State v. Harris

NO. COA13-1330
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
STATE OF NORTH CAROLINA

Pitt County
v.
No. 12 CRS 55715

LYNWOOD EUGENE HARRIS, JR.

Appeal by defendant from judgments entered 29 May 2013 by

Judge Quentin T. Sumner in Pitt County Superior Court. Heard in

the Court of Appeals 5 June 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Kimberly N. Callahan, for the State.

New Hanover County Public Defender Jennifer Harjo, by
Assistant Public Defender Brendan O’Donnell, for defendant.

ERVIN, Judge.

Defendant Lynwood Eugene Harris, Jr., appeals from

judgments based upon his convictions for misdemeanor sexual

battery and contributing to the abuse or neglect of a juvenile.

On appeal, Defendant contends that his trial counsel provided

him with constitutionally deficient representation by failing to

properly preserve his challenge to the sufficiency of the

evidence to support his conviction for contributing to the abuse

or neglect of a juvenile for the purpose of appellate review,

incorrectly instructing the jury concerning the issue of his
 -2-
guilt of contributing to the abuse or neglect of a juvenile,

failing to intervene ex mero motu for the purpose of addressing

certain remarks made during the prosecutor’s final argument, and

allowing the admission of testimony that was irrelevant and

improperly vouched for the prosecuting witness’ credibility.

After careful consideration of Defendant’s challenges to the

trial court’s judgments in light of the record and the

applicable law, we conclude that the trial court’s judgments

should remain undisturbed.

I. Factual Background

A. Substantive Facts

On 23 June 2012, Diane Phillips had a birthday party at her

house. Among those in attendance were Defendant and J.W., Ms.

Phillips’ eight-year-old granddaughter.1 As of the date of the

party, Ms. Phillips and Defendant had been involved in a

romantic relationship for approximately 14 years. On the day of

the party, Defendant came and left the house on a regular basis

and consumed alcohol throughout the course of the day.

On the evening of the party, Jessica was lying in Ms.

Phillips’ bed when Defendant entered the room with a cup full of

liquor. Defendant offered Jessica a drink from the cup and

1
J.W. will be referred to throughout the remainder of this
opinion as Jessica, a pseudonym used for ease of reading and to
protect J.W.’s privacy.
 -3-
tried to hand the cup to her. Jessica claimed that Defendant

played with her hair, squeezed her buttocks, and “kept on

talking about if I let him suck on my chest they’ll grow up

really big and pretty.” According to Jessica, Defendant “kept

on squeezing [Jessica’s] bottom and then he--he stuck his thumb

in [her] mouth and said--Suck it, baby. Suck it.”

During the evening, Jessica came to the screen door leading

to the porch and said that she needed to tell Ms. Phillips

something. Jessica told Ms. Phillips that she was scared, that

she thought that Defendant had tried to rape her, and that

Defendant was “feeling on [her] buttocks,” “talking about

sucking on [her] breasts,” and asking if she would “let [him]

suck on [her] breasts so they’ll [be] big and pretty when [she

got] big.” After receiving this information, Ms. Phillips threw

Defendant out of the house and threatened to kill him if he ever

returned. Subsequently, Ms. Phillips laid down with Jessica and

began crying, stating that she “shut down” after her

conversation with Jessica because she “was in shock.”

Early the next morning, Ms. Phillips called the police.

When the investigating officers arrived, Ms. Phillips told them

what had happened. After speaking with Ms. Phillips, Officer

Tabitha Johnson of the Greenville Police Department interviewed

Jessica, who stated that
 -4-
[her brother] was asleep and she was
watching TV and eating Cheetos, and
[Defendant] came into the room. [Defendant]
asked her what she was doing. She told him
she’s eating Cheetos and drinking a Pepsi.
He asked her if she wanted something
stronger to drink, referring to his
alcoholic beverage in his hand. [Jessica]
told--stated that she told him no, but he
tried to make her drink his beverage. She
also reported to me that he said to her,
while putting his finger in his mouth--Suck
it, baby. Suck it. Started trying to put
it in her mouth. I apologize.

She reported that he then began kissing her
neck and her face and rubbing and squeezing
her butt. [Defendant] asked her to kiss—
asked her if she could kiss his chest and
saying--If you let me suck on your chest,
your breasts will grow in nice and pretty.
She said that she moved away, and he grabbed
her hand and tried to put it--his hands in
his pant--put her hands in his pants near
his private. She snatched her hand away.
[Defendant] told her--I was just trying to
have a little fun with you. And this is
her--me quoting what she’s saying--and
walked out of the room. She said he
returned with another alcoholic beverage and
put some in a cup and tried--and made
[Jessica] drink it. She said she pushed him
away but continued to rub on her hair and
kiss her neck and telling her just to go to
sleep. [Jessica] said she would not to go
sleep, and he left out of the room.

B. Procedural History

On 24 June 2012, a warrant for arresting charging Defendant

with misdemeanor sexual battery and contributing to the abuse

and neglect of a juvenile was issued. On 23 January 2013, Judge

David A. Leech found Defendant guilty as charged in the Pitt
 -5-
County District Court. On the following day, Judge Leech

entered a judgment sentencing Defendant to a term of 150 days

imprisonment based upon his conviction for misdemeanor sexual

battery, with this sentence being suspended and with Defendant

being placed on supervised probation, subject to certain terms

and conditions, for a period of 24 months, and to a consecutive

term of 120 days imprisonment based upon his conviction for

contributing to the abuse or neglect of a juvenile, with this

sentence also being suspended and Defendant being placed on

supervised probation, subject to certain terms and conditions,

for a period of 24 months. Defendant noted an appeal to Pitt

County Superior Court for a trial de novo.

The charges against Defendant came on for trial before the

trial court and a jury at the 28 May 2013 session of the Pitt

County Superior Court. On 29 May 2013, the jury returned a

verdict convicting Defendant as charged. At the conclusion of

the ensuing sentencing hearing, the trial court entered a

judgment sentencing Defendant to a term of 150 days imprisonment

based upon his conviction for misdemeanor sexual battery and to

a consecutive term of 120 days imprisonment based upon his

conviction for contributing to the abuse or neglect of a minor,

with this second sentence being suspended and with Defendant

being placed on supervised probation for a period of 18 months,
 -6-
subject to certain terms and conditions. Defendant noted an

appeal to this Court from the trial court’s judgments.

II. Substantive Legal Analysis

A. Sufficiency of the Evidence

In his initial challenge to the trial court’s judgments,

Defendant contends that he received constitutionally deficient

representation from his trial counsel based upon his trial

counsel’s failure to move to have the contributing to the abuse

or neglect of a juvenile charge dismissed for insufficiency of

the evidence. More specifically, Defendant contends that his

trial counsel’s failure to move that the contributing to the

abuse or neglect of a juvenile charge be dismissed for

insufficiency of the evidence fell below an objective standard

of reasonableness and that, had such a motion been made, it

would have been allowed given that the State failed to prove

that Defendant was Jessica’s caretaker and that merely offering

Jessica an alcoholic beverage did not constitute an act of abuse

or neglect. Defendant is not entitled to relief from his

conviction for contributing to the abuse or neglect of a

juvenile on the basis of this claim.

As Defendant candidly concedes, he failed to move that the

contributing to the abuse or neglect of a juvenile charge be

dismissed for insufficiency of the evidence at trial. As a
 -7-
general proposition, a defendant’s failure to make a dismissal

motion after the State’s evidence precludes the defendant from

challenging the sufficiency of the evidence to support his

conviction on appeal. N.C. R. App. P. 10(a)(3). “However,

pursuant to N.C. R. App. P. 2, we will hear the merits of

[D]efendant’s claim despite the rule violation because

[D]efendant also argues ineffective assistance of counsel based

on counsel’s failure to make the proper motion to dismiss.”

State v. Fraley, 202 N.C. App. 457, 461, 688 S.E.2d 778, 783

(2010) (quotation marks and citation omitted), disc. review

denied, 364 N.C. 243, 698 S.E.2d 660 (2010).

“To survive a motion to dismiss in a criminal action, the

State’s evidence must be substantial evidence (a) of each

essential element of the offense charged, or of a lesser offense

included therein, and (b) of defendant’s being the perpetrator

of the offense. The trial court must view all evidence in the

light most favorable to the State, including evidence that was

erroneously admitted.” State v. Denny, 179 N.C. App. 822, 824,

635 S.E.2d 438, 440 (2006) (internal quotation marks and

citations omitted), aff’d in part, modified on other grounds in

part, and rev’d on other grounds in part, 361 N.C. 662, 652

S.E.2d 212 (2007). “Substantial evidence is relevant evidence

that a reasonable mind might accept as adequate to support a
 -8-
conclusion.” State v. Tabron, 147 N.C. App. 303, 306, 556

S.E.2d 584, 585 (2001) (quotation marks and citations omitted),

disc. review improvidently granted, 356 N.C. 122, 564 S.E.2d 881

(2002). “This Court reviews the trial court’s denial of a

motion to dismiss de novo.” State v. Smith, 186 N.C. App. 57,

62, 650 S.E.2d 29, 33 (2007). “‘Under a de novo review, the

court considers the matter anew and freely substitutes its own

judgment’ for that of the lower tribunal.” State v. Williams,

362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quoting In re

Appeal of The Greens of Pine Glen Ltd. P’ship, 356 N.C. 642,

647, 576 S.E.2d 316, 319 (2003)). We will now utilize this

standard of review to evaluate the validity of Defendant’s

challenge to the sufficiency of the evidence to support his

conviction for contributing to the abuse or neglect of a

juvenile.

N.C. Gen. Stat. § 14-316.1 provides that:

[a]ny person who is at least 16 years old
who knowingly or willfully causes,
encourages, or aids any juvenile within the
jurisdiction of the court to be in a place
or condition, or to commit an act whereby
the juvenile could be adjudicated
delinquent, undisciplined, abused, or
neglected as defined by [N.C. Gen. Stat. §]
7B-101 and [N.C. Gen. Stat. §] 7B-1501 shall
be guilty of a Class 1 misdemeanor.

N.C. Gen. Stat. § 7B-101(1) defines an abused juvenile as “[a]ny

juvenile less than 18 years of age whose parent, guardian,
 -9-
custodian, or caretaker” (1) inflicts or allows to be inflicted

upon the juvenile a serious physical injury; (2) creates or

allows to be created a substantial risk of serious physical

injury to the juvenile; (3) uses or allows to be used on the

juvenile cruel or grossly inappropriate procedures or devices to

modify behavior; (4) commits, permits, or encourages the

commission of a variety of specific sexual assaults, acts of

prostitution, and obscenity offenses by, with, or upon the

juvenile; (5) creates or allows to be created serious emotional

damage to the juvenile evinced by a juvenile’s severe anxiety,

depression, withdrawal, or aggressive behavior toward himself or

others; (6) encourages, directs, or approves of delinquent acts

involving moral turpitude committed by the juvenile; or (7)

commits or allows to be committed acts of human trafficking,

involuntary servitude or sexual servitude against the child. A

neglected juvenile is defined as

[a] juvenile who does not receive proper
care, supervision, or discipline from the
juvenile’s parent, guardian, custodian, or
caretaker; or who has been abandoned; or who
is not provided necessary medical care; or
who is not provided necessary remedial care;
or who lives in an environment injurious to
the juvenile’s welfare; or who has been
placed for care or adoption in violation of
law.

N.C. Gen. Stat. § 7B-101(15). Finally, a caretaker, for

purposes of the abuse and neglect statutes, is defined as
 -10-
[a]ny person other than a parent, guardian,
or custodian who has responsibility for the
health and welfare of a juvenile in a
residential setting. A person responsible
for a juvenile’s health and welfare means a
stepparent, foster parent, an adult member
of the juvenile’s household, an adult
relative entrusted with the juvenile’s care,
any person such as a house parent or cottage
parent who has primary responsibility for
supervising a juvenile’s health and welfare
in a residential child care facility or
residential educational facility, or any
employee or volunteer of a division,
institution, or school operated by the
Department of Health and Human Services.

N.C. Gen. Stat. § 7B-101(3).

In seeking to persuade us that the record did not support

Defendant’s conviction for contributing to the abuse or neglect

of a juvenile, Defendant initially argues that the record does

not suffice to support a determination that he was Jessica’s

caretaker. Defendant’s argument is, however, simply

inconsistent with our recent decision in State v. Stevens, __

N.C. App. __, __, 745 S.E.2d 64, 67, disc. review dismissed, 367

N.C. 256, 749 S.E.2d 885, disc. review denied, 367 N.C. 256, 749

S.E.2d 886 (2013), in which this Court explicitly held that a

finding of guilt for violating N.C. Gen. Stat. § 14-316.1 “does

not require a parental or caretaker relationship between a

defendant and a juvenile” and stated, instead, that “[d]efendant

need only be a person who causes a juvenile to be in a place or

condition where the juvenile does not receive proper care from a
 -11-
caretaker or is not provided necessary medical care.” See also

State v. Cousart, 182 N.C. App. 150, 153, 641 S.E.2d 372, 374-75

(2007) (stating that the gravamen of the act of contributing to

the delinquency, abuse, or neglect of a minor is “conduct on the

part of the accused” in willfully “caus[ing], encourag[ing], or

aid[ing]”) (alterations in original). As a result, as long as

Defendant’s conduct placed Jessica in a position in which she

did “not receive proper care from a caretaker or is not provided

necessary medical care,” Stevens, __ N.C. App. at __, 745 S.E.2d

at 67, he is subject to the criminal sanction for violating N.C.

Gen. Stat. § 14-316.1.

In apparent recognition of the problems with his initial

argument, Defendant also contends that the record did not

suffice to support a determination that his actions placed

Jessica in a position in which she could be found to be abused

or neglected. As the record clearly establishes, however,

Defendant entered the bedroom in which Jessica was attempting to

go to sleep, tried to get her to take a drink from the cup of

liquor that he was carrying, played with her hair, and squeezed

her buttocks. As Defendant squeezed Jessica’s buttocks, he

asked her to suck his thumb and requested that she allow him to

suck on her chest so “they’ll grow up really big and pretty.”

In view of the fact that a juvenile who found herself in the
 -12-
position that Jessica occupied and was subject to the attentions

that Defendant attempted to pay to her was clearly placed in a

location in which and subject to conditions under which she

could not and did not receive proper care from her caretakers,

the State’s evidence clearly sufficed, given the test enunciated

in Stevens, to support Defendant’s conviction for contributing

to the abuse or neglect of a juvenile.2 As a result, the record

evidence clearly sufficed to support Defendant’s conviction for

contributing to the abuse or neglect of a juvenile, a fact that

necessitates the conclusion that Defendant’s ineffective

assistance of counsel claim has no merit.3

2
As the State notes in its brief, Defendant’s conduct as
described in Jessica’s testimony clearly constituted the taking
of an indecent liberty with a minor in violation of N.C. Gen.
Stat. § 14-202.1, which is one of the offenses that can underlie
an abuse adjudication. N.C. Gen. Stat. § 7B-101(1)(d). In
addition, this Court has held that a father’s decision to offer
marijuana and beer to a child, while not rising to the level of
abuse, constituted neglect. In re M.G., 187 N.C. App. 536, 551,
653 S.E.2d 581, 590 (2007), rev’d on other grounds, 363 N.C.
570, 681 S.E.2d 290 (2009). Thus, given the absence of any
requirement that Defendant be Jessica’s parent, guardian, or
caretaker and the fact that Defendant’s conduct placed Jessica
in a position and subject to conditions under which she could be
found to be abused or neglected, the relevant statutory
provisions and decisions of this Court clearly support
Defendant’s conviction for contributing to the abuse or neglect
of a juvenile.
3
The warrant charging Defendant with contributing to the
abuse or neglect of a juvenile alleged, in pertinent part, that
“the defendant named above unlawfully and willfully did
knowingly, while at least 16 years of age, cause[], encourage,
and aid [Jessica], age 8 years, a juvenile, to commit an act,
 -13-
B. Jury Instructions

After the completion of the evidence and the arguments of

counsel, the trial court instructed the jury with respect to the

issue of Defendant’s guilt of contributing to the abuse or

neglect of a juvenile as follows:

The defendant has also been charged with
contributing to the abuse and neglect of a
juvenile. For you to find the defendant

consume alcoholic beverage, whereby that juvenile could be
adjudicated abused and neglected.” In his brief, Defendant
argues, in reliance upon State v. Faircloth, 297 N.C. 100, 107,
253 S.E.2d 890 894 (stating that “[i]t has long been the law of
this state that a defendant must be convicted, if convicted at
all, of the particular offense charged in the warrant or bill of
indictment”), cert. denied, 444 U.S. 874, 100 S. Ct. 156, 62 L.
Ed. 2d 102 (1979), that the only basis upon which Defendant
could lawfully have been convicted of contributing to the abuse
or neglect of a juvenile was by encouraging her to consume
alcohol. We do not find this argument persuasive for two
reasons. First, as this Court held in Stevens, __ N.C. App. at
__, 745 S.E.2d at 66, an indictment that fails to allege the
exact manner in which the defendant allegedly contributed to the
delinquency, abuse, or neglect of a minor is not fatally
defective. Unlike the situation at issue in Faircloth, in which
the State sought to convict the defendant of a completely
different offense from the one alleged in the indictment, the
State did, in fact, proceed against Defendant on the grounds
that he committed the offense of contributing to the abuse or
neglect, rather than the delinquency, of a juvenile. State v.
Tollison, 190 N.C. App. 552, 557, 660 S.E.2d 647, 651 (2008)
(stating that, since “a victim’s age is not an essential element
of first degree kidnapping,” “the variance in the indictment was
not fatal”). Secondly, and more importantly, Defendant’s
argument relies upon an unduly narrow reading of the
contributing to the abuse or neglect of a juvenile warrant that
completely overlooks the context in which Defendant attempted to
persuade Jessica to consume alcohol. As a result, Defendant’s
argument in reliance upon the language of the contributing
warrant is not persuasive.
 -14-
guilty of this offense the State must prove
four things beyond a reasonable doubt:

First, that the defendant was at least 16
years old.

Second, that the defendant caused,
encouraged, and aided the juvenile to commit
an act whereby the juvenile could be
adjudicated abused and neglected.

Third, that [Jessica] was a juvenile. An
abused and neglected juvenile is a person
who has not reached her 18th birthday, and
is not married, emancipated, or a member of
the armed forces of the United States.

And [f]ourth, that the defendant acted
knowingly or willfully.

As Defendant candidly concedes, he failed to object to the

trial court’s contributing to the abuse or neglect of a minor

instruction at or before the time that the jury retired to begin

its deliberations, so that our review is limited to determining

whether plain error occurred. State v. Lawrence, 365 N.C. 506,

518, 723 S.E.2d 326, 334, (2012). A plain error is an error

that is “‘so basic, so prejudicial, so lacking in its elements

that justice cannot have been done[.]’” State v. Odom, 307 N.C.

655, 660, 300 S.E.2d 375, 378 (1983) (quoting U.S. v. McCaskill,

676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018,

103 S. Ct. 381, 74 L. Ed. 2d. 513 (1982)). “To establish plain

error, defendant must show that the erroneous jury instruction

was a fundamental error—that the error had a probable impact on
 -15-
the jury verdict.” Lawrence, 365 N.C. at 518, 723 S.E.2d at

334. As a result, in order to establish the existence of plain

error, a “defendant must convince this Court not only that there

was error, but that absent the error, the jury probably would

have reached a different result.” State v. Jordan, 333 N.C.

431, 440, 426 S.E.2d 692, 697 (1993).

As Defendant correctly asserts in his brief, the trial

court’s instructions misstated the applicable law by instructing

the jury that it should find that Jessica was an abused or

neglected juvenile in the event that it found beyond a

reasonable doubt that she had not reached her 18th birthday and

had not been married, emancipated, or entered military service.4

For that reason, the only issue that remains for our

consideration is whether Defendant is entitled to relief from

his contributing to the abuse or neglect of a juvenile
4
As we have already noted, in order to convict Defendant of
the offense made punishable by N.C. Gen. Stat. § 14-316.1 in
light of the allegations set out in the warrant that had been
issued against him, the jury had to find beyond a reasonable
doubt that Defendant caused, encouraged, or aided Jessica to be
placed in a location or situation in which she could be
adjudicated abused or neglected. A cursory reading of the trial
court’s instructions establishes that the trial court totally
failed to instruct the jury concerning the meaning of the
statutory references to abuse or neglect and, in essence, told
the jury to find the existence of those prerequisites for a
conviction on the sole basis of Jessica’s age and the fact that
she had not been married, emancipated, or entered military
service. Thus, the trial court’s instructions, which are
consistent with the applicable pattern jury instruction, clearly
misstated the applicable law.
 -16-
conviction based upon this erroneous instruction. As a result,

the ultimate question raised by Defendant’s challenge to the

trial court’s instructions concerning the issue of his guilt of

contributing to the abuse or neglect of a minor is the extent to

which it is probable that the outcome of Defendant’s trial would

have been different had the trial court correctly instructed the

jury concerning the issue of whether Defendant had placed

Jessica in a place or set of circumstances under which she could

be adjudicated abused or neglected.

The only evidence before the jury concerning the issue of

Defendant’s guilt of contributing to the abuse or neglect of a

minor consisted of Jessica’s testimony and evidence concerning

statements that Jessica had made to other persons that was

offered for corroborative purposes. As we read the record, the

argument that Defendant advanced before the jury in support of

his request for an acquittal on both the contributing to the

abuse or neglect of a minor charge and the misdemeanor sexual

battery charge rested on a contention that Defendant had no

motivation for engaging in the conduct described in Jessica’s

testimony, an assertion that Jessica was biased against him, a

description of certain inconsistencies in the accounts

concerning Defendant’s conduct that Jessica provided on

different occasions, and a claim that certain statements that
 -17-
Jessica had made were unlikely to be true given other

surrounding circumstances. Thus, the ultimate issue presented

for the jury’s consideration at trial was whether Jessica was a

credible witness, an issue that the jury clearly answered in the

affirmative.

A careful review of the record satisfies us that, even

though the trial court’s instructions rested on a clear

misstatement of the applicable law, it is not probable that the

outcome at trial would have been different in the event that the

jury had been correctly instructed. The description of

Defendant’s conduct contained in Jessica’s testimony, which the

jury obviously believed, sufficed to support a determination

that he contributed to the abuse or neglect of a minor. We are

unable to see how the trial court’s erroneous instruction in any

way enhanced the likelihood that the jury would have resolved

the underlying credibility contest in Defendant’s favor. Having

determined, contrary to the arguments vigorously advanced by

Defendant’s trial counsel, that Jessica’s testimony was

credible, the jury would necessarily have determined that

Defendant placed her in a location or set of circumstances under

which she “[did] not receive proper care from a caretaker or

[was] not provided necessary medical care.” Stevens, __ N.C.

App. at __, 745 S.E.2d at 67. As a result, given that “the term
 -18-
‘plain error’ does not simply mean obvious or apparent error,

but rather has the meaning given by the court in” Lawrence,

Odom, 307 N.C. 660, 300 S.E.2d 378 (holding that the failure to

instruct on the issue of the defendant’s guilt of a lesser

included offense did not rise to the level of plain error), see

also Lawrence, 365 N.C. at 519, 723 S.E.2d at 334-35 (holding

that the omission of an element from the trial court’s

instruction to the jury concerning the issue of Defendant’s

guilt of conspiracy to commit robbery with a dangerous weapon

did not rise to the level of plain error), we conclude that the

trial court’s instructional error did not constitute plain error

and that Defendant is not, for that reason, entitled to relief

from his conviction for contributing to the abuse or neglect of

a minor based upon the trial court’s erroneous instruction.

C. Prosecutor’s Final Argument

Thirdly, Defendant contends that he is entitled to relief

from his convictions based upon remarks that the prosecutor made

during his closing argument. More specifically, Defendant

contends that the prosecutor’s comments to the effect that

Defendant had ruined Jessica’s childhood and that, in the event

that the jury failed to find Jessica’s testimony to be credible,

it would be sending a message that Jessica would need to be

hurt, raped, or murdered before an alleged abuser could be
 -19-
convicted, were improper. Defendant is not entitled to relief

from his convictions based upon this set of contentions.

Statements made during closing arguments to the jury are to

be viewed in the context in which the remarks are made and the

overall factual circumstances to which they make reference.

State v. Jaynes, 353 N.C. 534, 559, 549 S.E.2d 179, 198 (2001)

(citation omitted), cert. denied, 535 U.S. 934, 122 S. Ct. 1310,

152 L. Ed 2d 220 (2002). As a general proposition, counsel are

allowed wide latitude in closing arguments, State v. Johnson,

298 N.C. 355, 368-69, 259 S.E.2d 752, 761 (1979) (citations

omitted), so that a prosecutor is entitled to argue all

reasonable inferences drawn from the facts contained in the

record. State v. Phillips, 365 N.C. 103, 135, 711 S.E.2d 122,

145 (2011) (citations omitted), cert. denied, __ U.S. __, 132 S.

Ct. 1541, 182 L. Ed. 2d 176 (2012). “Unless the defendant

objects, the trial court is not required to interfere ex mero

motu unless the arguments stray so far from the bounds of

propriety as to impede the defendant’s right to a fair trial.”

State v. Small, 328 N.C. 175, 185, 400 S.E.2d 413, 418 (1991)

(quotation marks and citations omitted). As a result, given

that Defendant did not object to the prosecutorial comments that

are addressed in his brief, the ultimate issue raised by

Defendant’s challenge to the prosecutor’s closing argument is
 -20-
the extent, if any, to which the challenged comments were so

egregiously improper as to necessitate judicial intervention

despite the absence of an objection.

In the course of his closing argument, the prosecutor

asserted that:

[The Defendant] has no right to ruin
[Jessica’s] childhood, because how--what
memories is she going to have as--of her
eight-year old time? What’s going to be the
dominant thing in her life when she thinks
back to being eight and nine? It’s going to
be this man groping her, having to come in
and testify and face him.

. . . .

So it comes down to is it sufficient to
listen to an eight-year-old girl--convict
somebody of this crime? And if it’s not,
then this case is never going to be--we’ll
never prove it. Never. So why shouldn’t we
believe her? Because she’s eight? Is that
why? Do we say that no eight-year-old is
ever going to be believable? . . . Now, if
you don’t believe her because she’s eight or
because there’s no forensic evidence, then
what you’re saying is --Well, maybe we
should let it go a little further so we can
get more evidence. Is it fair to tell an
eight-year-old--Well, you know, honey, we’d
like to help you, but you got to get hurt
first. You got to get hurt first. Now,
we’ve got some evidence then. You get hurt,
get raped or murdered, we got some evidence
then. But just your word, just your word,
nah.
 -21-
We do not believe that either of the challenged comments

necessitated ex moro motu intervention on the part of the trial

court.

1. Ruining Jessica’s Childhood

In arguing that Defendant had ruined Jessica’s childhood,

the prosecutor simply made a reasonable inference, based upon

the record evidence, that Jessica would be traumatized by the

events in question. According to the record, Jessica was eight

years old at the time of the incident underlying this case. In

addition, Jessica told Ms. Phillips that she believed that

Defendant, whom she had known for her entire life, was

attempting to rape her. Under that set of circumstances, the

prosecutor’s inference that Jessica had been traumatized by

Defendant’s actions was a reasonable one. As a result, since

the prosecutor’s comment to the effect that Defendant had ruined

Jessica’s childhood represented a reasonable inference drawn

from the record, the trial court did not err by failing to

intervene ex mero motu to address the challenged prosecutorial

argument.

Although the Supreme Court has held that an argument that

undermines reason and is designed to viscerally appeal to the

jurors’ passions or prejudices is improper, see State v. Jones,

355 N.C. 117, 132-33, 558 S.E.2d 97, 107 (2002) (holding that
 -22-
references to the Columbine school shooting and Oklahoma City

bombing during a murder trial was improper, in part, because it

attempted to lead jurors away from the evidence by appealing to

their sense of passion and prejudice), a prosecutor may argue

that the jury should use its verdict to “send a message” to the

community. State v. Barden, 356 N.C. 316, 367, 572 S.E.2d 108,

140 (2002) (citation omitted), cert. denied, 538 U.S. 1040, 123

S. Ct. 2087, 155 L. Ed. 2d 1074 (2003); State v. Nicholson, 355

N.C. 1, 43-44, 558 S.E.2d 109, 138 (citations omitted), cert.

denied, 537 U.S. 845, 123 S. Ct. 178, 154 L. Ed. 2d 71 (2002).

Finally, a prosecutor is entitled to argue that the jury should

or should not believe a witness and explain the reasons that the

prosecutor believes should cause the jury to reach such a

credibility-related conclusion in his or her final argument.

See State v. Wilkerson, 363 N.C. 382, 425, 683 S.E.2d 174, 200

(2009) (citation omitted), cert. denied, 559 U.S. 1074, 130 S.

Ct. 2104, 176 L. Ed. 2d 734 (2010); State v. Augustine, 359 N.C.

709, 725, 616 S.E.2d 515, 528 (2005), cert. denied, 548 U.S.

925, 126 S. Ct. 2980, 165 L. Ed. 2d 988 (2006); State v. Scott,

343 N.C. 313, 344, 471 S.E.2d 605, 623 (1996) (citation

omitted).

2. Jessica’s Credibility
 -23-
As we have already noted, the ultimate issue before the

jury in this case was Jessica’s credibility. The obvious

purpose of the second set of challenged prosecutorial comments

was to urge the jury to find Jessica’s testimony to be credible

despite the fact that the record did not contain physical

evidence that supported her description of Defendant’s conduct.

Admittedly words like “murder” and “rape” are, without doubt,

emotionally charged. Although Defendant attempts to analogize

the prosecutor’s second set of challenged remarks to those at

issue in Jones, that analogy is unpersuasive given that the

remarks under consideration in Jones referred to information

outside the record and compared the defendant’s conduct with

infamous acts committed by others, neither of which is true of

the prosecutorial comments at issue here. As a result of the

fact that the prosecutorial comments at issue here were grounded

in the evidentiary record and represented nothing more than an

assertion that the jury should not refrain from believing

Jessica because the record did not contain corroborative

physical evidence, we conclude that the trial court did not err

by failing to intervene ex mero motu to address the second set

of prosecutorial comments that Defendant has challenged in his

brief. Thus, Defendant is not entitled to relief from his
 -24-
convictions based on allegedly improper comments by the

prosecutor.

D. Ms. Phillips’ Testimony

Finally, Defendant contends that the trial court committed

plain error by allowing Ms. Phillips to deliver testimony that,

in Defendant’s opinion, improperly appealed to the jury’s

sympathy and impermissibly vouched for Jessica’s credibility.

According to Defendant, the trial court should have excluded

this evidence despite the fact that he failed to object to its

admission at trial on the grounds that the evidence in question

was irrelevant and constituted impermissible lay opinion

testimony. We do not find Defendant’s argument persuasive.

1. Relevance

“The admissibility of evidence is governed by a threshold

inquiry into its relevance.” State v. Griffin, 136 N.C. App.

531, 550, 525 S.E.2d 793, 806 (citations omitted), disc. review

denied, 351 N.C. 644, 543 S.E.2d 877 (2000). Relevant evidence

is “evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action

more probable or less probable than it would be without the

evidence.” N.C. Gen. Stat. § 8C-1, Rule 401. Evidence that is

“not part of the crime charged but pertain[s] to the chain of

events explaining the context, motive, and set-up of the crime,
 -25-
is properly admitted if linked in time and circumstances with

the charged crime, or if it forms an integral and natural part

of an account of the crime, or is necessary to complete the

story of the crime for the jury.” State v. Agee, 326 N.C. 542,

548, 391 S.E.2d 171, 174 (1990) (quoting U.S. v. Williford, 764

F.2d 1493, 1499 (11th Cir. 1985)) (internal brackets omitted).

A trial court’s ruling with respect to relevance issues is

“technically . . . not discretionary and therefore is not

reviewed under the abuse of discretion standard[,]” but is,

nevertheless, entitled to great deference on appeal. Sherrod v.

Nash General Hosp. Inc., 126 N.C. App. 755, 762, 487 S.E.2d 151,

155 (1997) (quoting State v. Wallace, 104 N.C. App. 498, 502,

410 S.E.2d 226, 228 (1991), appeal dismissed, 331 N.C. 290, 416

S.E.2d 398, cert. denied, 506 U.S. 915, 113 S. Ct. 321, 121 L.

Ed. 2d 241 (1992)) (internal quotation marks and brackets

omitted), aff’d in part and rev’d in part on other grounds, 348

N.C. 526, 500 S.E.2d 708 (1998). As a result of the fact that

Defendant failed to object to the admission of the challenged

evidence at trial, we review Defendant’s challenge to the

admission of this evidence using a plain error standard of

review.

At trial, Ms. Phillips testified that, after Jessica told

her about Defendant’s conduct, Ms. Phillips “got scared and shut
 -26-
down,” “was in shock,” laid down with Jessica, and “started

crying.” Subsequently, Ms. Phillips saw Defendant coming out of

the bathroom, “grabbed him by the shirt,” “threw him out the

screen door,” and “told him if he ever come back to [her] house

again,” she “would kill him, because [she] was mad and scared at

the time.” Finally, Ms. Phillips also stated that she told

Jessica’s father about Defendant’s actions and “he got up

raging.”

The challenged portion of Ms. Phillips’ testimony was

relevant to show what occurred immediately after Defendant’s

alleged assault upon Jessica. The fact that Jessica reported

the incident to Ms. Phillips immediately after it occurred,

rather than waiting until a later time to make her accusation,

tends to bolster the credibility of her testimony and was

relevant for that reason. Similarly, the challenged portion of

Ms. Phillips’ testimony tends to show that Jessica had given a

consistent account of her interaction with Defendant from the

time of her first conversation with Ms. Phillips immediately

after the incident occurred until she testified at trial.

Finally, the challenged portion of Ms. Phillips’ testimony,

which details her reaction to Jessica’s allegations and the

events that led up to Defendant’s arrest, helped complete the

story of Defendant’s assault upon Jessica for the jury. As a
 -27-
result, the trial court did not err by failing to exclude the

challenged portion of Ms. Phillips’ testimony on relevance

grounds.

2. Vouching for Jessica’s Credibility

According to N.C. Gen. Stat. § 8C-1, Rule 701, the

testimony of a non-expert witness “in the form of opinions or

inferences is limited to . . . opinions or inferences [that] are

(a) rationally based on the perception of the witness and (b)

helpful to a clear understanding of his [or her] testimony or

the determination of a fact in issue.” The admission of opinion

testimony intended to bolster or vouch for the credibility of

another witness violates N.C. Gen. Stat. § 8C-1, Rule 701.

State v. Robinson, 355 N.C. 320, 334-35, 561 S.E.2d 245, 255,

cert. denied, 537 U.S. 1006, 123 S. Ct. 488, 154 L. Ed. 2d 404

(2002). “As long as the lay witness has a basis of personal

knowledge for his [or her] opinion, the evidence is admissible.”

State v. Bunch, 104 N.C. App. 106, 110, 408 S.E.2d 191, 194

(1991).

In addition to questioning its relevance, Defendant

contends that the challenged portion of Ms. Phillips’ testimony

impermissibly vouched for Jessica’s credibility. However, Ms.

Phillips never directly commented on the issue of Jessica’s

credibility. Put another way, Ms. Phillips never specifically
 -28-
stated whether she believed Jessica or not. Although Defendant

argues that the challenged portion of Ms. Phillips’ testimony

contained an implicit expression of confidence in Jessica’s

veracity, we are unable to read such an implication into what

Ms. Phillips actually said. Finally, even if Ms. Phillips’

testimony did, in some manner, amount to an impermissible

comment concerning Jessica’s credibility, any error that the

trial court may have committed by allowing the admission of that

testimony did not rise to the level of plain error. In view of

the relatively incidental nature of any vouching for Jessica’s

credibility that might have occurred and the fact that most

jurors are likely to assume that a grandmother would believe an

accusation of sexual abuse made by one of her own grandchildren,

see State v. Freeland, 316 N.C. 13, 18, 340 S.E.2d 35, 37 (1986)

(stating that a jury would naturally assume that a mother would

believe that her daughter was telling the truth concerning a

sexual assault allegation); State v. Dew, __ N.C. App. __, __,

738 S.E.2d 215, 219 (stating that “most jurors are likely to

assume that a mother will believe accusations of sexual abuse

made by her own children.”), disc. review denied, 366 N.C. 595,

743 S.E.2d 187 (2013) we are simply unable to conclude that the

outcome at Defendant’s trial would probably have been different

had the trial court refrained from allowing the admission of the
 -29-
challenged portion of Ms. Phillips’ testimony. As a result, the

trial court did not commit plain error by allowing the admission

of the challenged portion of Ms. Phillips’ testimony.5

III. Conclusion

Thus, for the reasons set forth above, we conclude that

none of Defendant’s challenges to the trial court’s judgments

have merit. As a result, the trial court’s judgments should,

and hereby do, remain undisturbed.

NO ERROR.

Judge ROBERT N. HUNTER, JR., concurred in the result only

prior to 6 September 2014.

Judge DAVIS concurs.

5
In his brief, Defendant contends that, even if he is not
entitled to relief from his convictions based on a single error,
the cumulative effect of the errors that he contends that the
trial court committed deprived him of a fair trial. However,
given that “the plain error rule may not be applied on a
cumulative basis,” State v. Dean, 196 N.C. App. 180, 194, 674
S.E.2d 453, 463, disc. review denied, 363 N.C. 376, 679 S.E.2d
139 (2009), and given that none of Defendant’s challenges to the
trial court’s judgments were properly preserved for purposes of
appellate review, we conclude that Defendant is not entitled to
relief from the trial court’s judgments on the basis of the
cumulative error doctrine.