State v. Cousin

NO. COA13-543

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

STATE OF NORTH CAROLINA

v. Caswell County
Nos. 11 CRS 618-19
11 CRS 621
11 CRS 623
11 CRS 625
11 CRS 627
11 CRS 629
11 CRS 631

DONNELL TRACY COUSIN,
Defendant.

Appeal by defendant from judgments entered 2 November 2012

by Judge W. Osmond Smith, III in Caswell County Superior Court.

Heard in the Court of Appeals 23 October 2013.

Roy Cooper, Attorney General, by Ryan Haigh, Special Deputy
Attorney General, for the State.

McCotter Ashton, P.A., by Rudolph A. Ashton, III and Kirby
H. Smith, III for defendant-appellant.

DAVIS, Judge.

Defendant Donnell Tracy Cousin (“Defendant”) appeals from

his convictions of felonious obstruction of justice and

accessory after the fact. His primary contentions on appeal are

that the trial court erred in (1) denying him the opportunity to
 -2-

question and cross-examine an investigator about suspects in the

murder out of which Defendant’s charges arose; (2) denying his

motions to dismiss; (3) allowing the prosecution to make

statements during closing argument that appealed to the passion

and prejudice of the jury; and (4) imposing multiple consecutive

sentences for the same acts and offenses in violation of his

constitutional rights. After careful review, we conclude that

Defendant received a fair trial free from prejudicial error.

Factual Background

The State presented evidence at trial tending to establish

the following facts: On 8 July 2005, Larry Mebane (“Mebane”)

was found mortally wounded in his car in Caswell County with

three gunshot wounds to his head. Lieutenant Michael Adkins

(“Lt. Adkins”) of the Caswell County Sheriff’s Office was one of

the first officers to arrive on the scene after emergency

services had been contacted via a 911 call. He found a handgun

wedged between the driver’s seat and the center console of the

car. Lt. Adkins also noticed that the front passenger window of

Mebane’s car was “busted out” and that a beer can was lying near

the car. The car was running with loud music playing on the

radio.
 -3-

Law enforcement officers first became aware of Defendant on

15 July 2005 when he was stopped at a checkpoint set up in the

area of the shooting, which led to a subsequent interview of

Defendant 11 days later at the Caswell County Sheriff’s Office.

When Defendant arrived at the Sheriff’s Office on 26 July 2005,

he gave a written statement to Investigator Jerald Brown

(“Investigator Brown”), who was heading the investigation into

the Mebane shooting along with State Bureau of Investigation

(“SBI”) Special Agent Brian Norman (“Agent Norman”). In this

statement, Defendant indicated to Investigator Brown that he had

seen Mebane around 10:30 p.m. on the night of the shooting.

Defendant also named three specific individuals, Josh Anderson,

Hugh Anderson, and Terrance Jackson, as having been with Mebane

at the time of the shooting.

Defendant then voluntarily returned to the Caswell County

Sheriff’s Office on 30 March 2006 and provided additional

information to Investigator Brown. During this meeting,

Defendant stated that Mebane had been stopped earlier in the day

by a man named Jeffrey Murdock and that Murdock had demanded

money from Mebane. However, Defendant did not directly

implicate Jeffrey Murdock in the shooting.
 -4-

Defendant gave his next statement on 22 June 2006 at the

Alamance County Sheriff’s Office where he was being questioned

in regard to unrelated felony charges in Alamance County.

Defendant told investigators that “I know who the damn shooter

is and I ain’t going to tell him [referring to Agent Norman]

nothing.” Defendant proceeded to say that “Tego1 [sic] Anderson

is your shooter.” Defendant added that “Josh and Hugh

(Anderson) were on [sic] Josh’s car and the two of them pulled

over in front of Larry and got out.” He then stated that “Tego

[sic] pulled up behind Larry on [sic] the white truck and boxed

him in so Larry couldn’t go forwards or backwards. Larry got

out of his car and was arguing with Josh and Hugh when Tego

[sic] walked up from behind and shot Larry in the head!”

On 26 June 2006, Defendant gave another statement to

Investigator Brown in which — this time — he stated that he was

actually with Mebane when he was shot. Defendant stated that

Mebane was being chased by Josh Anderson, Hugh Anderson, and

Tino Anderson. He further related that Hugh Anderson “took a

pistol and smacked Larry upside the face with it.” He also said

that “Hugh was the only one I saw with my own eyes with a gun.”

1
Tino Anderson’s name is spelled in various places in the record
as “Tego” Anderson. Both spellings refer to the same
individual.
 -5-

Defendant subsequently gave a different statement on 6 July

2006 to the Alamance County Sheriff’s Office. On this occasion

he stated that “[t]he night of the shooting I saw the man who

shot Larry. It was Tino.”

On 17 October 2006, Defendant was interviewed by Sheriff

Michael Welch (“Sheriff Welch”) of the Caswell County Sheriff’s

Office. During this interview, Defendant stated that “Tino was

there, but he didn’t shoot Larry.”

On 14 November 2006, Defendant requested to speak with the

“sheriff or someone in charge” about Mebane’s murder. Chief

Deputy Tim Britt (“Chief Deputy Britt”) of the Alamance County

Sheriff’s Office was notified of Defendant’s request and

conducted an interview with him that was observed by

Investigator Brown and Sheriff Welch. Defendant proceeded to

give the following statement to Chief Deputy Britt:

We [Defendant and Mebane] then turned right
onto Dailey Store Road. . . . Sylvester
Harris was in the middle of the road waving
his hands. Larry Mebane stopped and got out.
. . . As I was getting out of the car, I
heard Sylvester Harris say to Larry Mebane,
“Where is the drugs and money at, I know you
got it!” . . . Sylvester’s brother was
standing beside the car they had been in.
His name is Maurice Harris. . . . The next
thing I saw as I got out of the car was
Sylvester Harris shoot Larry Mebane in the
back of the head.
 -6-

The last statement that Defendant gave investigators

occurred on 14 April 2008. Defendant claimed he had information

regarding the gun used in the Mebane murder, and Investigator

Brown and Sheriff Welch conducted an interview with him.

Defendant denied knowing the location of the weapon but stated

he could point them “in the right direction of that.” He stated

that Josh Anderson was Mebane’s killer and admitted that his

prior statements naming Tino Anderson as the shooter were

deliberate falsehoods designed to mislead and misdirect law

enforcement in their ongoing investigation into the murder. He

admitted that “I put Tino in the middle as a block one time” and

that in his earlier statements he had been “making you waste

your time and gas and your ink pen.” Defendant then stated that

“I wasn’t there on the scene period. Never was.” At the end of

the interview, Investigator Brown asked if everything he had

told the officers was truthful, and Defendant replied “nope.”

On 15 November 2011, Defendant was indicted on one count of

accessory after the fact to first degree murder and seven counts

of felonious obstruction of justice. A jury trial was held in

Caswell County Superior Court on 29 October 2012. At the

conclusion of the State’s evidence, Defendant moved to dismiss
 -7-

all of the charges against him. The motion was denied.

Defendant renewed his motion to dismiss at the close of all the

evidence, and the trial court once again denied the motion.

Defendant was convicted of all charges. He was sentenced

consecutively to: (1) 168 to 211 months on the accessory after

the fact charge; and (2) 168 to 211 months on the seven counts

of obstruction of justice charges after the charges were

consolidated. Defendant gave notice of appeal in open court.

Analysis

I. Denial of Defendant’s Opportunity to Question Investigator
Brown Regarding Other Suspects.

Defendant first argues that the trial court erred by

denying him the opportunity to question Investigator Brown about

other suspects in the Mebane murder. At trial, Defendant’s

counsel sought to elicit from Investigator Brown during cross-

examination information about his interviews with persons

involved in the Mebane murder investigation. Specifically, she

inquired whether during his interviews with Oscar Jackson and

Terrence Jackson, either of those individuals had discussed or

divulged any information relating to the identity of the

shooter. The State objected to this entire line of questioning

on the ground that the questions sought inadmissible hearsay
 -8-

because the statements sought were being offered to prove the

truth of the matter asserted. The trial court sustained the

State’s objections. As an alternative basis, the trial court

excluded the evidence under Rule 403 of the North Carolina Rules

of Evidence based on the danger of unfair prejudice, confusion

of the issues, and the possibility of confusing the jury.

Defendant argues the trial court’s exclusion of the

statements as inadmissible hearsay and under Rule 403 was

erroneous. Defendant contends that this evidence was directly

relevant to the issues presented and that its exclusion violated

his constitutional right to present a defense.

Rule 801(c) of the North Carolina Rules of Evidence defines

“hearsay” as “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted.” N.C. R. Evid. 801(c).

Defendant asserts that in pursuing this line of

questioning, he sought to “show how the investigation of Larry

Mebane unfolded. More importantly, these questions were

designed to determine if any of Cousin’s statements to law

enforcement were true and/or corroborated.”

We rejected a similar argument in State v. Hairston, 190

N.C. App. 620, 625, 661 S.E.2d 39, 42 (2008), disc. review
 -9-

denied, 363 N.C. 133, 676 S.E.2d 47 (2009). In Hairston, this

Court found no error in the trial court’s ruling that testimony

by a detective about a third party’s statements indicating that

the third party did not know the defendant would constitute

inadmissible hearsay:

Defendant contends that the statement was
not offered for the truth of the matter
asserted, but instead was offered as a
historical fact — that is, whether Hicks
knew defendant or not. Defendant, however,
goes on to argue that the trial court's
ruling requires reversal because, according
to defendant, such evidence would have aided
defendant's arguments concerning his alibi
defense. According to defendant, had the
testimony been admitted, the jury could have
used the information as "proof" that Brown
and another person, not defendant, committed
the robbery. In essence, defendant argues
that the testimony was not elicited for its
truth, but had it been admitted, the jury
could have used the statement for the truth
of the matter asserted, that Hicks, who had
used the stolen credit cards, did not know
defendant — thus making it less likely that
defendant participated in the robbery of
Moore. Accordingly, the trial court did not
err in sustaining the State's objection as
the testimony was offered for the truth of
the matter asserted.

Id.

We believe the same is true here. By Defendant’s own

admission, he sought to offer this testimony at least in part

for the purpose of demonstrating the truth of the matter
 -10-

asserted. As such, the trial court did not abuse its discretion

in sustaining the State’s objections to this line of questioning

on hearsay grounds. See State v. Waring, 364 N.C. 443, 498, 701

S.E.2d 615, 649 (2010) (holding that “[t]he range of cross-

examination, though broad, is subject to the trial judge's

discretionary powers to keep it within reasonable bounds. The

trial court's rulings on cross-examination will not be held in

error absent a showing that the verdict was improperly

influenced thereby.”) (internal quotation marks and citations

omitted), cert. denied, ___ U.S. ___, 181 L.Ed.2d 53 (2011).2

Even assuming arguendo that the trial court erred in

excluding the evidence, we believe any such error was harmless.

See State v. Augustine, 359 N.C. 709, 731, 616 S.E.2d 515, 531

(2005) (holding that to establish prejudice resulting from an

evidentiary ruling by the trial court, a defendant must show a

reasonable possibility that a different result would have been

reached had an evidentiary ruling not been made), cert. denied,

548 U.S. 925, 165 L.Ed.2d 988 (2006).

2
Because we conclude the trial court’s exclusion of the evidence
on hearsay grounds did not constitute an abuse of discretion, we
elect not to address the trial court’s alternative basis for
exclusion based on Rule 403.
 -11-

Here, no prejudice to Defendant occurred as a result of the

trial court’s ruling. Our review of the record reveals that

Defendant was still able to elicit similar evidence concerning

the Mebane murder investigation by alternative means. See State

v. Rinck, 303 N.C. 551, 572, 280 S.E.2d 912, 927 (1981) (holding

that “any error by the trial court in sustaining the State’s

objections was cured when the evidence sought to be admitted was

subsequently admitted without objection.”). At trial, evidence

concerning persons of interest in Investigator Brown’s

investigation was elicited through Defendant’s subsequent line

of questioning to Investigator Brown. Therefore, any error in

the exclusion of this evidence was harmless.

Defendant also contends that the exclusion of this evidence

violated his constitutional rights but concedes that no

constitutional argument was asserted by him at trial.

“Constitutional issues not raised and passed upon at trial will

not be considered for the first time on appeal, not even for

plain error.” State v. Jones, 216 N.C. App. 225, 230, 715

S.E.2d 896, 900-01 (2011) (citation and quotation marks

omitted). Therefore this claim is not properly before us.

II. Denial of Motions to Dismiss
 -12-

Defendant next contends that the trial court erred in

denying his motions to dismiss the charges of felonious

obstruction of justice and accessory after the fact based on the

insufficiency of the evidence. A trial court's denial of a

defendant's motion to dismiss is reviewed de novo. State v.

Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). On

appeal, this Court must determine “whether there is substantial

evidence (1) of each essential element of the offense charged,

or of a lesser offense included therein, and (2) of defendant's

being the perpetrator.” State v. Fritsch, 351 N.C. 373, 378,

526 S.E.2d 451, 455 (citation and quotation marks omitted),

cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). 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). Evidence must

be viewed in the light most favorable to the State with every

reasonable inference drawn in the State's favor. State v. Rose,

339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515

U.S. 1135, 132 L.Ed.2d 818 (1995).

A. Felonious Obstruction of Justice

[I]n order to convict [a] Defendant of the
common law offense of obstruction of
justice, the State [is] required to
 -13-

demonstrate that Defendant ha[s] committed
an act that prevented, obstructed, impeded
or hindered public or legal justice.
Although obstruction of justice is
ordinarily a common law misdemeanor, N.C.
Gen. Stat. § 14-3(b) provides that "[i]f a
misdemeanor offense as to which no specific
punishment is prescribed be infamous, done
in secrecy and malice, or with deceit and
intent to defraud, the offender shall . . .
be guilty of a Class H felony." For that
reason, [u]nder N.C. Gen. Stat. § 14-3(b)
(1979), for a misdemeanor at common law to
be raised to a Class H felony, it must be
infamous, or done in secret and with malice,
or committed with deceit and intent to
defraud. If the offense falls within any of
these categories, it becomes a Class H
felony and is punishable as such.

State v. Taylor, 212 N.C. App. 238, 246, 713 S.E.2d 82, 88

(2011) (internal citations and quotation marks omitted). We

have previously noted that “this State has a policy against

parties deliberately frustrating and causing undue expense to

adverse parties gathering information about their claims. . . .”

State v. Wright, 206 N.C. App. 239, 242, 696 S.E.2d 832, 835

(2010).

In the present case, Defendant gave eight written

statements to law enforcement officers concerning the events

surrounding the murder of Mebane. In his first two written

statements on 26 July 2005 and 30 March 2006, he denied being at
 -14-

the scene of Mebane’s murder but identified individuals who may

have been involved with Mebane’s death.

In his next six statements on 22 June 2006, 26 June 2006, 6

July 2006, 17 October 2006, 14 November 2006, and 14 April 2008,

Defendant admitted being present at the scene of the crime. In

these statements, Defendant identified various alternating

persons as the killer. On 22 June 2006, Defendant named Tino

Anderson as the shooter and stated that Hugh Anderson and Josh

Anderson were also involved. On 26 June 2006, Defendant named

Hugh Anderson as the killer as he was “the only one I saw with

my own eyes with a gun.”

On 17 October 2006, Defendant did not identify any specific

individual as the shooter but placed Tino, Hugh, and Josh

Anderson at the scene and stated: “Tino was there, but he

didn’t shoot Larry.” On 14 November 2006, Defendant gave a

different story, indicating that Maurice Harris and Sylvester

Harris tried to rob Mebane and that Sylvester Harris was the

shooter and then stated that “the next thing I saw as I got out

of the car was Sylvester Harris shoot Larry Mebane in the back

of the head.”

On 15 April 2008, Defendant changed his story once again,

stating that “I done already gave [sic] told you the name of who
 -15-

killed him already . . . Josh Anderson.” Defendant also claimed

in that statement that he was not at the scene when Mebane was

murdered. Defendant then admitted that he had named Tino

Anderson as the shooter in a previous statement as a “block.”

At the end of the interview, Defendant was asked if he was

telling the truth and he responded “nope.”

Defendant argues that the State offered no evidence that

any of his statements were false or misleading and instead

simply relied on the contradictory nature of Defendant’s

statements. We disagree.

Agent Norman of the SBI testified as to the significant

burden imposed on the investigation of Mebane’s murder resulting

from Defendant’s various conflicting statements. Agent Norman

further explained that each lead was “followed up” and that the

SBI ultimately determined that each person identified by

Defendant had an alibi and was not present at the scene when the

shooting occurred.

Clearly, when viewed in the light most favorable to the

State, a jury question existed as to whether Defendant (1)

unlawfully and willfully (2) obstructed justice by providing

false statements to law enforcement officers investigating the

death of Larry Mebane (3) with deceit and intent to defraud.
 -16-

Therefore, the trial court properly denied Defendant’s motion to

dismiss the felonious obstruction of justice charges.

B. Accessory After the Fact

Defendant also asserts the trial court should have granted

his motion to dismiss the charge of accessory after the fact

because the State failed to produce substantial evidence that

Defendant made false statements with the intent to help the

actual perpetrator escape detection, arrest, or punishment.

The elements of accessory after the fact are as follows:

“(1) the felony has been committed by the principal; (2) the

alleged accessory gave personal assistance to that principal to

aid in his escaping detection, arrest, or punishment; and (3)

the alleged accessory knew the principal committed the felony.”

State v. Duvall, 50 N.C. App. 684, 691, 275 S.E.2d 842, 849,

rev'd on other grounds, 304 N.C. 557, 284 S.E.2d 495 (1981); see

also N.C. Gen Stat. § 14-7; State v. Barnes, 116 N.C. App. 311,

316, 447 S.E.2d 478, 480 (1994). We note that N.C. Gen. Stat. §

14–7 permits the conviction of an accessory after the fact

“whether the principal felon shall or shall not have been

previously convicted, or shall or shall not be amenable to

justice. . . .” N.C. Gen. Stat. § 14-7 (2013). Furthermore,

[t]his Court has recognized that an
 -17-

indictment may properly allege unknown
conspirators in charging a criminal
conspiracy. It rationally follows that an
indictment is valid which alleges the
existence of an unknown co-principal in
charging a crime. Here the bills of
indictment do not allege that [the
defendant’s co-conspirator] was the person
who actually perpetrated the offenses. The
indictments charged that a crime was
committed by an unknown person and that
defendant was present, aiding and abetting
in the deed. Thus the acquittal of [the
defendant’s co-conspirator] was not a
sufficient basis for dismissal of the
charges.

State v. Beach, 283 N.C. 261, 269, 196 S.E.2d 214, 220 (1973)

(internal citations omitted), overruled on other grounds by

State v. Adcock, 310 N.C. 1, 33, 310 S.E.2d 587, 605-06 (1981).

Moreover, Defendant concedes in his brief that “[t]he State does

not have to identify the killer of Larry Mebane, in order to

convict [Defendant] of Accessory After the Fact of First Degree

Murder.”

Here, as discussed above, the evidence — when viewed in the

light most favorable to the State — tended to show that

Defendant gave eight different written statements to authorities

on his own volition providing a wide array of scenarios

surrounding the death of Mebane. In these various statements,

Defendant identified four different individuals as being the
 -18-

person who shot Mebane. Furthermore, he admitted near the end

of his 14 April 2008 interview with Investigator Brown and

Sheriff Welch that he had not been truthful to investigators.

The jury could rationally have concluded that his false

statements were made in an effort to shield the identity of the

actual shooter.

There was competent evidence introduced at trial that

allowed the jury to rationally conclude that Defendant knew the

identity of Mebane’s shooter and was protecting that person.

First, Defendant’s statements to investigators suggested that he

had, in fact, been present at the murder scene as his statements

revealed his knowledge of information that could only have been

obtained by someone physically present at the scene. In

addition to knowing the location of the shooting, he also knew

that (1) Mebane had been left for dead in the passenger seat of

the car; (2) a handgun was found wedged in between the seat and

the console of the car; (3) a beer can was left beside the car;

(4) Mebane had been shot in the head; (5) the car radio was on

and playing loud music following the shooting; and (6) Mebane’s

jaw was broken.
 -19-

Second, the fact that Defendant knew the true identity of

the shooter was demonstrated by the testimony of his former

girlfriend, Sheila Satterfield, who testified as follows:

Q. Sheila, the question is, did Tracy tell
you he was with Larry when he got shot?

A. He did. He did.

Q. And did Tracy tell you how the shooting
occurred?

A. He said he jumped out the car and ran.
All I know somebody was shooting guns.
That's all I know.

Q. Did Tracy eventually tell you who that
shooter was?

A. I can't remember the name, but we was at
a store one day, and he told me it was a guy
that was in a brown Honda.

Q. Did he actually point out the person in
the store?

A. I -- see I wasn't in the store. I was in
the car, and um, when he came back, he said
that's the guy that killed Little Larry.
Look. Look. Look. I said, Oh, I ain't
looking. Get in this car, and let's go.

Finally, Defendant admitted in his 14 April 2008 statement

that “I put Tino [Anderson] in the middle as a block one time,”

thereby raising the inference that he was deliberately thwarting

the investigators’ attempts to apprehend Mebane’s killer. In
 -20-

that same statement, Defendant further acknowledged that his

false statements had made “you waste your time and gas and your

ink pen,” indicating that he was fully aware his false

statements were resulting in a misuse of law enforcement time

and resources by causing the investigators to chase false leads.

The jury could rationally have concluded that the purpose of his

actions was to prevent the officers from learning the identity

of the actual killer.

We conclude that the evidence presented by the State was

sufficient to raise a jury question as to the accessory after

the fact charge. Accordingly, Defendant’s argument is

overruled.

III. State’s Closing Argument

Defendant next argues that the trial court abused its

discretion by improperly allowing the State to make a closing

argument that appealed to the jury’s passion and prejudice

without intervening ex mero motu. This argument likewise lacks

merit.

“The standard of review when a defendant fails to object at

trial [to statements in a closing argument] is whether the

argument complained of was so grossly improper that the trial

court erred in failing to intervene ex mero motu.” State v.
 -21-

Trull, 349 N.C. 428, 451 509 S.E.2d 178, 193 (1998), cert.

denied, 528 U.S. 835, 145 L.Ed.2d 80 (1999).

In other words, the reviewing court must
determine whether the argument in question
strayed far enough from the parameters of
propriety that the trial court, in order to
protect the rights of the parties and the
sanctity of the proceedings, should have
intervened on its own accord and: (1)
precluded other similar remarks from the
offending attorney; and/or (2) instructed
the jury to disregard the improper comments
already made.

Id. “Statements or remarks in closing argument must be viewed

in context and in light of the overall factual circumstances to

which they refer.” State v. Phillips, 365 N.C. 103, 135, 711

S.E.2d 122, 145 (2011) (citation and internal quotation marks

omitted), cert. denied, ___ U.S. ___, 182 L.Ed.2d 176 (2012).

Consequently, “statements contained in closing arguments to

the jury are not to be placed in isolation or taken out of

context on appeal.” State v. Murrell, 362 N.C. 375, 394 665

S.E.2d 61, 74 (2008) (citations and internal quotation marks

omitted). Our Supreme Court has further held that “[t]o merit a

new trial, the prosecutor's remarks must have perverted or

contaminated the trial such that they rendered the proceedings

fundamentally unfair." Phillips, 365 N.C. at 136, 711 S.E.2d at

146.
 -22-

Here, Defendant contends that the State’s closing argument

was improper because it “sought pity and passion for victim’s

family, tried to make the jury share the responsibility of the

prosecutor for prosecuting this case, and sought to convict

Defendant for not cooperating with law enforcement.”

Specifically, he appears to be challenging the prosecutor’s

statement that “[t]his community deserves to be safe from a

murderer.”

Our Supreme Court has held that “it is not improper for the

State to remind the jurors that they are the voice and

conscience of the community.” State v. Garcell, 363 N.C. 10,

63, 678 S.E.2d 618, 651 (2009) (citation and internal quotation

marks omitted). Therefore, we do not believe that this

statement when viewed in the overall context of the closing

argument in its totality required intervention ex mero motu by

the trial court.

Defendant also appears to be contending the trial court

should have intervened when the prosecutor made a comment that

this is still somebody's child, and he
didn't deserve to die like that, and his
Momma didn't deserve to endure that loss,
and his son from last night all the way for
the rest of his life will not have his
father to take him tricker-treating, to buy
his Christmas or be there for Easter or
 -23-

spend summer vacations, and that matters,
and the State values that life, and you, the
jury, values (sic) that life, and justice
cries out that the person who did it be
prosecuted. How many times could you have
ever imagined that this case, the person who
pulled the trigger and killed this young
man, this father, in this room right now, in
this moment there is one person in here who
knows who did it, and it's the defendant.
Right now. The pain and suffering that
could be released. The justice that could
be done, but instead of that, not once, not
twice, not three times, not four times, 5,
6, 7 times over the span of seven years this
man chose to lie about it in detail.

This portion of the State’s argument sought to convey the

notion that Defendant’s pattern of false and misleading

statements to investigators had prevented Mebane’s family from

learning the identity of his killer. “The admissibility of

victim impact testimony is limited by the requirement that the

evidence not be so prejudicial it renders the proceeding

fundamentally unfair. Victim impact testimony is admissible to

show the effect the victim's death had on friends and family

members.” State v. Raines, 362 N.C. 1, 15, 653 S.E.2d 126, 135

(2007) (internal citations and quotation marks omitted), cert.

denied, 557 U.S. 934, 174 L.Ed.2d 601 (2009).

After reviewing the entirety of the State’s closing

argument and considering the context in which the challenged
 -24-

statements were made, we hold once again that Defendant has

failed to carry his burden of demonstrating that the trial court

had a duty to intervene ex mero motu. Therefore, we reject

Defendant’s arguments on this issue.

IV. Double Jeopardy

Defendant’s final argument is that the trial court erred in

sentencing Defendant for two crimes — felonious obstruction of

justice and accessory after the fact — arising out of the same

transaction, thereby violating his constitutional rights by

subjecting him to double jeopardy. This argument likewise lacks

merit.

Our Supreme Court has stated that “[b]oth the fifth

amendment to the United States Constitution and article I,

section 19 of the North Carolina Constitution prohibit multiple

punishments for the same offense absent clear legislative intent

to the contrary.” State v. Etheridge, 319 N.C. 34, 50, 352

S.E.2d 673, 683 (1987).

Where, as here, a single criminal
transaction constitutes a violation of more
than one criminal statute, the test to
determine if the elements of the offenses
are the same is whether each statute
requires proof of a fact which the others do
not. Blockburger v. United States, 284 U.S.
299, 76 L.Ed. 306 (1932); State v. Perry,
305 N.C. 225, 287 S.E. 2d 810 (1982). By
 -25-

definition, all the essential elements of a
lesser included offense are also elements of
the greater offense. Invariably then, a
lesser included offense requires no proof
beyond that required for the greater
offense, and the two crimes are considered
identical for double jeopardy purposes.
Brown v. Ohio, 432 U.S. 161, 53 L.Ed. 2d 187
(1977); State v. Revelle, 301 N.C. 153, 270
S.E. 2d 476 (1980). If neither crime
constitutes a lesser included offense of the
other, the convictions will fail to support
a plea of double jeopardy. See State v.
Walden, 306 N.C. 466, 293 S.E. 2d 780
(1982).

Id.

The Supreme Court further clarified the double jeopardy

analysis in State v. Tirado, 358 N.C. 551, 579, 599 S.E.2d 515,

534 (2004), cert. denied sub nom. Queen v. N.C., 544 U.S. 909,

161 L.Ed.2d 285 (2005):

Even where evidence to support two or more
offenses overlaps, double jeopardy does not
occur unless the evidence required to
support the two convictions is identical.
If proof of an additional fact is required
for each conviction which is not required
for the other, even though some of the same
acts must be proved in the trial of each,
the offenses are not the same.

Id. at 579, 599 S.E.2d at 534, (internal citation and brackets

omitted).

In Tirado, the Supreme Court determined that the charges of

attempted first-degree murder and assault with a deadly weapon
 -26-

with intent to kill inflicting serious injury are not comprised

of the same elements in that each requires an additional element

not included in the other offense. Id. at 579, 599 S.E.2d at

534. Therefore, even though the crimes charged in Tirado arose

from the exact same underlying transaction, the Court held that

“[b]ecause each offense contains at least one element not

included in the other, defendants have not been subjected to

double jeopardy.” Id. See State v. Mulder, No. COA13-672, ___

N.C. App. ___, ___, ___ S.E.2d. ___, ___ (filed Mar. 18, 2014)

(“[A] defendant convicted of multiple criminal offenses in the

same trial is only protected by double jeopardy principles if

(1) those criminal offenses constitute the same offense . . . ;

and (2) the legislature did not intend for the offenses to be

punished separately. . . . [T]he applicable test to determine

whether double jeopardy attaches in a single prosecution is

whether each statute requires proof of a fact which the others

do not.” (internal citations and quotation marks omitted)).

The elements of common law felonious obstruction of justice

are: (1) the defendant unlawfully and willfully; (2) obstructed

justice; (3) with deceit and intent to defraud. In re Kivett,

309 N.C. 635, 670, 309 S.E.2d 442, 462 (1983); State v.

Clemmons, 100 N.C. App. 286, 292-93, 396 S.E.2d 616, 619 (1990).
 -27-

The elements of accessory after the fact are: “(1) the felony

has been committed by the principal; (2) the alleged accessory

gave personal assistance to that principal to aid in his

escaping detection, arrest, or punishment; and (3) the alleged

accessory knew the principal committed the felony.” Duvall, 50

N.C. App. at 691, 275 S.E.2d at 849.

Therefore, the elements of these two crimes are clearly not

identical. Obstruction of justice, unlike accessory after the

fact, requires deceit and intent to defraud. Accessory after

the fact, unlike obstruction of justice, requires that the

defendant personally assisted the principal who committed the

crime in escaping detection, arrest, or punishment. The two

offenses are distinct, and neither is a lesser included offense

of the other. Consequently, because the charges of felonious

obstruction of justice and accessory after the fact contain

separate and distinct legal elements, Defendant has failed to

show a double jeopardy violation.

Conclusion

For the reasons stated above, we hold that Defendant

received a fair trial free from prejudicial error.

NO PREJUDICIAL ERROR.

Judges ELMORE and MCCULLOUGH concur.