354 N.C. 372, 395, 555 S.E.2d 557, 575 (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0827-01" ] }, { "cite": "454 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558471, 2557867, 2559219, 2557752, 2559163 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0610-01", "/nc/339/0610-03", "/nc/339/0610-04", "/nc/339/0610-05", "/nc/339/0610-02" ] }, { "cite": "450 S.E.2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "13", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 64", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524062 ], "year": 1994, "pin_cites": [ { "page": "70", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0064-01" ] }, { "cite": "360 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "679", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "320 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729998 ], "year": 1987, "pin_cites": [ { "page": "750", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0746-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "378" }, { "page": "378-79" }, { "page": "378-79" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] } ], "analysis": { "cardinality": 776, "char_count": 21275, "ocr_confidence": 0.751, "pagerank": { "raw": 1.264070138863353e-07, "percentile": 0.6131071734298023 }, "sha256": "8259314509c6b57639c0144f22530f70662db3d9565b0c28966d00f699541129", "simhash": "1:93295f2bc70e9cf7", "word_count": 3613 }, "last_updated": "2023-07-14T16:30:29.332614+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and MCCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA, Plaintiff v. TIMOTHY FRANKLIN BALLARD, III, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant appeals from his conviction by a jury of second-degree murder. Defendant argues the trial court plainly erred in \u201cfailing to instruct the jury that if the [S]tate failed to prove any element of the charged offense, or any lesser included offense, it must find defendant not guilty[,]\u201d and \u201cdenying the jury\u2019s request for the testimony of three witnessesf,]\u201d and erred in instructing the jury on flight. For the following reasons, we find no prejudicial error.\nI. Background\nThe State\u2019s evidence tended to show the following: Defendant and the victim lived together in a trailer on Kristilia Lane. Defendant and the victim were having problems because the victim owed defendant money. On 29 July 2006, defendant\u2019s brother, Luther Ballard, told defendant he was thinking of selling his .41 Magnum Smith & Wesson handgun, and defendant bought the gun.\nDefendant testified that he and his brother Norman went to the trailer to get some of his stuff. Defendant claims the victim said he was going to kill him and that he shot the victim in self-defense. Defendant \u201cwas so scared [he] emptied the pistol.\u201d When Detective Scott Galloway (\u201cDetective Galloway\u201d) of the Henderson County Sheriff\u2019s Department responded to a dispatch about the shooting on Kristilia Lane, he blocked defendant\u2019s escape, and defendant got out of his car and surrendered.\nOn or about 27 November 2006, defendant was indicted for first-degree murder. On or about 16 July 2007, a jury found defendant guilty of second-degree murder. On or about 18 July 2007, the trial court sentenced defendant to a minimum term of 216 months to a maximum term of 269 months imprisonment. Defendant argues the trial court plainly erred in \u201cfailing to instruct the jury that if the [S]tate failed to prove any element of the charged offense, or any lesser included offense, it must find defendant not guiltyf,]\u201d and \u201cdenying the jury\u2019s request for the testimony of three witnesses!,]\u201d and erred in instructing the jury on flight. For the following reasons, we find no prejudicial error.\nII. Jury Instructions as to Elements of the Charged Offenses\n[1] Defendant first contends that\n[t]he trial court\u2019s instruction never told the jury that if it found that the State had failed to prove each essential element of first degree murder, it must find the defendant not guilty of that offense. Likewise, the trial court\u2019s instruction never told the jury that if the State failed to prove each essential element of second-degree murder, it must find the defendant not guilty of that offense.\nThe court\u2019s instructions left the jury to think that it could choose the most likely offense of three \u2014 first degree murder, second degree murder, or voluntary manslaughter \u2014 rather than correctly informing the jury that it had to consider each charge separately, assess whether the State had met its burden as to that charge, and if it had not, enter a verdict of not guilty to that charge.\nWe disagree.\nWhen a defendant fails to object to the trial court\u2019s jury instructions, he has failed to preserve the issue for appellate review. See N.C.R. App. P. 10(b)(2). Defendant concedes that he failed to object to the jury instructions on this issue. Therefore, the instructions are reviewed only for plain error. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). \u201cA prerequisite to our engaging in a \u2018plain error\u2019 analysis is the determination that the instruction complained of constitutes \u2018error\u2019 at all.\u201d State v. Johnson, 320 N.C. 746, 750, 360 S.E.2d 676, 679 (1987) (citation and quotation marks omitted). \u201cIn deciding whether a defect in the jury instruction constitutes \u2018plain error,\u2019 the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury\u2019s finding of guilt.\u201d Odom at 661, 300 S.E.2d at 378-79.\nThe trial court used the relevant sections of the North Carolina Pattern Jury Instructions \u2014 Criminal 206.10, almost verbatim, to instruct the jury as to the charged crimes. The trial court\u2019s instructions in pertinent part were,\nTherefore, if you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant intentionally, but not in self-defense, killed the victim with a deadly weapon, thereby proximately causing the victim\u2019s death; and that the defendant acted with malice, with premeditation or with deliberation, it would be your duty to return a verdict of guilty of First-Degree Murder. If you do not so find, or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of First-Degree Murder.\nIf you do not find the defendant guilty of First-Degree murder, you must determine whether he is guilty of Second-Degree murder. If you find from evidence beyond a reasonable doubt that on or about the alleged date the defendant intentionally and with malice, but not in self defense, wounded the victim with a deadly weapon, thereby proximately causing the victim\u2019s death, it would be your duty to return a verdict of guilty of Second-Degree Murder. If you do not so find or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of Second-Degree murder.\nIf you do not find the defendant guilty of Second-Degree Murder, you must consider whether he is guilty of Voluntary Manslaughter. If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant intentionally wounded the victim with a deadly weapon and thereby proximately causing the victim\u2019s death, and that the defendant was the aggressor in bringing on the fight, or used excessive force, it would be your duty to find the defendant guilty of voluntary manslaughter, even if the State has failed to prove that the defendant did not act in self defense.\nOr if you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant intentionally, and not in self defense, wounded the victim with a deadly weapon and thereby proximately caused the victim\u2019s death, that the State has failed to satisfy you beyond a reasonable doubt that the defendant did not act in the heat of passion upon adequate provocation, it would be your duty to return a verdict of guilty of Voluntary Manslaughter. If you do not so find or have a reasonable doubt as to one or more of these things, you will return a verdict of Not Guilty.\nAnd finally, if the State has failed to satisfy you beyond a reasonable doubt that the defendant did not act in self defense, then the defendant\u2019s action would be justified by self defense. Therefore you would return a verdict of not guilty.\n\u201cThis Court has recognized that the preferred method of jury instruction is the use of the approved guidelines of the North Carolina Pattern Jury Instructions.\u201d Caudill v. Smith, 117 N.C. App. 64, 70, 450 S.E.2d 8, 13 (1994) (citation omitted); disc. review denied, 339 N.C. 610, 454 S.E.2d 247 (1995). \u201cJury instructions in accord with a previously approved pattern jury instruction provide the jury with an understandable explanation of the law.\u201d Carrington v. Emory, 179 N.C. App. 827, 829, 635 S.E.2d 532, 534 (2006) (citing State v. Anthony, 354 N.C. 372, 395, 555 S.E.2d 557, 575 (2001)).\nIn spite of the trial court\u2019s accurate instructions of the relevant law pursuant to the pattern jury instructions, defendant directs our attention to three cases, State v. Jenkins, 189 N.C. App. 502, 658 S.E.2d 309 (2008); State v. McArthur, 186 N.C. App. 373, 651 S.E.2d 256 (2007); State v. McHone, 174 N.C. App. 289, 620 S.E.2d 903 (2005), arguing that these cases require the trial court to give instructions to find the defendant not guilty if the jurors have a reasonable doubt or if the State fails to meet its burden as to any of the elements of the charged offense. All of these cases are clearly distinguishable from the present case. In Jenkins, this Court concluded that \u201cthe omission of \u2018not guilty\u2019 on the verdict form is reversible error.\u201d See Jenkins at 504, 658 S.E.2d at 311. However, in the case at bar, there was a \u201cnot guilty\u201d option on the verdict form.\nIn McArthur, this Court concluded that\nwe are required to award defendant a new trial because of the trial court\u2019s failure to include a specific instruction directing the jury to enter a verdict of not guilty if it found that the State had failed to prove any of the elements of the charged crimes beyond a reasonable doubt.\nMcArthur at 380, 651 S.E.2d 260. However, in the present case, unlike in McArthur, the trial court explicitly instructed the jury in its final mandate that, \u201cIf you do not so find or have a reasonable doubt as to one or more of these things, you will return a verdict of Not Guilty.\u201d The trial court provided the \u201cnot guilty\u201d instructions before stating, \u201cAnd finally, if the State has failed to satisfy you beyond a reasonable doubt that the defendant did not act in self defense, then the defendant\u2019s action would be justified by self defense. Therefore you would return a verdict of not guilty.\u201d Thus, in the present case, the instructions make it clear that defendant should be found not guilty if the jury has reasonable doubt as to any elements of the charged crimes or if the jury finds defendant acted in self defense.\nIn McHone, this Court concluded that the trial court committed plain error where the trial court as to the charge of first-degree murder failed \u201cto provide a not guilty final mandate[,]\u201d \u201cthe verdict sheet itself did not provide a space or option of \u2018not guilty\u2019[,]\u201d and there was additional confusion due to the trial court providing the final mandate and the \u201cnot guilty\u201d option on the verdict sheet on the charge of armed robbery. McHone at 296-99, 620 S.E.2d at 909-10, disc. review denied, 362 N.C. 368, 628 S.E.2d 9 (2006). In the present case, the trial court provided the final mandate almost verbatim from North Carolina Pattern Jury Instruction 206.10, which included a \u201cnot guilty\u201d instruction, the verdict sheet provided an option of \u201cnot guilty,\u201d and there was no confusion as to other additional charges. We conclude that the trial court did in fact \u201cinstruct the jury that if the [S]tate failed to prove any element of the charged offense, or any lesser included offense, it must find defendant not guilty.\u201d Therefore, defendant\u2019s argument is overruled.\nIII. Denial of Jury\u2019s Request\nDefendant argues that \u201cthe trial court plainly erred in denying the jury\u2019s request for the testimony of three witnesses on the ground that it would be inconvenient to produce it.\u201d In the instant case, the jury sent a note to the trial judge requesting the testimony of three witnesses: Rebekah Mejia, Steve Harris, and Timothy Ballard. Subsequent to this request, the trial court informed the jury,\nTHE COURT: Members of the jury, you have requested the testimony of three witnesses.\nI\u2019ve got the discretion to order that, but I\u2019m not going to do that. And I want to tell you why. It\u2019s just completely impractical, because the court reporter would have to go and type it all up, which means that I would have to send you all home now and bring you back Monday \u2014 assuming she \u2014 and force her to do it over the weekend.\nThat\u2019s the only way the testimony is available. So, consequently I\u2019m going to have to deny you alls request for that. Remember it\u2019s your duty to remember all the evidence, and to take your recollection of it, rather than what the attorneys have told you it is, if there\u2019s some conflict between the two.\nAs defendant failed to object to this issue at trial he again concedes that plain error is the proper standard of review. See Odom at 661, 300 S.E.2d at 378-79. N.C. Gen. Stat. \u00a7 15A-1233(a) reads,\nIf the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence. In his discretion the judge may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.\nN.C. Gen. Stat. \u00a7 15A-1233(a) (2005).\nDefendant cites numerous cases that he contends are analogous to the present case; however, we conclude this case is controlled by State v. James, 182 N.C. App. 698, 643 S.E.2d 34 (2007). In James, the jury requested it be allowed to review two witnesses\u2019 testimony. Id. at 706, 643 S.E.2d at 39. In response to this request the trial court stated,\nI would instruct you, or tell you, that although the Court Reporter does make a record of the testimony in the trial, it is not done or not produced as the testimony is being given \u2014 and the term is that it is being done in real time \u2014 but rather is later prepared by the Court Reporter. The Court Reporter takes the record that he has made and reduces it to a typed report, which takes some time. So I am not going to stop your deliberations and send him to type this transcript and come back at some later time to present that to you.\nSo, in my discretion, I am not going to supply you with transcripts of the testimony but would instruct you to use your recollection as to the testimony of those other two witnesses, and the other witnesses in the trial.\nId.\nThe defendant in James argued that\nthis exchange shows the trial court did not understand that it had the authority to allow the jury to reexamine testimony, and that this misunderstanding prejudiced him. In support, defendant cites State v. Barrow, 350 N.C. 640, 517 S.E.2d 374 (1999), and other cases in which the trial court failed to realize that it had discretion to grant or deny a jury\u2019s request to reexamine evidence.\nId.\nHowever, this Court found no error and concluded that\nthe facts of this case are more analogous to State v. Burgin, 313 N.C. 404, 329 S.E.2d 653 (1985), where a trial court recognized the authority to order the jury to reexamine testimony read back or transcribed, but in its discretion denied the jury\u2019s request. Here, the trial court noted that it would be time consuming for the testimony to be transcribed, but never indicated it lacked authority to order the court reporter to transcribe the requested testimony. The trial court further noted that it was denying the request at its discretion, which implies that the court understood that it could have granted the request at its discretion but chose not to do so. This is the distinguishing fact between the Barrow line of cases and the Burgin line of cases, and places this case squarely with the latter.\nId.\nHere too defendant cites to State v. Barrow, 350 N.C. 640, 517 S.E.2d 374 (1999). However, as the trial court here stated, \u201cI\u2019ve got the discretion to order that, but I\u2019m not going to do that. And I want to tell you why. It\u2019s just completely impractical....[,]\u201d we conclude that this case is controlled by James citing Burgin \u201cwhere a trial court recognized the authority to order the jury to reexamine testimony read back or transcribed, but in its discretion denied the jury\u2019s request.\u201d Id. Accordingly, this assignment of error is overruled.\nIV. Jury Instructions on Flight\nDefendant next contends that \u201cthe trial court erred in instructing the jury on defendant\u2019s flight\u201d as \u201c[t]he instruction was not supported by the evidence.\u201d Defendant further contends that this is prejudicial to him because \u201cflight could be evidence of consciousness of guilt .... [and] the jury could use it to infer that his claim of self-defense was not valid.\u201d We disagree.\nThe trial court instructed the jury on defendant\u2019s flight as follows:\nThe 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 by itself to establish the defendant\u2019s guilt. Further, this circumstance has no bearing on the question of whether the defendant acted with premeditation and deliberation. Therefore, it must not be considered by you as evidence of premeditation or deliberation.\nHere defendant objected to the flight instruction, and thus we review\njury instructions contextually and in its entirety. The charge will be held to be sufficient if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed. Under such a standard of review, it 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.\nState v. Glynn, 178 N.C. App. 689, 693, 632 S.E.2d 551, 554, disc. review denied, 360 N.C. 651, 637 S.E.2d 180 (2006) (citation, quotation marks, ellipsis, and bracket omitted).\nA trial court may instruct a jury on a defendant\u2019s flight where \u201cthere is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.\u201d State v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 433-34 (1990) (citations and quotation marks omitted).\n[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. However, there need only be some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.\nState v. Westall, 116 N.C. App. 534, 549, 449 S.E.2d 24, 33 (citation and quotation marks omitted), disc. review denied, 338 N.C. 671, 453 S.E.2d 185 (1994).\nIn the instant case, according to defendant\u2019s own testimony he took off his jacket, wrapped up the gun, and placed it in the car floorboard. Defendant gave the money he had to his brother, but defendant\u2019s brother gave it back with the car keys and told defendant to \u201cGo[.]\u201d Defendant left the scene and parked the car. At this point defendant claims he got out of his car when he saw an officer approaching. However, according to Detective Galloway, when he approached Kristilia Lane, defendant was doing a U-tum and Detective Galloway blocked defendant\u2019s car with his car. This testimony is enough to warrant an instruction on flight as there is evidence defendant left the scene of the crime and \u201ctook steps to avoid apprehension.\u201d Westall at 549, 449 S.E.2d at 33. This argument is overruled.\nV. Conclusion\nFor the foregoing reasons we find no error in the trial court\u2019s jury instructions or in its denial to provide the jury with a transcript.\nNO ERROR.\nJudges McGEE and MCCULLOUGH concur.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III by Special Deputy Attorney General R. Marcus Lodge, for the State.", "Reita P. Pendry, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, Plaintiff v. TIMOTHY FRANKLIN BALLARD, III, Defendant\nNo. COA08-196\n(Filed 4 November 2008)\n1. Homicide\u2014 first-degree murder \u2014 not guilty instruction\u2014 plain error analysis\nThe trial court did not commit plain error in a first-degree murder case by allegedly failing to instruct the jury that if the State failed to prove any element of the charged offense, or any lesser-included offense, it must find defendant not guilty because: (1) the instructions stated that defendant should be found not guilty if the jury has reasonable doubt as to any elements of the charged crimes or if the jury finds defendant acted in self-defense; and (2) the trial court used the relevant sections of North Carolina Pattern Jury Instructions \u2014 Criminal 206.10 almost verbatim to instruct the jury as to the charged crimes, which included a \u201cnot guilty\u201d instruction, the verdict sheet provided an option of \u201cnot guilty,\u201d and there was no confusion as to other additional charges.\n2. Jury\u2014 request to reexamine testimony \u2014 trial court exercised discretion to deny request\nThe trial court did not commit plain error in a first-degree murder case by denying the jury\u2019s request for the testimony of three witnesses on the ground that it would be inconvenient to produce because: (1) the trial court stated it had the discretion to order it, but it was not going to do so since it was completely impractical; and (2) the trial court thus recognized the authority to order the jury to reexamine testimony read back or transcribed, but in its discretion denied the jury\u2019s request.\n3. Criminal Law\u2014 instruction \u2014 flight\nThe trial court did not commit plain error in a first-degree murder case by instructing the jury on defendant\u2019s flight because: (I) a trial court may instruct a jury on a defendant\u2019s flight where there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged; and (2) defendant\u2019s own testimony was enough to warrant the instruction as there was evidence defendant left the scene of the crime and took steps to avoid apprehension.\nAppeal by defendant from judgment entered on or about 18 July 2007 by Judge Dennis J. Winner in Superior Court, Henderson County. Heard in the Court of Appeals 9 September 2008.\nAttorney General Roy A. Cooper, III by Special Deputy Attorney General R. Marcus Lodge, for the State.\nReita P. Pendry, for defendant-appellant." }, "file_name": "0551-01", "first_page_order": 583, "last_page_order": 592 }