Opinion
No. COA09-506
Filed 6 July 2010 This case not for publication
Appeal by defendant from judgment entered 24 July 2008 by Judge Richard W. Stone in Randolph County Superior Court. Heard in the Court of Appeals 14 October 2009.
Attorney General Roy Cooper, by Assistant Attorney General Roberta A. Ouellette, for the State. S. Hannah Demeritt for defendant-appellant.
Randolph County Nos. 06 CRS 55683, 06 CRS 55684.
Defendant Justin Santiano appeals from his convictions of assault with a deadly weapon on a government official, misdemeanor fleeing to elude arrest, and reckless driving to endanger. On appeal, defendant contends the trial court erred in denying his motion to dismiss the indictment as duplicative in that the indictment alleged two separate assaults in one count. We hold that because the two acts at issue occurred with no distinct interruption between them, the indictment properly alleged only one count of assault, and the trial court did not err in denying the motion to dismiss. As defendant's remaining arguments about the propriety of statements made by the prosecutor in closing argument are also unpersuasive, we find no error.
Facts
At trial, the State's evidence tended to show the following facts. On 13 August 2006, the Asheboro Police Department received a telephone call from Angela Godwin informing the police that she had plans to meet defendant at the Burger King on Dixie Drive in Asheboro at 3:00 p.m. The police had warrants for defendant's arrest for communicating threats and misdemeanor assault on a female. Ms. Godwin informed the police that defendant would be armed and that he had told her he would not allow the police to arrest him. The police contacted the Randolph County Sheriff's Department to request assistance in arresting defendant that afternoon.
At approximately 3:00 p.m., four police officers and four sheriff's deputies met in the parking lot of the BP service station adjacent to the Burger King parking lot. The officers observed defendant, driving an 18-wheel truck without the trailer attached, pull into the parking lot and back into a parking space at the rear of the parking lot. The officers, all of whom were in uniform, approached defendant's truck, identified themselves as law enforcement, informed defendant that they had warrants for his arrest, and ordered him to turn the truck off and get out of the vehicle. In response, defendant revved the engine and began moving the truck toward the officers.
Defendant stopped briefly to put the truck in reverse. Lieutenant Keith Owenby with the Sheriff's Department holstered his weapon and jumped onto the running board on the passenger side of the truck. He opened the door and leaned into the truck, reaching for the keys. Lieutenant Owenby yelled at defendant to turn off the truck and told him that no one had to get hurt. Defendant looked directly at Lieutenant Owenby, put the truck into gear, and lurched forward. Lieutenant Owenby was thrown from the truck and injured his ankle. Defendant then drove toward the other officers who drew their weapons, but moved out of the way of the truck. Defendant drove through the parking lot and onto Dixie Drive without slowing down or stopping.
Officer Loyd Locke with the Sheriff's Department pursued defendant in a marked SUV with his lights and siren activated. Officer Locke followed defendant at a distance of about two vehicles, traveling in the left lane at a speed of 75 to 80 miles per hour in a 55 mile-per-hour zone. As they passed a slower car in the right lane, defendant "went towards the slow lane, hit the brakes, came back over, and tried to run into the side of [Officer Locke]." Defendant came within two feet of Officer Locke's vehicle. Officer Locke "[a]lmost, but not quite" lost control of his vehicle. After driving for 14 miles, defendant pulled over to the side of the highway. Several officers ordered him to get out of the truck. Defendant finally complied and was arrested.
On 11 December 2006, defendant was indicted for felony fleeing to elude arrest and assault with a deadly weapon on a government official. At trial, defendant testified to the following. On 13 August 2006, defendant, who drives a truck for a living, had recently returned from a trip and was planning to make another trip the next day. Ms. Godwin was his ex-girlfriend and his son's mother. Defendant was "under a lot of stress" and had not slept for three or four days because he had learned Ms. Godwin was staying with another man, and the other man had made threatening phone calls to defendant. Ms. Godwin contacted defendant, and he agreed to meet her at the Burger King so that he could pick up personal belongings he had left in their old apartment and visit with his son.
When defendant arrived at the Burger King, he left the truck running with the windows up because it was hot outside. While waiting for Ms. Godwin, defendant looked up and saw several uniformed police officers surrounding his truck. Defendant "had no clue why" the officers were surrounding him. He testified: "I saw [the officers] holding guns, and I had been up just for 36 hours and I hadn't had very much sleep, and I was stressed out, and I did what I shouldn't have. I started proceeding toward the officers, but I wasn't there to hurt anybody." Defendant said he intended to exit the parking lot in the proper exit lane, "but the officers were in the way, and [he] didn't want to hurt anybody, so [he] put it in reverse, backed up, and had proceeded out the entrance." Defendant testified he was not able to hear anything the police officers were saying to him.
Defendant admitted he knew he was being pursued by an officer, but he claimed he did not stop because "[he] was scared and [he] wasn't thinking correctly." Defendant asserted that he "didn't know why they wanted to come after [him], and after seeing those guns drawn, [he] feared for [his] life." In explaining why he braked, changed lanes, and almost hit Officer Locke's car, defendant claimed that his brake pressure had built up "beyond normal." He "was afraid [he] was going to blow some brake lines," which "would have caused all [his] brakes to lock up and [he] would have had no control of the vehicle." He testified that the only way to resolve this problem was to "stomp on the breaks [sic]," but he claimed that he did not mean to run Officer Locke off the road.
Defendant was convicted of felony assault with a deadly weapon on a government official, misdemeanor fleeing to elude arrest, and reckless driving to endanger. The trial court consolidated the charges for judgment and sentenced defendant to a presumptive-range term of 15 to 18 months imprisonment. Defendant timely appealed to this Court.
I
With respect to his conviction of assault with a deadly weapon on a government official, defendant contends that the indictment for that charge should have been dismissed by the trial court as fatally duplicative. A duplicative indictment charges "two separate and distinct offenses in the same count." State v. Burnett, 142 N.C. 577, 579, 55 S.E. 72, 73 (1906).
The indictment in this case stated:
And the jurors for the State upon their oath present that on or about the date set forth above, and in the county named above the defendant named above unlawfully, willfully and feloniously did assault L.G. Locke, a government officer employed by the Randolph County Sheriff's Department, with a deadly weapon, to-wit: a 2001 Freightliner truck, a motor vehicle, by slamming on his brakes knowing that said officer was in close pursuit in an attempt to cause said officer to wreck his vehicle and also by veering left after seeing said officer veer to the left, again attempting to cause said officer to wreck his vehicle, while said officer was discharging a lawful duty of his office, to-wit: attempting to arrest the defendant for existing warrant(s).
Defendant contends that slamming on the brakes and veering left are two separate offenses and, therefore, the indictment was duplicative.
Defendant points to N.C. Gen. Stat. § 15A-924(b) (2009), which provides:
If any count of an indictment or information charges more than one offense, the defendant may by timely filing of a motion require the State to elect and state a single offense alleged in the count upon which the State will proceed to trial. A count may be dismissed for duplicity if the State fails to make timely election.
Defendant made a pretrial motion to require the State to elect which act alleged in the indictment it planned to proceed on at trial — slamming on the brakes or veering left — but the State did not make an election. Defendant contends that the trial court, therefore, erred in denying his motion to dismiss based on the duplicative nature of the indictment.
Defendant relies upon State v. Beaver, 14 N.C. App. 459, 460, 188 S.E.2d 576, 577-78 (1972), in which the indictment charged the defendant with assault by throwing a rock and by shooting a gun. The State's evidence at trial indicated that the defendant and the victim got into an argument, and the defendant threw a rock at the victim. The defendant left the scene, went to his house, and came back several minutes later with a shotgun and shot the victim. Id. at 461, 188 S.E.2d at 578. The defendant unsuccessfully moved to quash the indictment as charging him with two separate assaults in one count. On appeal, this Court agreed that the indictment was duplicative. Id. at 461-62, 188 S.E.2d at 578. The Court held that because the State's evidence "tended to show two separate and distinct assaults," the State should have been forced to elect on which charge it was going to proceed. Id. at 461, 188 S.E.2d at 578.
In contrast to Beaver, however, the two acts in this case — slamming on the brakes and veering to the left — occurred without any significant separation of time and as part of the same occurrence. Officer Locke testified:
There was a vehicle in the slow lane, a Four-door car. I was in the fast lane. The 18-wheeler up, [defendant's vehicle] was in the front of me. As we passed the car that was on our right [defendant's vehicle] went towards the slow lane, hit the brakes, came back over, and tried to run into the side of me. I put on my brakes, and we was just past the Salisbury Exit at that time. I started to the left. I knew being in an SUV that if I hit that hill that I would roll it, so I locked my brakes further down and [defendant's vehicle] nearly missed [sic] my vehicle.
This testimony indicates there was no interruption between the two offenses sufficient to constitute two separate assaults, requiring two separate counts in the indictment.
"In order for a defendant to be charged with multiple counts of assault, there must be multiple assaults." State v. Maddox, 159 N.C. App. 127, 132, 583 S.E.2d 601, 604 (2003). For there to be multiple assaults, there must be "evidence of `a distinct interruption in the original assault followed by a second assault.'" Id., 583 S.E.2d at 604-05 (quoting State v. Brooks, 138 N.C. App. 185, 189, 530 S.E.2d 849, 852 (2000)). The evidence in this case showed no distinct interruption between the slamming of the brakes and the veering to the left. Therefore, the indictment properly charged only one count of assault. See Brooks, 138 N.C. App. at 189, 530 S.E.2d at 852 (holding that second assault charge should have been dismissed when victim was struck by multiple bullets, but evidence did not establish interruption between shots); State v. Dilldine, 22 N.C. App. 229, 231, 206 S.E.2d 364, 366 (1974) (holding that defendant was improperly charged with two counts of assault when victim was shot multiple times with some shots entering from front and some entering from back).
In contrast, in State v. Spellman, 167 N.C. App. 374, 378, 605 S.E.2d 696, 699 (2004), appeal dismissed and disc. review denied, 359 N.C. 325, 611 S.E.2d 845 (2005), the defendant attempted to evade an officer by driving his truck away. As the officer attempted to reach inside the driver's side door to turn off the ignition, the defendant struck the officer with his elbow and kept driving as the officer hung onto the door. Id. The officer then pulled the defendant out of the truck and onto the ground, but, as the two men landed on the ground, the officer was struck by the driver side door and run over by one of the truck's tires. Id. The defendant got up, ran across the parking lot to where his truck had finally come to a stop, climbed into the truck, and started driving toward the officer. Id.
This Court concluded that the evidence was sufficient to support the existence of two assault charges because "the two assault charges stem[med] from separate and distinct facts." Id. at 383, 605 S.E.2d at 702. The Court reasoned:
The evidence presented at trial tended to show that, after the truck had run over Sergeant Collins' leg, thereby completing the assault alleged in the indictment for assault with a deadly weapon on a government official, defendant and Sergeant Collins were laying on the ground. Defendant got up from the ground and ran approximately eighty feet across the parking lot toward the truck, which had come to rest at the curb of the parking lot. Once defendant reentered the truck, he "started toward" Sergeant Collins in the truck, then backed the truck away from Sergeant Collins and drove away from the parking lot. Thus . . . the evidence in the instant case tends to show that defendant employed his thought process prior to committing the second assault, which occurred at a distinct and separate time after the first assault was completed.
Id.
Here, the State's evidence tended to show that there was no distinct interruption between the acts of slamming on the brakes and veering to the left. According to Officer Locke's testimony, defendant slammed on his brakes and then immediately veered to the left. Both acts occurred in a single span of time unbroken by any other acts. We, therefore, hold that the indictment was not fatally duplicative, and the trial court properly denied the motion to dismiss.
II
Defendant also argues that the trial court erred in failing to intervene when the State made improper statements in its closing argument. Defendant did not, however, object to the challenged statements.
"The standard of review when a defendant fails to object at trial is whether the argument complained of was so grossly improper that the trial court erred in failing to intervene ex mero motu." State v. Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80, 120 S. Ct. 95 (1999). "`[T]he impropriety of the argument must be gross indeed in order for [an appellate] [c]ourt to hold that a trial judge abused his discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it.'" Id. (quoting State v. Hipps, 348 N.C. 377, 411, 501 S.E.2d 625, 645 (1998), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d 114, 119 S. Ct. 1119 (1999)). See also N.C. Gen. Stat. § 15A-1230(a) (2009) ("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.").
Defendant first points to statements encouraging the jury to be proud of the law enforcement officials involved in the incident. The prosecutor argued:
Having said that, there's something that I need to say right off the bat, something that you folks already know since you've paid close attention, is that every one can be proud of their law enforcement. Randolph County Sheriff's Department, Asheboro Police Department, and the other agencies involved, they showed amazing restraints. It's incredible.
The prosecutor went on to discuss how the law enforcement officers chose to jump out of the way of defendant's truck rather than shoot him and how they followed him at a close distance once they saw he was driving erratically. The prosecutor then said: "The police officers, the sheriff's department, every one, every one should be proud of them. And you can't really argue that they did anything wrong. And in the heat of the moment, in the heat of the moment, they were professionals, professional at the scene at the Burger King and professional when they were off the road on 220." Defendant contends these comments were an irrelevant and improper expression of opinion that only served to appeal to the passion and prejudices of the jury by portraying defendant as bad and the police as good.
In State v. Mason, 315 N.C. 724, 733, 340 S.E.2d 430, 436 (1986), the defendant challenged a similar closing argument. The prosecutor had stated in closing that defendant was "`the most dangerous man [she'd] ever seen.'" Id. The prosecutor then added:
"[Defense counsel] is going to bring out there's no fingerprints, and there's no telling what all else he's going to bring out. I'm sure of that, but I can tell you one thing. Onslow County has an excellent law enforcement agency, not only in the Sheriff's Department, but in the Police Department, and they do an excellent job, but they can't do everything. I can't do everything, and everytime I go to try a case, I get to trying it and I realize there's something I should have done, but I didn't do; but there's not time to do everything. I'm spread thin; they're spread thin and they have a heavy case load and they do the best they can with all the case load they've got, but they can't devote all their time to one case, and they have done an excellent job on this case. You know, it's like the old saying I've always heard. You can't make a silk purse out of a sow's ear."
Id. at 733-34, 340 S.E.2d at 436.
On appeal, the defendant argued that "the prejudicial effect of the prosecutor's reference to his dangerousness [was] amplified by her statements concerning the investigation of the crime by local law enforcement agencies." Id. at 733, 340 S.E.2d at 436. According to the defendant, "the prosecutor was impermissibly appealing to the emotions of the jurors by imploring them to do their part for law enforcement and convict him." Id. at 734, 340 S.E.2d at 436. The Court rejected that argument, holding that the prosecutor's argument was not grossly improper and did not magnify the prejudice of her argument about the defendant being dangerous. The Court stressed that "[t]he prosecutor may defend his tactics, as well as those of the investigating authorities, when their propriety is challenged." Id. at 735, 340 S.E.2d at 437.
Similarly, here, defendant testified that he had no idea why the officers were surrounding his car with his guns and that he had behaved the way he did because they were blocking his truck, and he ultimately feared for his life. Defendant has not made any argument as to how the prosecutor's comment, in the face of defendant's testimony, that the officers should be commended for their calm disposition in a potentially dangerous situation unfairly prejudiced him. In light of Mason, we cannot conclude that the trial court erred in failing to act ex mero motu.
Defendant also challenges the prosecutor's use of the term "beyond the pale." The prosecutor said:
Now we have a concept in law, and you've probably heard it before, it's called beyond the pale, and that's al [sic] old term from Old England and it goes to the concept of beyond the palisades, beyond the fort. And what that means is anything beyond the walls of the primitive settlement is nothing but lawlessness. Anything can happen. And that's what we've got here. His conduct was beyond the pale. You know, there's no special law that makes his punishment any worse because he was in a big rig. I mean I know it may sound worse to y'all because he was in a big rig, scaring these people to death, but you know, it could have been a Honda Accord. It would be the same charge. He's not punished any differently if he was riding — you know, if you're ride [sic] a motorcycle and you're running from the police, more than likely the only person you're gonna hurt is yourself. But if you're in a big rig and you smash into somebody, there's a good chance people are going to die. I mean we could have had dead bodies here very easily. It didn't happen, but it could have. What he did was beyond the pale from the very beginning.
Defendant argues that this statement introduced a non-legal concept and implied to the jury that it should use that concept in making its decision.
Even if the prosecutor's use of the term "beyond the pale" could be viewed as suggesting that the jury should apply that standard in determining defendant's guilt or innocence, the trial court's subsequent instructions to the jury — unchallenged by defendant on appeal — cured any prejudice. See State v. Wilder, 124 N.C. App. 136, 143, 476 S.E.2d 394, 399 (1996) (holding that prosecutor's improper remarks implying "that by pleading not guilty in order to put the State to its burden of proving the charge against him, the defendant was really guilty" did not rise to level of "gross impropriety" because after closing arguments, trial court gave jury proper instructions regarding presumption of innocence); State v. Corbin, 48 N.C. App. 194, 198, 268 S.E.2d 260, 263 (holding that prosecutor's improper argument to jury that jury could not believe person was guilty without believing it beyond reasonable doubt did not warrant new trial because trial court properly instructed jury on reasonable doubt), disc. review denied, 301 N.C. 97, 273 S.E.2d 301 (1980).
With respect to defendant's alternative contention that the prosecutor's statement that defendant's conduct was in fact beyond the pale was an improper expression of opinion and that the assertion that "we could have had dead bodies" appealed to the fears of the jury, we do not believe that these statements stepped over the line of rhetoric permitted in closing argument.
Defendant next contends that the prosecutor impermissibly called defendant a liar when he made the following argument:
You heard the police officers talk about how they approached him, all the warnings they gave him. Now, though he tells you he had no idea why they were here, he also told you, reading between the lines, that he knew exactly why they were there. Why's that? He almost said it in passing. Well, you know, the warrants they had, you know, you know, I was found guilty of that. Assault on a female, communicating threats, whatever it was he said. I was found guilty of that. He only said it in passing. He knew exactly why they were there. He knew. All this talk about some guy calling him and threatening him, that guy wasn't out there. He saw uniformed police officers who were acting professionally with badges, uniforms, and guns. And he tries to run them over.
The prosecutor continued:
He knew why they were there. You don't run from the police. Even if you believe him when he says you know, I was just so scared to death. I saw all these police officers and I was frightened, I wanted to get some place safe. No, even if you believe that tall tale, you might say well yeah, that makes sense to me, why didn't he ask them. You know, I've got to tell y'all something that's my unpleasant duty to do, and that's that somebody's not telling you the truth. And you probably already realize that, because the witnesses are too far apart, and you've got to decide for yourself who's telling you the truth and who's lying to you. It's just that simple. . . . Now, Lieutenant Owenby says you know, we yelled and we yelled and we yelled, no reaction, he drives towards us, then he backed it up. I'm trying to stop it before it gets out of control so I jumped up on the running board, and I open the door, and I'm leaning in, and I'm trying to get the keys, they're too far away, and I'm saying sir, sir, stop the truck before somebody gets hurt. What does the defendant tell us about that? What does he say under oath? Well, that didn't happen. Well you know, it's not just Lieutenant Owenby telling you that. Some of the other officers, not all the officers, but some of the officers saw that too. Somebody was not telling you the truth about that.
Our courts have held that a statement by the prosecutor calling the defendant a liar is improper. See, e.g., State v. Nance, 157 N.C. App. 434, 442-43, 579 S.E.2d 456, 461-62 (2003) (holding prosecutor's statement that defendant was "`a woman beater, a liar, and a murderer'" improper). It is, however, "`not improper for the prosecutor to impeach the credibility of [a witness] during his closing argument.'" State v. Campbell, 359 N.C. 644, 677, 617 S.E.2d 1, 22 (2005) (quoting State v. Norwood, 344 N.C. 511, 536, 476 S.E.2d 349, 361 (1996), cert. denied, 520 U.S. 1158, 137 L. Ed. 2d 500, 117 S. Ct. 1341 (1997)), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523, 126 S. Ct. 1773 (2006).
Here, there is no evidence in the record that the prosecutor called defendant a liar. Rather, the record shows that the prosecutor merely argued that "somebody" was not telling the truth because the testimony of some of the witnesses was contrary to the testimony of defendant. We read the prosecutor's statements to be pointing out that when two stories conflict, the jury is responsible for determining which story is the truth and which witness, therefore, is lying. The prosecutor was entitled to argue to the jury why it should decide that the State's version of events was the correct one. See State v. Scott, 343 N.C. 313, 344, 471 S.E.2d 605, 623 (1996) ("With reference to the prosecutor's argument that defendant had lied, we note that a prosecutor may properly argue to the jury that it should not believe a witness.").
We disagree with defendant's contention that this argument amounted to an impermissible expression of opinion. The prosecutor was simply arguing to the jury the inferences that he contended the jurors should draw from the evidence. For that reason, we also find unpersuasive defendant's contention that this argument assumed facts not in evidence.
Defendant also points to the following statement by the prosecutor:
What else did this man get on the stand and place his hand on the Bible and tell us? He said, he said he hadn't been asleep in three or four days. Now, I had [sic] nobody sitting on the jury thinks that's a defense for what he did. He made a decision, maybe not the decision to go without sleep, but he made the decision to get in that big rig knowing he hadn't slept. Can you — Can you imagine how dangerous somebody is on the road without four nights of sleep? It's this man's irresponsibility, it's mind boggling, even if he hadn't run from the police, even if he hadn't tried to run them over, do you want truck drivers to go without sleep for three or four days and then think they can get behind a wheel and put everybody in danger? Whether he wants to tell you this or not, they're trained not to do that.
Defendant contends that the prosecutor was essentially arguing that the jury should convict defendant even if it thought he was not guilty of the charged crimes because he had been irresponsible by driving without sleep. To the contrary, we think that this statement was permissible in light of the fact that defendant was charged with reckless driving to endanger. The prosecutor was arguing to the jury why defendant's behavior met the elements of that charge.
The final statement challenged by defendant is the following:
[C]an you imagine what these people went through to see a big rig all of a sudden right behind them? Everybody's been tailgated before. What's it like? What in the world? Why scare all these people? You're driving on a Sunday afternoon, going up to Greensboro, all of a sudden there's this big rig in your rearview mirror riding your bumper and maybe blowing his air horn or not, the officer couldn't tell you because his siren was going, but common sense will tell you if he's doing all this, he's probably blowing that air horn too. Darn right they got out of the way. Because they didn't want to be driven over. Scared to death all these people who were not doing anything wrong. And did you realize, did you catch what he said about all that? That never happened. No, I didn't do any of that. I got in the right lane and I passed them. But does that makes [sic] sense in light of everything he's done, does that make sense to anybody? Of course, it doesn't. Reprehensible. Somebody's not telling you the truth.
Defendant argues (1) that this argument relied on facts not in evidence and (2) that the fear of unknown civilians was not relevant.
Although defendant specifically contends that there was no evidence that defendant was blowing his air horn, we cannot find any prejudice from that reference given the prosecutor's acknowledgment of the lack of evidence and the undisputed circumstances of the chase.
In State v. Anthony, 354 N.C. 372, 428, 555 S.E.2d 557, 592 (2001) (quoting 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, 114 S. Ct. 2784 (1994)), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791, 122 S. Ct. 2605 (2002), our Supreme Court explained that, generally, "`[a]n argument asking the jurors to put themselves in place of the victims will not be condoned.'" The Court further observed, however, that "`this Court has consistently allowed arguments where the prosecution has asked the jury to imagine the emotions and fear of a victim.'" Id. (quoting State v. Wallace, 351 N.C. 481, 529, 528 S.E.2d 326, 356, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498, 121 S. Ct. 581 (2000)). The Court explained that "[a]rguments urging the jury to appreciate the circumstances of the crime also have been approved by this Court." Id.
In Anthony, the prosecutor asked the jury to imagine what the victim was thinking when she died. In concluding that this argument was not improper, the Supreme Court reasoned:
In the present case, the prosecutor focused on what [the victim] may have been thinking as she lay dying. The prosecutor's argument was based upon the evidence at trial and did not manipulate or misstate the evidence, nor did it urge the jurors to put themselves in [the victim's] place. . . . Accordingly, we hold here that the trial court did not err in failing to intervene ex mero motu during the prosecutor's argument to the jury. This assignment of error is overruled.
Id. at 428-29, 555 S.E.2d at 593. See also State v. Garcell, 363 N.C. 10, 63, 678 S.E.2d 618, 651 (holding that "it is permissible for the prosecution to ask[ ] the jury to imagine the emotions and fear of a victim," and "[j]urors may also be urged to appreciate the circumstances of the crime" (internal quotation marks omitted)), cert. denied, ___ U.S. ___, 175 L. Ed. 2d 362, 130 S. Ct. 510 (2009).
We hold that under Anthony and Garcell, the prosecutor's asking the jury to imagine the fear other drivers might have felt when they observed the chase was not improper. The other drivers were the victims of the charge of reckless driving to endanger and fleeing to elude arrest.
In sum, all of the remarks challenged by defendant were either not improper or, even if improper, were not prejudicial. We, therefore, conclude defendant received a trial free of prejudicial error.
No error.
Judges ROBERT C. HUNTER and CALABRIA concur.
Report per Rule 30(e).