Opinion
No. COA12–798.
2013-03-19
STATE of North Carolina v. William Charles KLINGER, Defendant.
Roy Cooper, Attorney General, by Margaret A. Force, Assistant Attorney General, for the State. Russell J. Hollers III, for defendant-appellant.
Appeal by defendant from judgments entered 23 January 2012 by Judge Alan Z. Thornburg in Avery County Superior Court. Heard in the Court of Appeals 10 January 2013. Roy Cooper, Attorney General, by Margaret A. Force, Assistant Attorney General, for the State. Russell J. Hollers III, for defendant-appellant.
DAVIS, Judge.
Defendant William Charles Klinger (“defendant”) appeals from his convictions on seven counts of statutory sex offense, three counts of taking indecent liberties with a minor, and one count of delivering a controlled substance to a minor. After careful review, we conclude that defendant received a trial free from prejudicial error with respect to his statutory sex offense and indecent liberties convictions. However, we reverse defendant's conviction for delivering a controlled substance to a minor.
Factual Background
The State presented evidence at trial tending to establish the following facts: In the summer of 2009, “Randy” was 13 years old, living at home with his parents in Banner Elk, North Carolina. Defendant, who was in his early forties at the time, was introduced to Randy, and they became friends.
The pseudonym “Randy” is used throughout this opinion to protect the minor's privacy and for ease of reading.
On the first occasion in which they spent time together, defendant picked up Randy and took him to his house near Valle Crucis, where they sat on the back porch and smoked marijuana together. After this incident, defendant and Randy began meeting two to three times a week to smoke marijuana at defendant's house. Fearing his parents' disapproval, Randy told his parents that he was spending time with a friend his own age.
Defendant and Randy subsequently planned to take a trip together. Seeking to invent a false story that would result in his parents allowing him to travel with defendant, Randy told his parents about a fictitious friend's stepfather who worked as a reporter for a television station. Randy then asked if he could go with the friend's stepfather to help film the Highland Games. However, Randy's parents insisted on meeting the friend's stepfather before allowing Randy to go on the trip. When they met defendant, he wore a wedding ring and told them that he was married and had a stepson who also would be going on the trip. When Randy's parents asked to meet defendant's wife and stepson, the trip was cancelled.
Randy's parents did, however, allow him to go on day trips with defendant. The first trip was in October 2009, when defendant and Randy went to Beech Mountain to film “Oz Fest.” After filming the music festival, they drove to Boone where defendant stopped and rented a room at Greens Motel. Once they got into the motel room, defendant and Randy smoked marijuana and snorted crushed up pills. At that point, defendant forced Randy to perform oral sex on him. Defendant then performed oral sex on Randy. Defendant threatened to tell Randy's parents that Randy had impregnated his girlfriend if he did not do as he was told. Upon returning home, Randy did not tell his parents what had happened because he was scared defendant would hurt him.
Randy went out with defendant the next weekend on the pretense of filming the Blue Ridge Parkway. Before doing any filming, defendant drove Randy to the Pineola Inn and rented a room. Defendant and Randy then smoked marijuana and drove up to the parkway. After doing some filming, they drove back to the motel, where they smoked more marijuana and snorted crushed pills. Defendant then pushed Randy onto the bed and threatened to tell his parents if Randy did not have sex with him. Defendant forced Randy to get on the floor and perform oral sex on him while he was sitting on the edge of the bed. He then had Randy lie down on the bed while defendant performed oral sex on him. Defendant then rolled over onto his side and made Randy engage in anal sex with him. Afterward, the two of them smoked more marijuana, ate dinner, and went home. When defendant dropped off Randy at his parents' house, they could tell that Randy was “high” and told him that he could not see defendant anymore.
Approximately one week later, Randy snuck out of his window around midnight and met defendant at the end of the driveway. They drove around for approximately three hours smoking marijuana. After this incident, Randy began sneaking out almost every night to meet up with defendant and take drugs.
On two occasions, defendant engaged in sexual activity with Randy in his vehicle. Each time, defendant pulled down his pants and told Randy to perform oral sex on him, which Randy proceeded to do. Defendant then instructed Randy to pull down his pants, and, once Randy did so, defendant performed oral sex on him.
Defendant also engaged in sexual activity with Randy at defendant's house. Defendant had Randy perform oral sex on him in his bedroom on at least three separate occasions, and defendant performed oral sex on Randy once or twice. On one occasion, defendant had Randy lie down on the bed, take his clothes off, and have anal sex with defendant. While at defendant's house, they would smoke marijuana and take pills, and on one occasion they drank liquor.
On 31 December 2009, Randy snuck out of the house and went with defendant to a friend's house to watch television and smoke marijuana. Before Randy got back home, his parents went to check on him and discovered that he was not in bed. Randy's father called Randy's cell phone and told Randy that if he was not home in 10 minutes he was calling the police. When Randy got home, he refused to tell his parents who he had been out with that night. Following this incident, Randy's mother found a picture of Randy, along with satanic symbols, on defendant's Facebook page. Randy's parents subsequently obtained a restraining order prohibiting defendant from having any further contact with Randy.
Despite the restraining order, defendant and Randy communicated regularly through email and text messaging. Defendant would put marijuana and pills in prescription bottles and drop them off near Randy's house. Randy would then ride his bike to the prearranged location, obtain the drugs, and return home.
On 14 February 2010, Randy's mother found pills near his computer and confronted him about them the next day. Randy refused to tell her how he had obtained them. He became angry and punched several holes in the wall, hit his mother with a telephone, and threatened her. That afternoon, Randy's mother contacted John Troy Autry (“Autry”), a juvenile court counselor, who filed a juvenile petition charging Randy with assault and injury to property.
On 1 March 2010, the district court held a hearing on the petition and adjudicated Randy delinquent on both counts and placed him on probation for 12 months. As conditions of probation, Randy was required to give up his cell phone and computer, submit to random drug tests, and allow his room to be searched. Prior to searching his room later on the day of the hearing, Autry asked Randy whether he had any items that he was not allowed to possess while on probation. Randy gave Autry at least 20 prescription bottles with the labels removed. When asked by Autry about defendant, Randy denied that defendant had given him the drugs or that he had approached him sexually.
In early March 2010, defendant, who had traveled to Florida because he was concerned that he was being watched, arranged to have some drugs delivered to Randy through friends. On 12 March 2010, Randy received from defendant 14 pills hidden in a Game Box console. That night, Randy and his girlfriend snorted two crushed up pills before going to a movie. When Randy got home that night, he took two more pills and went to sleep.
After Randy's father found him nonresponsive the next morning, Randy was taken to the hospital, where he was admitted for post intentional overdose of opiate medication, requiring intubation. He spent at least 10 days in the pediatric intensive care unit and was subsequently moved to a psychiatric facility. Randy was then moved to a residential treatment facility in Tennessee. While he was there, Randy was interviewed by Autry and Detective Frank Catalano with the Avery County Sheriff's Office. He told them that defendant had provided him with drugs, including the pills on which he had overdosed. He also explained that defendant had fondled his genitals, kissed his penis, and put his tongue on it. In a follow up interview, Randy described other sexual acts involving defendant.
Defendant was arrested and charged with, among other things, seven counts of statutory sexual offense, three counts of indecent liberties with a child, and one count of delivering a controlled substance (Oxycodone) to a minor. Defendant pled not guilty, and the case proceeded to trial, where defendant neither testified nor presented any evidence.
It appears from the trial transcript that other charges were filed against defendant in this case but were voluntarily dismissed by the State or dismissed by the trial court. The record on appeal does not include these indictments.
The jury convicted defendant of all the charges submitted, and the trial court imposed presumptive range sentences on each count. For two of the statutory sex offense counts, the court sentenced defendant to a minimum of 259 months and a maximum of 320 months imprisonment. For each of the remaining five statutory sex offense counts, the court sentenced defendant to 248 to 307 months imprisonment. For the indecent liberties charges, the court sentenced defendant to 17 to 21 months imprisonment for each count. The court ordered that the terms of imprisonment for the sex related offenses run consecutively. With regard to the charge of delivery of a controlled substance to a minor, the court sentenced defendant to 66 to 89 months imprisonment, running concurrently with the other charges. Defendant gave notice of appeal in open court.
Analysis
I. Evidence of Religious Beliefs
Defendant first argues that the trial court erred in admitting—over his objections—evidence of his belief in, and practice of, Satanism. Prior to trial, defendant filed a motion in limine to exclude all evidence “relating to devil worship, satanic bibles, pentagrams, devil worshipping activities, Satanism or the like” on the grounds that the admission of such evidence would violate Rules 610 and 403 of the North Carolina Rules of Evidence. At the pretrial hearing on defendant's motion, the State argued that the evidence on these subjects was admissible under Rule 610 because it was being elicited for purposes other than challenging witness credibility, and that the evidence was admissible under Rule 403 as its probative value was not substantially outweighed by the danger of unfair prejudice. The trial court denied defendant's motion.
At trial, Randy's mother testified that (1) Randy had shown her a “Satanic necklace” given to him by defendant; and (2) defendant's Facebook page included images of “Satan, evil, and Christianity with a line drawn through it.” Randy testified that defendant had tried to influence him by talking to him about Satanism and introducing him to satanic writing, poetry, and jewelry. The State also presented a video that defendant had made for Randy, which ended with a Satanic salutation, as well as a photograph of Randy copying “vows of Satan” signed in blood.
Rule 610 states:
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced; provided, however, such evidence may be admitted for the purpose of showing interest or bias.
N.C.R. Evid. 610. Defendant contends that “[e]vidence of [his] religious beliefs was inadmissible because it impaired [defendant]'s credibility and was not admitted to show the bias or interest of any witness.”
Defendant misreads Rule 610. As our Supreme Court has explained, “Rule 610 proscribes the admissibility of evidence of the religious beliefs or opinions of a witness for the purpose of attacking his credibility.” State v. James, 322 N.C. 320, 323–24, 367 S.E.2d 669, 671 (1988) (original emphasis omitted and emphasis added). The commentary to Rule 610 provides that “[t]he rule clarifies unsettled law in North Carolina concerning whether, for impeachment purposes, a witness may be cross-examined as to his religious beliefs. Evidence probative of something other than veracity is not prohibited by the rule.” N.C. R. Evid. 610 cmt.
Because defendant did not testify at trial, his credibility as a witness was not at issue. Rule 610, therefore, did not serve as a bar to the admission of this evidence. Moreover, the challenged evidence was, in fact, probative of something other than veracity. As the State argued at trial, the evidence was relevant to the offenses for which defendant was charged as it showed the “grooming process” defendant used to “bond[ ]” with Randy and prevent disclosure of the sexual abuse perpetrated by defendant, a process that involved talking with Randy about Satanism and introducing him to satanic writings, symbols, and rituals.
In State v. Shamsid–Deen, 324 N.C. 437, 448–49, 379 S.E.2d 842, 849 (1989), the defendant, who was charged with raping his daughter, was asked on cross-examination about whether fathers were “dominant” and “powerful figure [s]” in the Muslim religion and whether Islamic doctrine forbade premarital sex. The defendant argued on appeal that the trial court had erred in permitting the prosecutor to cross-examine him concerning his religious beliefs. Id. at 448, 379 S.E.2d at 849. The Supreme Court rejected this argument, holding that the trial court had properly overruled the defendant's objections because “the State's apparent motive for questioning defendant about his religion was to show how he was able to intimidate his daughters over such a long period of time....” Id. at 450, 379 S.E.2d at 850.
In a similar vein, the evidence in the present case of defendant's satanic beliefs and practices was admissible to show how defendant developed a trusting relationship that enabled him to sexually abuse Randy without fear of disclosure. See also United States v. Beasley, 72 F.3d 1518, 1527 (11th Cir.) (holding that evidence of Yahweh religion was admissible to show how leader of group “exerted influence and control” over its members and how leader used preaching to justify crimes), cert. denied, 519 U.S. 866, 136 L.Ed.2d 116 (1996).
Even assuming arguendo that the admission of the evidence relating to Satanism was improper, defendant cannot demonstrate prejudicial error. The State presented overwhelming evidence of defendant's guilt. Randy testified in detail regarding each of the instances that formed the bases of the statutory sex offense and indecent liberties charges. Randy's testimony was also corroborated by several witnesses, including his mother, his girlfriend, medical staff, law enforcement officers, and counselors. Thus, even assuming that the evidence of defendant's religious practices was erroneously admitted, we conclude that there is no reasonable possibility that, had the assumed error not been committed, a different result would have been reached at defendant's trial. See N.C. Gen.Stat. § 15A1443 (a) (2011).
Defendant's reliance on State v. Kimbrell, 320 N.C. 762, 360 S.E.2d 691 (1987), is misplaced. In Kimbrell, the trial court permitted the prosecutor to ask, over the defendant's objections, about his involvement in “black magic” and “devil worshipping” activities. Id. at 764–66,360 S.E.2d at 692–93. On appeal, the State argued that the evidence of the defendant's religious belief was relevant “ ‘to the issue of his truthfulness since “devil-worship” is by definition, glorification of the archetypal embodiment of evil and deceit.’ “ State v. Kimbrell, 84 N.C.App. 59, 64, 351 S.E.2d 801, 804,rev'd in part on other grounds, 320 N.C. 762, 360 S.E.2d 691 (1987).
The Supreme Court held that the admission of the evidence was reversible error in that “[t]he outcome of the trial depended on the jury's perception of the relative veracity of the witnesses,” and that “questions about devil worship, satanic bibles, graveyard seances, and the like” had “little or no probative value.” Id. at 767–68, 360 S.E.2d at 694.
Here, in contrast, the evidence of defendant's religious practices was highly probative of the offenses charged as it tended to show how defendant “groomed” Randy and gained his trust so that he could sexually abuse Randy without fear of disclosure. Furthermore, the trial court gave the jury a limiting instruction, directing the jurors to consider the evidence of defendant's religious beliefs “for one purpose only[,] and that is the relationship between the defendant and the victim.” We presume, on appeal, that “the jury heeds limiting instructions that the trial judge gives regarding the evidence.” State v. Shields, 61 N.C.App. 462, 464, 300 S.E.2d 884, 886 (1983). Finally, this case also differs from Kimbrell in that the outcome of the trial did not depend on defendant's credibility since he did not testify. For all of these reasons, no prejudicial error occurred regarding the admission of the challenged evidence.
II. Prosecutor's Remarks During Opening Statement and Closing Argument
Defendant next argues that the prosecutor made numerous improper remarks during her opening statement and closing argument to the jury. Defendant maintains that the prejudicial effect of these statements warrants a new trial despite defendant's failure to object to them at trial. We do not agree.
Where, as here, the defendant failed to object to a prosecutor's allegedly improper arguments at trial, the standard of review on appeal is whether the remarks were so grossly improper that the trial court committed reversible error by not intervening ex mero motu. State v. Gladden, 315 N.C. 398, 417, 340 S.E.2d 673, 685 (opening statement), cert. denied,479 U.S. 871, 93 L.Ed.2d 166 (1986); State v. McNeill, 360 N.C. 231, 244, 624 S.E.2d 329, 338 (closing argument), cert. denied,549 U.S. 960, 166 L.Ed.2d 281 (2006). Under this standard, the remarks must be “so prejudicial and grossly improper as to interfere with [the] defendant's right to a fair trial.” State v. Alford, 339 N.C. 562, 571, 453 S.E.2d 512, 516 (1995). In evaluating a prosecutor's statements, an appellate court must consider them in the context in which they were made. State v. Lloyd, 354 N.C. 76, 113, 552 S.E.2d 596, 622 (2001).
At defendant's trial, the prosecutor began her opening statement as follows:
Where to begin in a trial of this magnitude. I will begin with kids, and ways of keeping away imaginary monsters. We are not dealing with an imaginary green eyed monster. We are dealing with a real live, all too real of a man. We are dealing with a child predator. Our children they know to stay away from bad evil looking things. But what happens when it is the man down the street that the child does not know to be afraid of. This Defendant, in every sense of the word is a wolf in sheep's clothing.
(Emphasis added.)
Defendant argues that it was improper for the prosecutor to call him a “green eyed monster” and a “bad evil looking thing[ ].” As an initial matter, we note that the prosecutor did not actually call defendant a “green eyed monster” or a “bad evil looking thing,” and, in fact, said that he was neither. Read in context, these remarks were not improper. The challenged statements were made in furtherance of the prosecutor's attempt to convey the concern that children are often not alert to the dangers they may face from persons whose appearance and demeanor are not overtly threatening. The trial court, therefore, did not err in failing to intervene ex mero motu.
Defendant also objects to the prosecutor's calling him a “child predator” during her opening statement. The prosecutor also used similar language in her closing argument, in which she described defendant as a “predator pure and simple” and, while referring to defendant, stated that “[t]here is nothing but a predatory nature in that man.” Defendant contends that these remarks were grossly improper.
Our courts have previously considered similar statements and, while not condoning such characterizations, have concluded that they are “not so egregious as to require the [trial] judge to intervene ex mero motu.” See, e.g., State v. Reeves, 337 N.C. 700, 733, 448 S.E.2d 802, 817 (1994) (finding no “reversible error” in the trial court's failure to intervene ex mero motu during jury argument in which “prosecuting attorney referred to [defendant] as a predator”), cert. denied,514 U.S. 1114, 131 L.Ed.2d 860 (1995); State v. Trull, 349 N.C. 428, 454, 509 S.E.2d 178, 195 (1998) (concluding, based on Reeves, that reference in closing argument to defendant as “a ‘predator’ “ was “not so grossly improper as to require the trial court to intervene ex mero motu ”), cert. denied,528 U.S. 835, 145 L.Ed.2d 80 (1999); see also State v. Campbell, 133 N.C.App. 531, 538–39, 515 S.E.2d 732, 737 (concluding that prosecutor's “labeling [defendant] a ‘sexual predator’ in closing arguments” was an improper characterization, but did not warrant new trial), disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999).
In light of Reeves, Trull, and Campbell, and after carefully reviewing the transcript in this case, we conclude that the prosecutor's characterizations of defendant as a predator were not so grossly improper as to require the trial court to intervene ex mero motu. We reiterate, however, that such remarks are “not condone[d]” by the courts of this State. Reeves, 337 N.C. at 733, 448 S.E.2d at 817.
Defendant also challenges the references in the prosecutor's opening statement and closing argument to defendant's satanic beliefs and practices. As discussed above, however, the evidence relating to defendant's religious practices was properly admitted at trial to show the grooming process defendant used to commit the sexual abuse alleged in this case. Accordingly, we conclude that it was not improper for the prosecutor to forecast such evidence in her opening statement. See Gladden, 315 N.C. at 417, 340 S.E.2d at 685 (“Trial counsel is generally afforded wide latitude in the scope of the opening statement, and is generally allowed to state what he intends to show so long as the matter may be proved by admissible evidence.”). Nor was it improper for her to recount this evidence in her closing argument. See State v. Richardson, 342 N.C. 772, 792–93, 467 S.E.2d 685, 697 (“It is axiomatic that counsel are given wide latitude in arguments to the jury and are permitted to argue the evidence that has been presented and all reasonable inferences that can be drawn from that evidence.”), cert. denied,519 U.S. 890, 136 L.Ed.2d 160 (1996).
State v. Lovin, 339 N.C. 695, 454 S.E.2d 229 (1995), relied upon by defendant, is distinguishable. On appeal from his murder conviction, the defendant in that case argued—and our Supreme Court agreed—that the trial court erred in allowing the prosecutor to ask the defendant's girlfriend on cross-examination whether the defendant had “ ‘talk [ed] to [her] about Satanism[.]’ “ Id. at 716–17, 454 S.E.2d at 241. Consequently, the Court further held that the trial court should not have allowed the prosecutor to reference Satanism twice during his closing argument to the jury. Id. at 717, 454 S.E.2d at 241.
Here, as explained above and in contrast to Lovin, the evidence of defendant's satanic beliefs and practices was properly admitted. Therefore, it was not improper for the prosecutor in this case to reference the evidence during her opening statement and closing argument. Gladden, 315 N.C. at 417, 340 S.E.2d at 685;Richardson, 342 N.C. at 792–93, 467 S.E.2d at 697. The trial court, accordingly, did not err by failing to intervene ex mero motu.
Finally, defendant points to two passages in the prosecutor's closing statements to the jury:
As a potential previous juror said, no punishment is too great for a person that hurts a child.... And when it happens to be sexual abuse, anger comes out. How many of us thought oh, if that's my child. So help me if that's my child. It's good people think bad things of something of this nature could have happened to their child.
....
Put this man away. There's only one place, I contend to you that he is not coming back for this child, one place. One place and that's the place he deserves to be for the rest of his life. That's the place he deserves to be. I call on you today to end this man's rein [sic], expose him for what he is and what he has done and the torture he has put everybody through. End this man's rein [sic] of terror and put him away.
Defendant first contends that the prosecutor's argument was improper as it amounted to “eliminationist rhetoric.” Our Supreme Court has explained that “[w]hile the prosecution may not argue the effect of defendant's conviction on others, i.e., general deterrence, the prosecution may argue specific deterrence, that is, the effect of conviction on defendant himself.” State v. Abraham, 338 N.C. 315, 339, 451 S.E.2d 131, 143 (1994). Compare State v. Syriani, 333 N.C. 350, 397, 428 S.E.2d 118, 144 (holding specific deterrence argument, “[t]he only way to insure [defendant] won't kill again is the death penalty,” was not improper), cert. denied,510 U.S. 948, 126 L.Ed.2d 341 (1993), with State v. Kirkley, 308 N.C. 196, 215, 302 S.E.2d 144, 155 (1983) (finding general deterrent argument, “ ‘I'm asking you to impose the death penalty as a deterrent, to set a standard of conduct,” to be improper), overruled in part on other grounds by State v. Shank, 322 N.C. 243, 251, 367 S.E.2d 639, 644 (1988).
In the present case, the prosecutor's request that the jury “put [defendant] away” in order to “end his rei[gn] of terror” was a permissible argument for convicting defendant in order to deter him from committing sexual abuse in the future. See State v. Campbell, 340 N.C. 612, 631–32, 460 S.E.2d 144, 154 (1995) (“Here, the prosecutor argued that the jury should convict defendant so he could not commit crimes in the future. There was nothing improper in this argument; thus, ex mero motu intervention was not required.”), cert. denied,516 U.S. 1128, 133 L.Ed.2d 871 (1996); Abraham, 338 N.C. at 339, 451 S.E.2d at 143 (concluding that “prosecution's request of the jury to ‘make [defendant] stop,’ “ was a proper “appeal by the prosecution to convict defendant to deter his assaultive behavior”).
Defendant also claims that the prosecutor's argument improperly “ask[ed] the jurors to summon forth the lethal revenge that they would have if their own child had been victimized.” Our Supreme Court considered similar closing arguments in State v. McCollum, 334 N.C. 208, 224, 433 S.E.2d 144, 152 (1993), cert. denied,512 U.S. 1254, 129 L.Ed.2d 895 (1994), where the prosecutor was permitted, over the defendant's objections, to “repeatedly ask [ ] the jur[ors] to imagine the victim as their own child.” The Court assumed such arguments were “improper,” but concluded that they did not deprive the defendant of a fair trial in light of the fact that: (1) the arguments “did not manipulate or misstate the evidence, nor did they implicate other specific rights of the accused”; (2) the “trial court instructed the jurors that their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence”; and (3) “the weight of the evidence against the defendant ... was heavy.” Id. at 224–25,433 S.E.2d at 152–53.
Here, as in McCollum, the prosecutor's argument in this case neither misstated the evidence nor implicated any other specific right. Also, the trial court instructed the jurors that they were to be “guided exclusively by [their] own recollection of th [e] evidence,” and that “[t]he final arguments of the attorneys are not evidence.”
Moreover, a review of the entire record convinces us that the State presented overwhelming evidence of defendant's guilt with respect to the sexual offenses for which he was convicted. Consequently, we conclude that, even assuming that the prosecutor's argument in this case improperly asked the jurors to imagine their own child in the place of the victim, these statements do not constitute reversible error. See State v. Hinson, 341 N.C. 66, 74–77, 459 S.E.2d 261, 266–68 (1995) (holding, based on McCollum, that closing argument asking jurors to “imagine” their “child” as the victim “was not so grossly improper that it denied defendant a fair trial”); see also State v. Boyd, 311 N.C. 408, 418, 319 S.E.2d 189, 197 (1984) (concluding that “any impropriety in the [prosecutor's] remarks was not prejudicial” since “the record provides ample support for the defendant's first degree murder conviction”), cert. denied, 471 U.S. 1030, 85 L.Ed.2d 324 (1985).
Defendant relies heavily on State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (2002), in support of his position that the prosecutor's remarks in this case were so grossly improper as to constitute reversible error. Jones, however, is distinguishable. There, the Supreme Court held that the defendant was entitled to a new capital sentencing hearing based on the prosecutor's arguments in which he: (1) improperly compared the case to the Columbine school shootings and the bombing of the federal building in Oklahoma City; and (2) insulted the defendant and called him derogatory names. Id. at 131–34, 558 S.E.2d at 106–08.
Here, unlike in Jones, the prosecutor neither engaged in improper name-calling nor “attempt[ed] to appeal to the jury's emotions by comparing defendant's crime with two of the most heinous violent criminal acts of the recent past.” Id. at 132, 558 S.E .2d at 107. Defendant's contentions concerning the prosecutor's opening statement and closing argument are, therefore, overruled.
III. Denial of Motion to Dismiss Charge of Delivering a Controlled Substance to a Minor
Defendant's final contention on appeal is that the trial court erred in denying his motion to dismiss the charge of delivering a controlled substance to a minor due to insufficient evidence. On appeal, the 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). When ruling on a motion to dismiss, the question for the court is whether there is substantial evidence of: (1) each essential element of the offense charged; and (2) defendant's being the perpetrator of the offense. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002).
“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). “In ruling on a motion to dismiss, the trial court is required to view the evidence in the light most favorable to the State, making all reasonable inferences from the evidence in favor of the State.” State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002). Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
Defendant was charged and convicted of delivering a controlled substance—Oxycodone—to a minor in violation of N.C. Gen.Stat. § 90–95(e)(5) (2011). The elements of this offense are that: (1) the defendant was 18 years old or over; (2) the defendant delivered a controlled substance; and (3) to a person under the age of 16 and older than 13. State v. Parlee, 209 N.C.App. 144, 150–51, 703 S.E.2d 866, 871–72,disc. review denied,365 N.C. 197, 710 S.E.2d 34 (2011). Relying on our Supreme Court's decisions in State v. Ward, 364 N.C. 133, 694 S.E.2d 738 (2010), and State v. Nabors, 365 N.C. 306, 718 S.E.2d 623 (2011), defendant contends that the State failed to present evidence establishing that the “delivered substance was Oxycodone,” and that, for this reason, the trial court should have dismissed the charge. We agree.
In Ward, the Supreme Court explained that in controlled-substance cases
the burden is on the State to establish the identity of any alleged controlled substance that is the basis of the prosecution. Unless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required.
364 N.C. at 147, 694 S.E.2d at 747. In its brief, the State acknowledges that no evidence of a chemical analysis identifying the substance was presented at trial, but argues that, under Nabors, sufficient evidence existed based on testimony from the State's lay witnesses that the substance defendant delivered to Randy was, in fact, Oxycodone.
We read Nabors differently. There, the defendant was charged with possession with intent to sell and deliver cocaine. Nabors, 365 N.C. at 307, 718 S.E.2d at 624. Although the State did not present any expert testimony as to a chemical analysis of the substance at the defendant's trial, one of the defendant's own witnesses testified that the substance that formed the basis of the prosecution was cocaine. Id. at 312, 718 S.E.2d at 627. Reiterating that a defendant's evidence, when consistent with the State's evidence and favorable to the State's position, may be considered in ruling on a motion to dismiss, id., the Court held that “the testimony of [the] defendant's witness, which identified as cocaine the items sold to the undercover operative, provided evidence of a controlled substance sufficient to withstand [the] defendant's motion to dismiss[,]” id. at 313, 718 S.E.2d at 627. The Supreme Court was careful, however, to emphasize that it was the defendant's “own evidence” establishing the identity of the substance that provided the independent basis for upholding the trial court's denial of the defendant's motion to dismiss. Id. at 313, 718 S.E.2d at 627. Indeed, the Court explained:
while the State has the burden of proving every element of the charge beyond a reasonable doubt, when a defense witness's testimony characterizes a putative controlled substance as a controlled substance, the defendant cannot on appeal escape the consequences of the testimony in arguing that his motion to dismiss should have been allowed.
Id. (emphasis added); see also State v. Poole, ––– N.C.App. ––––, ––––, 733 S.E.2d 564, 570–71 (2012) (concluding, based on Nabors, that the lay witness testimony presented by the State was insufficient to establish identity of substance under Ward, but that “Defendant's own statement” at trial was sufficient).
Here, the State did not present expert testimony at trial as to a chemical analysis of the substance that defendant allegedly delivered to Randy. The State's evidence, therefore, is insufficient under Ward to establish that the substance at issue was Oxycodone. Moreover, unlike the defendant in Nabors, defendant in this case did not testify or present any other evidence that established the identity of the substance as Oxycodone. Accordingly, we conclude that the trial court erred in denying defendant's motion to dismiss with respect to this charge. Consequently, we vacate defendant's conviction for delivery of a controlled substance to a minor.
Conclusion
For the reasons set forth above, we conclude that the trial court did not commit reversible error relating to defendant's convictions for statutory sex offense and taking indecent liberties with a minor. We do, however, reverse and vacate defendant's conviction for delivery of a controlled substance to a minor.
NO ERROR in part; REVERSED AND VACATED in part. Judges STROUD and HUNTER, JR. concur.
Report per Rule 30(e).