{ "id": 4233363, "name": "STATE OF NORTH CAROLINA v. TONY ALLEN HERRIN", "name_abbreviation": "State v. Herrin", "decision_date": "2011-06-21", "docket_number": "No. COA10-1446", "first_page": "68", "last_page": "75", "citations": [ { "type": "official", "cite": "213 N.C. App. 68" } ], "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": "666 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641915, 12641916, 12641917 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/666/0760-01", "/se2d/666/0760-02", "/se2d/666/0760-03" ] }, { "cite": "362 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12641916 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/666/0760-02" ] }, { "cite": "656 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640341 ], "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0322-01" ] }, { "cite": "296 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "295", "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "307 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560821 ], "year": 1982, "pin_cites": [ { "page": "123", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0122-01" ] }, { "cite": "188 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156167 ], "pin_cites": [ { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0498-01" ] }, { "cite": "113 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "700" } ], "opinion_index": 0 }, { "cite": "252 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621023 ], "year": 1960, "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0229-01" ] }, { "cite": "527 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "75", "parenthetical": "alteration and omissions in original" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 104", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092059 ], "year": 2000, "pin_cites": [ { "page": "111-12", "parenthetical": "alteration and omissions in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0104-01" ] }, { "cite": "57 S.E.2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "777" } ], "opinion_index": 0 }, { "cite": "231 N.C. 467", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630474 ], "year": 1950, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0467-01" ] }, { "cite": "245 U.S. 418", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3694133 ], "weight": 2, "year": 1918, "pin_cites": [ { "page": "425" }, { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/us/245/0418-01" ] }, { "cite": "456 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "808" }, { "page": "808" } ], "opinion_index": 0 }, { "cite": "340 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790125 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "155" }, { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0119-01" ] }, { "cite": "306 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "845", "parenthetical": "\"[A] new trial may be awarded if the remarks go to the heart of the case.\"" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 177", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526451 ], "year": 1983, "pin_cites": [ { "page": "179", "parenthetical": "\"[A] new trial may be awarded if the remarks go to the heart of the case.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0177-01" ] }, { "cite": "333 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1985, "pin_cites": [ { "page": "248" }, { "page": "248" }, { "page": "248" }, { "page": "248" } ], "opinion_index": 0 }, { "cite": "314 N.C. 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696763 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "236" }, { "page": "236" }, { "page": "236" }, { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0232-01" ] }, { "cite": "248 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "444" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 603", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555344 ], "year": 1978, "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0603-01" ] }, { "cite": "259 S.E.2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "267" } ], "opinion_index": 0 }, { "cite": "298 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572690 ], "year": 1979, "pin_cites": [ { "page": "446-47" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0441-01" ] }, { "cite": "65 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1951, "pin_cites": [ { "page": "10" }, { "page": "11" }, { "page": "10" } ], "opinion_index": 0 }, { "cite": "233 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613655 ], "weight": 3, "year": 1951, "pin_cites": [ { "page": "583" }, { "page": "583" }, { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0581-01" ] }, { "cite": "380 S.E.2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "97" } ], "opinion_index": 0 }, { "cite": "324 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486845 ], "year": 1989, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0489-01" ] }, { "cite": "471 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "616" } ], "opinion_index": 0 }, { "cite": "343 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798758 ], "year": 1996, "pin_cites": [ { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0313-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-49", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(a)", "parenthetical": "emphasis added" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 942, "char_count": 18760, "ocr_confidence": 0.749, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14038907287644956 }, "sha256": "544a4cff669d3ed037faa3d9d8109a8c6466d8ec1af5b731b97cb912c2fb79ae", "simhash": "1:432a41542c7b74d4", "word_count": 3155 }, "last_updated": "2023-07-14T21:51:58.983312+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TONY ALLEN HERRIN" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nDefendant Tony Allen Herrin appeals from a judgment entered upon a jury verdict finding him guilty of felonious malicious use of an explosive or incendiary device or material in violation of N.C.G.S. \u00a7 1449(a).\nThe evidence presented at trial tended to show that, in the early evening hours of 19 July 2009, defendant was visiting with some of the other residents in his mobile home community in Gastonia, North Carolina, when Julie Davenport rode towards the group on her child-sized bicycle. Mrs. Davenport and her husband, Daniel Davenport, lived next-door to defendant in the mobile home community, and had been defendant\u2019s neighbors since he moved into the community three years prior. According to defendant, he had a good relationship with the Davenports, and testified that, earlier that day, at Mr. Davenport\u2019s request, defendant did some brake repair work on Mr. Davenport\u2019s vehicle, and then \u201cwent halfers [sic]\u201d with Mr. Davenport on a \u201ccrack rock.\u201d\nAs Mrs. Davenport peddled her small bicycle toward the gathering of neighbors, defendant approached Mrs. Davenport, grabbed the bicycle, pulled it out from under her, and began \u201cplaying tug of war with [her] bicycle.\u201d Although defendant said he and Mrs. Davenport were \u201cjust pulling, playing around,\u201d as he claimed they did every day, Mrs. Davenport suggested that defendant was not being playful and that he \u201cwas cussing all the cuss words\u201d at her as he tugged on her bicycle. When Mr. Davenport, who was outside of his mobile home at the time, saw this interaction between his wife and defendant, Mr. Davenport \u201cstarted in that direction to assist [his] wife, because [he] knew she was in trouble.\u201d The struggle between defendant and Mrs. Davenport continued and, according to Mr. Davenport, as defendant tugged on the bicycle, he \u201ckept dragging [Mrs. Davenport] towards the creek,\u201d which ran through a ditch that was in close proximity to their homes, until Mrs. Davenport \u201ccouldn\u2019t hold [her] strength anymore and [she] had to let [the bicycle] go.\u201d When Mrs. Davenport let go of the bicycle, defendant \u201cfell back into the creek with the bicycle on top of him, and he hit a stump on this side of his head and made his head bleed.\u201d Defendant then emerged from the creek and climbed out of the ditch. By this time, Mr. Davenport had made his way over to defendant. Mrs. Davenport then took her bicycle and returned home. Although there is conflicting testimony about the exchange that followed between defendant and Mr. Davenport, the testifying witnesses appear to agree that, at some point during the exchange, Mr. Davenport put one or both of his hands around defendant\u2019s neck and, in response, defendant punched Mr. Davenport in the jaw. Mr. Davenport then left defendant and returned home.\nThe Davenports testified that, shortly thereafter, they looked outside and saw defendant swinging a flatbladed shovel at a neighbor\u2019s dog and at the Davenports\u2019 cats in the yard between their home and defendant\u2019s home. Believing that defendant was trying to kill their cats, Mr. Davenport went outside and grabbed his shovel to confront defendant and Mrs. Davenport grabbed a steel or metal-tined rake and followed behind her husband. Although defendant and his witnesses testified that the Davenports were the first to arm themselves with yard tools before defendant approached them with his shovel in hand, all parties agree that, when the three met, they began \u201cdueling with the shovels and rakes\u201d for about ten minutes, with \u201cshovels and rakes going everywhere.\u201d\nDuring the course of the altercation, the three alternately wielded their gardening implements at each other \u201cwildly,\u201d in what was described as a \u201cfull-fledged massacre.\u201d At one point, Mrs. Davenport swung the rake so that the metal tines went into [defendant\u2019s] arm and, when Mrs. Davenport \u201cwent to yank it out, [the tines] were stuck in defendant\u2019s arm, so the rake broke\u201d and left \u201cfour big old holes\u201d in defendant\u2019s arm, \u201cpull[ing] the meat out of the holes.\u201d The Davenports then knocked the shovel out of defendant\u2019s hands. Shortly thereafter, Mr. Davenport said that defendant \u2014 who had been heard to say that he \u201cwould light people up\u201d on several occasions\u2014 said he was going to \u201cburnQ you all.\u201d Then, according to his own testimony, defendant took a few steps back to his house and grabbed a cut off aluminum Bud Lite can that was \u201cfull of gas\u201d and also \u201chad a little bit of two-cycle oil in it,\u201d which defendant had been using to start his car. \u201c[B]ecause [he] knowed [sic] [he] had [gas in] there because [he] was working on [his] car there,\u201d defendant testified that he \u201cslung that gas on [Mr. Davenport]\u201d and \u201cdoused [Mr. Davenport] straight on in [his] face\u201d and down his back. Then, defendant struck his lighter three times and Mr. Davenport \u201cwas, puff, on fire.\u201d A few seconds later, after defendant ignited the material he had thrown on Mr. Davenport, according to Mr. Davenport\u2019s testimony, defendant \u201cran like a bitch all the way, way down past his house.\" Mr. Davenport then jumped in the creek to put out the fire, was taken by ambulance to the hospital, and was then transferred to the Chapel Hill Burn Center, where he was treated and released two or three days later.\nDefendant was indicted for maliciously injuring Mr. Davenport by using an explosive or incendiary device or material in violation of N.C.G.S. \u00a7 14-49(a). The matter was tried before a jury in Gaston County Superior Court. Defendant moved to dismiss the charge at the close of the State\u2019s evidence and at the close of all of the evidence, which the trial court denied. On 20 May 2010, the jury found defendant guilty and, on the same day, the trial court entered its judgment upon the jury\u2019s verdict and sentenced defendant to a minimum term of 133 months and a maximum term of 169 months imprisonment. In its order, the trial court included the following additional recommendation: \u201cThis sentence shall not and can not [sic] be served with any other sentence.\u201d Defendant gave timely written notice of appeal.\nI.\nDefendant first contends the trial court erred by instructing the jury that \u201cgasoline is an incendiary material,\u201d because defendant asserts that he had a \u201cconstitutional right\u201d to have the jury determine \u201cwhether the gas mixture that he threw on Daniel Davenport was an incendiary material.\u201d However, our review of the record shows that, at trial, defendant did not object to this instruction on the grounds he now advances to this Court. Instead, defendant only requested that the trial court instruct the jury that gasoline is an incendiary material or device, in order to adhere more closely to the language of N.C.G.S. \u00a7 14-49(a), which provides that a person is guilty of the Class D felony of malicious use of an explosive or incendiary when he or she \u201cwillfully and maliciously injures another by the use of any explosive or incendiary device or material.\u201d N.C. Gen. Stat. \u00a7 14-49(a) (2009) (emphasis added). We do not find that defendant challenged this portion of the trial court\u2019s instruction on the basis of the arguments advanced in his brief. Moreover, defendant does not argue that, in the absence of an objection, the trial court committed plain error by instructing the jury that \u201cgasoline is an incendiary material.\u201d Therefore, \u201c[s]ince defendant did not object at trial or allege plain error, he has failed to properly preserve this issue for appeal.\u201d See State v. Scott, 343 N.C. 313, 332, 471 S.E.2d 605, 616 (1996). Accordingly, we overrule this issue on appeal.\nII.\nDefendant next contends the trial court committed prejudicial error in violation of N.C.G.S. \u00a7 15A-1222 when the judge laughed in open court and in the presence of the jury upon hearing Mr. Davenport\u2019s testimony that defendant \u201cran like a bitch all the way, way down past his house.\u201d Although defendant failed to raise an objection to the judge\u2019s outburst at trial, \u201c[t]he statutory prohibitions against expressions of opinion by the trial court contained in N.C.G.S. \u00a7 15A-1222 and N.C.G.S. \u00a7 15A-1232 are mandatory.\u201d See State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989). Thus, \u201c[a] defendant\u2019s failure to object to alleged expressions of opinion by the trial court in violation of those statutes does not preclude his raising the issue on appeal.\u201d Id. Accordingly, contrary to the State\u2019s suggestion, we need not confine our review of this issue to plain error, but, after considering the merits of defendant\u2019s arguments, we conclude defendant suffered no prejudice as a result of the trial court\u2019s injudicious conduct.\n\u201cEvery person charged with crime ... is entitled to a trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.\u201d State v. Garter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951). \u201cThe responsibility for enforcing this right necessarily rests upon the trial judge. He should conduct himself with the utmost caution in order that the right of the accused to a fair trial may not be nullified by any act of his.\u201d Id. Thus, in accordance with N.C.G.S. \u00a7\u00a7 15A-1222 and 15A-1232, the trial judge \u201cmust abstain from conduct or language which tends to discredit or prejudice the accused or his cause with the jury.\u201d Id.; see also State v. Herbin, 298 N.C. 441, 446-47, 259 S.E.2d 263, 267 (1979) (\u201cA trial judge cannot express an opinion on the evidence in the presence of the jury at any stage of the trial. [N.C.G.S. \u00a7\u00a7 15A-1222 and 15A-1232] repealed and replaced [N.C.G.S. \u00a7] 1-180 effective 1 July 1978. The new provisions restate the substance of [N.C.G.S. \u00a7] 1-180 and the law remains essentially unchanged.\u201d (citations omitted)).\nN.C.G.S. \u00a7 15A-1222 provides that \u201c[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.\u201d N.C. Gen. Stat. \u00a7 15A-1222 (2009). However, \u201c[n]ot every indiscreet and improper remark by a trial judge is of such harmful effect as to require a new trial.\u201d State v. Whitted, 38 N.C. App. 603, 606, 248 S.E.2d 442, 444 (1978). \u201c[I]n a criminal case[,] it is only when the jury may reasonably infer from the evidence before it that the trial judge\u2019s action intimated an opinion as to a factual issue, the defendant\u2019s guilt, the weight of the evidence!,] or a witness\u2019s credibility that prejudicial error results.\u201d State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985); see also State v. Sidbury, 64 N.C. App. 177, 179, 306 S.E.2d 844, 845 (1983) (\u201c[A] new trial may be awarded if the remarks go to the heart of the case.\u201d). \u201cIn evaluating whether a judge\u2019s comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized.\u201d State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995). \u201cThis is so because \u2018a word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.\u2019 \u201d Carter, 233 N.C. at 583, 65 S.E.2d at 11 (quoting Towne v. Eisner, 245 U.S. 418, 425, 62 L. Ed. 372, 376 (1918)). Therefore, \u201c \u2018[u]nless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless.\u2019 \u201d Larrimore, 340 N.C. at 155, 456 S.E.2d at 808 (quoting State v. Perry, 231 N.C. 467, 471, 57 S.E.2d 774, 777 (1950)). Moreover, \u201cthe burden of showing prejudice [is] upon the defendant.\u201d Blackstock, 314 N.C. at 236, 333 S.E.2d at 248.\nIn the present case, defendant asserts as error the judge\u2019s \u201cinappropriate laughter\u201d after Mr. Davenport testified that defendant \u201cran like a bitch all the way, way down past his house.\u201d Defendant argues that the court\u2019s reaction \u201ccan only be viewed as a comment on the evidence being presented,\u201d and \u201ceffectively told the jury that they need not take this evidence seriously.\u201d We do not agree.\nAfter Mr. Davenport gave the testimony to which the trial judge reacted, the prosecutor admonished Mr. Davenport for his use of profanity. The judge then stated:\nI\u2019m sorry. I\u2019m sorry. Just that terminology. I\u2019m sorry, sir. I know that you\u2019ve been waiting for the trial. It\u2019s just the terminology.\nI\u2019m sorry, I haven\u2019t heard that term utilized. I\u2019m sorry. I\u2019m sorry, sir. It\u2019s just the terminology.\nAfter the prosecutor asked Mr. Davenport a few more questions, the judge instructed counsel to approach the bench and then instructed the bailiff to escort the jury from the courtroom, at which time the judge addressed the witness as follows:\nSir, there is nothing funny about the allegation, and I know that this is \u2014 it is that term set me off, and I needed a moment. But there is nothing funny about the allegation. I know that this is a grave case, but that term has just stuck with me, and I needed a moment. I think the jury needed a moment as well. So give me just a moment here. All right.\nA few minutes later, the bailiff brought the jury back to the courtroom, at which time the judge made the following remarks to the jury:\nOkay, ladies and gentlemen, I appreciate you being back. Ladies and gentlemen, just as an aside, I\u2019ve been on the bench since 1996, but I\u2019m human just like the next person, and the terminology, one word the gentleman indicated obviously set me off for a moment. There\u2019s nothing \u2014 and I needed a moment simply to compose myself and have a moment to excuse you to the jury room, but I think we\u2019re ready to get started again. That happens rarely, but I needed a moment. . . .\nIn his brief, defendant recognizes that he has the burden of showing prejudice in violation of N.C.G.S. \u00a7 15A-1222. See Blackstock, 314 N.C. at 236, 333 S.E.2d at 248. We are not persuaded that defendant has met his burden to establish that the judge\u2019s outburst indicated an \u201copinion upon any issue to be decided by the jury or... indicate [d] in any manner his opinion as to the weight of the evidence or the credibility of any evidence properly before the jury.\u201d See id. Although the judge\u2019s outburst may have been illadvised and did not exemplify an undisturbed \u201catmosphere of judicial calm,\u201d see Carter, 233 N.C. at 583, 65 S.E.2d at 10, after considering the matter \u201cin light of the factors and circumstances disclosed by the record,\u201d see Blackstock, 314 N.C. at 236, 333 S.E.2d at 248, we conclude that any resulting error was harmless and did not prejudice defendant so as to entitle him to a new trial.\nIII.\nFinally, defendant contends the trial court erred by \u201cfurther recommending]\u201d that defendant\u2019s sentence \u201cshall not and can not [sic] be served with any other sentence.\u201d Because the court\u2019s \u201crecommendfation]\u201d did not affect the judgment in this case, but instead sought to bind a later court that might seek to impose another sentence against defendant during the 133 to 169-month term of imprisonment to which defendant is now subject, we believe that the trial court exceeded its statutory authority by mandating that a later court must enter any subsequent sentence as consecutive only, rather than concurrent, if such a sentence is entered while defendant is still serving his sentence in the present case. See, e.g., N.C. Gen. Stat. \u00a7 15A-1344(d) (2009) (providing that an activated sentence upon a probation revocation \u201cruns concurrently with any other period of probation, parole, or imprisonment to which the defendant is subject during that period unless the revoking judge specifies that it is to run consecutively with the other period\u201d (emphasis added)). Nevertheless, \u201c \u2018[t]he courts have no jurisdiction to determine matters purely speculative, enter anticipatory judgments, . . . deal with theoretical problems, give advisory opinions, . . . provide for contingencies which may hereafter arise, or give abstract opinions.\u2019 \u201d In re Wright, 137 N.C. App. 104, 111-12, 527 S.E.2d 70, 75 (2000) (alteration and omissions in original) (quoting Little v. Wachovia Bank & Tr. Co., 252 N.C. 229, 243, 113 S.E.2d 689, 700 (1960)). Here, although the record indicates that defendant was being held on a probation violation charge at the time of trial, the record does not disclose whether defendant is now subject to a sentence as a result of any proceedings arising out of the then-pending charge. Thus, if we were to vacate the portion of the judgment in the present case that seeks to impose upon later courts the restriction regarding sentencing described above, to do so would render this portion of our opinion advisory. Therefore, because this issue on appeal is \u201c \u2018not a question ripe for review because it will arise, if at all, only if\u2019 \u201d defendant is ordered to serve a consecutive sentence while still serving his sentence in the present case, see State v. Coltrane, 188 N.C. App. 498, 508, 656 S.E.2d 322, 329 (quoting Simmons v. C.W. Myers Trading Post, Inc., 307 N.C. 122, 123, 296 S.E.2d 294, 295 (1982) (per curiam)), appeal dismissed and disc. review denied, 362 N.C. 476, 666 S.E.2d 760 (2008), we leave the judgment undisturbed.\nNo prejudicial error.\nJudges ELMORE and GEER concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Roy Cooper, Attorney General, by Barry H. Bloch, Assistant Attorney General, for the State.", "Michael E. Casterline, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TONY ALLEN HERRIN\nNo. COA10-1446\n(Filed 21 June 2011)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to object to instruction \u2014 failure to allege plain error\nWhere defendant in a prosecution for felonious malicious use of an explosive or incendiary device or material did not object at trial to the instruction that \u201cgasoline is an incendiary material\u201d or allege plain error, defendant failed to properly preserve the issue for appeal.\n2. Judges\u2014 outburst of laughter \u2014 ill-advised\u2014not prejudicial\nThe trial court did not commit prejudicial error in a felonious malicious use of an explosive or incendiary device or material case when the judge laughed in open court and in the presence of the jury upon hearing a witness\u2019s testimony. Although the judge\u2019s outburst may have been ill-advised, any resulting error was harmless and did not prejudice defendant so as to entitle him to a new trial.\n3. Appeal and Error\u2014 appealability \u2014 issue not ripe .\nThe trial court exceeded its statutory authority in a felonious malicious use of an explosive or incendiary device or material case by mandating that a later court must enter any subsequent sentence as consecutive only, rather than concurrent, if such a sentence was entered while defendant was still serving his sentence in the present case. However, because this issue was not a question ripe for review, the judgment was left undisturbed.\nAppeal by defendant from judgment entered 20 May 2010 by Judge Eric L. Levinson in Gaston County Superior Court. Heard in the Court of Appeals 25 April 2011.\nRoy Cooper, Attorney General, by Barry H. Bloch, Assistant Attorney General, for the State.\nMichael E. Casterline, for defendant-appellant." }, "file_name": "0068-01", "first_page_order": 78, "last_page_order": 85 }