An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-701
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 4 February 2014


STATE OF NORTH CAROLINA

      v.                                           Cumberland County
                                                   Nos. 09 CRS 56531–32
ZACHARY LEE OAKS


      Appeal by Defendant from judgments entered 29 November 2012

by   Judge   James    F.   Ammons      Jr.    in    Cumberland   County   Superior

Court. Heard in the Court of Appeals 11 December 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Jess D. Mekeel, for the State.

      Unti & Lumsden LLP, by Sharon L. Smith, for Defendant.


      STEPHENS, Judge.


                                    Background

      This    case   arises     from    the    death     of   James   “Jimmy”    Ali

McCullen1    (“the    decedent”)       and    the    stabbing    of   Linda   Paige.


1
  There is some discrepancy regarding the decedent’s last name.
The State refers to him as Jimmy McCullough, and he is listed as
such in the warrant for Defendant’s arrest. However, the
transcript and Defendant’s brief exclusively refer to him as
Jimmy McCullen. Relying on the transcript as authoritative, we
employ that spelling here.
                                           -2-
Around 9:00 p.m. on 14 April 2009, the decedent was seen walking

outside the Club Spectrum, near Bragg Boulevard in Fayetteville,

dressed in drag. The decedent was working as a prostitute. Later

that night, the decedent was found lying in a pool of blood with

five   stab   wounds.     A    gray    shirt      and    footprints      indicating       a

struggle were discovered nearby. No one at the scene knew the

identity of the perpetrator.

       A few weeks later, on 8 May 2009, Defendant hired a female

prostitute,       Linda   Paige,      to   perform      oral    sex.    This      occurred

behind a vacant house near Mickey’s, a nightclub. Once Paige

finished,     Defendant       “snapped”     and    attacked      her,    stabbing        her

several times. While Paige was helpless, Defendant took back his

payment     and    left    the     scene     of    the     attack.      According        to

Defendant,    people      then   started     to    chase       him,    and   he    ran   to

Mickey’s. There he approached the bouncer, Nathaniel Butler, and

claimed that he was being chased by someone who was trying to

kill him. Butler put Defendant in a cab and told him to leave.

When Butler learned that police were coming, however, he removed

Defendant from the cab. Butler then frisked Defendant and found

a large knife in his sock.

       Paramedics and police arrived at the scene of the stabbing.

They discovered Paige on the ground, “hurting and kind of crying
                                             -3-
[hysterically],” and Officer Alexander Herrera was informed that

the perpetrator had gone to Mickey’s. Paige was taken to the

hospital and released later that night. She did not testify at

trial. Herrera proceeded to the nightclub and asked the crowd

standing    outside    “who       stabbed         the    lady       across    the   street.”

Defendant stood up and responded, “I stabbed her.” Defendant was

then taken into custody, and one of the bouncers gave the knife

to Herrera.

      Defendant      was    questioned            on     9    May     2009.    During       the

interrogation, Defendant agreed to speak to the investigators

and waived his right to an attorney. Defendant then admitted to

murdering the decedent and stabbing Paige. He explained that he

had   previously     solicited         a    prostitute         for    oral    sex    without

realizing     that    the       person      was     biologically         male.      When     he

discovered this fact, Defendant became angry and wanted revenge.

According    to   Defendant,       the       desire      for    revenge       against      male

prostitutes became so strong that he “went up [Bragg Boulevard]

and I got the first one I saw,” i.e., the decedent. Defendant

admitted that he wanted the decedent to die and stabbed the

decedent multiple times “[a]ll over his body[,] all over his

body.   I   wanted    to    make       sure    he       was    dead.”    Defendant         also

referenced    voices       in    his       head,       suicidal      thoughts,      and     the
                                           -4-
feeling that there were demons inside him trying to escape.

       Defendant was charged with assault with a deadly weapon

with intent to kill inflicting serious injury and first-degree

murder. Those charges were joined for trial.2 On 7 February 2011,

Defendant’s attorney filed a motion for a competency evaluation.

No   further    documentation           regarding       the   request       for   such    an

evaluation      exists    in     the    record     on    appeal,      and     Defendant’s

appellate counsel states that she “was unable to locate either a

transcript      of    a    pre-trial       hearing        regarding         [Defendant’s]

capacity   to    proceed       or   a    written    order       by    the    trial     court

finding him capable of proceeding to trial.”

       The trial began on 26 November 2012 in Cumberland County

Superior Court. During the trial, a laboratory analyst for the

State Bureau of Investigation (“SBI”) testified regarding the

deoxyribonucleic acid (“DNA”) test results from the blood on the

decedent’s clothes and the gray shirt found at the scene. The

blood from the shirt was consistent with the decedent’s DNA, and

samples obtained from under the armpits and neck were consistent

with    Defendant’s       DNA.      Additionally,         the    videotape        of     the

interrogation        of   Defendant       was    shown    to    the    jury,      and    the



2
  The record contains a copy of the motion and order for joinder,
but lacks a transcript of the hearing on that motion.
                                             -5-
transcript was admitted into evidence. After the evidence was

presented,      the    jury     found      Defendant       guilty     of    first-degree

murder    and   assault        with    a    deadly       weapon    inflicting     serious

injury.    Defendant      was    sentenced         to    life     imprisonment    without

parole for the murder and 25 to 39 months for the assault.

Defendant appeals.

                                       Discussion

      On appeal, counsel for Defendant states her opinion that

there are no meritorious issues for appellate review in this

case and files her brief pursuant to the procedure established

in Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967)

and   State     v.    Kinch,     314       N.C.    99,    331     S.E.2d    665   (1985).

Accordingly,         counsel    requests          that    this      Court    conduct    an

independent examination of the record for any possible error and

properly     appends     a     letter      informing       Defendant       that   she   was

unable to identify any meritorious arguments on appeal. Counsel

also properly informed Defendant that he has the right to submit

his own written arguments in support of his appeal and provided

him   with      the     necessary          contact       information        to    “request

additional time to prepare and submit [his] argument.” Counsel

included a copy of her brief and the record on appeal with her

letter to Defendant. She also indicated that she would provide a
                                    -6-
copy of the trial transcript if Defendant elected to file a

brief with this Court. This comports with the requirements set

forth in Anders and Kinch. See Kinch, 314 N.C. at 101–02, 331

S.E.2d at 667.

    Defendant has failed to file any arguments with this Court.

Though counsel for Defendant believes there are no meritorious

arguments   on   appeal,    she   has   directed   our   attention   to   two

possible    issues:   (1)    whether     the    trial    court   abused   its

discretion in allowing the State’s motion for joinder and (2)

whether the trial court erred in admitting the testimony of the

SBI analyst. After reviewing those issues and the entire record

on appeal, we find no error.

    I. Joinder of Charges Against Defendant

    The first possible issue suggested by defense counsel is

“[w]hether the trial court abused its discretion in joining the

two charges for trial, as joinder              [may have]   prejudiced Mr.

Oaks’[s] right to a fair trial.” We conclude that it did not.

    “The motion to join is within the sound discretion of the

trial judge, and the trial judge’s ruling will not be disturbed

absent an abuse of discretion.” State v. Simmons, 167 N.C. App.

512, 516, 606 S.E.2d 133, 136 (2004), appeal dismissed and disc.

review denied, 359 N.C. 325, 611 S.E.2d 845 (2005). “Abuse of
                                        -7-
discretion      results    where      the     court’s       ruling       is     manifestly

unsupported by reason or is so arbitrary that it could not have

been the result of a reasoned decision.” State v. Hennis, 323

N.C. 279, 285, 372 S.E.2d 523, 527 (1988).

            Two or more offenses may properly be joined
            for trial if the offenses are “based on the
            same act or transaction or on a series of
            acts or transactions connected together or
            constituting parts of a single scheme or
            plan.” N.C. Gen. Stat. § 15A-926(a) (2003)
            . . . . This Court has held that in ruling
            upon a motion for joinder, a trial judge
            must utilize a two-step analysis: (1) a
            determination of whether the offenses have a
            transactional connection and (2) if there is
            a connection, a consideration of whether the
            accused can receive a fair hearing on the
            consolidated offenses at trial.

Simmons,   167    N.C.    App.   at    516,     606     S.E.2d      at    136     (certain

citations omitted; emphasis in original). Joinder is generally

favored    on   public    policy      grounds       because    it    “expedites         the

administration     of     justice,     reduces        the    congestion          of    trial

dockets,     conserves     judicial         time,    lessens     the          burden    upon

citizens who must sacrifice both time and money to serve on

juries[,] and avoids the necessity of recalling witnesses who

would otherwise be called upon to testify only once.” State v.

Maness, 321 N.C. 454, 458, 364 S.E.2d 349, 351 (1988).
                                       -8-
      As the State notes in its brief, the offenses in this case

were clearly connected by a series of acts as contemplated by

section 15A-926(a):

            (1) [B]oth victims were prostitutes; (2) the
            stabbings were committed in a span of mere
            weeks and in roughly the same geographical
            location; (3) the victims were stabbed
            multiple times . . . ; and (4) [D]efendant’s
            apprehension for and confession to the
            second   stabbing   led   directly  to   his
            confession to the first stabbing.

We agree and, therefore, conclude that joining these offenses

did not deprive defendant of a fair trial. Accordingly, we hold

that the trial court did not abuse its discretion in allowing

the State’s motion for joinder.

      II. The Testimony of the SBI Analyst

      The second possible issue suggested by defense counsel is

whether the trial court erred in admitting the testimony of the

SBI   analyst     to   show   random    match    probability,   where   such

testimony   may    have   relied   on    the    “prosecutor’s   fallacy”   as

discussed in State v. Ragland, __ N.C. App. __, 739 S.E.2d 616

(2013). We conclude that the trial court did not err in allowing

the analyst’s testimony.

      The North Carolina Supreme Court “has elected to review

unpreserved issues for plain error when they involve either (1)

errors in the judge’s instructions to the jury, or (2) rulings
                                     -9-
on the admissibility of evidence.” State v. Gregory, 342 N.C.

580, 584, 467 S.E.2d 28, 31 (1996). The testimony of the SBI

analyst was admitted at trial without objection and, thus, is

reviewed for plain error. Plain error arises when the alleged

error is “so basic, so prejudicial, so lacking in its elements

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

655, 660, 300 S.E.2d 375, 378 (1983) (citation and internal

quotation marks omitted). “Under the plain error rule, [the]

defendant   must   convince   [the   appellate   court]   not   only   that

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

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

N.C. 431, 440, 426 S.E.2d 692, 697 (1993) (citation omitted).

    According to the United States Supreme Court,

            [t]he prosecutor’s fallacy is the assumption
            that the random match probability is the
            same as the probability that the defendant
            was not the source of the DNA sample. In
            other words, if a juror is told the
            probability   a   member   of    the   general
            population would share the same DNA is 1 in
            10,000 (random match probability), and he
            takes that to mean there is only a 1 in
            10,000 chance that someone other than the
            defendant is the source of the DNA found at
            the crime scene (source probability), then
            he   has   succumbed  to   the    prosecutor’s
            fallacy. It is further error to equate
            source   probability  with    probability   of
            guilt, unless there is no explanation other
            than guilt for a person to be the source of
            crime-scene DNA. This faulty reasoning may
                                        -10-
              result in an erroneous statement that, based
              on a random match probability of 1 in
              10,000, there is a .01% chance the defendant
              is innocent or a 99.99% chance the defendant
              is guilty.

McDaniel v. Brown, 558 U.S. 120, 128, 175 L. Ed. 2d 582, 588

(2010) (citation omitted; emphasis added). The critical element

of the prosecutor’s fallacy is not the existence of testimony

about    random     match   probability.       Rather,   it   is   the   act    of

assuming that such evidence also constitutes source probability

or   —   at   the   very    least   —   the    failure   to   correct    such   an

assumption.

              In McDaniel, the defendant did not challenge
              the    State’s     expert’s    random     match
              probability opinion that only 1 in 3,000,000
              people would have the same DNA profile as
              the rapist. However, the Court explained
              that the State’s expert failed to properly
              dispel the prosecutor’s fallacy when the
              prosecutor asked the State’s expert, in a
              classic   example of erroneously equating
              source    probability    with   random   match
              probability, whether “it would be fair to
              say that . . . the likelihood that [the DNA
              was]    not   the   defendant[’s]   would    be
              .000033,” and the State’s expert ultimately
              agreed that it was not inaccurate to state
              it that way.

State v. Ragland, __ N.C. App. __, __, 739 S.E.2d 616, 624

(2013) (brackets, ellipses, and certain internal quotation marks

omitted; emphasis added) (citing McDaniel, 558 U.S. at 128–29,

175 L. Ed. 2d at 588). Similarly, in Ragland, we held that an
                                     -11-
investigator “properly testified” at trial when he stated that

“the probability of randomly selecting an unrelated individual

with the DNA profile that matches the DNA profile obtained [in

this case] is greater than 1 trillion, which is more than the

world’s population for North Carolina Caucasian, Black, Lumbee

Indian[,] and Hispanic populations.” Id. at __, 739 S.E.2d at

625. It was only when the analyst expanded on his testimony by

concluding that the random match probability meant, “if it’s

over the world’s population, . . . that there could be no one

else other than [the defendant] in the world” and opined that

the DNA evidence in that case could “be no one other than [the

defendant]” that he engaged in the logical fallacy. Id.

      Like the investigator in Ragland, the SBI analyst in this

case testified that, as to both the decedent and Defendant, the

“probability of randomly selecting an unrelated individual with

a DNA profile that matches the DNA profile obtained from the

cutting of the shirt [(i.e., random match probability)] . . . is

one in greater than one trillion which is more than the world’s

population     in   the   North   Carolina   Caucasian,   [B]lack,   Lumbee,

Indian[,] and Hispanic populations.” Following that statement,

the analyst explained that it is “scientifically unreasonable”

to   believe   that   the   DNA   obtained   from   the   shirt   could   have
                                         -12-
originated    from     anyone    other    than    the    decedent   or   Defendant

unless either had an identical twin. This conclusion does not

assume that the random match probability is the same as the

source probability (i.e., the likelihood that Defendant and the

decedent   are   the    sources    of    the     DNA).   Rather,    it   offers   an

opinion regarding whether Defendant and the decedent are the

sources of the DNA pursuant to the low random match probability.

This is not a logical fallacy. Therefore, we hold that the trial

court did not err — much less plainly err — in admitting the

analyst’s testimony.

    After carefully reviewing the transcript and record, we are

unable to find any possible prejudicial error at trial. The

offenses in this case were clearly connected by a series of

acts,   and   the    trial      court    did    not     commit   plain   error    in

admitting the testimony of the SBI analyst. Accordingly, we find

no error in Defendant’s trial.

    NO ERROR.

    Judges STEELMAN and DAVIS concur.

    Report per Rule 30(e).
