An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1011
                         NORTH CAROLINA COURT OF APPEALS

                                    Filed: 6 May 2014


STATE OF NORTH CAROLINA

      v.                                        Johnston County
                                                Nos. 10 CRS 53554
ALEXANDER KORNEGAY, JR.                              11 CRS 3596



      Appeal by defendant from judgment filed 21 February 2013 by

Judge Lucy N. Inman in Johnston County Superior Court.                    Heard in

the Court of Appeals 7 April 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Joseph E. Herrin, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Mary Cook, for defendant-appellant.


      ELMORE, Judge.


      Alexander       Kornegay       Jr.,     (defendant)   was      convicted    of

obtaining property by false pretenses.                Defendant pled guilty to

having     attained      habitual     felon    status,   and   the    trial   court

sentenced     him   to    96   to    125    months   imprisonment.       Defendant

appeals.      After careful consideration, we hold that defendant

received a trial free from error.
                                               -2-
                                          I.     Background

       The       State’s    evidence           tended       to    show    that     defendant

purchased a 2006 Dodge Ram truck for $13,995 from Rock City Auto

Sales (Rock City) on 3 April 2010.                       After defendant tendered a

check for $2,000 as a down payment and financed the balance

through      a    lender,       defendant       took     possession       of     the    truck.

Defendant’s        $2,000        check,    however,         was    returned      for     being

drafted on a closed account.                     Rock City attempted to contact

defendant several times before employees found the truck parked

outside      of    the    dealership.           The     truck     was    damaged       and    had

thousands of additional miles on the odometer.

                                          II.     Analysis

       Defendant contends that the trial court erred by failing to

intervene ex mero motu in response to the prosecutor’s remarks

during closing arguments.                We disagree.

       Where,      as    here,     the     defendant         failed      to    object    to    a

prosecutor’s allegedly improper arguments at trial, the standard

of    review      on    appeal    is    whether       the    remarks     were    so    grossly

improper that the trial court committed reversible error by not

intervening ex mero motu.                 State v. McNeill, 360 N.C. 231, 244,

624 S.E.2d 329, 338, cert. denied, 549 U.S. 960, 166 L. Ed. 2d

281    (2006).          Under    this     standard,         the   remarks      must     be    “so
                                            -3-
prejudicial       and      grossly   improper       as    to    interfere     with     [the]

defendant’s right to a fair trial.”                      State v. Alford, 339 N.C.

562,     571,     453      S.E.2d    512,    516    (1995).          In    evaluating      a

prosecutor’s statements, an appellate court must consider them

in the context in which they were made.                          State v. Lloyd, 354

N.C. 76, 113, 552 S.E.2d 596, 622 (2001).

       Defendant        takes    issue      with    two     comments      made    by    the

prosecutor during closing arguments.                       First, defendant argues

that the prosecutor inflamed the jury by comparing defendant’s

alleged crime to “somebody walk[ing] into a bank and put[ting] a

gun to him and sa[ying] give me your money.”                         Second, defendant

argues     that      the     prosecutor      made    disparaging          remarks      about

defense counsel by referring to defense counsel’s questions as

“Blah, blah, blah” and by commenting “[i]t’s almost like [the

defense] tried to blame [the victims].”

       Even     if    improper,      defendant       has       not   shown    that     these

remarks infected the trial with unfairness rendering defendant’s

conviction fundamentally unfair.                    The remarks were brief when

compared to the closing argument as a whole, and the prosecutor

made     the    comments        in   the    context        of    a   proper      argument—

highlighting         the    credibility     of     the    State’s     witnesses,       which

included the Rock City Auto Sales co-owner and sales person.
                                  -4-
See State v. Fletcher, 354 N.C. 455, 484-85, 555 S.E.2d 534, 552

(2001) (reasoning that when “[t]he offending comment was not

only brief, but its overall significance to the entire closing

argument was minimal[] and the comment was made in the context

of a proper [] argument[,]” it was not grossly improper).            Based

upon the brevity of the statements and their context within a

proper argument, we cannot say that the trial court committed

reversible    error   by   failing     to   intervene   ex    mero   motu.

Therefore, we hold that the trial court did not err in failing

to   intervene    during    the      prosecutor’s   closing     argument.

Accordingly, we conclude that defendant received a trial free

from error.

     No error.

     Judges McGEE and DAVIS concur.

     Report per Rule 30(e).
