An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1307
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 19 August 2014


STATE OF NORTH CAROLINA

      v.                                      Mecklenburg County
                                              Nos. 10CRS250187-89
ROGER DALE HONEYCUTT,                              12CRS201338-39, 41
     Defendant.



      Appeal by defendant from judgments entered 22 February 2013

by   Judge    Jesse    B.   Caldwell     in   Superior     Court,     Mecklenburg

County.      Heard in the Court of Appeals 24 April 2014.


      Attorney General Roy A. Cooper, III, by Special                       Deputy
      Attorney General K. D. Sturgis, for the State.

      Kimberly P. Hoppin, for defendant-appellant.


      STROUD, Judge.


      Defendant appeals judgments for two counts of first degree

burglary, two counts of second degree rape, and two counts of

second degree sexual offense.               For the following reasons, we

find no error.

                                I.     Background
                                               -2-
         The State’s evidence tended to show that in 1981 two rapes

occurred within        a    month of each other, both involving white

females in the same part of town sleeping on couches at night in

first floor apartments.                 Both women identified the perpetrator

as   a    Caucasian    male       and    both       believed      he    entered       through    a

sliding     glass     door.       One    woman,        Cheryl,1        said    that      the   man

performed cunnilingus              on her and then had vaginal intercourse

with her.       Cheryl called the police and had a sexual assault

examination at the hospital.                   The other woman, Lyla, was forced

to   perform    fellatio          on     the    man,     and      then    he       had    vaginal

intercourse     with       her.         Lyla    went    to    the      hospital       where    she

received a sexual assault examination.

         Many years later, Lyla’s sheet and both women’s rape kits

were tested for DNA.                The DNA on Lyla’s sheet and rape kit

“matched”      defendant’s         DNA;        Lyla’s     sheet         had    a    DNA    match

probability with defendant of one in 730 billion Caucasians, and

her rape kit had a match probability with defendant of one in

36.2 billion Caucasians.                 Cheryl’s rape kit was consistent with

defendant     with     a    match       probability          of   one    in    16.2       million

Caucasians.      Defendant was tried by a jury and found guilty of

two counts of first degree burglary, two counts of second degree

1
   Pseudonyms will be              used        to    protect      the    identity         of   the
individuals involved.
                                           -3-
rape, and two counts of second degree sexual offense.                            The trial

court      entered   judgments       on        the   convictions,        and     defendant

appeals.

                      II.    Lyla’s Sheet and Rape Kit

      Defendant makes a lengthy argument that the trial court

erred by admitting evidence of Lyla’s sheet and rape kit.                                Most

of    defendant’s     arguments          are    recitations        of    the     facts    or

statements of law without analysis as to how they affect his

case. For example, defendant notes that the doctor who collected

the     rape   kit    from     Lyla       “did       not    have    any        independent

recollection of [Lyla] or of the events of February 21, 1981”

and that he based his testimony upon the documentation on the

rape kit which bore his signature, and the bag which held the

sheet “was now ‘tattered.’”                    Of course, the other witnesses

likewise lacked independent recollection of their handling and

testing of the DNA evidence back in 1981 and relied upon the

documentation.          In   the    end,        defendant     essentially         contends

Lyla’s sheet and rape kit were not “sufficiently identified or

authenticated”       because       the    State      failed    to       prove    that    the

evidence was not contaminated or materially changed.

      As    defendant    failed      to    object      at   trial,       we     review   the

admission of the evidence regarding the sheet and rape kit for
                                       -4-
plain error.       See State v. Harding, 110 N.C. App. 155, 161, 429

S.E.2d 416, 420 (1993) (“Due to defendant’s failure to object at

trial,    we    must   review   this   objection   under   the   plain   error

rule.”)

               For error to constitute plain error, a
               defendant    must    demonstrate    that     a
               fundamental error occurred at trial. To show
               that an error was fundamental, a defendant
               must    establish    prejudice—that,     after
               examination of the entire record, the error
               had a probable impact on the jury’s finding
               that the defendant was guilty.       Moreover,
               because plain error is to be applied
               cautiously and only in the exceptional case,
               the error will often be one that seriously
               affects the fairness, integrity or public
               reputation of judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(citations, quotation marks, and brackets omitted). Furthermore,

our Supreme Court has established that “[a] prerequisite to our

engaging in a plain error analysis is the determination that the

instruction complained of constitutes error at all.” State v.

Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468 (quotation marks

omitted), cert. denied, 479 U.S. 836, 93 L.Ed. 2d 77 (1986).

                    This Court has stated that a two-
               pronged test must be satisfied before real
               evidence is properly received into evidence.
               The item offered must be identified as being
               the same object involved in the incident and
               it must be shown that the object has
               undergone no material change.     The trial
               court possesses and must exercise sound
                                          -5-
              discretion in determining the standard of
              certainty that is required to show that an
              object offered is the same as the object
              involved in the incident and is in an
              unchanged condition.    A detailed chain of
              custody need be established only when the
              evidence offered is not readily identifiable
              or is susceptible to alteration and there is
              reason to believe that it may have been
              altered. Further, any weak links in a chain
              of custody relate only to the weight to be
              given evidence and not to its admissibility.

State    v.   Zuniga,   320    N.C.   233,       255,   357    S.E.2d    898,    912-13

(1987) (citations omitted), cert. allowed, 330 N.C. 617, 412

S.E.2d 95 (1992).

         The doctor who gathered Lisa’s rape kit testified as to

the condition of the property and as to Lisa’s name, the date,

and his signature on the kit, including his name, initials, and

date on the final police seal.                  Thereafter, the patrol officer

who took the kit from the doctor and the sheet, the criminalist

who later received the evidence and tested it for bodily fluids,

and the DNA technical leader who tested the evidence for DNA,

all testified as to the condition and the chain of custody of

the     evidence;   their      testimonies        were    consistent          with   the

property sheet.         Although the sheet packaging may have become

“tattered” over the years, defendant’s arguments relate mostly

to the credibility of the testimony of those who handled the

evidence.      Defendant      has   not    directed       us    to      any    evidence
                                        -6-
contradicting     either      the    identification     or    authenticity   of

Lisa’s    sheet   or   rape    kit.       All   of   the     testimony   offered

regarding the rape kit and sheet establish that the rape kit and

sheet were “the same object[s] involved in the incident” and

“the object[s] ha[ve] undergone no material change.”                     Id. at

255, 357 S.E.2d at 912.             Any change in the evidence would have

been only degradation of the sperm sample, which resulted in

development of only a partial DNA profile including eight of the

“polymorphic markers” instead of a full profile containing 15

markers.     Yet this partial DNA profile from Lyla’s sheet was

still sufficient to show a match probability with defendant of

one in 730 billion Caucasians and the rape kit profile had a

match    probability    with        defendant   of   one     in   36.2   billion

Caucasians. We find no error in the trial court’s admission of

Lyla’s sheet and rape kit, and this argument is overruled.

                        III.        Cheryl’s Rape Kit

         Defendant next makes essentially the same type of argument

regarding Cheryl’s rape kit as he did regarding Lyla’s rape kit.

Cheryl’s rape kit included a tube for vaginal swabs, a broken

tube of “[d]ark, old blood[,]” and paper with a saliva sample.

But here, rather than the chain of custody, defendant focuses on

the fact that the victim’s blood may have comingled with the
                                          -7-
swabs in the rape kit from which the DNA was tested. There was

evidence that the tube of blood had broken and possibly stained

some other items in the package.                 Ms. Eva Rossi, the criminalist

who performed the DNA extraction and generated the DNA profile,

testified “there was no apparent blood on [the vaginal] swabs.

There does not appear to be any on the collection tube.                       So I do

not believe that the blood could have potentially contaminated

those    swabs.”      Again,      defendant’s       arguments   related       more   to

credibility, and he raises only speculation that the samples

from Cheryl’s kit were contaminated.                   As to the swabs in the

rape    kit,    again,    the     testimony       established    that    “the    item

offered . . . [was] identified as being the same object involved

in the incident and . . . ha[d] undergone no material change.”

Id.     We find no error in the admission of the evidence, and this

argument is overruled.

                     IV.        State’s Closing Argument

         Lastly, defendant contends that that the trial court erred

in    failing   to   ex    mero    motu    strike    portions    of     the   State’s

closing    argument       regarding       “the     ingenuity    of    [defendant’s]

counsel” in creating reasonable doubt in the juror’s minds and

the “inherent[] reliabl[ity]” of DNA. Defendant first contends

that the prosecutor’s argument about defense counsel’s ingenuity
                                        -8-
violated the Supreme Court’s admonition “that ‘a trial attorney

may not make uncomplimentary comments about opposing counsel,

and should “refrain from abusive, vituperative, and opprobrious

language,    or     from    indulging     in   invectives.”’       State   v.

Sanderson,    336    N.C.    1,   10,    442   S.E.2d   33,   39   (1994)[.]”

Specifically, defendant contends the State improperly argued as

follows:

                 Now, I also read to juries from an old
            case   called   State    versus   Hammonds,   a
            definition from our State Supreme Court
            about what reasonable doubt is not. If
            you're talking about reasonable doubt, it's
            important for you to know what it isn't as
            well. 2    The Court said that [reasonable
            doubt] is not a doubt suggested by the
            ingenuity   of   counsel    or  by   your   own
            ingenuity -- and that means things that the
            lawyers think up or things that you think up
            not legitimately warranted by the evidence
            and the testimony . . .

            So as I speak, as [defendant’s attorney]
            speaks, you hold us accountable to that,
            that we’re supposed to be talking about the
            evidence and not just whimsical ideas to get
            you distracted from what your duty ought to
            be. . . .

            So [defendant’s counsel]’s going to want you
            –- and I go back to the ingenuity of
            counsel. He’s going to want you to look at
            those   empty   locus    points   and   plug
            information to make you believe or make you

2
  Defendant did not note the italicized portions as part of the
argument subject to objection in his brief, but we have included
these portions simply to place the argument in context.
                                       -9-
            think that there could be another person
            involved in this that could be identified,
            and we haven’t –- we haven’t done it.  And
            it’s not his client.     That’s as to the
            profile part. . . .

            Another one of the potential ingenuities of
            counsel is what happened this morning.   Ms.
            Rossi, by implication, is no longer a
            scientist; she’s a hired gun because she
            works for a crime lab that’s associated with
            law enforcement, like that influences her
            science ability, like that does anything to
            make this case different. And I submit to
            you   that  that’s   ingenuity  of  counsel.
            That’s not something you should even be
            thinking about.    You should be taking the
            witness that testified before you as experts
            and deciding if they did their job correctly
            and not whether they are some sort of hired
            gun.

      We review this issue to determine if the State’s argument

was   so   “grossly   improper”   as    to   require   the   trial   court   to

intervene despite the defendant’s failure to object. State v.

Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002).

                 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. In other words, the
            reviewing court must determine whether the
            argument in question strayed far enough from
            the parameters of propriety that the trial
            court, in order to protect the rights of the
            parties and the sanctity of the proceedings,
            should have intervened on its own accord
            and:    (1) precluded other similar remarks
                                  -10-
             from the offending attorney; and/or        (2)
             instructed   the   jury  to   disregard    the
             improper comments already made.

    Id.   (citation omitted).

          When making reference to “the ingenuity of [defendant’s]

counsel[,]”       the State was paraphrasing and quoting State v.

Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954) which had quoted

the “ingenuity” language from State v. Steele, 190 N.C. 506, 130

S.E. 308 (1925).3      Hammonds, 241 N.C. at 232, 85 S.E.2d at 138.

In Steele, the language in question was suggested by the Supreme

Court in instructing the jury on the definition of reasonable

doubt.      Steele, 190 N.C. at 512, 130 S.E. at 312.   We do not see

how this reference is in the least “abusive, vituperative, and

opprobrious[,]”      State v. Sanderson, 336 N.C. 1, 10, 442 S.E.2d

33, 39 (1994) (citation and quotation marks omitted), toward



3
  “Varser, J., in speaking for this Court in S. v. Steele, supra,
said: ‘We suggest, in addition to the definitions heretofore
approved, for its practical terms, the following: “A reasonable
doubt, as that term is employed in the administration of
criminal law, is an honest, substantial misgiving, generated by
the insufficiency of the proof; an insufficiency which fails to
convince your judgment and conscience, and satisfy your reason
as to the guilt of the accused.” It is not “a doubt suggested by
the ingenuity of counsel, or by your own ingenuity, not
legitimately warranted by the testimony, or one born of a
merciful inclination or disposition to permit the defendant to
escape the penalty of the law, or one prompted by sympathy for
him or those connected with him.”       Jackson, J., in U.S. v.
Harper, 33 Fed., 471.’” Hammonds, 241 N.C. at 232, 85 S.E.2d at
138.
                                   -11-
defense counsel and do not find this phrase to be improper at

all, much less “grossly improper[.]” Jones, 355 N.C. at 133, 558

S.E.2d at 107.      We also note that to the extent that this was an

argument    about   the   law,   defendant    does   not    argue    that   the

prosecutor misstated the law regarding reasonable doubt.                    In

addition, the trial court instructed the jury on the State’s

burden of proof beyond a reasonable doubt without objection from

the defendant, and defendant does not challenge the instructions

to the jury on appeal.      This argument is without merit.

      The other statement in the argument which defendant argues

merited the trial court’s         ex mero motu       intervention was the

reference    to     the   prosecutor’s       personal      opinion    of    the

“inherent[] reliab[ility]” of DNA evidence.             Defendant notes the

various portions of the prosecutor’s arguments about the DNA

evidence he contends were improper:

            You have to believe the DNA science that was
            presented to you. It’s just that simple. If
            you don’t believe in the science, then
            you’re going to be voting not guilty.     But
            we’re going to ask you to look real closely
            at why you don’t believe the science. But it
            is about the numbers. You’re talking about a
            new science that has been accepted in the
            scientific    community   and    the    court
            community. If it wasn’t accepted science, we
            wouldn’t even be talking to each other right
            now. You wouldn’t have ever heard about it.
            It’s accepted science. It has validity. It
            has trustworthiness. It’s reliable. . . .
                                     -12-


            But you’ve got a scientifically-accepted
            product.   You’ve got qualified technicians
            that continuously get trained. . . .

            I’m submitting to you that I think the DNA
            evidence in inherently reliable. . . .

            Now, going on the reliability of this
            statistical information, I’m submitting to
            you   that  it   is   reliable....  And  the
            reliability   that  I’m   talking  about  is
            showing the connectedness of each of these
            samples to the locus points involved.

         Although it is true that counsel should not argue personal

opinion or belief, N.C. Gen. Stat. § 15A-1230 (2013) (“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[.]”), taken in context

of the entire argument, these statements are not “so grossly

improper” as to require the trial court’s intervention.              Jones,

355 N.C. at 133, 558 S.E.2d at 107.            The portions of argument

quoted   above     regarding   the   reliability   of   DNA   evidence   were

scattered through the prosecutor’s summary of the various pieces

of the evidence related to the DNA samples tested from the two

women; he came to the overall conclusion that the scientific

evidence     and     statistical     probabilities      pointed   only    to

defendant:

                   They weren’t tested at the same time.
                                      -13-
            They were in the lab at different times. You
            had different analysts looking at some of
            it. But the result is the same. The result
            is Roger Honeycutt.
                 I’m submitting to you that I think the
            DNA evidence is inherently reliable.

Although it would have been preferable to omit the words “I

think” from the foregoing sentence, this minor change would not

substantively change the State’s overall argument, which was a

proper    argument.     The   State    simply     argued     that   DNA   is   a

scientifically       recognized    form      of   evidence    identifying      an

individual and pointed out the statistical improbability that

the two DNA tests identifying defendant were in error. This

argument is overruled.

                              V.      Conclusion

         For the foregoing reasons, we find no error.

         NO ERROR.

         Judges HUNTER, JR., Robert N. and DILLON concur.

         Report per Rule 30(e).
