An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1198
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 6 May 2014


STATE OF NORTH CAROLINA

      v.                                      Alamance County
                                              No. 11 CRS 56118
JONATHAN DONALD THOMPSON



      Appeal by Defendant from judgment entered 26 April 2013 by

Judge James E. Hardin, Jr. in Superior Court, Alamance County.

Heard in the Court of Appeals 4 March 2014.


      Attorney General Roy Cooper, by Special Deputy                      Attorney
      General Jennie Wilhelm Hauser, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Daniel Shatz, for Defendant.


      McGEE, Judge.


      Jonathan Donald Thompson (“Defendant”) was convicted on 26

April 2013 of first-degree sex offense with a child and taking

indecent liberties with a child.             The State’s evidence tended to

show that, on the evening of 6 September 2011 and into the early

morning of 7 September 2011, Defendant was helping to paint the

interior of his father’s house in preparation for his father’s
                                         -2-
return from the hospital.             Other people were helping to paint

the house that evening, including a woman with a four-year-old

daughter (“the child”).           As Defendant and others painted the

house, the child was asleep on blankets spread out on a hallway

floor.      Defendant was drinking beer and also took someone’s

prescription     Klonopin      without      permission.             Defendant   and    a

friend (“the friend”) continued to paint after the others had

stopped.     The friend testified Defendant left the room they were

painting four or five times during the night, for about ten to

fifteen minutes each time.            One of the times Defendant left the

room, the friend saw Defendant kneeling beside the child, facing

the child.

      The    following    morning,        the        child     screamed     from      the

bathroom.     The child indicated that urinating was painful.                         At

first, the child’s mother assumed the pain was the result of a

medical     condition    the    child    had     that        affected    the    child’s

vagina, and which could be exacerbated if the child did not

maintain proper hygiene.         The mother drew a bath for the child,

but   the   child   stated     that   she      did    not    need    a   bath   because

Defendant was responsible for the pain.                      The child stated that

Defendant had inserted his finger into her vagina.

      The child’s aunt, who was at the house, told the child’s

mother to take the child to be examined by a doctor.                        The child
                                              -3-
was taken to Crossroads, a child advocacy center in Alamance

County that provides medical, psychological, and other advocacy

services. The child was then taken to UNC Hospital where a nurse

attempted to collect evidence for a rape kit.                           Because the child

was so upset, no internal genital swab was collected from the

child.     However, a swab was collected from the child’s exterior

vaginal region, in the hope of collecting skin cells transferred

from the perpetrator.             Though the swab sample was sent to the

State     Bureau      of   Investigation            (“SBI”),       it    was     ultimately

returned without testing because the SBI did not have the proper

facilities       to   collect     DNA       samples    from    any      transferred       skin

cells.      Visual examination of the child’s genitals indicated

redness     and       abrasions        that    were     consistent         with      digital

penetration.

    The     child      returned        to    Crossroads    on      15    September    2011,

where     Dr.    Adrea     Theodore         (“Dr.     Theodore”),        who     worked    at

Crossroads,        interviewed         and     examined       her.         Dr.     Theodore

testified the child indicated Defendant had inserted his finger

in her vagina six times, and the child said she could clearly

recognize Defendant.            The child said she could see paint on

Defendant’s fingers, and that Defendant had told her not to tell

anyone.         One of Defendant’s sisters testified that when she

spoke    with     Defendant       on    the    evening        of   7     September    2011,
                                   -4-
Defendant cried and said he could not remember doing anything to

the child, and that he didn’t think he could do such a thing.

The   child’s   aunt   testified   the   child   had   become   “a   totally

different child” since the incident, and had become very shy

when previously she had been outgoing.

      Defendant was arrested and charged with first-degree sex

offense with a child and taking indecent liberties with a child.

Defendant was tried by a jury, and found guilty of both charges.

Defendant appeals.

                                    I.

      In his first argument, Defendant contends the trial court

committed plain error by not intervening ex mero motu to exclude

testimony of one of the State’s expert witnesses.          We disagree.

           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.”
           [See] Walker, 316 N.C. at 39, 340 S.E.2d at
           83 ([the defendant must show] “that absent
           the error the jury probably would have
           reached a different verdict”).     Moreover,
           because plain error is to be “applied
           cautiously and only in the exceptional
           case,” the error will often be one that
           “seriously affect[s] the fairness, integrity
           or    public    reputation     of   judicial
           proceedings[.]”
                                    -5-
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(citations omitted).

      Dr. Theodore testified, without objection, as an expert in

pediatrics.       Under cross-examination by        Defendant’s attorney,

Dr. Theodore testified that Crossroads usually held a weekly

“meeting where members of the Burlington Police and members of

the   Sheriff’s    Department,    folks    from    DSS,   people   from   the

Crossroads staff, and people from the DA's Office attend” and

“collaborate    about   the    pending    sexual   assault   cases   in   the

county.”   Defendant’s attorney then asked Dr. Theodore: “In the

cases where you have given an opinion, each time, your opinion

has been that what you saw was consistent with some form of

sexual abuse.      Is that correct?”        Dr. Theodore responded that

was true for every case that had gone to trial.              On re-direct,

the State asked: “Doctor Theodore, has the State ever prosecuted

a sex offense case in which you formed an opinion that there

wasn't sexual abuse?”         Dr. Theodore responded that she was not

aware of any such instance.

      It is this last portion of testimony to which Defendant now

objects.   It is clear that on cross-examination, Defendant was

attempting to attack Dr. Theodore’s credibility by showing a

bias in Dr. Theodore’s testimony that favored the State.             Though

presumably attempting to rehabilitate the witness by its re-
                                   -6-
direct,    the   State   essentially   asked   Dr.    Theodore   the   same

question that had been posed by Defendant’s attorney moments

earlier.    That question, and Dr. Theodore’s response, could be

seen as validating Defendant’s suggestion that Dr. Theodore was

biased in favor of the State and, therefore, was a less credible

witness.

    It is not clear to us that Dr. Theodore’s testimony, even

assuming arguendo it was improper, was more helpful to the State

than to Defendant.       Defendant fails in his burden of proving

“‘that absent the error the jury probably would have reached a

different verdict.’”      Lawrence, 365 N.C. at 518, 723 S.E.2d at

334 (citation omitted).      This argument is without merit.

                                   II.

    In Defendant’s second argument, he contends the trial court

erred in failing to intervene ex mero motu to stop improper

closing arguments by the State.        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. 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
                                              -7-
              from the offending attorney; and/or                              (2)
              instructed   the   jury  to   disregard                          the
              improper comments already made.

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

(citation omitted).             “When the defense fails to object to a

prosecutor's argument, ‘the remarks “must be gross indeed for

this Court to hold that the trial court abused its discretion in

not    recognizing       and    correcting          ex     mero        motu    the     comments

regarded by defendant as offensive only on appeal.”’”                                  State v.

Cummings, 352 N.C. 600, 621, 536 S.E.2d 36, 52 (2000) (citations

omitted).       “To    determine        the    propriety          of    the    prosecution's

argument, the Court must review the argument in context and

analyze the import of the argument within the trial context,

including the evidence and all arguments of counsel.”                                   Id. at

621, 536 S.E.2d at 52 (citation omitted).

       Defendant objects to several statements made in the State’s

closing      argument.         First,    Defendant          objects       to    an     argument

addressing      the      testimony        of        Dr.     Theodore           discussed       in

Defendant’s      first    argument.            The        State    argued,       “if     Doctor

Theodore came to the State with any case, and said . . . nothing

happened in my opinion, I would argue to you, the State would

not    prosecute   a     case    like    that.            The   State     is     not    in   the

business of prosecuting people when it doesn’t have any evidence

of    it.”     Defendant       argues    that       the    “clear       message”       of    this
                                              -8-
argument was “that Dr. Theodore believe[d] the crime occurred,”

because “if she did not think the crime occurred, the State

would     not     have    prosecuted          [Defendant].”             Dr.   Theodore’s

testimony       was    that,      in    her     opinion,      the      results    of    her

examination of the child were consistent with the child’s vagina

having    been       digitally    penetrated.           The   State’s     argument      was

that,    had their expert witness’ opinion been that no sexual

abuse    had     occurred,       the    State       would   not   have    continued     to

prosecute the case.             This is not the same as arguing that Dr.

Theodore believed abuse occurred.                     When the State prosecutes a

case,    it     is    assumed     the    State       believes     it    has   sufficient

evidence of the defendant’s guilt to proceed.                           We do not find

that these remarks “were so grossly improper that the trial

court committed reversible error by failing to intervene ex mero

motu.”        Jones, 355 N.C. at 133, 558 S.E.2d at 107 (citation

omitted).

       Second, Defendant objects to the following argument made by

the State at closing: “[Y]ou heard in the opening statement from

defense counsel that [] [D]efendant has maintained his innocence

this whole time.          But he also gave an hour and a half interview

on DVD.       Well, you didn't see that interview did you.                       He didn't

keep    his     promise    on    that.”         Defendant’s       attorney       gave   the

following statement in his opening argument:
                                      -9-
             [Defendant] has maintained his innocence
             throughout this process.      When he was
             contacted by the Burlington Police and they
             told him, we want to talk to you, he came
             in, and he gave an interview . . . for an
             hour and a half, subjected to all their
             questions.    They recorded this interview,
             and they put it on DVD.

While we do not condone the depiction of the defense as not

having kept a promise, State v. Anderson, 200 N.C. App. 216,

224,   684   S.E.2d   450,     456   (2009),   Defendant’s    attorney    did

discuss the DVD interview in his opening statement, which could

reasonably    be   construed    as   an   indication   that   Defendant   was

planning to introduce Defendant’s recorded statement in support

of his assertion that he had maintained his innocence from the

beginning.

             When defendant forecasts evidence in the
             opening statement, the State is permitted to
             comment upon the lack of evidence supporting
             such a forecast in closing argument. “Since
             the evidence did not support the facts
             contained in defendant's opening statement,
             it was not improper for the district
             attorney   to  highlight   the  absence   of
             evidence.”

Id. at 224, 684 S.E.2d at 456 (citation omitted).                 Defendant

argues that the State was improperly making an argument that it

knew to be false – that Defendant had not, in fact, maintained

his innocence from the beginning.           However, the DVD in question

was never made part of the record, so there is no way for this

Court to know what statements Defendant made in the recorded
                               -10-
interview.   The challenged statement does not rise to the level

of gross impropriety.

    Finally, Defendant argues that the State, in its closing

argument, improperly stated Defendant never requested additional

testing of the DNA evidence.   Specifically, Defendant objects to

the italicized portion of the following statements:

         Everything the State gets in its file by
         law, we have to turn over to the defense, to
         the defendant.    They have a right to see
         everything we have.        No surprises in
         criminal law.   You don't pull a rabbit out
         of the hat on somebody.    They know what we
         have from the very beginning.     They know,
         they did know, the defendant knew that swabs
         were taken in this case, and that they were
         sitting at the BPD or the SBI or somewhere,
         and there had been no results in this case.

         Listen   to   this,   according  to   15A-903,
         Subsection (d): The defendant shall have the
         right to inspect and copy or photograph any
         materials contained therein, talking about
         the    discovery,    and   under   appropriate
         safeguards to inspect, examine and test any
         physical    evidence    or  sample   contained
         therein.

         If it was so important to the defense side,
         you think they may have had it tested?
         Because they didn't.   I asked Jody West if
         the State or the defense counsel recommend
         additional testing, and he said not that he
         was aware of it, and that's 'cause they
         didn't. (Emphasis added).

    “A prosecutor may argue to the jury the defendant's failure

to produce exculpatory evidence or evidence which contradicts
                                       -11-
the State's case.”             State v. Hester, 343 N.C. 266, 272, 470

S.E.2d 25, 29 (1996) (citation omitted).

    However,       Defendant      contends      the   State’s     comments     were

improper   because       the   State   knew     Defendant   had    requested    DNA

testing.    The State obtained a vaginal swab taken from the child

the day following the alleged assault.                Special Agent Jody West

(“Agent West”) of the SBI, testified he obtained the swab, but

returned   it     to   the     State   after     determining      it   was   highly

unlikely any DNA not belonging to the child would be recovered

from the sample.         This was because the amount of DNA left behind

as a result of digital penetration of a vagina was too small to

be detected by the procedures currently available to the SBI.

Agent West testified that another procedure available to some

local private testing facilities might have been able to detect

foreign    DNA    from    the    sample    if    foreign    DNA    was    present.

Ultimately, no DNA testing was done on the sample.

    At     a     pre-trial      hearing,      Defendant     argued     the    “late

disclosure of the DNA evidence specifically and the information

that they were not going to test it is, it's prejudicial to the,

to my client, considering the short timeframe.”                    The following

colloquy then occurred:

           THE COURT: So if the State had DNA evidence,
           what would you be asking me to do?

           MR.     CONNOLLY      [Defendant’s      attorney]:      Your
                                         -12-
            Honor, I would ask Your Honor to allow the
            defendant to seek his own test of the DNA
            material.

            THE COURT: And if the State doesn't have DNA
            evidence, what are you asking me to do?

            . . . .

            MR. CONNOLLY: Well, Your Honor, I believe
            that having someone from the SBI come in and
            testify about, about DNA, without ever
            having   done  a   test   on it,   could  be
            prejudicial    and     could   unnecessarily
            influence the jury. I would ask you to
            exclude that expert witness.

      There is no record evidence that Defendant ever asked for

DNA   testing     to   be   done   on     the    sample,   or    that    Defendant

recommended that the State do DNA testing on the sample.                   At the

motions    hearing,     Defendant        suggested   DNA   evidence      could   be

exculpatory, and said he would have requested to submit the

sample for his own testing “if the State had DNA evidence.”

However,    the    State    did    not    have    the   swab    tested    for    DNA

evidence.    Defendant’s statement was that, in the absence of any

State’s evidence from DNA testing, Defendant would request that

the State not be allowed to call an expert witness to testify

about DNA evidence.          The record discloses no instance where

Defendant requested DNA testing.

      Defendant fails to show that any of the State’s closing

arguments were so grossly improper that the trial court erred by
                                       -13-
failing to intervene ex mero motu.                This argument is without

merit.

                                       III.

      In Defendant’s third argument, he contends the trial court

erred    in   finding    that    Defendant     had   been    convicted     of   an

aggravated     offense    and    in    ordering      lifetime    sex    offender

registration and satellite-based monitoring.                We agree.

      We first note that Defendant failed to file a proper notice

of appeal following the hearing to determine issues surrounding

sex     offender   registration        and     satellite-based      monitoring.

Defendant filed a petition for writ of certiorari on 16 December

2013,    requesting     that    this   Court    address      Defendant’s    third

argument despite the lack of a proper notice of appeal.                         We

grant Defendant’s petition for writ of certiorari, and address

the merits of his argument.

      Defendant was convicted of first-degree sexual offense with

a child, N.C. Gen. Stat. § 14-27.4(a)(1), and taking indecent

liberties with a child, N.C. Gen. Stat. § 14-202.1.                        As the

State points out in its brief, neither of these convictions

constitutes an “aggravated offense” as is required for ordering

lifetime sex offender registration and lifetime satellite-based

monitoring.     State v. Santos, 210 N.C. App. 448, 454, 708 S.E.2d

208, 213 (2011); State v. Davison, 201 N.C. App. 354, 361-64,
                                   -14-
689   S.E.2d   510,   515-17   (2009).    The   trial    court   erred   by

ordering   lifetime     sex    offender   registration     and   lifetime

satellite-based monitoring.      In the present case, as in Santos

           because    the    trial   court    made    no
           determination as to the other statutory
           factors   that   might   compel   defendant's
           enrollment in satellite-based monitoring [or
           sex offender registration] for life, we
           remand for consideration of defendant's
           eligibility for satellite-based monitoring
           pursuant to any of the other categories
           described in N.C.G.S. § 14–208.40A[,] [and
           sex   offender   registration   pursuant   to
           N.C.G.S. § 14-208.6A].

Santos, 210 N.C. App. at 455, 708 S.E.2d at 213.

      No error in part; reversed and remanded in part.

      Judges STEELMAN and ERVIN concur.

      Report per Rule 30(e).
