An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                 NO. COA13-1192

                      NORTH CAROLINA COURT OF APPEALS

                              Filed: 1 July 2014


STATE OF NORTH CAROLINA


      v.                                    Edgecombe County
                                            Nos. 12 CRS 51319—21, 12 IFS
                                            450
MELISSA NATASHA SPELLMAN,
     Defendant.


      Appeal by defendant from judgments entered 5 March 2013 by

Judge Walter H. Godwin, Jr., in Edgecombe County Superior Court.

Heard in the Court of Appeals 8 April 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Tammera S. Hill, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Kathleen M. Joyce, for defendant-appellant.


      BRYANT, Judge.


      Where the trial court conducted a balancing test pursuant

to Rule 403, the trial court did not abuse its discretion by the

admission of evidence.        Where a prosecutor’s closing remarks are
                                        -2-
a reiteration of the evidence, such remarks are proper and do

not require the trial court to intervene ex meru moto.

      On 24 September 2012, defendant Melissa Natasha Spellman

was indicted by an Edgecombe County Grand Jury on one count each

of   second-degree      murder,   aggravated         felony   serious   injury    by

vehicle, driving while license revoked, reckless driving, and

failure to stop at a stop sign.                Defendant pled not guilty to

all counts, and the charges came on for trial at the 4 March

2013 Criminal Session of Edgecombe County Superior Court.

      The State’s evidence tended to show the following.                      On 12

May 2012, eyewitness Daryle Whitfield was driving with his son

on Highway 43.          Whitfield testified that a motorcyclist was

driving   in    front    of    his   car;      the     motorcyclist     was   later

identified     as   Chris     Taylor.         As     Whitfield   approached      the

intersection of Highway 43 and State Road 1003, he noticed “a

white sedan coming to that intersection at a high rate of speed”

and thought to himself that “they ain’t got time to stop.”                       The

intersection was clearly marked with stop signs and flashing red

stop lights for traffic driving along State Road 1003.

      As the white sedan came through the intersection, it hit

Taylor, causing the sedan to flip.                 Whitfield testified that he

saw Taylor moving immediately after the accident and told Taylor
                                        -3-
that he was going to get help.           Taylor was later pronounced dead

at the scene, and the cause of death was attributed to “massive

head injury from a motor vehicle collision.”                 Whitfield stated

that when he approached the white sedan which had flipped onto

its roof, he saw three people inside.           Whitfield testified that

two of the sedan’s occupants, defendant and a man, were moving

while a third, a female in the back seat, was not and appeared

to be dead.

       State Highway Patrol Trooper Kearstin Howald testified that

as she began to investigate the accident scene, she noticed that

the white sedan “reeked of beer” and saw a beer can inside the

vehicle.     Trooper Howald stated that when she went to Vidant

Edgecombe Hospital to speak with the occupants of the white

sedan, she spoke first with defendant.           Trooper Howald testified

defendant smelled strongly of alcohol, had red, glassy eyes and

slurred speech, and was very talkative.             Defendant, who was then

nineteen years old, told Trooper Howald she had been driving the

white sedan but it was not her car; she thought she had been in

a single-car wreck caused by her losing control on a curve in

the road near the intersection; and that she had been drinking

that   day   but   was   not   drunk.     Trooper   Howald    testified   that

defendant told her she had consumed a bottle of Corona beer and
                                                 -4-
a     vodka    shot     earlier       that       day.         A     chemical          analysis     of

defendant’s       blood       determined            that    defendant’s          blood        alcohol

content (“BAC”) at the time of the accident was approximately

0.40, five times the legal limit.

       Defendant        identified         to       Trooper        Howald       the     two     other

occupants of the white sedan as her friends Brandon Harrell and

Mareshah McCray.             The accident left McCray in a coma.                               McCray

suffered       brain    trauma,       fractures         in    her    neck,       spine,       collar

bone,    and    ribs,     her      ear    was       severed,       and    she    would        require

facial reconstruction.              Harrell was not seriously injured.

       Defendant testified she had been drinking with Harrell and

McCray the day of the accident but drove the white sedan because

she    “felt     like,       you   know,        I    would     be    the       one     to     drive.”

Defendant       stated       she   did     not      learn     of    Taylor’s          death     until

Trooper       Howald     told      her      at       the     hospital;          Trooper       Howald

testified       that     when       defendant           learned          of     Taylor’s        death

defendant       became        upset       and       said      “I    shouldn’t          have      been

drinking.”

       Before trial on 30 January 2013, the State filed a notice

of    intent    to     introduce         evidence       concerning            defendant’s       prior

conviction       on     21    October        2010       for       driving       while       impaired

(“DWI”). Defendant filed a motion to exclude evidence of her
                                               -5-
prior DWI conviction under Rule 404(b), and a motion to exclude

evidence of social networking activity.                         The trial court denied

defendant’s         motion     to     exclude        evidence         of    her     prior      DWI

conviction at the beginning of trial, and reserved judgment on

the motion to exclude evidence of social networking activity

until    the    State     sought      to   introduce           such    evidence         into   the

trial.

       At trial, the court excluded evidence of a photograph taken

from     defendant’s         Facebook      page,          but    allowed          evidence      of

defendant’s “About Me” statement made on her Facebook page.

       On 5 March 2013, a jury convicted defendant of all counts.

Defendant was sentenced to consecutive sentences totaling 182 to

243 months on the felony counts and received a consolidated

sentence       of   45    days       and   a    $100.00         fine       for    the    traffic

misdemeanors.        Defendant appeals.

                                 _________________________

       Defendant raises two issues on appeal: whether the trial

court    erred      (I)      under     Rule     403       in    admitting         evidence      of

defendant’s Facebook statement; and (II) by failing to intervene

ex mero motu during the State’s closing argument.

                                                     I.
                                        -6-
       Defendant    argues     that     the     trial      court    erred     in      not

conducting a Rule 403 balancing test prior to admitting evidence

of defendant’s Facebook statement.              We disagree.

       Pursuant    to   Rule   403     of     the    North    Carolina       Rules    of

Evidence, “[a]lthough relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.”                     N.C. Gen. Stat.

§ 8C-1, Rule 403 (2013).              We review a trial court’s Rule 403

ruling for abuse of discretion.             State v. Beckelheimer, 366 N.C.

127, 130, 726 S.E.2d 156, 159 (2012).

       The State sought to introduce into evidence, pursuant to

Rule    404(b),    a    photograph      and     a    personal       statement        from

defendant’s    Facebook      page.      After       hearing      arguments    by     both

sides concerning the photograph’s admissibility pursuant to Rule

404(b), the trial court conducted a Rule 403 balancing test and

determined that although the photograph was relevant, it could

not    be   authenticated;      therefore,          its    probative      value      was

outweighed    by   its    prejudicial         effect      and,    thus,   should      be

excluded from evidence.
                                       -7-
      The State then sought to introduce evidence of defendant’s

“About Me” Facebook statement during its cross-examination of

defendant.           Defendant’s   statement    was     as    follows:   “Getting

wasted is my lifestyle.            If you don’t like it, then f*** off.

I’m a party animal and a rapper and, oh, yeah, I’m a f******

boss.”

      In    its offer of proof outside the jury’s presence, the

State argued that defendant’s Facebook statement was admissible

for   the   same      reasons   the   State    sought    to    have   defendant’s

Facebook photograph admitted into evidence because this evidence

went to the issue of malice.             In admitting the statement into

evidence, the trial court noted that:

             You got a difference in what she wrote and
             authenticated.   She just sat there during
             the offer of proof and said it was her
             facebook page and that is what she wrote on
             it.

             .   .    .

             That's different than the picture that she
             says someone else [took].   So my ruling is
             is [sic] that the picture cannot come in as
             I ruled before, but what she wrote on that
             limited thing on what he is offering it as
             proof may be admitted.

      In reviewing a Rule 403 balancing test, this Court has held

that a specific finding as to probative value versus prejudicial

effect is not required provided it is clear from the procedure
                                        -8-
used that the trial court conducted a balancing test.                    See State

v. Washington, 141 N.C. App. 354, 367, 540 S.E.2d 388, 397—98

(2000) (“Here, when defendant objected, the trial court excused

the jury, conducted a voir dire examination of [a witness] to

determine the substance of her testimony, and then considered

arguments of counsel before overruling defendant and permitting

the jury to hear the testimony.                Although the trial court did

not make a specific finding that the probative value of the

evidence outweighed its prejudicial effect, the procedure that

was followed demonstrated that the trial court conducted the

balancing test under Rule 403.                We cannot say that the trial

court   abused        its      discretion     in    admitting    the     evidence.

Accordingly, this assignment of error is overruled.”).

    Here, as in Washington, the trial court held a voir dire

out of the presence of the jury as to the proposed statement and

listened     to   the    arguments    of    counsel,      including    the   State’s

offer   of    proof     that    the   statement     was    evidence    of    malice.

Although the trial court did not make specific findings on the

record that it found the probative value was outweighed by any

prejudicial effect, it is clear from the record that the trial

court   considered       the    substance    of    the    proposed    statement   of

defendant     and       the    arguments      of    counsel     before       allowing
                                            -9-
defendant’s      Facebook     statement           into    evidence    and     that     such

decision was made pursuant to a Rule 403 balancing test.                                See

id.     Therefore, the trial court did not abuse its discretion in

admitting the evidence.          Id.

      Defendant       further    contends          the     trial     court     erred       in

admitting her Facebook statement because had this evidence not

been admitted, the jury would have reached a different result.

Specifically,        defendant    contends         that    the     admission     of    her

Facebook statement was prejudicial error in that it caused the

jury to convict her of second-degree murder rather than the

lesser charge of involuntary manslaughter.                       As we have held the

trial    court   did    not     err    in    admitting         defendant’s      Facebook

statement, defendant’s prejudicial argument is without merit.

Nevertheless,        assuming    arguendo          the    trial    court      erred,       we

address defendant’s argument alleging prejudicial error.

      "The    test    for    prejudicial          error   is   whether       there    is    a

reasonable possibility that, had the error not been committed, a

different result would have been reached at trial."                             State v.

Scott, 331 N.C. 39, 46, 413 S.E.2d 787, 791 (1992) (citation

omitted).

      In     pursuing    a    charge    of        second-degree       murder     against

defendant, the State needed to show that defendant acted with
                                   -10-
malice when she drove while intoxicated.             This Court has held

that malice can be shown through evidence of defendant’s prior

convictions for DWI.        See State v. Edwards, 170 N.C. App. 381,

385, 612 S.E.2d 394, 396 (2005) ("[P]rior driving convictions of

a defendant are admissible to show malice . . . in a second-

degree murder case[.]” (citation omitted)).

       The State’s evidence showed: defendant admitted to driving

the white sedan that struck and killed Taylor; defendant was

noticeably intoxicated after the accident and her BAC was 0.40,

five times the legal limit; and defendant was nineteen-years-old

at the time of the accident, two years below the legal drinking

age.    In addition, the State’s evidence concerning defendant’s

prior conviction for DWI showed: defendant was in a serious one-

car wreck exactly two years prior to her fatal accident with

Taylor; defendant was seventeen-years-old at the time of the

accident; chemical analysis showed defendant had a 0.29 BAC at

the time of the accident; defendant’s license was revoked after

the accident, and she failed to undergo substance abuse classes

or   perform    community   service   to   restore    her   license;   and,

defendant spent time in jail for failure to perform community

service.       While defendant’s statement beginning with “Getting

wasted is my lifestyle . . .” was certainly damaging, her own
                                     -11-
actions which showed serious drinking (0.29) at seventeen-years-

old which resulted in a serious accident, loss of license, and

failure     to    perform     required     community   service,        were   more

damaging than her words.            Therefore, even absent defendant’s

statement there was sufficient evidence for the jury to find

defendant guilty of second-degree murder.              Defendant’s argument

is overruled.

                                         II.

       Defendant next argues that the trial court erred by failing

to intervene ex mero motu during the State’s closing argument.

We disagree.

       Prosecutors are allowed wide latitude in the scope of their

argument.      State v. Monk, 286 N.C. 509, 515, 212 S.E.2d 125, 131

(1975).       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.              State v. Craig, 308 N.C.

446, 457—58, 302 S.E.2d 740, 747 (1983) (citations omitted).                     A

prosecutor       can   make    closing     arguments   based      on     evidence

presented as well as reasonable inferences which can be drawn

therefrom.       State v. Williams, 317 N.C. 474, 481, 346 S.E.2d

405,    410      (1986)     (citations     omitted).      Only     where       the

prosecutor's argument affects the right of the defendant to a
                                       -12-
fair trial will the trial judge be required to intervene where

no objection has been made.           State v. Harris, 308 N.C. 159, 169,

301 S.E.2d 91, 98 (1983).         "[F]or an inappropriate prosecutorial

comment to justify a new trial, it must be sufficiently grave

that it is prejudicial error."            State v. Soyars, 332 N.C. 47,

60,   418   S.E.2d   480,     487—88    (1992)     (citation    and    quotation

omitted).

      Defendant    contends     the    trial    court   erred   in    failing   to

intervene    ex   meru   moto   during     the    State’s   closing     argument

because     the   closing   remarks      were    “grossly   improper.”          As

previously discussed in Issue I, the trial court allowed the

State to present evidence of defendant’s “About Me” statement on

her Facebook page.       The statement, which defendant acknowledged

was hers, was read into evidence by defendant in open court.                    In

its closing argument, the State made the following remarks:

                 Now, I'll tell you something, ladies
            and gentlemen, [there are] not many cases
            that you can look into a person's mind. You
            know, nine times out of ten when a judge
            talks about what's on somebody's mind, he
            tells you that you have to infer that from
            the person's actions because we can't read
            minds.

                 It's rare that we get evidence of
            what's on somebody's mind.    We have it in
            this case. About [defendant], you know, this
            was a youthful thing and that culture and
            all this and it doesn't have any meaning
                                    -13-
           according to her argument.

                Well, getting wasted is my lifestyle.
           Well, it's interesting that      [defendant]
           wants you to say, well, she didn't mean
           that.   Well, her actions sure indicate she
           meant it.    She got wasted in 2010 to the
           point of a .29 and she got wasted on that
           day.   So she told the truth here.   She was
           wasted.

                And if you don't like it, then, blank
           off. I'm a party animal and rapper and, oh,
           yeah, I'm a blanking boss.    Her words, not
           mine.    Party animal and I like to get
           wasted. You don't like it, blank off.

                Well, I'll tell you.   I'm going to sit
           down. This is in your hands. You've heard
           it. You can adopt the mailbox empty or the
           mailbox full.   You heard the evidence.  I'm
           not going to belabor the point.     But I do
           feel compelled to say this to you.

                If you find her guilty of anything in
           this case but second-degree murder, then you
           will join her by telling this man and this
           family to blank off.

    "A lawyer's function during closing argument is to provide

the jury with a summation of the evidence, which in turn serves

to sharpen and clarify the issues for resolution by the trier of

fact, and should be limited to relevant legal issues."                 State v.

Jones, 355 N.C. 117, 127, 558 S.E.2d 97, 103 (2002) (citations

and quotation omitted).           Thus, during closing argument “[a]n

attorney   may,   however,   on    the   basis   of   his   analysis    of   the
                                   -14-
evidence, argue any position or conclusion with respect to a

matter in issue.”       N.C. Gen. Stat. § 15A-1230(a) (2013).

    Here, the State used defendant’s own words in making its

closing argument to remind the jury that defendant had acted

with malice when she drove while intoxicated and killed Taylor

and, thus, was guilty of second-degree murder.              As such, the

State used defendant’s Facebook statement to argue a “conclusion

with respect to a matter in issue.”       Id.   Therefore, defendant’s

argument   that   the    State   prejudiced   the   jury   with   improper

remarks and the trial court erred by failing to intervene is

overruled.

    No error.

    Judges HUNTER, Robert C., and STEELMAN concur.

    Report per Rule 30(e).
