                                NO. COA13-482

                     NORTH CAROLINA COURT OF APPEALS

                           Filed: 18 March 2014


STATE OF NORTH CAROLINA

    v.                                      Watauga County
                                            Nos. 05 CRS 6683-85, 52810,
NEIL MATTHEW SARGENT



    Appeal by defendant from judgments entered 8 November 2012

by Judge James U. Downs in Watauga County Superior Court.                   Heard

in the Court of Appeals 22 October 2013.


    Attorney General Roy Cooper, by Special                Deputy     Attorney
    David J. Adinolfi II, for the State.

    Michele Goldman for defendant-appellant.


    BRYANT, Judge.


    Where      the   prosecutor     responded       to   defense     counsel’s

endorsement of defendant’s witness as truthful by stating that

defendant’s witness did not give truthful testimony, the trial

court    did   not   err   in     failing    to     intervene      during     the

prosecutor’s    closing    argument.        Where    defendant     placed     his

character at issue by testifying at length about his positive

military service, the prosecution was allowed to examine the
                                     -2-
circumstances of his general discharge from the United States

Army.

     On 28 November 2005, a Watauga County grand jury indicted

defendant Neil Matthew Sargent on charges of first-degree murder

with aggravating factors, first-degree kidnapping, burning of

personal property, and robbery with a dangerous weapon stemming

from events leading to the death of Steven William Harrington.

On 5 November 2007, defendant was indicted on a second count of

robbery with a dangerous weapon.

     On 24 April 2008, following a jury trial in Watauga County

Superior Court, the Honorable Ronald K. Payne, Judge presiding,

entered    judgment    against    defendant   on   the   charges   of   first-

degree murder, first-degree kidnapping, robbery with a dangerous

weapon, and burning of personal property.            Defendant appealed to

this Court from the entry of these judgments.                   In State v.

Sargeant, 206 N.C. App. 1, 696 S.E.2d 786 (2010), this Court

granted defendant a new trial due in part to the exclusion of a

statement made by Matthew Brandon Dalrymple to law enforcement

officers   on   10    September   2007.    Following     an   appeal    by   the

State, our Supreme Court affirmed the decision of this Court to

grant defendant a new trial.         See State v. Sargent, 365 N.C. 58,

707 S.E.2d 192 (2011) (hereinafter Sargent I).
                                             -3-
      A new trial commenced during the 29 October 2012 session of

Watauga County Criminal Superior Court, the Honorable James U.

Downs, Judge presiding.                The evidence presented at trial tended

to show that on the evening of 7 November 2005, Harrington was

assaulted, robbed, and asphyxiated in a residence located at 121

Poplar Drive in Boone, then driven to another location where his

body was doused with lighter fluid and set on fire in the trunk

of a car.      Three people were present in the home at the time of

Harrington’s      death     and     at      the    location    of       the    burning     car:

defendant, Kyle Triplett, and Dalrymple.

      During      the     prosecution’s           case-in-chief,          the     prosecutor

called     Kyle   Triplett,        a     witness     who     had    also       testified    at

defendant’s       first    trial.           Triplett    testified         that     defendant

orchestrated       an     ambush       of   Harrington.            On    the     evening     in

question,     Triplett      followed         defendant’s      explicit          instructions

whereby Triplett was to grab Harrington by the throat and hold a

gun   to    his   head.       Defendant           provided    Triplett         with    a   gun.

Triplett      testified      that        when     Harrington        appeared,         Triplett

grabbed Harrington by the throat and choked him until his face

turned red.        When Harrington dropped to the floor, defendant

began      wrapping     Harrington’s          head     in    duct       tape.         Triplett

testified that following this, he and defendant began punching
                                         -4-
Harrington and then kicking him, at which point Dalrymple joined

in.     After Harrington stopped moving, Dalrymple reached into

Harrington’s pants pocket and removed a softball sized box that

contained four to six ounces of cocaine.                  Harrington’s body was

then carried outside and placed in the trunk of Harrington’s

car.     Triplett testified that he drove Harrington’s car with

defendant as a passenger and Dalrymple following in a second

vehicle.    Triplett stopped Harrington’s car on a roadside along

Sleepy Hollow Lane.          Triplett testified that defendant opened

the trunk, doused lighter fluid on Harrington’s body and ignited

a fire.     Triplett and defendant then got into the car driven by

Dalrymple and returned to defendant’s residence.

       During    the    presentation      of    defendant’s       case,     defendant

called Dalrymple to testify.              Dalrymple testified that on the

evening of 7 November 2005, he was using the bathroom when he

heard a knock on an outside door.                  When Dalrymple exited the

bathroom,       he   observed    Triplett      choking    a    man    at    gunpoint.

Dalrymple had never before seen the man being choked.                       Dalrymple

testified that Triplett hit the victim in the temple with the

butt   of   a    handgun.       When    the    victim   dropped      to    the   floor,

Triplett    began      kicking    the    victim    in    the   ribs.        Dalrymple

testified that Triplett wrapped the victim’s head in duct tape
                                        -5-
and taped his hands behind his back.              Dalrymple testified that

when Triplett told Dalrymple that Dalrymple was to drive one of

the vehicles, Dalrymple refused, but then Triplett pointed the

gun at him.    When Dalrymple headed toward a bedroom to retrieve

his clothes, he passed defendant in the hallway.                       Defendant

asked, “what the f**k is going on[.]”            Having gotten dressed and

stepped outside, Dalrymple testified that he observed Triplett

placing the victim’s body in the trunk of a car.                Triplett then

drove   the   car   containing     the    victim’s   body   while      Dalrymple

followed in a second vehicle             with   defendant as a passenger.

When Triplett pulled onto the roadside off of Sleepy Hollow

Lane, Dalrymple observed Triplett open the trunk of the vehicle.

Dalrymple soon saw flames.             Triplett got into Dalrymple’s car,

and the three men drove off.            According to Dalrymple, defendant

did not exit the vehicle in which he was riding.

    Defendant testified on his own behalf, consistent with the

version of events testified to by Dalrymple.

    Following       the   close   of    the   evidence,   the   jury   returned

verdicts finding defendant guilty of first-degree murder on the

bases of lying in wait, felony murder, and premeditation and

deliberation; first-degree kidnapping; robbery with a dangerous

weapon; and burning personal property.             The trial court entered
                                        -6-
judgment in accordance with the jury verdicts.                     On the charge of

first-degree murder, the trial court sentenced defendant to a

term of life imprisonment without parole.                     On the charges of

first-degree kidnapping, robbery with a dangerous weapon, and

burning personal property, the trial court entered a separate

consolidated judgment and sentenced defendant to a term of 80 to

105   months   to   be   served    consecutive          to   the    life   sentence.

Defendant appeals.

                     ___________________________________

      On appeal, defendant raises the following issues: whether

the trial court (I) erred in failing to intervene during the

prosecutor’s closing argument; and (II) committed plain error in

allowing the prosecution to introduce evidence of defendant’s

prior assault.

                                              I

      Defendant     first     argues    that      the   trial      court   erred   by

failing to intervene ex mero motu during closing arguments to

address the prosecutor’s discussion of facts not in evidence,

misstating the evidence not in evidence, and offering an opinion

on the credibility of a witness.           We disagree.

      “The   standard    of    review    for      assessing     alleged    improper

closing arguments that fail to provoke timely objection from
                                           -7-
opposing counsel is whether the remarks were so grossly improper

that the trial court committed reversible error by failing to

intervene ex mero motu.”              State v. Jones, 355 N.C. 117, 133, 558

S.E.2d 97, 107 (2002) (citation omitted).

      Pursuant to North Carolina General Statutes, section 15A-

1230, “Limitations on argument to the jury,”

             [d]uring 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 or as to the guilt or innocence of
             the defendant, or make arguments on the
             basis of matters outside the record except
             for matters concerning which the court may
             take judicial notice. An attorney may,
             however, on the basis of his analysis of the
             evidence, argue any position or conclusion
             with respect to a matter in issue.

N.C. Gen. Stat. § 15A-1230(a) (2013); see also State v. Gladden,

315 N.C. 398, 422, 340 S.E.2d 673, 688 (1986) (“Although the

closing arguments of counsel are largely within the control and

discretion       of   the     trial    court,    it    is     well    established   that

counsel     is   to    be   afforded     wide     latitude      in    the    argument   of

fiercely contested cases. Counsel for both sides may argue the

law   and    the      facts    in     evidence,       along    with    all    reasonable

inferences to be drawn from them. Counsel may not, however,

raise incompetent and prejudicial matters nor refer to facts not

in evidence. Counsel is also prohibited from placing before the
                                     -8-
jury   his   own    knowledge,    beliefs,   and   personal      opinions   not

supported    by    the   evidence.”).      “Only   where   the   prosecutor's

argument affects the right of the defendant to a fair trial will

the trial judge be required to intervene where no objection has

been made.”       State v. Zuniga, 320 N.C. 233, 253, 357 S.E.2d 898,

911 (1987) (citation omitted).           “A prosecutor's argument is not

improper where it is consistent with the record and does not

travel into the fields of conjecture or personal opinion.”                 Id.

                   a. Argument of Facts Not In Evidence

       Defendant contends the State lacked evidence to support its

claims    that     “Dalrymple    [was]   [the   State’s]    deal    with    the

devil[,]” that the deal “was a mistake[,]” that the State had

“figured if we put a big enough carrot in front of [Dalrymple],

maybe [Dalrymple would] tell the truth[,]” that Dalrymple did

not tell the truth, and the State was “stuck with [Dalrymple’s]

plea.”

       The State responds that the Dalrymple plea offer was in

evidence as defense exhibit #9.          However, defense exhibit #9 was

actually an agreement wherein the State agreed to forego seeking

the death penalty in exchange for Dalrymple’s truthful testimony

at his own trial.        The agreement provided that the truthfulness

of his testimony was to be measured against his September 2007
                                           -9-
statement.

    Defendant contends that the State’s claim that it would not

call Dalrymple as a witness because he “would not know the truth

if it came up and slapped him in the head” was refuted by

defense exhibit #9.            However, even assuming that defense exhibit

#9 does refute the State’s claim, the fact that evidence refutes

the State’s closing argument does not indicate that the State

argued facts not in evidence.

    Defendant further challenges the State’s remarks that the

Dalrymple    plea   was    a     mistake    “because    that   man   was   just   as

guilty of first-degree murder [and] kidnapping as every other

defendant    here.”        Defendant       contends    that    the   remarks     were

improper    because,      by    “offering    unchallenged      testimony    to    the

jury during its closing, the State was able to strike an unfair

blow against [defendant’s] most crucial witness.”                    However, the

State’s remarks are supported by evidence presented at trial

that Dalrymple played an active role in the murder of Harrington

as discussed earlier in this opinion.                  Defendant has not shown

error on this basis and his argument is overruled.

      b. Offered A Personal Opinion On Witness Credibility

    Defendant also argues that the State’s claim that “it would

not call Dalrymple to testify because Dalrymple ‘would not know
                                    -10-
the truth if it came up and slapped him on the head’ offered a

personal opinion” as to witness credibility.             Defendant cites

State v. Holloway, 82 N.C. App. 586, 347 S.E.2d 72 (1986), in

which two doctors were improperly permitted to testify “that in

their opinion the child had testified truthfully.”             Id. at 587,

347 S.E.2d at 73.       The present case is distinguishable from

Holloway because the prosecutor was not giving an opinion as to

witness credibility in the form of sworn testimony.

    Defendant’s     argument   emphasizes   the   significance     of   any

improprieties in this case where the jury’s verdict “hinged on

its determination of Triplett’s, Dalrymple’s, and [Defendant’s]

credibility[.]”      Similarly, our Supreme Court noted that the

first trial indicated that “the objective facts of what happened

the night the victim was killed are elusive.”            Sargeant I, 365

N.C. at 67, 707 S.E.2d at 198.        The Supreme Court further noted

that “the reason for the State’s decision to jettison Dalrymple

in favor of Triplett is not in the record.”        Id.

    In   the      present   case,    Defendant    made   the     following

statements in his closing argument to the jury:

         Just as Mr. Dalrymple’s agreement states, he
         will testify truthfully if called upon by
         the State to do so.    Why didn’t the State
         call him at this trial?   Why not?   It’s in
         black and white. Don’t take my word for it.
         Look at this. They never called him. I had
                                  -11-
          to call him, and he gave truthful testimony.
          He   has    been  pretty   much   consistent
          throughout.

    In its closing, the State made the following statements to

the jury regarding Dalrymple:

          You darn right we’re not going to put him
          up, because that man would not know the
          truth if it came up and slapped him in the
          head.   But they want you to believe that
          version of truth or what they believe the
          truth was.

The challenged portion of the prosecutor’s argument seems to

answer the very question that the Supreme Court noted was not in

the record of the first trial.           As to the question of why the

State jettisoned Dalrymple in favor of Triplett, the prosecutor

stated:

          Dalrymple is our deal with the devil.    It
          was a mistake . . . . We’re stuck with that
          plea.   The plea was a mistake and should
          never have happened . . . because that man
          was just as guilty of first-degree murder
          [and] kidnapping as every other defendant
          here.

Evidence that Dalrymple entered into a plea agreement with the

State does not tell why the State “jettison[ed] Dalrymple in

favor of Triplett” at this trial.          Id.    The prosecutor informed

the jury, by way of closing argument, of her opinion and belief

as to the credibility of the various defendants and that the

prosecution   had   made   a   mistake    by     entering   into   the   plea
                                       -12-
agreement with Dalrymple.           This statement, made in response to

defendant’s closing argument, seems to venture close to the area

of “conjecture or personal opinion.”                Zuniga, 320 N.C. at 253,

357 S.E.2d at 911.             However, our Supreme Court has found no

error in a credibility argument based on personal opinion from

the State where the defendant “opened the door” to the argument.

State v. Gladden, 315 N.C. 398, 423, 340 S.E.2d 673, 689 (1986).

In Gladden, the defendant stated that a State’s witness “could

not   possibly    remember . . . every         detail    in    this    case”      and

“insinuated      that     [the    witness’s]       testimony    had        not    been

truthful.”       Id.     The State, in its closing, argued that its

witness was “one of the finest Sheriffs that [the prosecutor

had] ever met[.]”         Id. at 423, 340 S.E.2d at 688.              Our Supreme

Court    held   that     the   “expression    of   personal    opinion       by   the

prosecutor,      while     improper,    was    not,     however,      so     grossly

improper as to require the trial court to intervene ex mero

motu.”    Id. at 423, 340 S.E.2d at 688-89.

      The State’s remarks appear to be in response to defendant’s

attempt   to    bolster    Dalrymple’s    credibility.         As     in    Gladden,

defendant’s statements in closing opened the door to the State’s

response.       Therefore, while the State’s remarks may have been

improper, they were “not, however, so grossly improper as to
                               -13-
require the trial court to intervene ex mero motu.”   Id. at 423,

340 S.E.2d at 689.   Defendant’s argument is overruled.

                                II

    Next, defendant argues that the State’s evidence of a prior

assault constituted evidence of a propensity for violence and

amounted to plain error.   We disagree.

         [T]he plain error rule ... is always to be
         applied   cautiously   and   only   in   the
         exceptional case where, after reviewing the
         entire record, it can be said the claimed
         error is a fundamental error, something so
         basic, so prejudicial, so lacking in its
         elements that justice cannot have been done,
         or where [the error] is grave error which
         amounts to a denial of a fundamental right
         of the accused, or the error has resulted in
         a miscarriage of justice or in the denial to
         appellant of a fair trial or where the error
         is such as to seriously affect the fairness,
         integrity or public reputation of judicial
         proceedings or where it can be fairly said
         the instructional mistake had a probable
         impact on the jury's finding that the
         defendant was guilty.

State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333

(2012) (citation and quotations omitted).

         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
                                       -14-
            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.

Id.   at    518,    723    S.E.2d    at    334    (citations        and   quotations

omitted).

      Pursuant to General Statutes, section 8C-404,

            Evidence of a person's character or a trait
            of his character is not admissible for the
            purpose   of  proving  that   he  acted   in
            conformity   therewith   on   a   particular
            occasion, except . . . [e]vidence of a
            pertinent trait of his character offered by
            an accused, or by the prosecution to rebut
            the same[.]

N.C. Gen. Stat. ' 8C-1, Rule 404(a)(1) (2013); see also State v.

Roseboro,    351    N.C.    536,    553,   528    S.E.2d      1,    12    (2000)   (“A

criminal defendant is entitled to introduce evidence of his good

character, thereby placing his character at issue. The State in

rebuttal     can    then    introduce       evidence     of        defendant's     bad

character. See State v. Gappins, 320 N.C. 64, 69, 357 S.E.2d

654, 658 (1987). Such evidence offered by the defendant or the

prosecution    in    rebuttal       must   be    ‘a   pertinent      trait    of   his

character.’ N.C.G.S. § 8C–1, Rule 404(a)(1) (1999).”).

      Before this Court, defendant challenges the prosecution’s

cross-examination of him as to his use of cocaine and prior

accusation of assaultive behavior while a member of the United
                                       -15-
States    Army.      In   response,    the    State     argues     that    on   direct

examination,       defendant      placed     his      character     at     issue      by

testifying about his military service.                  On direct examination,

defendant       testified   at    length      about    his   positive       military

service: serving in the United States Army from September 1999

to January 2003, defendant worked with a field artillery unit in

both Kosovo and Afghanistan; also, he was awarded the United

Nations    Kosovo    Liberation     Medal,     Army     Service     Ribbon,     and   a

National Defense bar.            Defendant’s Kosovo Liberation medal was

admitted    into    evidence.       Defendant      engaged    in    the    following

examination on direct examination:

            Q       Now, Mr. Sargent, when did                you    get
                    discharged from the US Army?

            A       I believe the exact date was January
                    3rd, 2003.

            Q       And do you remember, do you recall what
                    the character of your discharge was?

            A       It was on,        on   other      than   honorable
                    conditions.

            Q       What they call general?

            A       General.

            . . .

            Q       Who were you living with?

            A       Well, when I initially got out of the
                    Army I was having some substance abuse
                                 -16-
              problems with alcohol and marijuana so
              my aunt and uncle that I lived with
              before I went in the Army they thought
              it would be a good idea if I came back
              and was in a better environment . . . .

    On   cross-examination,     the     prosecutor   focused   on   the

circumstances of defendant’s discharge from the military.            We

look to the following exchange, which took place in the absence

of any objection by defendant:

         Q    . . . [I]n fact, when you were talking
              about    all    of    your    military
              accomplishments, you didn't tell the
              jury [about your] less than honorable
              circumstances for using cocaine, did
              you?

         A    I said I was discharged for other than
              honorable conditions, I said that.

         Q    Did you tell the jury that you were
              discharged for other than honorable
              conditions you were discharged . . . on
              11 December, 2002 for using cocaine and
              for assault, is that right?

         A    That is correct.

         Q    And in fact, it was so bad, sir, that
              the commander there at Fort Bragg . . .
              requested that you be barred from Fort
              Bragg pending your hearing because of
              your assault and use of cocaine, didn't
              he?

         A    That's correct.

         Q    You didn't tell the jury that, did you?

         A    I wasn't asked.
                                            -17-


             Q        Well, sir, you told the jury all about
                      all the fine things you had done in the
                      military, and all the honors, I believe
                      you held up a certificate here about
                      service overseas and the battalions you
                      were in, and how you supported the
                      artillery, supported people over in
                      the, the Vulcans and all of that, but
                      you   didn't  tell   them  about  being
                      dishonorably discharged, did you?

             A        I just answered the questions my lawyer
                      asked me.

             . . .

             Q        You tried to mislead the jury into
                      believing you were a wonderful fine
                      soldier serving your country when in
                      fact you were dishonorably discharged
                      for the use of cocaine and for assault?

                      . . .

                      And that is exactly what you're here
                      today for is using cocaine and murder,
                      isn't it?

             A        That's correct.

      Because         defendant      placed        his   character     at       issue     by

testifying at length about his positive military service record

and acknowledging that he received a general discharge from the

United   States        Army,   the    State        was   entitled    to    examine       the

circumstances that led to defendant’s discharge.                          See Roseboro,

351   N.C.   536,       553,   528        S.E.2d    1,   12   (2000)      (“A    criminal

defendant        is    entitled      to     introduce     evidence        of    his     good
                                -18-
character, thereby placing his character at issue. The State in

rebuttal   can   then   introduce   evidence   of   defendant's   bad

character.”).    Therefore, we hold there was no error in the

admission of this evidence.   Defendant’s argument is overruled.

    No error.

    Judges McGEE and STROUD concur.
