State v. Ball

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 22-1029

Filed 16 January 2024

Macon County, Nos. 19 CRS 50650-51

STATE OF NORTH CAROLINA

v.

JOSEPH BALL

Appeal by Defendant from judgment entered 17 December 2021 by Judge

William H. Coward in Macon County Superior Court. Heard in the Court of Appeals

20 September 2023.

Attorney General Joshua H. Stein, by Assistant Attorney General Ryan C.
Zellar, for the State.

Joseph P. Lattimore, for the Defendant-Appellant.

WOOD, Judge.

Joseph Ball (“Defendant”) appeals from judgments entered by the trial court

after a jury verdict finding him guilty of second-degree forcible rape, first-degree

burglary, interfering with an emergency communication, second-degree kidnapping,

and assault on a female. For the reasons stated below, we hold Defendant received a

fair trial, free from error.

I. Factual and Procedural Background
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Opinion of the Court

On the evening of 11 May 2019, Defendant appeared at the residence of K.V.1

K.V.’s residence is situated on a seventeen-acre farm and contains her primary

residence, a storage building, and a guest house. Defendant and K.V. knew each

other previously as they had worked together at a Christmas tree lot in Atlanta,

Georgia and Defendant had completed carpentry work at her property years earlier.

When K.V. answered the door, Defendant informed K.V. his car was stuck in a

nearby ditch, and he could not drive it. K.V. offered Defendant her guest house for

the night, walked him to the structure, and returned to her residence. K.V. texted

two friends notifying them that a person was staying in her guest house and asked

them to check in with her in the morning because she felt uncomfortable.

At trial, the parties offered different accounts of what followed. K.V. testified

that after she returned to her home, Defendant came to her front door again and

asked for a cigarette lighter. After she handed a lighter to Defendant, he barged

through the front door into the home. K.V. ran to retrieve her phone to call for help,

but before she could reach her phone, Defendant “intercepted [her] and threw [her]

on the bed.” K.V. landed on her bed face down.

Defendant jumped on the bed, placed his knee in K.V.’s back, grabbed her

wrists, and attempted to roll her over. K.V. began to scream, kick, and repeatedly

ordered Defendant to leave her home. When Defendant ignored her, K.V. began to

1 The prosecuting witness is referred to by her initials to protect her identity.

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beg Defendant not to hurt her and told him she would not call the police if he left her

home without hurting her. According to K.V., Defendant responded “I’ve made it this

far, I’m going to finish it.” K.V. testified she warned Defendant that “if he did finish

it, there would be consequences that he might not like” to which Defendant

responded, “I don’t care what the consequences are.” Defendant moved K.V. onto her

back, at which point she kicked Defendant in the face, causing his glasses to fly off

his face. At some point during the struggle, K.V. noticed Defendant’s cell phone on

the bed, picked it up, and attempted to dial 911. However, before she could complete

the call, Defendant grabbed the phone out of K.V.’s hands and threw it against the

wall.

K.V. testified that during this struggle, she feared for her life as she, a sixty-

five-year-old woman, measuring 5’1”, and weighing 140 pounds, was resisting a man

likely around forty years old, measuring around 6’1”, and weighing around 250 to 300

pounds. Recounting the struggle, K.V. testified:

[I]t became pretty clear to me that my choice was to submit
or die. I think every woman at some point in their life has
imagined what they would do if they were put in this
circumstance. And I simply knew I needed to submit so
that I could live, so I let him roll me over.

Once K.V. was rolled onto her back, Defendant attempted to vaginally penetrate her

but was unable to do so. Defendant then grabbed K.V.’s hair, pushed her face into

his crotch, and demanded oral sex. K.V. refused. Defendant eventually penetrated

K.V.’s vagina with his penis.

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After Defendant ejaculated, he rolled off her, and she quickly leapt off the bed,

attempting to escape. As she was running from her bedroom, Defendant, while still

lying on the bed, grabbed and ripped off K.V.’s nightgown. K.V. escaped out of her

front door nude, grabbed a blanket from the guest house to cover herself, and ran to

her neighbor’s home to ask for help. After failing to obtain help from her neighbors,

K.V. approached a nearby sheriff’s vehicle for assistance and reported that she had

been raped by a man who was still in her home. The officers accompanied K.V. back

to her home and found Defendant asleep on the bed. Defendant did not respond to

the officers. The officers rolled him onto his side to handcuff him and removed him

from K.V.’s home. K.V. underwent a sexual assault nurse examination (“SANE

exam”) the following morning on 12 May 2019.

In Defendant’s recount of the night in question, he testified he was on his way

to Atlanta but realized he was too intoxicated from alcohol to drive and needed to rest

before continuing his travels. Defendant testified he had several drinks over the

course of the day and by the evening began to “fade in and out of consciousness” after

consuming six “Long Island iced teas” at a restaurant. Remembering K.V. lived near

the travel route he was planning to take, Defendant decided to try to stay with her

until he became sober. According to Defendant, after K.V. agreed to let him stay in

her guest house, the two later went into K.V.’s bedroom, where he caressed and kissed

K.V.’s breasts while they were lying together on the bed. Defendant testified he

initially could not perform sexually, so he had to “manually stimulate” himself. He

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Opinion of the Court

testified that he and K.V. eventually engaged in consensual sexual intercourse.

On 15 July 2019, Defendant was charged with second-degree forcible rape,

first-degree burglary, and interfering with an emergency communication. On 22

January 2020, Defendant was charged with second-degree kidnapping, sexual

battery, and assault on a female in a superseding indictment. Defendant’s trial was

held during the 13 December 2021 criminal session of the Macon County Superior

Court.

In addition to the testimony presented by K.V., the State presented the

testimony of Corporal Lynch of the Macon County Sheriff’s Department, who

accompanied K.V. back to her home. Corporal Lynch testified that when he entered

K.V.’s home, he found “a large naked man in the bed.” Corporal Lynch noted, “he’s

way over 6 foot tall, I would estimate; and he was in excess of 200 pounds, probably

250 pounds. He was much larger than I was and much larger than [K.V].” Corporal

Lynch placed Defendant under arrest, handcuffed him and rolled him onto his side

because he was vomiting. Corporal Lynch testified there was a strong odor of alcohol

and opined that Defendant was “appreciably intoxicated.”

The State also called Detective Wright of the Macon County Sheriff’s Office

Special Victim’s Unit who testified to taking pictures and collecting evidence at K.V.’s

home as part of her normal investigation practice. Some of the pictures and evidence

collected were accepted into evidence at trial and included a photograph of Defendant

lying on K.V.’s bed, men’s clothing, boots and boxer shorts, a broken cell phone with

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Opinion of the Court

a cell phone battery, a cigarette butt, a photograph of metal framed eyeglasses on the

floor, and a photograph of a torn nightgown on K.V.’s bed.

The State called as a witness Mr. Wendell Ivory of the North Carolina State

Crime Lab who reviewed Defendant’s DNA samples as well as DNA samples obtained

through vaginal swabs of K.V. Mr. Ivory testified “[t]he major DNA profile matches

the DNA profile from [Defendant],” while “the minor profile is no different from that

of [K.V.].”

The State called Nurse Maillet, a forensic nursing supervisor at Mission

Hospital, who was tendered at trial, without objection, as an expert in sexual assault

nurse examinations. Nurse Maillet provided expert testimony regarding the SANE

exam report, which was performed by Nurse Sullivan, a registered nurse at Mission

Hospital, on 12 May 2019.

Nurse Maillet testified she personally reviewed K.V.’s SANE exam report and

concluded the examination was conducted in accordance with the proper protocols

governing all sexual assault examinations. Nurse Maillet further explained that part

of the general protocol governing all sexual assault examinations is for the examining

nurse to take photographs of nearly every part of the patient’s body. Nurse Maillet

personally reviewed the photographs taken during K.V.’s examination, and she

observed bruising, abrasions and redness in the photographs that were “consistent

with blunt trauma, which is what happens during a sexual assault.” In connection

with Nurse Maillet’s testimony, the SANE exam report was admitted into evidence

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at trial, without objection.

Additionally, the State admitted into evidence, without objection, a recorded

interview between Defendant and members of the Macon County Sheriff’s Office

conducted two days after the incident. During the recorded interview, which was

played for the jury at trial, Defendant stated several times “I was too drunk[,] I don’t

remember anything” concerning the night in question. In the interview, when asked

by officers “why did you do it,” Defendant responded by stating, “I don’t know.”

On 17 December 2021, the jury found Defendant guilty of second-degree

forcible rape, first-degree burglary, interfering with an emergency communication,

second-degree kidnapping, and assault on a female. Following the jury’s guilty

verdicts, the trial court imposed the following active sentences, which were ordered

to run consecutively: 96 to 176 months in prison for the conviction for second-degree

forcible rape; 84 to 113 months for first-degree burglary; 75 days for interfering with

an emergency communication; 33 to 52 months for second-degree kidnapping; and 75

days for assault on a female. Defendant gave oral notice of appeal in open court on

this same day.

II. Analysis

Defendant brings three issues on appeal. We address each in turn.

A. Motion to Dismiss the Kidnapping Charge.

Defendant first argues the trial court erred in denying his motion to dismiss

the charge of second-degree kidnapping. Specifically, Defendant challenges the

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Opinion of the Court

State’s failure to “introduce sufficient evidence of confinement separate from that

which was inherent in the commission of the alleged sexual assault” on K.V. We

disagree.

Upon a defendant’s motion to dismiss, the question for the trial court is

“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 of such offense.” State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868

(2002) (citation omitted). Substantial evidence is defined as “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 trial court views the

evidence in the light most favorable to the State, giving the State the benefit of all

reasonable inferences. State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455

(2000). “Contradictions and discrepancies [in the evidence] do not warrant dismissal

of the case but are for the jury to resolve.” Id. at 379, 526 S.E.2d at 455. “[I]n

borderline or close cases, our courts have consistently expressed a preference for

submitting issues to the jury.” State v. Woods, 275 N.C. App. 364, 368, 853 S.E.2d

177, 180 (2020), aff’d, 381 N.C. 160, 871 S.E.2d 495 (2022) (citation omitted).

This Court reviews a trial court’s denial of a motion to dismiss de novo. State

v. Moore, 240 N.C. App. 465, 470, 770 S.E.2d 131, 136 (2015) (citation omitted).

Under a de novo standard of review, the court “considers the matter anew and freely

substitutes its own judgment for that of the lower tribunal.” State v. Williams, 362

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N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citation and internal quotation marks

omitted).

Kidnapping is defined pursuant to N.C. Gen. Stat. § 14-39:

Any person who shall unlawfully confine, restrain or
remove from one place to another . . . without the consent
of such person . . . shall be guilty of kidnapping if such
confinement, restraint, or removal is for the purpose of: (1)
Holding such other person for ransom or as a hostage or
using such other person as a shield or (2) Facilitating the
commission of any felony or facilitating flight of any person
following the commission of a felony or (3) Doing serious
bodily harm to or terrorizing the person so confined,
restrained or removed or any other person.

N.C. Gen. Stat. § 14-39(a) (2023). Our case law provides kidnapping has no

durational requirements, and instead, lasts until the victim regains her free will.

State v. White, 127 N.C. App. 565, 571, 492 S.E.2d 48, 51 (1997). Similarly,

confinement and restraint need not last for a significant amount of time, nor does

removal require asportation of the victim across a substantial distance. See State v.

Fulcher, 294 N.C. 503, 522, 243 S.E.2d 338, 351 (1978).

“[A] kidnapping charge cannot be sustained if based upon restraint [or

confinement] which is an inherent feature of another felony.” State v. Williams, 308

N.C. 339, 346, 302 S.E.2d 441, 447 (1983). Thus, the restraint for kidnapping “must

be an act independent of the intended felony.” State v. Ackerman, 144 N.C. App. 452,

457, 551 S.E.2d 139, 142 (2001).

The test of the independent act “does not look at the restraint necessary to

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Opinion of the Court

commit an offense, rather the restraint that is inherent in the actual commission of

the offense.” Williams, 308 N.C. at 347, 302 S.E.2d at 447. “It has been held, quite

properly, that where movement is merely incidental to an assault the prosecution

must be for that offense and not for kidnapping.” State v. Ripley, 360 N.C. 333, 338,

626 S.E.2d 289, 293 (2006) (quoting Rollin M. Perkins, Criminal Law, ch. 2, § 7(A)(1),

at 178 (2d ed. 1969)). A court may also consider whether the restraint subjected the

victim to the type of danger the kidnapping statute was designed to prevent, and

whether defendant’s acts “increase[d] the victim’s helplessness and vulnerability.”

State v. Key, 180 N.C. App. 286, 290, 636 S.E.2d 816, 820 (2006) (citation omitted).

In rape cases, this Court has previously determined a separate charge of

second-degree kidnapping requires a defendant’s restraint or confinement of the

victim to be separate from that necessary to accomplish the rape. State v. Harris, 140

N.C. App. 208, 213, 535 S.E.2d 614, 618 (2000). Additionally, we have held acts of

confinement or restraint prior to the commission of a rape are separate and distinct

from the force used during the rape itself. See State v. Robertson, 149 N.C. App. 563,

569, 562 S.E.2d 551, 556 (2002).

In the present case, the State introduced evidence tending to show restraint,

which was separate and distinct from that required to accomplish the charge of

second-degree forcible rape. Evidence was presented tending to show Defendant and

K.V. were engaged in an ongoing struggle. K.V. testified Defendant forced himself

into her front door, “intercepted” her as she tried to flee from him, threw her onto her

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Opinion of the Court

bed, climbed on top of her and placed his knee in the small of her back while holding

both of her wrists behind her back. K.V. began kicking and screaming at Defendant

“a dozen or more times” to get out of her house. After her requests were ignored by

Defendant, K.V. testified she mentally “moved to the next phase which was to beg

him not to hurt [her].” Defendant instead responded, “I’ve made it this far, I’m going

to finish it.”

During the physical struggle, K.V. reached for Defendant’s cell phone on the

bed and attempted to dial 911, but Defendant allegedly grabbed the phone out of

K.V.’s hands and threw it against the wall. Defendant continued to restrain K.V. as

he forced her to roll over onto her back, and K.V. attempted to resist by kicking

Defendant in the face, causing his glasses to fly off his face. The evidence shows K.V.

was trapped and restrained in her own bedroom during this physical struggle before

Defendant sexually assaulted her. Moreover, after attempting to resist Defendant,

K.V. testified she felt helpless, feared for her life, and believed she had the choice to

either submit to Defendant’s assaults or die. As K.V. attempted to flee after the

assaults and rape, Defendant grabbed and ripped off her nightgown, causing her to

flee from her own home outside into the night naked.

When viewed in the light most favorable to the State, we hold Defendant’s

restraints of K.V. were separate and apart from that inherent in the commission of

the rape. Therefore, Defendant’s motion to dismiss the charge of second-degree

kidnapping was properly denied. Defendant’s argument is overruled.

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B. The SANE Exam Report and Expert Witness Testimony.

Next, Defendant contends the trial court plainly erred in admitting the SANE

exam report prepared by Nurse Sullivan and in allowing Nurse Maillet to provide

“surrogate testimony for Sullivan, in violation of the Confrontation Clause.” We

disagree.

On appeal, Defendant concedes he failed to object to the admission of Nurse

Sullivan’s SANE exam report containing her observations of injuries to K.V.’s genital

area. Likewise, Defendant acknowledges he failed to object to Nurse Maillet’s

testimony regarding the report.

“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.” N.C. R. App. P. 10(a)(1). However, in criminal cases,

an issue that was not preserved by objection noted at trial
and that is not deemed preserved by rule or law without
any such action nevertheless may be made the basis of an
issue presented on appeal when the judicial action
questioned is specifically and distinctly contended to
amount to plain error.

N.C. R. App. P. 10(a)(4).

Generally, “plain error review is available in criminal appeals for challenges to

jury instructions and evidentiary issues.” State v. Miller, 371 N.C. 266, 268, 814

S.E.2d 81, 83 (2018) (citation omitted). To find plain error, an appellate court must

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determine that an error occurred at trial. State v. Towe, 366 N.C. 56, 62, 732 S.E.2d

564, 568 (2012). Additionally, the defendant must demonstrate that the error was

“fundamental”—meaning the error “had a probable impact on the jury’s finding that

the defendant was guilty and seriously affect[ed] the fairness, integrity, or public

reputation of judicial proceedings.” Miller, 371 N.C. at 269, 814 S.E.2d at 83 (cleaned

up).

Thus, plain error should only be found where the claimed
error is a fundamental error, something so basic, so
prejudicial, so lacking in its elements that justice cannot
have been done, or where the error is grave error which
amounts to a denial of a fundamental right of the accused,
or the error has resulted in a miscarriage of justice or in
the denial to appellant of a fair trial.

State v. Lane, 271 N.C. App. 307, 312, 844 S.E.2d 32, 38 (2020) (cleaned up). Courts

reverse for plain error only in the “most exceptional cases.” State v. Garcell, 363 N.C.

10, 35, 678 S.E.2d 618, 634 (2009) (citation omitted).

The Confrontation Clause of the Sixth Amendment to the United States

Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him[.]” U.S. Const. Amend.

VI. The Confrontation Clause “bars admission of testimonial evidence unless the

declarant is unavailable to testify and the accused has had a prior opportunity to

cross-examine the declarant.” State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293,

304 (2009) (citations omitted).

The Supreme Court of the United States noted in Melendez-Diaz v.

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Opinion of the Court

Massachusetts that forensic analyses qualify as testimonial statements subject to the

Confrontation Clause. 557 U.S. 305, 310, 129 S. Ct. 2527, 2532, 174 L. Ed. 2d 314,

321 (2009) (holding that reports stating the substance at issue was cocaine was

testimonial). Thus, in the present case, the SANE exam report constitutes a

testimonial statement. However, as the State notes, the Confrontation Clause is

subject to several exceptions that limit its applicability, including that testimonial

statements will not be barred when they are admitted for “purposes other than

establishing the truth of the matter asserted.” Crawford v. Washington, 541 U.S. 36,

60 n.9, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 198 (2004) (citation omitted).

Rule 702 of the North Carolina Rules of Evidence states: “If scientific, technical

or other specialized knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as an expert . . . may testify thereto

in the form of an opinion[.]” N.C. Gen. Stat. § 8C-1, R. 702(a). North Carolina courts

have consistently held

when an expert gives an opinion, the expert is the witness
whom the defendant has the right to confront. In such
cases, the Confrontation Clause is satisfied if the
defendant has the opportunity to fully cross-examine the
expert witness who testifies against him, allowing the
factfinder to understand the basis for the expert’s opinion
and to determine whether that opinion should be found
credible.

State v. Ortiz-Zape, 367 N.C. 1, 9, 743 S.E.2d 156, 161 (2013) (cleaned up).

An expert witness “may testify as to the testing or analysis conducted by

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another expert if: (i) that information is reasonably relied on by experts in the field

in forming their opinions; and (ii) the testifying expert witness independently

reviewed the information and reached his or her own conclusion in [the] case.” State

v. Crumitie, 266 N.C. App. 373, 379, 831 S.E.2d 592, 596 (2019) (citations omitted).

Importantly, “the expert must present an independent opinion obtained through his

or her own analysis and not merely ‘surrogate testimony’ parroting otherwise

inadmissible statements.” Ortiz-Zape, 367 N.C. at 9, 743 S.E.2d at 162 (citation

omitted). In short, an expert witness may properly base her independent opinion “on

tests performed by another person, if the tests are of the type reasonably relied upon

by experts in the field,” without violating the Confrontation Clause. State v. Fair,

354 N.C. 131, 162, 557 S.E.2d 500, 522 (2001).

In the present case, Nurse Maillet identified herself as a forensic nursing

supervisor at the hospital, and who has the responsibility to “go through the other

nurse’s charting and documentation and photographs and make sure that everything

is up to standard.” Nurse Maillet testified she has twenty-five years of experience

both performing and overseeing sexual assault examinations. The State tendered

Nurse Maillet as an expert in sexual assault nurse examinations, and the trial court

accepted her as an expert without objection from Defendant. Nurse Maillet testified

the protocol for a sexual assault examination includes speaking with the patient and

gathering medical history, explaining to the patient what treatments and procedures

are offered, gaining the patient’s consent as to what procedures and examinations she

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would like to undergo, and then conducting a general physical examination as well

as the physical collection for the sexual assault kit, including taking photographs of

areas on the body that have suffered injury or abnormality.

Nurse Maillet testified that she had an opportunity to review K.V.’s sexual

assault examination conducted by Nurse Sullivan. Nurse Maillet affirmed that

Nurse Sullivan conducted the SANE exam in accordance with proper procedures and

protocols. The SANE exam report conducted on K.V. was admitted into evidence

without objection.

Nurse Maillet then provided her own independent opinion of the images taken

during K.V.’s examination showing injury to K.V.’s body, which were included in the

SANE exam report. Nurse Maillet testified in her review of the photographs

indicating bruising, she “found three instances of what [she] consider[s] an incident

worth reporting” and the injury she observed “is consistent with blunt trauma, which

is what happens during a sexual assault.” Nurse Maillet’s testimony was based upon

her personal knowledge and her professional judgement in her independent review

of the information from the SANE exam report. Hence, Nurse Maillet’s opinion was

her “own independently reasoned opinion” and did not serve as “surrogate testimony

parroting the testing analyst’s opinion.” Ortiz-Zape, 367 N.C. at 12, 743 S.E.2d at

163 (citation omitted). Because Nurse Maillet provided her independently reasoned

opinion, she is the witness whom Defendant had the right to confront, and which he

did confront during cross-examination. Id. at 8, 743 S.E.2d at 161. Because there

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was no violation of Defendant’s rights to confrontation, the trial court did not err,

much less plainly err, in admitting the SANE exam report and in allowing Nurse

Maillet’s testimony.

C. The Prosecutor’s Closing Argument.

In his final argument, Defendant contends that the trial court erred by failing

to intervene ex mero motu in response to statements made by the Prosecutor during

his closing argument. We disagree.

During closing arguments, a lawyer is “to provide the jury with a summation

of the evidence, which in turn serves to sharpen and clarify the issues for resolution

by the trier of fact, and should be limited to relevant legal issues.” State v. Jones, 355

N.C. 117, 127, 558 S.E.2d 97, 103 (2002) (cleaned up). In a criminal jury trial, N.C.

Gen. Stat. § 15A-123(a) provides specific guidelines for closing arguments:

During a closing argument to the jury an attorney may not
become abusive, inject his personal experiences, express
his personal belief as to the truth or falsity of the evidence
or as to the guilt or innocence of the defendant, or make
arguments on the basis of matters outside the record
except for matters concerning which the court may take
judicial notice. An attorney may, however, on the basis of
his analysis of the evidence, argue any position or
conclusion with respect to a matter in issue.

N.C. Gen. Stat. § 15A-1230(a) (2023). Additionally, our Supreme Court has

determined that “argument of counsel must be left largely to the control and

discretion of the presiding judge and that counsel must be allowed wide latitude in

the argument of hotly contested cases.” State v. Monk, 286 N.C. 509, 515, 212 S.E.2d

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125, 131 (1975). Nonetheless, this wide latitude has limitations as a closing

argument must: “(1) be devoid of counsel’s personal opinion; (2) avoid name-calling

and/or references to matters beyond the record; (3) be premised on logical deductions,

not on appeals to passion or prejudice; and (4) be constructed from fair inferences

drawn only from evidence properly admitted at trial.” Jones, 355 N.C. at 135, 558

S.E.2d at 108.

We note Defendant’s attorney failed to object to the Prosecutor’s closing

argument, so Defendant “must establish that the remarks were so grossly improper

that the trial court abused its discretion by failing to intervene ex mero motu. To

establish such an abuse, defendant must show that the prosecutor’s comments so

infected the trial with unfairness that they rendered the conviction fundamentally

unfair.” State v. Tart, 372 N.C. 73, 80-81, 824 S.E.2d 837, 842 (2019) (cleaned up).

Even when an appellate court determines that a trial court erred in failing to

intervene ex mero motu, a new trial will be granted only if “the remarks were of such

a magnitude that their inclusion prejudiced defendant, and thus should have been

excluded by the trial court.” Id. at 82, 824 S.E.2d at 843 (citation omitted).

In the present case, Defendant argues the Prosecutor attempted to undermine

Defendant’s testimony by pointing out the differences “in his testimony about the

sexual encounter with [K.V.] and his previous recorded statement to law

enforcement” in describing it as “the evolution of a defense.” Specifically, Defendant

challenges the following portion of the closing argument:

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So why is this important? Why the change? The rape,
voluntary intoxication is not a defense. On May 13th of
2019 [Defendant] was in custody. You’ve heard testimony
that he didn’t have a lawyer. “I was too drunk. I don’t
remember anything.” It sounded pretty good, but it’s not a
defense. What’s the only thing left for [Defendant] to avoid
facing consequences? It’s a red herring all day long. That’s
why the testimony was what it was. That’s why they’re
excruciating minute details about all of these interactions
with [K.V.] that she didn’t testify about that he didn’t tell
Detective Burrows or Detective Wright about. Consent is
the last card that could be played. The burglary,
kidnapping, interfere with emergency communications,
voluntary intoxication is a defense. Go back one. Why is
that important? [Defendant’s] recall and memory and
testimony from the stand only involved consent. He doesn’t
remember anything else to do with these crimes where
voluntary intoxication is a defense, nothing. He’s like a
light bulb except only when it’s convenient for him and his
case.

Defendant contends “[t]here was absolutely no support in the evidence for this

comment, which suggested that [he] testified falsely in accordance with the advice he

received from his lawyers.”

When making closing arguments, prosecutors may argue based on the law, the

facts in evidence, and “all reasonable inferences drawn therefrom.” State v. Alston,

341 N.C. 198, 239, 461 S.E.2d 687, 709 (1995) (citation omitted). Additionally,

attorneys may properly refer to evidence of prior misconduct by the defendant to

make arguments regarding the defendant’s credibility. State v. Bondurant, 309 N.C.

674, 688, 309 S.E.2d 170, 179 (1983).

Here, the Prosecutor’s closing statements were consistent with the record, as

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 STATE V. BALL

Opinion of the Court

his arguments highlighted the differences between Defendant’s statements to the

police two days after the incident, which were properly admitted at trial, and

Defendant’s own testimony during his trial. When viewing this argument in light of

the overall factual circumstances to which it refers, it is clear the Prosecutor was

making a credibility argument against Defendant. This questioning of Defendant’s

credibility was reasonably inferred from the record and did not violate the

requirements of N.C. Gen. Stat. § 15A-1230. Thus, the Prosecutor’s remarks were

not grossly improper or so extreme and of such a magnitude that their inclusion in

the State’s argument prejudiced Defendant by rendering the proceedings

fundamentally unfair.

III. Conclusion

For the reasons stated above, we conclude Defendant received a fair trial, free

from error.

NO ERROR.

Judges TYSON and COLLINS concur.

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