                   IN THE COURT OF APPEALS OF NORTH CAROLINA

                                           No. COA17-247

                                       Filed: 6 February 2018

Cleveland County, Nos. 14 CRS 2047–48

STATE OF NORTH CAROLINA

          v.

NOUI PHACHOUMPHONE


          Appeal by defendant from judgment entered 22 September 2016 by Judge Eric

L. Levinson in Cleveland County Superior Court. Heard in the Court of Appeals 4

October 2017.


          Attorney General Joshua H. Stein, by Assistant Attorney General Elizabeth
          Guzman, for the State.

          William D. Spence, for defendant-appellant.


          ELMORE, Judge.


          Noui Phachoumphone (defendant) appeals from a judgment entered after a

jury convicted him of first-degree sex offense with a child and of taking indecent

liberties with a child. The State’s evidence tended to show that, during the evening

of 19 August 2014, defendant’s sister, Sara, entered defendant’s girlfriend’s

apartment and saw defendant engaging in sexual activities with his girlfriend’s six-

year-old daughter, Tara.1


1   Pseudonyms are used to protect identities and for ease of reading.
                               STATE V. PHACHOUMPHONE

                                   Opinion of the Court



         On appeal, defendant contends the trial court violated N.C. Gen. Stat. § 15A-

1225.1’s procedural requirements by authorizing Tara’s testimony to be taken

remotely without holding a recorded evidentiary hearing on the matter or entering

an order supporting its decision to allow the State’s motion. Defendant also contends

the trial court erred by denying his motions to dismiss both charges for insufficient

evidence, and by failing to intervene ex mero motu when the prosecutor argued to the

jury that certain out-of-court statements established substantive evidence of

defendant’s guilt. We hold that defendant received a fair trial, free of prejudicial

error.

                                    I. Background

         Prior to August 2014, six-year-old Tara lived in apartment 36 at Chesterfield

Apartments in Kings Mountain with her mother and her mother’s boyfriend,

defendant, who was forty years old. Defendant’s sister, Sara, also lived in a nearby

apartment at Chesterfield Apartments.

         During the evening of 19 August 2014, Sara was outside smoking a cigarette

when she noticed defendant, also outside, drinking and “pretty intoxicated.” A few

minutes after Sara saw defendant go into apartment 36, she saw Tara walking

outside by herself and then enter the apartment. Sara believed Tara was supposed

to be staying with her babysitter at a nearby apartment in Chesterfield Apartments,

so she went to investigate. After Sara’s knocks on the door to apartment 36 went



                                          -2-
                             STATE V. PHACHOUMPHONE

                                  Opinion of the Court



unanswered, she entered the apartment and saw defendant and Tara lying together

in a bed on the living room floor. Exactly what Sara observed is disputed. According

to Sara’s statements to police immediately after the incident, she saw defendant lying

on top of Tara while both were naked, and saw defendant masturbating while rubbing

Tara’s vagina; however, according to her trial testimony, she merely observed

defendant with his pants on but no shirt, Tara’s dress halfway off and somewhat up,

and defendant with his hands around her. Whatever Sara saw when she entered the

apartment, it caused her to became extremely upset, she tried to remove Tara from

the apartment, and she got into a heated argument with defendant when he refused

to let her take Tara. Sara then called 911.

      Sergeant Doug Shockley of the Kings Mountain Police Department responded

to the call at Chesterfield Apartments, where a 6-year-old girl was reportedly being

held against her will. When he arrived, he met Sara, who was “crying hysterically”

and appeared “very nervous and upset.” Sgt. Shockley met defendant at the door.

Defendant reported that he and Sara did not get along, and she was just trying to

cause him trouble. Defendant stated that Tara became frightened that night and

came downstairs to sleep beside him on the couch.           Sgt. Shockley instructed

defendant to wait outside as he spoke with Tara.

      When Sgt. Shockley entered the apartment to speak with Tara, he saw her

sitting on the couch, clutching a pillow, and “crying hysterically, shaking.” According



                                         -3-
                              STATE V. PHACHOUMPHONE

                                   Opinion of the Court



to Sgt. Shockley, Tara immediately stated: “ ‘I don’t know why he did this to me.’ ”

Tara clarified: “ ‘[Defendant], I don’t know why he was laying on top of me. He was

rubbing me down there’ ” and then Tara “pointed toward . . . her genital area.” Sgt.

Shockley then contacted Detective Sergeant Lisa Proctor, who instructed that Sara,

Tara, and defendant be taken into the police station for questioning.

      During Sara’s police interview, she reported that when she entered the

apartment, defendant was “totally naked” and masturbating while playing with Tara.

During Tara’s interview, she reported that defendant “was naked,” “had gotten on top

of her,” “taken her clothes off,” and “touched her in her cootie with his hands.”

      The next day, Tara was examined by Dr. Christopher Cerjan, a pediatrician at

Shelby Children’s Clinic.    During the exam, Tara reported to Dr. Cerjan that

defendant “took [her clothes] off,” “touched her with . . . his hands,” and “pointed to

her groin.” Dr. Cerjan discovered that Tara had very little hymen tissue, which he

opined was abnormal for a six-year-old and that a penetrating injury was the only

possible cause. He also found redness inside Tara’s vaginal area, indicating that the

penetration likely occurred within the preceding forty-eight hours.

      Near the end of the first day of trial, the State called Tara to testify. Because

she was unresponsive, the court decided to excuse the jury for the evening and start

fresh the next day. On day two, the State directly examined Tara for nearly two-and-

a-half hours but was unable to elicit any helpful testimony about the incident. Tara



                                          -4-
                             STATE V. PHACHOUMPHONE

                                  Opinion of the Court



demonstrated that she understood the difference between a truth or a lie, but either

did not respond at all or merely shook her head “yes” or “no” to several questions.

Tara was unwilling to say defendant’s name but did indicate that something

happened between her and defendant, that it happened to her body, and appeared to

indicate by confirming when the State pointed to this location on a bear used for

demonstrative purposes, that it happened between her legs. Tara confirmed that

“this [was] the right spot on [her] body where [she was] hurt.” However, Tara was

largely unresponsive when asked to provide any further details. The State then

called Sara to testify.

       Sara’s trial testimony differed from her prior statements to police.       Sara

testified that when she entered the apartment, she saw defendant “laying on . . . the

bed on the floor in the living room, and [Tara] next to him.” “What [she] . . . clearly

it didn’t look appropriate. So immediately [she] told [Tara] to get up and come with

[her].” She testified that defendant “had his pants on but he was shirtless,” and Sara

only “saw [Tara]’s dress halfway off and somewhat up. And [defendant] . . . had his

hands around her but that, that was it.” She explained: “I mean . . . from that

moment, I just reacted and I called out [Tara’s] name to come with me. And when

[defendant] heard, they just stood up and that’s when the . . . argument started.”

When pressed by the State during direct, Sara stated that at the time she gave her

recorded police interview, she was “drunk,” “upset,” “mad,” and “wasn’t thinking



                                         -5-
                             STATE V. PHACHOUMPHONE

                                  Opinion of the Court



clearly. . . .” Sara further stated that “it was dark,” she “didn’t see anything” but

“jumped to conclusion [sic],” and “might have exaggerated” during the police

interview. Sara admitted that in her prior recorded statement, she told police that

she saw defendant “totally naked with his private part out and [masturbating] while

he was playing with [Tara],” but stated at trial that she “said it out of anger,”

“exaggerated it a little bit,” and “that’s not what happened.”

      At the start of the third day of trial, the State filed a motion under N.C. Gen.

Stat. § 15A-1225.1 to allow Tara’s testimony to be taken remotely, arguing that Tara

“would suffer and has suffered serious emotional distress by testifying in front of the

defendant” and that “this emotional distress has made it difficult for [Tara] to speak,

and [Tara]’s ability to communicate with the trier of fact is impaired and thus

interferes with the ability of jurors to ascertain the truth.” Defense counsel objected

on the ground that the motion was untimely filed, and the State never presented an

expert to support the motion. After considering the parties’ arguments, and its own

observation of Tara’s prior in-court testimony, the trial court allowed the motion,

authorizing Tara’s testimony to be taken remotely.

      During Tara’s remote testimony, she demonstrated what defendant had done

to her by inserting her finger through a hole an interpreter had created with her

hands. She explained that “it hurt,” that no one else had ever touched her that way,

and that defendant had undressed her before committing the act.



                                         -6-
                             STATE V. PHACHOUMPHONE

                                  Opinion of the Court



      After the State’s presentation of evidence, defense counsel called defendant’s

brother and defendant to testify. Defendant’s brother stated that defendant and Tara

had a great relationship, that defendant was “like a father figure to [Tara],” and that

defendant was largely responsible for Tara’s care when her mother was at work.

Defendant’s testimony corroborated these remarks from his brother. According to

defendant, during the night of the incident, he was watching television and relaxing,

drinking a beer, while wearing shorts and a t-shirt. Tara was on the bed, had fallen

asleep in shorts and a t-shirt, and he had just covered her with a blanket when Sara

came into the apartment. Sara immediately stated “ ‘I know you been [sic] drinking.

I’m taking [Tara].” According to defendant, when he refused to give up Tara, Sara

warned “ ‘I’m going to call the cops and tell them you messing [sic] with her.’ ”

Defendant testified that he never did anything inappropriate with Tara.

      At the conclusion of the evidence, defendant unsuccessfully moved to dismiss

both charges for insufficiency of the evidence. The jury found defendant guilty as

charged. The trial court imposed a prison sentence of 300 to 428 months for the first-

degree sex offense with a child count, and a concurrent sentence of 21 to 35 months

for the indecent liberties count. The trial court also ordered defendant to register as

a sex offender for a period of thirty years, to enroll in lifetime satellite-based

monitoring, and to have no contact with Tara for the remainder of his natural life.

Defendant appeals.



                                         -7-
                             STATE V. PHACHOUMPHONE

                                  Opinion of the Court



                                 II. Alleged Errors

      On appeal, defendant contends the trial court erred by (1) failing to follow N.C.

Gen. Stat. § 15A-1225.1’s procedural requirements in authorizing Tara’s testimony

to be taken remotely, denying his motions to dismiss (2) the first-degree sex offense

with a child charge and (3) the indecent liberties charge, and (4) failing to intervene

ex mero motu when the State argued to the jury that Sara’s and Tara’s out-of-court

statements were substantive evidence of his guilt.

                        III. Motion for Remote Testimony

      Defendant first contends the trial court violated N.C. Gen. Stat. § 15A-1225.1’s

procedural requirements by failing to (1) “hold a recorded evidentiary hearing,” (2)

“issue an order,” and (3) “include in said order the five requirements set forth in

section (d) of the statute.” Defendant does not challenge the trial court’s ultimate

ruling permitting Tara to testify remotely under N.C. Gen. Stat. § 15A-1225.1; rather,

he challenges the procedure employed in authorizing her remote testimony. We agree

that the trial court erred by failing to follow statutory procedure, but overrule

defendant’s challenges on the ground that he has failed to demonstrate how any of

these alleged procedural errors prejudiced him.

A. Review Standard

      We review alleged statutory errors de novo. State v. Mackey, 209 N.C. App.

116, 120, 708 S.E.2d 719, 721 (2011). Yet “a new trial does not necessarily follow a



                                         -8-
                              STATE V. PHACHOUMPHONE

                                  Opinion of the Court



violation of statutory mandate.” State v. Love, 177 N.C. App. 614, 623, 630 S.E.2d

234, 240–41 (2006) (citation omitted). A defendant “must show not only that a

statutory violation occurred, but also that [he or she was] prejudiced by this

violation.” Id. (citation omitted); see also State v. Braxton, 352 N.C. 158, 178, 531

S.E.2d 428, 439 (2000) (“[E]ven if it be assumed arguendo that the jury selection

procedure violated the randomness requirement of N.C.G.S. § 15A-1214(a), defendant

has not demonstrated on appeal how he was prejudiced by the procedure.” (emphasis

added)); State v. Nobles, 350 N.C. 483, 506, 515 S.E.2d 885, 899 (1999) (holding the

trial court erred by failing to follow a statutory mandate but refusing to award a new

trial where the “defendant has not met his burden of showing prejudice as a result of

the trial court’s failure to follow the requirements of N.C.G.S. § 15A-1233(a)”).

B. Discussion

      Under N.C. Gen. Stat. § 15A-1225.1 (2015), a trial court may authorize a child

victim to testify remotely “when [it] determines: (1) That the child witness would

suffer serious emotional distress, not by the open forum in general, but by testifying

in the defendant’s presence, and (2) That the child’s ability to communicate with the

trier of fact would be impaired.” Id. § 15A-1225.1(b). Subsection (c) of the statute

provides: “Upon motion of a party . . . and for good cause shown, the [superior] court

shall hold a[ recorded] evidentiary hearing to determine whether to allow remote

testimony.” Id. § 15A-1225.1(c); see also State v. Jackson, 216 N.C. App. 238, 240,



                                         -9-
                              STATE V. PHACHOUMPHONE

                                   Opinion of the Court



717 S.E.2d 35, 37 (2011) (“Upon a motion for remote testimony, the trial court must

‘hold an evidentiary hearing[.]’ . . .” (quoting N.C. Gen. Stat. § 15A-1225.1(c) (2009))).

Subsection (d) contemplates that a trial court enter an order “allowing or disallowing

the use of remote testimony” that “shall state the findings of fact and conclusions of

law that support the court’s determination.”         N.C. Gen. Stat. § 15A-1225.1(d).

Subsection (d) provides further that “[a]n order allowing the use of remote testimony

shall do the following:

                    (1) State the method by which the child is to testify.

                    (2) List any individual or category of individuals
                    allowed to be in, or required to be excluded from, the
                    presence of the child during the testimony.

                    (3) State any special conditions necessary to
                    facilitate the cross-examination of the child.

                    (4) State any condition or limitation upon the
                    participation of individuals in the child’s presence
                    during his or her testimony.

                    (5) State any other condition necessary for taking or
                    presenting the testimony.

Id.

      Both parties cite to two cases in which this Court addressed challenges to a

trial court’s N.C. Gen. Stat. § 15A-1225.1 authorization to take a child victim’s

testimony remotely. See State v. Lanford, 225 N.C. App. 189, 204–08, 736 S.E.2d 619,

629–31 (2013); Jackson, 216 N.C. App. at 240–41, 244–47, 717 S.E.2d 37–38, 40–42.



                                          - 10 -
                             STATE V. PHACHOUMPHONE

                                  Opinion of the Court



But neither case provides guidance in assessing the procedure employed here. In

both Lanford and Jackson, the State filed a pretrial motion for remote testimony, and

the trial court held an evidentiary hearing before trial where it considered testimony

from the State’s witness(es) concerning whether the child would suffer serious

emotional distress and be unable to communicate effectively to the jury. Lanford,

225 N.C. App. at 206–07, 736 S.E.2d at 630–31; Jackson, 216 N.C. App. at 239, 717

S.E.2d at 37.    Here, contrarily, the State filed its motion during trial, after

unsuccessfully attempting to elicit Tara’s testimony, and the State never presented

any witnesses specifically to testify on whether Tara would suffer serious emotional

distress or be unable to communicate effectively to the jury if she testified in

defendant’s presence. Additionally, the trial court here never entered an order on the

motion.

      Based on our interpretation of the statutory language, we agree that the

procedures employed violated N.C. Gen. Stat. § 15A-1225.1’s express requirements.

However, “a new trial does not automatically follow a finding of statutory error.”

State v. Garcia, 358 N.C. 382, 406, 597 S.E.2d 724, 742–43 (2004). Defendant has

failed to demonstrate how he was prejudiced by the particular procedure employed.

See id. at 407–08, 597 S.E.2d at 743 (requiring a defendant “to show how the

identified statutory violation [concerning the jury selection process] prejudiced his

case”—that is, how “the aberrant procedure resulted in a biased jury, an inability to



                                         - 11 -
                             STATE V. PHACHOUMPHONE

                                    Opinion of the Court



question the prospective jurors, an interference with his right to challenge, or any

other defect without which a different result might have been reached.”)

      Here, the State had previously called Tara to testify during its case-in-chief for

nearly two-and-a-half hours, affording the trial court an opportunity to closely

observe her behavior, demeanor, and the effectiveness of her communication while

testifying in front of defendant, and providing competent evidence to support its

motion. That presentation developed a “record very clear to the Court” that Tara had

suffered serious distress by testifying in front of defendant and that her ability to

communicate effectively with the jury was “very evident[ly]” impaired. According to

the “[c]ourt’s observations . . . when [Tara] was in the courtroom for numerous hours,

it was apparent,” and the trial judge found, that Tara “was consistently frightened in

her eyes”; that when the trial judge “looked into [Tara’s] eyes, into her face[,]” she

“just appeared to be scared”; that Tara “would very, very occasionally smile”; that

Tara “articulated that she was, quote, scared herself” and “[h]er affect was consistent

with that”; and that Tara “was hugging a bear . . . and was leaning into the person

that was holding her on her lap.”

      Furthermore, the trial court held a lengthy conference on the State’s motion,

considered both parties’ arguments, and explicitly allowed defendant to present

evidence on the matter before rendering the required determinations that (1) Tara

“would suffer serious emotional distress by continuing to be in the courtroom and in



                                           - 12 -
                             STATE V. PHACHOUMPHONE

                                     Opinion of the Court



the defendant’s presence[ ]” and that (2) “[c]learly [Tara]’s ability to communicate

would continue to be impaired.” During the conference on the motion, the prosecutor

explained that she had met with Tara multiple times before trial, brought her into

the courtroom so Tara could practice answering questions in court, and brought Tara

to another court session so she would be familiar with a full courtroom setting.

Therefore, the prosecutor explained, she “did not anticipate the level of terror and

shutdown that we had when [Tara] testified,” which the prosecutor emphasized “was

readily apparent to the court.” The prosecutor elaborated:

                    [Tara], you know, on day one was sobbing and
             keening and would not state her name the minute she
             walked in this courtroom.
                    Yesterday when [Tara] testified, she progressively
             turned her back away from the defendant. She would not
             say his name. [Tara] has expressed to her father, to my
             assistant, to her father’s girl friend, to everybody, that she
             does not want to see [defendant]. And I think that
             reluctance was very obvious and really impacted [Tara’s]
             ability to testify in front of the jury, which I think has
             impacted the jury’s ability to know and understand the
             events of this day.
                    [Tara] refuses to speak in English and said she
             wanted to speak in Spanish to the extent that she spoke at
             all, even though she understands and speaks English.

Defendant does not dispute these statements on appeal, argue that good cause did

not exist to authorize Tara’s remote testimony, or challenge the trial court’s

substantive ruling in any respect.




                                            - 13 -
                             STATE V. PHACHOUMPHONE

                                  Opinion of the Court



      The trial court’s repeated and indubitable findings and conclusions were

supported by competent evidence in light of its own close observation of Tara’s

behavior and demeanor while testifying in front of defendant for multiple hours, the

prosecutor’s statements implying that Tara did not fear testifying in the open forum

generally but in front of defendant particularly, and the bench conference on the

matter. Defendant was afforded an opportunity to present evidence on the State’s

motion, and to the extent the procedure employed may have prohibited defendant

from examining a State witness on the matter, defendant has failed to show how this

alleged procedural error prejudiced him.          The transcript indicates that Tara

demonstrated a fear of defendant and was unable to communicate effectively while

testifying in front of him, and the trial court determined that her prior in-court

testimony established a “record . . . very clear” that this was the case. Under these

particular circumstances, defendant has failed to demonstrate prejudicial error in the

hearing procedure employed by the trial court in authorizing the use of Tara’s remote

testimony.   See Maryland v. Craig, 497 U.S. 836, 860 (1990) (“[W]e decline to

establish, as a matter of federal constitutional law, any . . . categorical evidentiary

prerequisites for the use of the one-way television procedure.”).

      As to defendant’s challenge concerning the trial court’s failure to issue an order

in allowing the State’s motion, defendant similarly has failed to establish prejudice.




                                         - 14 -
                              STATE V. PHACHOUMPHONE

                                   Opinion of the Court



      In the context of authorizing a courtroom closure, this Court has stated that

“[i]n making its [required] findings, the trial court’s own observations can serve as

the basis of a finding of fact as to facts which are readily ascertainable by the trial

court’s observations of its own courtroom.” State v. Godley, 234 N.C. App. 562, 565,

760 S.E.2d 285, 288 (citation, internal quotation marks, and brackets omitted), disc.

rev. denied, 367 N.C. 792, 766 S.E.2d 626 (2014); see id. at 566–68, 760 S.E.2d at 289–

90 (upholding findings based on the trial court’s “opportunity to observe the alleged

victim” and the “attitude and demeanor of the victim and the defendant and the

general nature and character of the audience” as supported by competent evidence

based in part on the “trial court’s own observations of the . . . personnel inside the

courtroom . . . .”). In this same context, this Court has found competent evidence

existed to support a finding that “[t]here existed a particular fragile mental and

emotional state of the victim due to the circumstances of the crime” based in large

part on the trial court’s observation of the victim. See State v. Rollins, 231 N.C. App.

451, 456–57, 752 S.E.2d 230, 234–35 (2013). We explained:

             [T]his type of finding of fact is one that the trial court is
             particularly well-qualified to make, and one that we are not
             well-qualified to question.      The trial judge had the
             opportunity to observe [the victim], defendant, and the
             other witnesses during the trial, including [the victim’s]
             demeanor during the State’s evidence up to the point of the
             State’s motion. Observations of this sort are something
             that cannot be captured in a written transcript but are
             crucial in this particular determination.



                                          - 15 -
                              STATE V. PHACHOUMPHONE

                                   Opinion of the Court



Id. We find this reasoning particularly instructive here.

      Based on the trial court’s two-and-a-half hour observation of Tara’s behavior

and demeanor while testifying in front of defendant, it had sufficient competent

evidence from which to issue its findings on the matter, and defendant does not

specifically challenge the propriety of any of those findings; rather, he challenges the

method by which the trial court rendered its findings and conclusions.              The

requirement that the trial court make written findings and conclusions serves to aid

appellate review. While it would have been better practice for the trial court to reduce

its oral findings to writing, we hold that those findings are adequate for appellate

review, were supported by competent evidence, supported the conclusions, and

justified the trial court’s ultimate ruling. Accordingly, we overrule this challenge.

      As to defendant’s challenge that the trial court failed to issue an order

reflecting that it considered N.C. Gen. Stat. § 15A-1225.1(d)’s five enumerations,

defendant similarly has failed to demonstrate prejudice.

      Defendant does not argue that the taking of Tara’s remote testimony, from a

logistical standpoint, prejudiced him in any respect. See Garcia, 358 N.C. at 407–08,

597 S.E.2d at 743 (“[D]efendant . . . has made no attempt . . . to show how the

identified statutory violation prejudiced his case. Defendant has not complained that

the aberrant [jury selection] procedure resulted in a biased jury, an inability to

question the prospective jurors, an interference with his right to challenge, or any



                                          - 16 -
                             STATE V. PHACHOUMPHONE

                                  Opinion of the Court



other defect without which a different result might have been reached.”). Moreover,

the transcript reflects that the trial court thoughtfully considered N.C. Gen. Stat. §

15A-1225.1(d)’s enumerations.

      During the conference on the matter, the following relevant exchange occurred

concerning the logistics of taking Tara’s testimony remotely:

             [PROSECUTOR]: Mr. Sheppard is here from the
             [Administrative Office of the Courts] with the equipment,
             and he has set it up. It had to be somewhere close to the
             courtroom. So [Tara] will be in a closed room with, I would
             propose, my assistant and just sitting yesterday as she was
             in the courtroom, and we will be able to see them and the
             interpreter. And [Tara] cannot see us but she can hear us.
             And we can see her and everyone around her and every
             motion she makes. . . . by remote testimony.
                    [Tara] will be visible to the court on its monitor and
             to the courtroom on this monitor just by television. You
             will be able to see her sitting in that room. Mr. Sheppard’s
             set up the camera in here and in there and the audio
             equipment.       There’s a microphone that whoever is
             questioning her will probably need to use to facilitate the
             best ability for her to hear us, and she will have a
             microphone available to her as well. So it will be just like
             [Tara]’s sitting here except she’s in another room visible to
             us on the screen. You can see and hear everything she does
             and says.

             THE COURT: So you’re talking about staying in the
             courtroom and questioning her from here?

             [PROSECUTOR]:       Yes,    the      defendant   and   counsel
             staying . . . .

             ....

             THE COURT: Well, I mean, you certainly would have the


                                         - 17 -
                 STATE V. PHACHOUMPHONE

                       Opinion of the Court



option of not being present, but [defense counsel], if he
wished to be present . . . , by statute it says that he has to
be given the opportunity to be physically present with the
witness.

....

THE COURT: So with respect to [defense counsel], if it’s
allowed, then he would have that option of being in [the
courtroom] or being in the room with [Tara]. And then the
statute talks about making sure there’s contact or ability
to communicate with [defendant] . . . during that time
period. . . .

[DEFENSE COUNSEL]: I don’t know how I would
communicate with [defendant] unless he’s in there with
me. It’s a little much to walk back and forth . . . .

THE COURT: . . . [T]he statute contemplates that
[defendant] would not be physically present with you [in
the room with Tara], but we could try to make
arrangements, if it’s allowed, to be closer. In other words,
. . . so the walk maybe isn’t quite as far[.] . . . [T]he statute
. . . contemplates that . . . you would need to have access to
[defendant], to consult with him throughout . . . .
         It says, “and has the ability to communicate
privately with the defendant during the testimony.” So we
need to make sure [defendant] is at least close to you.

....

THE COURT: . . . [I]f it’s your thinking[, defense counsel,]
that . . . you don’t wish to be present [in the room with
Tara], that’s fine. That’s your choice. And if you want to
question [Tara] from [the courtroom], that’s fine. If
[defendant] wants to do it from [the courtroom], then he
has that option. If he wants [defense counsel] to go into the
room with [Tara] during the entire direct and cross . . .
obviously you have got that option. That’s your choice.
        In terms of where the room is[ ] . . . .


                              - 18 -
                 STATE V. PHACHOUMPHONE

                      Opinion of the Court



         Is there an[ adjacent] room . . . where [defendant,] or
out in the hallway[,] where [defendant] could sit in a chair,
. . . close by?

....

THE COURT: . . . [T]he Deputy is indicating somewhere in
the hallway would work, somewhere close by.

....

THE COURT: Just make sure [Tara]’s in the room first,
and then [defendant] . . . can head over just a few steps
away outside into the hallway.

....

THE COURT: . . . So [the prosecutor] want[s] to have the
assistant holding [Tara]? Then are you also intending to
have the interpreter there?

[PROSECUTOR]: Yes, sir. I think just from the chairs and
the setup, it would be easiest if [the support person] sat in
the blue chair and put [Tara] on her lap. So [Tara] would
be far enough up that we could see her the best way
possible, and then the interpreter could sit or stand next to
her[.] . . .

THE INTERPRETER: I probably would sit right behind
her.

....

THE COURT: . . . I will allow [Tara] to sit on the [support]
person’s lap and have the interpreter there.

....

[PROSECUTOR]: Okay. The first thing[ ] . . . logistically
we need to know is whether [defense counsel] prefers to


                             - 19 -
                              STATE V. PHACHOUMPHONE

                                   Opinion of the Court



             stay in [the courtroom], like I am going to do, or prefers to
             go in the room with [Tara].

             [DEFENSE COUNSEL]: I prefer to be in the room with
             [Tara].

      After this conference, the trial court brought out the jury and explained:

             THE COURT: [The prosecutor] wants to recall [Tara], and
             [she] will be testifying by different means. And I have . . .
             made arrangements for . . . [defense counsel,] and for
             [defendant] to be close by . . . , in a remote room where there
             will be questions and responses. And [defense counsel] will
             be in the room with [Tara], though [defendant] will not be
             in the room but very close by. . . .
                    So we will . . . excuse [defense counsel] and
             [defendant]. And . . . the [prosecutor is] going to be
             questioning . . . [Tara] from the courtroom. So [defense
             counsel] will be present [with Tara] but [the prosecutor is]
             going to be in the courtroom with us.

      As reflected, although the trial court failed to issue a written order, it

thoughtfully considered N.C. Gen. Stat. § 15A-1225.1(d)’s enumerations, and

defendant does not allege any prejudice resulting from the trial court’s consideration

or application of those enumerations in its ruling. Accordingly, we overrule this

challenge.

                               IV. Motions to Dismiss

      Defendant next contends the trial court erred by denying his motions to

dismiss both charges for insufficient evidence. We disagree.

A. Standard of Review




                                          - 20 -
                             STATE V. PHACHOUMPHONE

                                  Opinion of the Court



      We review de novo the denial of a motion to dismiss for insufficient evidence.

State v. Barnett, 368 N.C. 710, 713, 782 S.E.2d 885, 888 (2016) (citation omitted).

Such a motion “is properly denied if substantial evidence exists to show: (1) each

essential element of the offense charged” and “(2) that defendant is the perpetrator

of such offense.” Godley, 234 N.C. App. at 568, 760 S.E.2d at 290 (citation and

quotation marks omitted). “Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” State v. Brown,

310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) (citation omitted).

      “It is well settled that upon a motion to dismiss in a criminal action, all the

evidence admitted, whether competent or incompetent, must be considered by the

trial judge in the light most favorable to the State, giving the State the benefit of

every reasonable inference that might be drawn therefrom.” Id. Further, “[i]f a

motion to dismiss calls into question the sufficiency of circumstantial evidence, the

issue for the court is whether a reasonable inference of the defendant’s guilt may be

drawn from the circumstances.” State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61

(1991) (citation omitted).

A. First-degree Sex Offense Charge

      Defendant first contends the trial court erred by denying his motion to dismiss

the first-degree sex offense with a child charge on the ground that the State presented

insufficient substantial evidence that he digitally penetrated Tara.



                                         - 21 -
                                STATE V. PHACHOUMPHONE

                                     Opinion of the Court



       “A person is guilty of statutory sexual offense with a child by an adult if the

person is at least 18 years of age and engages in a sexual act with a victim who is a

child under the age of 13 years.” N.C. Gen. Stat. § 14-27.28(a) (2015). “ ‘Sexual act’

means” in relevant part “the penetration, however slight, by any object into the

genital . . . opening of another person’s body[.] . . .” Id. § 14-27.20 (2015). A finger is

an “object.” State v. Smith, 180 N.C. App. 86, 95, 636 S.E.2d 267, 273 (2006) (“ ’Any

object’ in this context includes . . . a finger.” (citation omitted)).

       During Tara’s remote testimony, she demonstrated by inserting her finger into

a hole which the interpreter created with her hand, that defendant digitally

penetrated her vagina and confirmed that her demonstration showed “what

[defendant] did with his finger in [her] body.” When asked “[h]ow did that feel

physically on your body,” Tara replied: “Bad” and then clarified that “[i]t hurt.” Tara

confirmed that no one “else ever touched [her] the way [defendant] touched [her] in

[her] private part.” When asked where “[defendant] touched [her] private part and

put his finger in it,” Tara replied: “In the living room.” When asked whether she was

clothed, Tara replied that her clothes were off and that defendant had undressed her.

Dr. Cerjan performed a genital examination of Tara one day after the incident. He

testified that during his examination, he discovered that Tara’s hymen was

substantially missing, which he opined was irregular for a six-year-old, and that “the

only thing that would cause it would be a penetrating injury.” He also observed



                                            - 22 -
                             STATE V. PHACHOUMPHONE

                                  Opinion of the Court



“redness actually in [Tara’s] vaginal area . . . behind where the hymen was,” which

indicated the penetrating injury would have occurred “within the last 48 hours.”

      Moreover, the State presented overwhelming corroborative evidence from

which to reasonably infer that defendant digitally penetrated Tara. Responding

officer Sgt. Shockley testified that Tara reported to him that defendant “ ‘was rubbing

[her] down there’ ” and then “pointed toward . . . her genital area.” Det. Proctor

testified that Tara reported to him that defendant “had gotten on top of her,” “had

taken her clothes off and that [defendant] . . . was naked,” and that defendant “had

touched her in her cootie with his hands.” Dr. Cerjan testified that Tara reported

that defendant “took [her clothes] off,” “touched her with . . . his hands,” and then

“pointed to her groin.” Accordingly, the trial court did not err in denying defendant’s

motion to dismiss the first-degree sexual offense with a child charge for insufficient

evidence.

      Defendant also contends the trial court erred by denying his motion to dismiss

this charge because the State failed to present evidence that he digitally penetrated

Tara within the time frame specified in the indictment, August 2014. However, at

trial, defendant only moved to dismiss this charge on the basis that the State failed

to present substantial evidence of penetration, not that the State failed to present

evidence that he penetrated Tara during August 2014. Because defendant never

moved to dismiss this charge on the ground that there existed a fatal variance



                                         - 23 -
                               STATE V. PHACHOUMPHONE

                                  Opinion of the Court



between the trial evidence and the indictment, he waived his right to appellate review

of this issue. See State v. Jones, 223 N.C. App. 487, 495–497, 734 S.E.2d 617, 623–24

(2012) (dismissing alleged indictment variance error as unpreserved where the

defendant moved to dismiss for insufficient evidence but not on the grounds of a fatal

variance between the trial evidence and indictment), aff’d, 367 N.C. 299, 758 S.E.2d

345 (2014). Accordingly, we dismiss this challenge.

B. Indecent Liberties Charge

      Defendant next contends the trial court erred by denying his motion to dismiss

the indecent liberties charge because the State failed to present sufficient evidence

he committed an act of indecent liberties. We disagree.

      The essential elements of indecent liberties with a child under N.C. Gen. Stat.

§ 14-202.1(a) (2015) follow:

             (1) the defendant was at least 16 years of age, (2) he [or
             she] was five years older than his [or her] victim, (3) he [or
             she] willfully took or attempted to take an indecent liberty
             with the victim, (4) the victim was under 16 years of age at
             the time the alleged act or attempted act occurred, and (5)
             the action by the defendant was for the purpose of arousing
             or gratifying sexual desire.

State v. Rhodes, 321 N.C. 102, 104–05, 361 S.E.2d 578, 580 (1987) (citation omitted).

      Defendant only challenges element three: that he took or attempted to take

an indecent liberty with Tara. Having concluded above that the State presented

substantial evidence that defendant digitally penetrated Tara, this same act supports



                                         - 24 -
                              STATE V. PHACHOUMPHONE

                                    Opinion of the Court



the challenged element of this offense. See State v. Swann, 322 N.C. 666, 667–78,

370 S.E.2d 533, 539–40 (1988) (holding that the same act may support convictions

and sentences for both first-degree sex offense and indecent liberties). Accordingly,

the trial court did not err in denying the motion to dismiss the indecent liberties

charge for insufficient evidence.

                          V. Improper Closing Remarks

      Defendant next contends the trial court erred by failing to intervene ex mero

motu when the State argued during its closing argument to the jury

impeachment/corroborative evidence as substantive evidence. We disagree.

      “The standard of review for assessing alleged improper closing arguments that

fail to provoke timely objection from opposing counsel is whether the remarks were

so grossly improper that the trial court committed reversible error by failing to

intervene ex mero motu.” State v. Waring, 364 N.C. 443, 499, 701 S.E.2d 615, 650

(2010) (citation and quotation marks omitted). “Under this standard, only an extreme

impropriety on the part of the prosecutor will compel [an appellate court] to hold that

the trial judge abused his discretion in not recognizing and correcting ex mero motu

an argument that defense counsel apparently did not believe was prejudicial when

originally spoken.” State v. Anthony, 354 N.C. 372, 427, 555 S.E.2d 557, 592 (2001)

(citation, quotation marks, and brackets omitted). “To establish such an abuse, [the]

defendant must show that the prosecutor’s comments so infected the trial with



                                           - 25 -
                               STATE V. PHACHOUMPHONE

                                     Opinion of the Court



unfairness that they rendered the conviction fundamentally unfair.” Waring, 364

N.C. at 499–500, 701 S.E.2d at 650 (citation and quotation marks omitted).

       “Generally, prosecutors are given wide latitude in the scope of their argument

and may argue to the jury the law, the facts in evidence, and all reasonable inferences

drawn therefrom.” State v. Goss, 361 N.C. 610, 626, 651 S.E.2d 867, 877 (2007)

(citations and internal quotation marks omitted).           During closing argument, a

prosecutor “may, . . . on the basis of his analysis of the evidence, argue any position

or conclusion with respect to a matter in issue”; however, a prosecutor “may not . . .

express his [or her] personal belief as to the truth . . . of the evidence or as to the guilt

. . . of the defendant[.] . . .” N.C. Gen. Stat. § 15A-1230(a) (2015). Additionally,

arguing corroborative or prior-inconsistent-statements to the jury is error. See, e.g.,

State v. Easterling, 300 N.C. 594, 604, 268 S.E.2d 800, 806 (1980) (“The statement

having been offered only corroboratively, it was improper for the State to allude to it

as substantive evidence during closing argument.” (citation omitted)); State v. Tucker,

317 N.C. 532, 544, 346 S.E.2d 417, 424 (1986) (“Although it was proper to cross-

examine defendant concerning his prior convictions on the question of his credibility,

these convictions were not admissible as substantive evidence tending to prove his

guilt. It was error for the trial court to permit the prosecutor to argue as if they

were.”).

       Here, defendant challenges the following argument the State made to the jury:



                                            - 26 -
                             STATE V. PHACHOUMPHONE

                                  Opinion of the Court



             [Defendant] was naked. [Tara] was naked. He was
             hovering over her playing with himself which his sister
             demonstrated and the child demonstrated and the sister
             said with his finger in her vagina. That ladies and
             gentlemen, is proof beyond a reasonable doubt. It’s frankly
             proof beyond every doubt.

      To the extent these statements came solely from Sara’s and Tara’s out-of-court

statements that were inconsistent with their trial testimony, the prosecutor

inappropriately recited those statements as substantive evidence. However, “[t]o

merit a new trial, the prosecutor’s remarks must have perverted or contaminated the

trial such that they rendered the proceedings fundamentally unfair.”          State v.

Phillips, 365 N.C. 103, 136, 711 S.E.2d 122, 146 (2011) (citation and internal

quotation marks omitted).     To this end, defendant, without citing to any legal

authority, advances the following argument: “The [prosecutor] argued to the jury,

with the tacit approval of the trial judge, that [Sara’s] and [Tara’s] out of court

statements were sufficient for them to find defendant guilty beyond a reasonable

doubt, even ‘beyond any doubt.’ But for the [prosecutor]’s improper prejudicial closing

argument, the jury would have reached a different verdict.”

      In light of the substantive evidence elicited from Tara’s remote testimony, the

trial court’s later instruction limiting the jury from considering prior-inconsistent-

statements as substantive evidence, and the other overwhelming evidence of his guilt,

we conclude that defendant has failed to “carr[y] the heavy burden of showing that




                                         - 27 -
                            STATE V. PHACHOUMPHONE

                                 Opinion of the Court



the trial court erred in not intervening on his behalf.” State v. Thompson, 188 N.C.

App. 102, 110, 654 S.E.2d 814, 819 (2008). Accordingly, we overrule this challenge.

                                 VI. Conclusion

      Although the trial court failed to follow N.C. Gen. Stat. § 15A-1225.1’s

procedural requirements, defendant has failed to demonstrate how he was prejudiced

by any of these alleged procedural errors. Because the State presented substantial

evidence of the challenged elements of both crimes, the trial court properly denied

defendant’s motions to dismiss those charges for insufficient evidence.     Finally,

although the prosecutor erred to the extent it may have argued prior-inconsistent

statements to the jury, defendant failed to satisfy his burden of demonstrating how

this argument rendered the proceedings fundamentally unfair. Accordingly, the trial

court did not abuse its discretion by failing to intervene ex mero motu during the

State’s closing argument.

      NO PREJUDICIAL ERROR.

      Judges DIETZ and INMAN concur.




                                        - 28 -
