                               NO. COA13-925

                      NORTH CAROLINA COURT OF APPEALS

                             Filed: 1 July 2014


STATE OF NORTH CAROLINA

    v.                                  Alamance County
                                        No. 11 CRS 54814
THORNE OLIVER WATLINGTON



    Appeal by Defendant from judgments entered 30 November 2012

by Judge Henry W. Hight, Jr. in Superior Court, Alamance County.

Heard in the Court of Appeals 4 February 2014.


    Attorney General Roy Cooper, by Special             Deputy   Attorney
    General James A. Wellons, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate
    Defenders John F. Carella and Benjamin Dowling-Sendor, for
    Defendant.


    McGEE, Judge.


    Keith    LaMay,    Sr.   (“LaMay,   Sr.”)   and   Keith   LaMay,   Jr.

(“LaMay, Jr.”) were robbed at gunpoint in the parking lot of an

Arby’s restaurant in Burlington at approximately 1:30 a.m. on 30

July 2011.   Thorne Oliver Watlington (“Defendant”) was tried on

six charges related to that robbery at the 25 September 2012

criminal session of Superior Court, Alamance County, along with

charges related to other incidents.        A jury convicted Defendant
                                          -2-
of charges unrelated to the Arby’s incident on 5 October 2012,

found   Defendant       not    guilty    of    three       charges     related     to   the

Arby’s incident, but was unable to reach a unanimous verdict on

three additional charges related to the Arby’s incident.                                The

trial court declared a mistrial on the last three charges: two

counts of robbery with a firearm and one count of attempted

robbery with a firearm.            Defendant appealed from the 5 October

2012    judgments,      and     that    appeal        is     decided      in   State    v.

Watlington,       ___    N.C.     App.        ___,     ___       S.E.2d      ___    (2014)

(“Watlington I”) (COA13-661, filed on the same date as this

opinion).     Defendant was re-tried on the three remaining charges

and was found guilty on all three charges on 30 November 2012.

Defendant appeals.            A full factual recitation may be found in

this Court’s opinion in Watlington I.

                                          I.

       Defendant contends in his first argument that the trial

court    erred     in    refusing       to      give       the     jury    a    requested

instruction.      We disagree.

       Defendant made this same argument in                        Watlington      I.   In

Watlington I, this Court found no error in the trial court’s

decision    not    to    give     the     instruction            Defendant     requested.

Defendant’s      argument      presents       the    same    issue    already      decided
                                        -3-
against Defendant in Watlington I.                  Therefore, in the present

case, we must also find no error as related to this issue.

                                        II.

    Defendant contends in his second argument that the trial

court   erred    by   allowing    the    State’s       fingerprint     expert     to

testify,     “because    her     proffered        method    of    proof     was   an

unreliable and untested system[.]”                 This argument has not been

preserved for appellate review.

    Lori     Oxendine    (“Oxendine”),        a    civilian      employee   of    the

Burlington      Police   Department       testified        as     an   expert     in

fingerprint     identification.          At       trial,   Defendant      moved    to

exclude Oxendine’s testimony.            Defendant’s attorney engaged in

the following relevant colloquy with the trial court:

           MR. CHAMPION:   Your Honor, at this time I'd
           like to renew my motion that I had filed
           back before the first trial in this action,
           involving these cases, in which I objected
           to the scientific basis or reliability of
           fingerprint testimony.

           THE COURT:    I've -- you've passed up an
           article which was reviewed.   If you've got
           any other evidence you would like to show,
           I'll be more than happy to hear it. I [am]
           assuming you have some person who's going to
           get up here and testify that it's not
           reliable.

           MR. CHAMPION:       No, sir.

           THE COURT:     Well, you can cite me to
           somebody who says it's not reliable and has
           not been held so in any court in North
                                          -4-
            Carolina or the Fourth District.

            MR. CHAMPION:           No,    Your    Honor,      I'm     just
            making[‒]

            THE COURT: I understand that.    I just want
            it to be clear for the record what it is.

            MR. CHAMPION: No, sir, other than what I've
            already handed up for the court to review.
            I just wanted --

            THE COURT: And I want you to know that I'll
            give you any opportunity you want to put on
            any person who would challenge that here in
            front of this [c]ourt, so that we can make a
            record.

            MR. CHAMPION: Yes,            sir.      I   do     not     have
            anyone to present.

            THE COURT: Okay.

            MR. CHAMPION: Out of an abundance of
            caution, I would be objecting to her
            qualifications as an expert in fingerprint
            comparison or identification.   I don't know
            if the Court would want to bring the jury
            back in to go through preliminaries and then
            --

            THE COURT: Okay.     And based upon, if you
            want to challenge her qualifications now,
            I'll be more than happy to [do] that in the
            absence of the jury, you know, give you an
            opportunity to do that.      Although, she's
            testified in front of us on something
            earlier, this is a different trial. So I'll
            be glad to hear you.

    Mr.     Champion   then    commenced         voir   dire      of   Oxendine,   and

concluded   by   stating:     “No    more       questions    on    qualifications.”

The State then questioned Oxendine, and Mr. Champion declined to
                                      -5-
question her further.         Mr. Champion argued his motion to the

trial court, and the trial court responded, as follows:

          THE COURT: Okay.    I'll be glad to hear you
          now, but I mean, from what I recall is based
          upon her 24 years of training and experience
          or   24   years   of   experience    daily  in
          fingerprint comparison and identification,
          her prior training, she would appear to
          qualify   to   have   knowledge   to   make  a
          comparison and a determination.      If you've
          got something different.

          MR. CHAMPION: Your Honor, I, several of the
          agencies that are, that qualify and certify
          people,    she      does     not     have   the
          qualifications.      She's not even aware of
          their qualifications.      She understands that
          they have some agencies that qualify even
          including bachelor degrees and some science
          degree level work.         This is considered
          scientific type evidence, more so than,
          okay, that's a green shirt versus a green
          shirt.      This    is   actually   looking  at
          microscopic level work, and we just don't
          feel like she has the, the training and
          educational experience to qualify her as an
          expert    in     fingerprint     analysis   and
          comparisons.

          THE COURT: Thank you, sir.     Noted for the
          record. If she's appropriately qualified in
          front of the jury, I will accept her.

    Although Defendant may have handed some materials to the

trial   court        regarding   “the       reliability   of    fingerprint

testimony,” Defendant did not directly challenge the reliability

of fingerprint testimony in general, or more particularly, the

reliability     of    the   methods   used     by   Oxendine.    Defendant

challenged Oxendine’s qualifications to testify as an expert in
                                        -6-
fingerprint analysis, and the trial court made a ruling only on

that challenge.

            In order to preserve an issue for appellate
            review, a party must have presented to the
            trial court a timely request, objection, or
            motion, stating the specific grounds for the
            ruling the party desired the court to make
            if the specific grounds were not apparent
            from the context. It is also necessary for
            the complaining party to obtain a ruling
            upon the party's request, objection, or
            motion.

N.C.R.    App.   P.   10(a)(1).         “The    appellate     courts    will     not

consider    arguments     based    upon    matters      not   presented    to    or

adjudicated by the trial tribunal.”                  State v. Washington, 134

N.C. App. 479, 485, 518 S.E.2d 14, 17 (1999) (citation omitted).

      Because Defendant failed to properly move for exclusion of

Oxendine’s    testimony    on     the   basis   that    the   methods     used    by

Oxendine were not reliable, and because the trial court never

ruled on any such motion, that issue is not properly before us.

Id.     This argument is dismissed.

                                        III.

      Defendant contends in his third argument that the trial

court     committed   reversible        error   in     overruling   Defendant’s

objections during the State’s closing argument.                We disagree.

      Our Supreme Court has stated:

            Counsel is given wide latitude to argue the
            facts and all reasonable inferences which
            may be drawn therefrom, together with the
                              -7-
         relevant law, in presenting the case to the
         jury.   The trial court is required, upon
         objection, to censor remarks either not
         warranted by the law or facts or made only
         to prejudice or mislead the jury.         The
         conduct of the arguments of counsel is left
         to the sound discretion of the trial judge.
         In order for defendant to be granted a new
         trial, the error must be sufficiently grave
         that it is prejudicial.       Ordinarily, an
         objection to the arguments by counsel must
         be made before verdict, since only when the
         impropriety is gross is the trial court
         required to correct the abuse ex mero motu.

State v. Britt, 291 N.C. 528, 537, 231 S.E.2d 644, 651 (1977)

(citations omitted).    The portion of the State’s closing at

issue was as follows:

         Ladies    and   gentlemen,    again,   Andre
         McLaughlin [who was also charged in the
         Arby’s incident] has a lot to answer for,
         but on the, that one incidence, rifle had 14
         rounds in it, one for each, actually each
         one each of you jurors, and –

         MR. CHAMPION: Objection.

         MR. THOMPSON: -- one to spare.

         THE COURT: Go on.

         MR. THOMPSON: If [Defendant] had gotten hold
         of this rifle, this might have been an
         entirely different kind of case.     But be
         that as it may, he didn't get the rifle, but
         he did commit a robbery.

              I'm not sure if I've been talking 30
         minutes or so. I'm not going to take up the
         whole time.
                                    -8-
Mr. Thompson then concluded his closing argument with a few

additional statements.

    We hold that the remarks by the State were improper, and

should have been precluded by the trial court.               The trial court

then should have given a curative instruction.                 There was no

basis for the State’s implication that, had Defendant had the

rifle,   “this   might   have   been    an    entirely   different   kind   of

case.”    Furthermore, stating that there was a round for each

member of the jury and “one to spare” was clearly inappropriate.

Defendant    properly    objected      to    the   comment   concerning     “14

rounds,” but failed to object to the comment concerning what

might have occurred had Defendant had the rifle.                  There are

different standards of review, depending on whether Defendant

objected to the argument at trial.

            The standard of review for improper closing
            arguments that provoke timely objection from
            opposing counsel is whether the trial court
            abused its discretion by failing to sustain
            the   objection.     See,   e.g.,  State  v.
            Huffstetler, 312 N.C. 92, 111, 322 S.E.2d
            110, 122 (1984) (holding that appellate
            courts will review the exercise of such
            discretion   when   counsel's   remarks  are
            extreme and calculated to prejudice the
            jury)[.]

State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002)

(citation omitted).      If we find the argument was improper, “we
                                          -9-
[next] determine if the remarks were of such a magnitude that

their inclusion prejudiced defendant[.]”                  Id.

      However, the standard of review when no objection has been

made requires an elevated showing of impropriety.

              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
              from the offending attorney; and/or (2)
              instructed   the   jury   to   disregard   the
              improper comments already made.

Id. at 133, 558 S.E.2d at 107 (citations omitted).

      Although we find that these comments were improper, we do

not find, pursuant to either appropriate standard, that error

requiring      a   new   trial   resulted       from     these    comments      in    the

State’s      closing     argument.        LaMay,    Sr.    and    LaMay,   Jr.       both

returned      to   the    Arby’s     parking       lot    early     30   July    2011,

approximately eight hours after the robbery.                       T306-07      LaMay,

Jr. found an identification card in the woods near the Arby’s

parking lot, and showed it to LaMay, Sr., who said: “That’s the

guy   that    robbed     us.”      That    identification         card   belonged      to
                                         -10-
Defendant.           Law   enforcement     officers       located      Defendant     in

Apartment F of Forestdale Apartments in Burlington, immediately

after other individuals involved in the robbery were arrested as

they exited Apartment F.            When officers knocked on the door of

Apartment F, Defendant opened the door, then immediately closed

it upon seeing the officers.             Defendant has failed in his burden

of showing prejudice resulted from the improper statements made

by the State in its closing argument.

                                         IV.

    Defendant contends in his final argument that the trial

court    erred       in    increasing     his      sentence      based     upon     his

convictions for charges that had been joined for trial with the

charges currently before us.            We agree.

    Before Defendant’s first trial, the State moved to join all

charges: felonious breaking or entering, felonious larceny, two

counts   of    felonious      possession      of   stolen     goods,     breaking    or

entering      into    a    motor   vehicle,     assault     by   pointing    a     gun,

possession of a firearm by a felon, two counts of robbery with a

firearm, two counts of attempted robbery with a firearm, and

possession of a stolen motor vehicle.                The first trial concluded

on 5 October 2012.            Defendant was found guilty on six charges

unrelated to the Arby’s incident, not guilty on three charges

that were related to the Arby’s incident, but the jury could not
                                           -11-
reach a unanimous verdict on three additional charges related to

the Arby’s incident: two counts of robbery with a firearm and

one count of attempted robbery with a firearm.                         A mistrial was

declared on those charges.                 Defendant was retried, and found

guilty on all three charges on 30 November 2012.                            Defendant’s

prior record level was calculated using the judgments entered 5

October 2012, and Defendant was sentenced, based upon the trial

court’s finding him to be a prior record level III.

       In the present case, Defendant argues it was improper for

the    trial   court    to   use     the    5     October    2012    convictions         in

calculating his prior record level because those charges had

been    consolidated     with   the    charges        that   resulted       in   the     30

November 2012 convictions, and the only reason Defendant ended

up being convicted on those charges on a different day was the

inability of the first jury to reach a unanimous verdict.

       It is clear that, had the jury in the first trial reached

guilty verdicts on these three charges as well, none of the 5

October    convictions       could     have       been   used    when       calculating

Defendant’s     prior    record       level.          N.C.   Gen.      Stat.     §     15A-

1340.14(d) states: “Multiple Prior Convictions Obtained in One

Court    Week.‒‒   For    purposes      of      determining      the    prior        record

level, if an offender is convicted of more than one offense in a

single    superior      court   during          one   calendar      week,      only    the
                                     -12-
conviction     for   the   offense   with   the   highest   point     total   is

used.”      N.C. Gen. Stat. § 15A-1340.14(d) (2013).        We have noted:

             Nothing    within    the    Sentencing    Act
             specifically addresses the effect of joined
             charges     when     calculating     previous
             convictions   to  arrive   at  prior   record
             levels.   We agree . . . that the assessment
             of a defendant's prior record level using
             joined convictions would be unjust and in
             contravention of the intent of the General
             Assembly. See State v. Jones, 353 N.C. 159,
             170, 538 S.E.2d 917, 926 (indicating that
             “[w]hen interpreting statutes, this Court
             presumes that the legislature did not intend
             an unjust result”).

             Further, “the ‘rule of lenity’ forbids a
             court to interpret a statute so as to
             increase the penalty that it places on an
             individual when the Legislature has not
             clearly stated such an intention.”

State v. West, 180 N.C. App. 664, 669-70, 638 S.E.2d 508, 512

(2006) (citations omitted).           It would be unjust to punish a

defendant more harshly simply because, in his first trial, the

jury could not reach a unanimous verdict on some charges, but in

a subsequent trial, a different jury convicted that defendant on

some of those same charges.            There is no policy reason that

would support such a result and, because the General Assembly

has   not    clearly   stated   an   intention     to   allow   for    harsher

punishments in such situations, we hold the “rule of lenity”

forbids such a construction of the sentencing statutes.                Id.    We

reverse and remand for resentencing consistent with our holding.
                             -13-
    No error in part, dismissed in part, reversed and remanded

in part.

    Judges STEELMAN and ERVIN concur.
