Opinion
No. COA12–88.
2012-06-5
STATE of North Carolina v. Nathan Roy WEBB.
Attorney General Roy Cooper, by Assistant Attorney General David Gordon, for the State. M. Alexander Charns for Defendant-appellant.
Appeal by Defendant from judgment and commitment entered 4 August 2011 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 24 April 2012. Attorney General Roy Cooper, by Assistant Attorney General David Gordon, for the State. M. Alexander Charns for Defendant-appellant.
ROBERT N. HUNTER, JR., Judge.
Nathan Roy Webb (“Defendant”) appeals from the jury's verdict convicting him of felonious child abuse. After careful review, we find no error.
I. FACTUAL & PROCEDURAL BACKGROUND
The State's evidence at trial tended to show the following. Heather “Nikki” Upchurch and Defendant met and began dating in 2009. Their relationship progressed quickly, and they moved in together when Nikki became pregnant in September of that year. Nikki and Defendant were excited about having their first child together, and Defendant proposed marriage on or around Christmas 2009.
Nikki gave birth to their daughter, S.W., on 18 April 2010. Nikki served as S.W.'s primary caretaker, while Defendant spent most of his time buying and refurbishing cars for resale. When Defendant did interact with S.W., Nikki accused him of being “too rough with her.” For instance, Nikki thought Defendant bounced S.W. “too hard or too high” when trying to calm her down, and pulled her legs up too far when changing her diaper. Defendant would get angry and say that he “knew how to handle a baby.”
We use the initials “S.W.” throughout this opinion to protect the identity of the minor victim.
On or about the evening of 30 May 2010, Defendant was changing S.W.'s diaper when he heard her ankle “pop.” Defendant brought S.W. to Nikki and told her what had happened, describing the noise as “like a knuckle cracking.” Nikki inspected S.W. for injuries, but found none. She observed no swelling, and S.W. appeared able to maneuver her leg through its normal range of motion without discomfort. Nikki “thought [S.W.] was okay.”
Later that evening, Defendant and Nikki watched television in the living room with S.W. nearby. S.W. appeared healthy and active, exhibiting no signs of injury. Nikki eventually fell asleep on the couch, with S.W. on her chest. Defendant left the house around midnight to purchase diapers for S.W. and went straight to bed upon his return. Nikki awoke on the couch around 1:30 a.m. and fed S.W. before bringing S.W. to the bedroom where they slept with Defendant. Nikki awoke the next morning and noticed that S.W. seemed unable to straighten her leg. S.W. appeared to be in pain and refused to eat. Nikki feared that she had inadvertently rolled onto her daughter in her sleep. She called her mother, Molly Upchurch (“Ms.Upchurch”), whom she often consulted for parenting advice, and Ms. Upchurch advised her to bring S.W. to the emergency room.
Nikki and Defendant transported S.W. to Western Wake Medical Center (“Western Wake Med”) in Cary. Ms. Upchurch and Nikki's sister, Lori Wooten (“Lori”), met them there. X-rays revealed that S.W. had sustained a broken tibia, an injury that could only result from “very significant trauma.” Nikki and Defendant told the treating physician that Nikki might have accidentally rolled onto S.W. in her sleep; neither Nikki nor Defendant mentioned the ankle “popping” incident.
Wake County Child Protective Services (“CPS”) and the Cary Police Department were notified of S.W.'s condition and responded to the emergency room at Western Wake Med. Defendant spoke with them briefly and then left the hospital, telling Nikki that he “was going to sell cars.” S.W. was subsequently transported by ambulance to Wake Medical Center in Raleigh (“Wake Med”) for further testing. Nikki accompanied S.W. to Wake Med, where S.W. underwent a CAT scan and a full body skeletal exam. Defendant later arrived at the hospital and described the amount of money he had made from the two cars he had sold that day. Nikki told Defendant that he needed to cooperate with CPS and the police. Defendant responded that he did not understand why all this was happening and that if something had happened to S.W., he would be blamed.
Defendant returned to his house that night, while Nikki stayed at Wake Med with S.W. The next day, Nikki and Defendant were both present at Wake Med when S.W.'s test results came back. The tests revealed that S.W. had sustained multiple fractures to her ribs and legs. Nikki vomited when confronted with this information and Defendant also appeared to be in shock. Defendant told Nikki that they “needed to work together to get through this,” but Nikki, now believing that S.W.'s injuries could not have been accidental, did not respond.
Neither Nikki nor Defendant was permitted to stay with S.W. that night, as CPS had already removed S.W. from their custody and implemented a visitation plan. CPS placed S.W. in the custody of Lori and Ms. Upchurch, and Nikki and Defendant were permitted supervised visitation for periods of two hours and one hour each day, respectively. Nikki and Defendant were also separated from one another for questioning by Detective Lyn Braun of the Cary Police Department and Danielle Doyle, a social worker with CPS. Nikki disclosed to Detective Braun “the pop [Defendant] had heard” while changing S.W.'s diaper.
Nikki arranged to sleep away from her house that night “[b]ecause [she] didn't want to be around [Defendant].” She returned to her house the next day with a police escort to pick up some of her personal items. Defendant was not at home, but he communicated with Nikki by telephone and told her he was upset that she had brought the police to their house. Defendant later sent “off the wall” and “mumbled” text messages to Nikki, “like he had been drinking.” Defendant asked Nikki to tell S.W. “that he loved her ... and that he was going to sleep” because he had just taken some pills and just wanted to hear [Nikki's] voice. Nikki was concerned and contacted the police.
Detective Michelle Savage of the Cary Police Department responded to Nikki's call and arrived at Defendant's house to find him “laying partially in the hall bathroom and partially in the hallway face down.” Defendant was unconscious, but breathing, and was immediately transported to Wake Med. Detective Braun, who also arrived at the scene, searched the home and recovered four empty bottles of sleeping pills from a trash can in the master bathroom. Detective Braun also found an apparent handwritten suicide note in the master bedroom. Defendant spent several days in recovery at Wake Med prior to being committed for psychiatric treatment at Dorothea Dix Hospital in Raleigh.
On or about 21 July 2010, Defendant was released from Dorothea Dix Hospital and escorted to Wake County jail to face charges unrelated to S.W.'s abuse. Defendant was served with a warrant for his arrest on charges of felony child abuse at that time. On 10 August 2010, a Wake County grand jury charged Defendant with “intentionally inflict[ing] and intentionally commit[ting] an assault that resulted in serious physical injury to S.W.” and indicted Defendant on one count of felony child abuse inflicting serious physical injury pursuant to N.C. Gen.Stat. § 14–318.4(a).
The matter came on for trial at the 1 August 2011 Criminal Session in Wake County Superior Court, Judge Paul C. Ridgeway, presiding. The State presented testimony from eight witnesses that tended to establish the facts as set out above. Nikki testified that Defendant was too rough with S.W. when he changed her diaper, but she never saw Defendant hit S.W. or assault her in any way. She further testified over objection that Defendant was too rough with their dog, in that he liked to pull the dog's skin and twist it. Nikki also described two instances during May 2010 in which she had left S.W. alone with Defendant so that she could attend her grandmother's wake and funeral. In the first instance, Defendant watched S.W. for approximately 45 minutes without incident. In the second instance, Defendant watched S.W. for approximately two hours, and Nikki recalled being concerned when she spoke with Defendant by telephone because she could hear S.W. crying in the background. Nikki also testified that she visited S.W. two hours each day while S.W. was in Ms. Upchurch's custody, that S.W. had not sustained any injuries since placement with Lori and Ms. Upchurch, and that she (Nikki) had regained custody of S.W. on 28 June 2011.
On cross-examination, Nikki testified that she was S.W.'s primary caretaker and had informed Detective Braun at one point during the investigation that S.W. had not once left her company through the date that she was brought to Western Wake Med for examination. Nikki admitted to making inconsistent statements regarding the precise date on which Defendant heard S.W.'s ankle pop while changing her diaper—whether the incident occurred on a Saturday, Sunday, or Monday, and whether the incident occurred one day or two days before she noticed S.W.'s ankle injury and brought her to the hospital. She also admitted that Defendant had been forthcoming in notifying her of S.W.'s injury and that she did not notice anything wrong with S.W. at the time.
Lori and Ms. Upchurch both testified that Defendant was too rough in handling S.W. Ms. Upchurch described how Defendant pulled S.W.'s legs up to her chest when changing her diaper and how Defendant would shake S.W. to calm her down, even after she told him that he was being too rough. Lori testified that Defendant would bounce S.W. up and down to try to calm her, and that Defendant would say that S .W. liked it when told he was being too rough. Lori also testified that she thought Defendant was controlling, but that she had never seen him strike or harm S.W.
Holly Warner, a nurse practitioner who treated S.W. for her injuries at Wake Med, testified for the State as an expert in pediatric medicine. Ms. Warner testified that S.W.'s multiple fractures were highly specific for child abuse, and that shaking S.W. with “pretty excessive force” could have caused her injuries. She clarified that the amount of force used by someone to console a baby would not have been sufficient to cause S.W.'s injuries, but it was possible that shaking an infant and jerking hard on an infant's leg could have caused S.W.'s rib and leg fractures. Ms. Warner further testified that it was possible, although very unlikely, that rolling over onto an infant would apply sufficient force to cause S.W.'s injuries.
Dr. Elizabeth Whitman, an expert in the field of pediatrics and child abuse, also testified as an expert witness for the State. Dr. Whitman testified that S.W.'s injuries were “exceedingly unusual” in a child and “very specific, highly specific for child physical abuse.” She further testified that the degree of force required to cause S.W.'s tibia fracture was that of an automobile accident or a fall from a two-story building.
Defendant did not present any evidence at trial, and his motion to dismiss the charges against him at the close of the State's evidence was denied. On 4 August 2011, the jury returned its verdict finding Defendant guilty as charged. The trial court determined that Defendant was a prior record level IV and sentenced Defendant within the presumptive range of 34 to 50 months' imprisonment. Defendant entered his notice of appeal in open court at the conclusion of sentencing.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen.Stat. § 7A–27(b) (2011), as Defendant appeals from a final judgment of the superior court as a matter of right.
III. Analysis
A. Sufficiency of the Evidence
Defendant first contends the trial court erred in denying his motion to dismiss for insufficiency of the evidence. Specifically, Defendant contends the evidence that he, as opposed to Nikki, inflicted S.W.'s injuries was merely speculative and therefore insufficient to withstand his motion to dismiss. We disagree.
“When ruling on a defendant's motion to dismiss, the trial court must determine whether there is substantial evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of the offense.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “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).
“The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on the motion.”
State v. Hill, 365 N.C. 273, 275, 715 S.E.2d 841, 843 (2011) (quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).
To convict a defendant of felonious child abuse in violation of G.S. § 14–318.4(a), the State must prove (1) that defendant is the parent or caretaker of a child under the age of 16, (2) that defendant “intentionally inflict[ed] ... serious physical injury upon or to the child or ... intentionally commit[ted] an assault upon the child,” and (3) that the assault or infliction of injury resulted in “serious physical injury.” The element of intent is satisfied if the defendant intentionally causes injury to the child and that injury turns out to be serious.
State v. Williams, 154 N.C.App. 176, 178, 571 S.E.2d 619, 621 (2002) (internal citation omitted) (alterations in original).
Defendant does not contest the severity of S.W.'s injuries or the overwhelming evidence indicating that S.W. was subjected to physical abuse. Defendant argues only that there was insufficient evidence to show that he was the individual who perpetrated the abuse. We cannot agree.
The evidence at trial tended to establish that S.W. was physically abused during the first six weeks of her life and that Nikki and Defendant were the only individuals who exercised exclusive custody over S.W. during that time. S.W.'s universe of potential abusers was therefore limited in number to two: her mother, Nikki, or her father, Defendant. While the evidence indicates that Nikki served as S.W.'s primary caretaker, the evidence also established multiple occasions during which Defendant exercised exclusive dominion and control over S.W. outside of Nikki's presence. For instance, Nikki's testimony related two specific instances in May 2010 where she left Defendant to watch over S.W. while she attended her grandmother's wake and funeral. Defendant was likewise alone with S.W. when he was changing her diaper and heard her ankle pop. Thus, Defendant had the opportunity to perpetrate S.W.'s abuse. Moreover, the evidence established that Defendant was heavy-handed with S.W., both in the manner that he changed her diaper, and in the way that he bounced her to try to calm her down. Defendant persisted with this behavior notwithstanding repeated warnings from Nikki, Lori, and Ms. Upchurch that he was being too rough. Expert testimony at trial indicated that shaking an infant with excessive force and jerking an infant's leg could cause leg and rib injuries like those sustained by S.W. Viewing the evidence in the light most favorable to the State, as we are required to do, the State's evidence tended to establish that S.W. was physically abused, that Defendant had the opportunity to perpetrate the abuse, and that Defendant repeatedly engaged in conduct that could have caused his daughter's injuries. This is sufficient evidence from which a jury could reasonably conclude that Defendant inflicted serious physical injury upon S.W. as required under N.C. Gen.Stat. § 14–318.4(a) (2011). We accordingly hold that the trial court did not err in denying Defendant's motion to dismiss and correctly submitted the case to the jury.
B. Defendant's Prior Acts
Defendant next contends the trial court erred in admitting testimony concerning Defendant's prior acts. Specifically, Defendant argues the trial court erred in allowing testimony regarding his arrest on charges unrelated to this case, testimony that he was rough with his dog, and testimony referencing a domestic violence protective order taken out against him. We address these arguments in turn.
1. Defendant's arrest and jail on other charges
The following exchange took place during the prosecutor's direct examination of Detective Savage:
[Detective Savage]: ... I was involved with transporting [Defendant] from the Wake County jail annex to serve a warrant on him.
....
[Prosecutor]: And when you did that, did—were you present with the defendant during that time period?
[Detective Savage]: Yes. Detective Brawn [sic] and I went to Dorothea Dix Hospital and I believe [Defendant] was being released from Dorothea Dix so then he was going to jail for certain charges that were out against him. We requested a uniformed officer to transport him. We went there to explain the situation.
Defendant argues that because he did not testify at trial, “[t]he fact that he was arrested on other charges or jailed on this charge was not admissible.” Defendant did not object to this testimony at trial, and we therefore review for plain error. SeeN.C. R.App. P. 10(a)(4).
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error “had a probable impact on the jury's finding that the defendant was guilty.” Moreover, because plain error is to be “applied cautiously and only in the exceptional case,” the error will often be one that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]”
State v. Lawrence, ––– N.C. ––––, ––––, 723 S.E.2d 326, –––– (2012) (citations omitted) (first alteration in original).
We hold that even if the trial court erred in admitting this testimony, it was not plain error. Detective Savage's testimony provided the jury with a narrative of the events leading up to Defendant's arrest. The fact that Defendant faced other charges when he was served with a warrant for the felony child abuse charge at issue in the instant case explains why he was in jail at that time. Notably, immediately following the challenged portion of Detective Savage's testimony, Detective Savage proceeded to testify as follows:
[Detective Savage]: [Defendant] was upset that he was being arrested or charged again. He stated Detective, I read all the paperwork on this case. I am surprised it took you—took you this long to arrest me on this charge. Detective—and he is referring to Detective Brawn [sic]. I am going to file a harassment suit against you. Detective, when I get out you—when I get out—and I will get out because I am strong—I will be back on your doorstep. Detective, I am going to be your ghost.
Detective Savage's reference to Defendant's threatening statements, e.g., that he would be Detective Braun's “ghost,” undoubtedly attracted the jury's attention and reduced the impact of the earlier, challenged testimony. The State did not revisit the issue of Defendant's other charges or the fact that he was in jail on those charges at any later point during Defendant's trial. Moreover, and contrary to Defendant's contention, we discern no prejudice in Detective Savage's reference to serving Defendant with a warrant. Said warrant concerned the charge at issue in the instant case and the serving of a warrant is an obvious procedural component in any criminal case. Thus, although we agree with Defendant that Detective Savage's reference to Defendant's other charges invited some degree of prejudice, we cannot say that admission of the testimony at issue worked a fundamental injustice or had a probable impact on the outcome of Defendant's trial. We accordingly hold that the trial court did not commit plain error in admitting this testimony.
2. Defendant's behavior with his dog
Defendant also argues the trial court erred in allowing Nikki to testify regarding Defendant's “rough” interactions with his dog. Defendant asserts that the “testimony about being rough with the dog was irrelevant, not proper Rule 404(b) evidence and unduly prejudicial.”
The following exchange took place during the State's direct examination of Nikki at trial:
[Prosecutor]: And how would you describe the defendant's interaction with your dog?
[Nikki]: He—he would play with him and stuff and he would be too rough with him. He liked to pull his skin and twist it.
[Defense counsel]: Object. Your Honor, may we be heard? I don't mind approaching on this.
THE COURT: All right. Approach.
(Conference held at the bench, not reported.)
THE COURT: Overruled. Go ahead.
[Prosecutor:] Would you say anything to him when you thought he was too rough with your dog?
[Nikki]: Yeah. I'd be like Oscar doesn't like that, you know. He is yelping and he doesn't—you know, he is not happy with you doing that. And he would be like it's fine. We are just playing. And I am like you are not supposed to play with him like that.
“A general objection to evidence is ordinarily inadequate to preserve an alleged error for review unless it is clear from the entirety of the evidence that no purpose can be served from its admission.” State v. Daniels, 189 N.C.App. 705, 711, 659 S.E.2d 22, 26 (2008) (citing State v. Jones, 342 N.C. 523, 535, 467 S.E.2d 12, 20 (1996)); N.C. R.App. P. 10(a)(1) (“In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” (Emphasis added.)). This Court has recognized the importance of specifying the particular grounds for an objection raised at trial in holding that “[a] party may not assert at trial one basis for objection to the admission of evidence, but then rely upon a different basis on appeal.” In re K.D., 178 N.C.App. 322, 326, 631 S.E.2d 150, 153 (2006) (quoting State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1998) for the proposition that an “ ‘[Appellant] may not swap horses after trial in order to obtain a thoroughbred upon appeal.’ “ (Alteration in original.)).
The excerpt from the trial transcript set forth supra reveals that defense counsel lodged only a general objection to Nikki's trial testimony regarding Defendant's interaction with his dog. Thus, we cannot know the basis for Defendant's objection at trial, and we cannot know whether Defendant attempts to “swap horses” for a better mount on appeal. Moreover, even if there was no permissible purpose for admission of this testimony, we note that “[a] defendant is only prejudiced by the erroneous admission of evidence ‘when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises,’ “ and “ ‘[t]he burden of showing such prejudice ... is [on] the defendant.’ “ State v. Daniels, 189 N.C.App. at 712, 659 S.E.2d at 26 (citations omitted) (third alteration in original). Defendant here offers only a conclusory assertion that this testimony was “unduly prejudicial,” and provides no argument or reason as to how he was prejudiced by its admission. Without this showing of prejudice, Defendant cannot meet his burden of demonstrating a reasonable possibility that, absent the alleged error, a different result would have been reached at trial. Defendant's argument is therefore overruled.
3. Nikki's protective order against Defendant
Defendant further contends the trial court erred in permitting references to a domestic violence protective order obtained by Nikki against Defendant. We disagree.
Dale McKee, a foster care worker with Wake County Human Services who was in charge of monitoring S.W. and implementing a plan to reunify S.W. with her family, testified as a witness for the State at trial. On direct examination, the prosecutor elicited testimony from Mr. McKee concerning a domestic violence restraining order that Nikki had taken out against Defendant:
[Prosecutor]: During the time frame that this case was pending, were you aware of whether or not [Nikki] [sought] the assistance of a domestic violence protective order?
[Mr. McKee]: She did.
[Prosecutor]: While this case was pending, either by means of that protective order or the Court in which you were dealing with the custody aspect, was the defendant allowed to have unsupervised contact with his daughter?
[Mr. McKee]: The Court order had no contact.
Defendant did not object to this testimony at trial and we therefore review for plain error. SeeN.C. R.App. P. 10(a)(4) and Part III(B)(1), supra. However, our review of the record indicates that defense counsel proceeded to elicit further testimony from Mr. McKee regarding the protective order during cross-examination:
[Defense counsel]: Mr. McKee, you said that at a hearing it was made clear to the Court that [Defendant] was getting information about his daughter.
[Mr. McKee]: Yes.
[Defense counsel]: You were not at the most recent hearing on the protective order.
[Mr. McKee]: I was not at the protective order where [Nikki] extended the domestic. I was not at that. I was at every court hearing concerning the dependency.
[Defense counsel]: But you were not at the most recent hearing about the domestic violence protective order?
[Mr. McKee]: No. Because that is not part of my job.
This Court has held that “a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review.” State v. Barber, 147 N.C.App. 69, 74, 554 S.E.2d 413, 416 (2001) (citing State v. Roseboro, 344 N.C. 364, 373, 474 S.E.2d 314, 318 (1996)). Thus, even if the trial court erred in admitting Mr. McKee's testimony regarding the protective order on direct examination, Defendant waived his right to appellate review of this alleged error when he elicited further testimony regarding the protective order on cross-examination. We note that even if Defendant had not waived his right to plain error review, our Supreme Court has held that “[t]he admission of testimony over objection is ordinarily rendered harmless when defendant elicits similar testimony on cross-examination or introduces similar testimony himself.” State v. Robbins, 275 N.C. 537, 549, 169 S.E.2d 858, 866 (1969). The trial court's admission of the testimony at issue would therefore not amount to plain error, even if Defendant had preserved this challenge for appellate review.
We finally note Defendant's argument that it was plain error to permit the prosecutor's reference to the protective order during the State's closing argument. However, Defendant's contention on this point consists of a mere parenthetical unsupported by any pertinent legal authority or reason, and we therefore deem the issue abandoned. SeeN.C. R.App. P. 28(b)(6). We address Defendant's remaining challenges to the State's closing argument in part III(C) below.
C. The State's Closing Argument
Defendant argues the trial court erred in allowing the prosecutor to make the following comments during the State's closing argument:
In the courtroom you can hear him muttering under his breath. You have had an opportunity to observe him with his lawyers. And I submit to you he was controlling to [Nikki] and he is trying to be controlling in this courtroom.
Defendant contends the prosecutor's comments equated to testimony offered under the guise of a closing argument, and that such testimony “about the accused's alleged courtroom demeanor was designed to prejudice the accused in the eyes of the jury.” We disagree.
Defendant requests that this Court review the State's closing argument for plain error. Plain error review, however, applies only in the context of jury instructions and evidentiary rulings. State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39–40 (2002). Where, as here, a defendant fails to raise a timely objection to the State's closing argument at trial, we must review the challenged comments to determine whether they were “so grossly improper that the trial court erred in failing to intervene ex mero motu.” State v. Barden, 356 N.C. 316, 358, 572 S.E.2d 108, 135 (2002). Our Supreme Court has explained that trial court intervention during closing arguments is required only where “the argument strays so far from the bounds of propriety as to impede defendant's right to a fair trial.” State v. Atkins, 349 N.C. 62, 84, 505 S .E.2d 97, 111 (1998); see also State v. Paul, 58 N.C.App. 723, 725, 294 S.E.2d 762, 763 (1982) (“Defendant is entitled to a new trial only if the impropriety is shown to be prejudicial.”).
Our review of the prosecutor's comments and the context in which they were presented reveals that the comments were not so grossly improper that the trial court erred in failing to intervene ex mero motu. The prosecutor's remark to the jury that Defendant was “controlling” merely extrapolated on evidence offered at trial: Lori specifically testified—without objection—that she perceived Defendant as a controlling individual. Additionally, Nikki, Lori, and Ms. Upchurch each testified that Defendant exhibited behavior—for instance, his consistent refusal to heed their warnings that he was being too rough with S.W.—from which the jury could readily infer that Defendant was controlling. Our General Statutes expressly permit attorneys to offer their own analysis of the evidence in delivering their closing arguments to the jury. N.C. Gen.Stat. § 15A–1230(a) (2011) (providing that “[a]n attorney may, however, on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue”). We also recognize that our Courts afford prosecutors “ ‘wide latitude in the scope of their argument’ and [they] may ‘argue to the jury the law, the facts in evidence, and all reasonable inferences drawn therefrom.’ “ State v. Goss, 361 N.C. 610, 626, 651 S.E.2d 867, 877 (2007) (quoting State v. Alston, 341 N.C. 198, 239, 461 S.E.2d 687, 709–10 (1995)). Thus, we cannot say that the prosecutor's closing argument exceeded the bounds of decency or deprived Defendant of a fair trial, and we hold the trial court did not err in failing to intervene ex mero motu.
D. Defendant's Prior Record Level
The trial court relied on two out-of-state convictions in calculating Defendant's prior record level for sentencing purposes. The court treated both Defendant's Florida conviction for “robbery by sudden snatching” and Defendant's Tennessee conviction for cocaine possession as Class I felonies and, pursuant to N.C. Gen.Stat. § 15A–1340.14 (b)(4) (2011), assigned two points for each conviction in calculating Defendant's prior record level. Adding these points to the points assigned for Defendant's other prior (North Carolina) convictions, the trial court determined that Defendant had accumulated a total of 11 points and a prior record level IV. A record level IV is defined by statute as between 10 and 13 prior record level points. SeeN.C. Gen.Stat. § 15A–1340.14 (c)(4) (2011). Defendant argues the trial court erred in assigning two points for each of these out-of-state convictions because the State failed to carry its burden in proving that these offenses are substantially similar to specific felony offenses in North Carolina. We disagree.
N.C. Gen.Stat. § 15A–1340.14(e) governs this issue and provides that
a conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony, or is classified as a Class 3 misdemeanor if the jurisdiction in which the offense occurred classifies the offense as a misdemeanor. If the offender proves by the preponderance of the evidence that an offense classified as a felony in the other jurisdiction is substantially similar to an offense that is a misdemeanor in North Carolina, the conviction is treated as that class of misdemeanor for assigning prior record level points. If the State proves by the preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the conviction is treated as that class of felony for assigning prior record level points. If the State proves by the preponderance of the evidence that an offense classified as a misdemeanor in the other jurisdiction is substantially similar to an offense classified as a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as a Class A1 or Class 1 misdemeanor for assigning prior record level points.
N.C. Gen.Stat. § 15A–1340.14(e) (2011). A defendant can stipulate to an out-of-state conviction and can also stipulate that the conviction is a felony in the relevant jurisdiction; a defendant cannot, however, stipulate that the out-of-state conviction is “substantially similar” to a North Carolina offense for purposes of determining his prior record level. State v. Bohler, 198 N.C.App. 631, 637–38, 681 S.E.2d 801, 806 (2009). In State v. Hinton, this Court clarified the State's burden in proving that an out-of-state felony conviction should be treated as a felony for sentencing purposes in our North Carolina courts:
According to the statute, the default classification for out-of-state felony convictions is “Class I.” Where the State seeks to assign an out-of-state conviction a more serious classification than the default Class I status, it is required to prove “by the preponderance of the evidence” that the conviction at issue is “substantially similar” to a corresponding North Carolina felony. However, where the State classifies an out-of-state conviction as a Class I felony, no such demonstration is required. “Unless the State proves by a preponderance of the evidence that the out-of-state felony convictions are substantially similar to North Carolina offenses that are classified as Class I felonies or higher, the trial court must classify the out-of-state convictions as Class I felonies for sentencing purposes.”
196 N.C.App. 750, 755, 675 S.E.2d 672, 675 (2009) (citations omitted) (emphasis in original).
1. Florida “robbery by sudden snatching” conviction
Here, defense counsel conceded at trial that Defendant was convicted of robbery by snatching in Florida and further conceded that robbery by snatching is a felony under Florida law. The State sought to classify this conviction as a Class I felony; it did not seek to classify the conviction as a more serious offense. Thus, under Hinton, the trial court was required to treat the Florida offense as a Class I felony in calculating Defendant's prior record level, unless Defendant could prove the offense was substantially similar to a specific misdemeanor offense in North Carolina. Defendant offered no such proof before the trial court. On appeal, Defendant merely reasserts his argument offered before the trial court that the State failed to meet its burden, citing the North Carolina robbery statute and the Florida robbery by snatching statute in order to show the dissimilarities between the two offenses. Defendant fails to argue that the Florida offense is substantially similar to any particular North Carolina misdemeanor offense. Accordingly, Defendant has failed to meet his burden on this issue, and the trial court's “default” treatment of the Florida felony as a Class I felony must stand. 2. Tennessee conviction for cocaine possession
Defendant's challenge to the trial court's assignment of two prior record level points for his Tennessee conviction consists of the following assertion in his principal appellant brief:
Likewise, the “possession of cocaine” in Tennessee was a misdemeanor, not a felony, and should be treated as such for the prior record level.
Defendant fails to provide this Court with authority or reason in support of this argument and we therefore deem the issue abandoned. SeeN.C.R.App. P. 28(b)(6). Moreover, Defendant's attempt to resurrect the issue by providing authority for the first time in his reply brief, after the State has pointed out Defendant's abandonment, fails to preserve and properly present the issue for our review. See Hardin v. KCS Int'l, Inc., 199 N.C.App. 687, 707–08, 682 S.E.2d 726, 740 (2009) (citing Oates v. N.C. Dep't of Corr., 114 N.C.App. 597, 600, 442 S.E.2d 542, 544 (1994) (holding this Court “will not entertain what amounts to a new argument presented in th[e] reply brief” (alteration in original)); Golden Rule Ins. Co. v. Long, 113 N.C.App. 187, 199, 439 S.E.2d 599, 606 (1993) (holding appellant's reply brief could not “resurrect” an abandoned issue where appellant had failed to raise the issue in the initial brief). Accordingly, we do not reach the merits of Defendant's argument on this issue.
IV. Conclusion
For the foregoing reasons, we find no error.
No error. Judges McGEE and STEPHENS concur.
Report per Rule 30(e).