              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA16-94

                                Filed: 18 October 2016

Mecklenburg County, Nos. 12CRS055383-055394, 12CRS253233-253235,
12CRS253237-253238

STATE OF NORTH CAROLINA, Plaintiff,

             v.

DRAYTON LAMAR THOMPSON, Defendant.


      Appeal by defendant from judgments entered 11 September 2015 by Judge

Hugh B. Lewis in Mecklenburg County Superior Court.            Heard in the Court of

Appeals 11 August 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Catherine F.
      Jordan, for the State.

      Massengale & Ozer, by Marilyn G. Ozer, for defendant-appellant.


      ZACHARY, Judge.


      Defendant appeals from judgments entered upon the following convictions: (1)

two counts of first-degree rape, one count of first-degree sex offense, and one count of

second-degree kidnapping committed against “Alice”; (2) two counts of first-degree

rape and one count of first-degree kidnapping committed against “Patricia”; and (3)

two counts of first-degree sex offense, one count of first-degree kidnapping, one count

of first-degree rape, and one count of conspiracy to commit first-degree kidnapping
                                        STATE V. THOMPSON

                                          Opinion of the Court



and first-degree rape, committed against “Louise”.1 The offenses were committed by

two men in 1991. Defendant was charged in 2012, after forensic testing revealed a

match between defendant’s DNA profile and DNA evidence collected at the time of

the offenses. On appeal, defendant argues that the trial court erred by admitting the

statements given by Patricia and Alice to a law enforcement officer and by denying

his request for funds with which to retain an expert in order to retest the DNA

samples. Defendant also asserts that the trial court committed plain error in its

instructions to the jury. We conclude that the trial court did not err by admitting the

witnesses’ statements or by denying defendant’s motion seeking funds with which to

retain an expert to retest the DNA evidence, and did not commit error or plain error

in its instructions to the jury.

                                I. Factual and Procedural Background

       In 1991, Alice, Patricia, and Louise were kidnapped and subjected to sexual

assault in separate incidents. On 17 December 2012, defendant was indicted for the

following offenses:

                 1. Three counts of first-degree rape, two counts of first-
                 degree sex offense, and one count of first-degree
                 kidnapping, committed against Patricia.

                 2. Three counts of first-degree rape, one count of first-
                 degree sex offense, and one count of second-degree
                 kidnapping, committed against Alice.



       1   To preserve the privacy of the victims, we will use pseudonyms in this opinion.

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                                   Opinion of the Court



             3. One count of first-degree rape, three counts of first-
             degree sex offense, one count of first-degree kidnapping,
             and one count of conspiracy to commit first-degree
             kidnapping and first-degree rape, committed against
             Louise.

      Defendant was tried before a jury beginning on 26 August 2015. Prior to trial,

three different attorneys were appointed to represent defendant. The first two were

removed at defendant’s request. When defendant expressed dissatisfaction with his

third appointed counsel, the trial court ruled that defendant had forfeited his right to

be represented by appointed counsel. Defendant represented himself at trial, with

his third appointed attorney serving as standby counsel. Defendant does not raise

any appellate issue regarding his pro se representation.

      At the outset of trial, the State sought to join for trial the charges pertaining

to Alice, Patricia, and Louise. Although defendant opposed joinder of the charges, he

has not challenged the joinder on appeal. The trial took place twenty-four years after

the offenses were committed, during which time Alice and Patricia had died of natural

causes. Louise testified at trial about the offenses committed against her. The

evidence establishing the commission of criminal offenses against Alice and Patricia

came from statements they made to medical personnel at the time of the assaults.

The trial court also admitted as corroborative evidence the statements made by Alice

and Patricia to Charlotte Police Major LaFreda Lester.




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                                   Opinion of the Court



      The trial evidence established factual similarities among the cases. All of the

charged offenses occurred in Charlotte between May and August, 1991. In each case,

an African-American woman in her twenties was walking in Charlotte late at night,

and was kidnapped by two African-American men driving a car. In each instance,

after the victim was in the car she was blindfolded, attacked, and threatened. The

two men drove each of the women to a house in an unknown location, where both men

sexually assaulted the victim. All three women were subjected to both forced vaginal

intercourse and forced oral sex. Following the assaults, the men allowed the victims

to get dressed, drove them to a different location, and let them out of the car. In each

case, the victim did not recognize either of the attackers, and no suspects were

arrested in 1991. Forensic examination later revealed a statistically significant

match between defendant’s DNA profile and DNA evidence collected from each victim

in 1991. Finally, in each case, the victim gave statements to medical personnel

describing the kidnapping and sexual assaults. Additional factual details about the

offenses are discussed below, as relevant to the issues raised on appeal.

      Prior to submitting the charges to the jury, the prosecutor dismissed one

charge of first-degree rape committed against Alice, and the trial court dismissed one

charge of first-degree rape and one charge of first-degree sex offense committed

against Patricia, as well as one charge of first-degree sex offense committed against

Louise. On 11 September 2015, the jury found defendant guilty of: (1) one count of



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                                   Opinion of the Court



first-degree kidnapping and two counts of first-degree rape of Patricia; (2) one count

of first-degree sex offense, one count of second-degree kidnapping, and two counts of

first-degree rape of Alice; and (3) one count of conspiracy to commit first-degree

kidnapping and first-degree rape, two counts of first-degree sex offense, one count of

first-degree kidnapping, and one count of first-degree rape of Louise. The jury found

defendant not guilty of one count of first-degree sex offense of Patricia.

      Because the offenses were committed in 1991, defendant was sentenced under

the Fair Sentencing Act. The trial court imposed three consecutive sentences of life

imprisonment: a consolidated sentence in cases Nos. 12 CRS 55384-85 and 12 CRS

55391; a second consolidated sentence of life imprisonment in cases Nos. 12 CRS

55383, 12 CRS 253233, 12 CRS 25324, 12 CRS 253235, and 12 CRS 253237; and a

third consolidated life sentence in cases Nos. 12 CRS 55387-89, and 12 CRS 55394.

The court also ordered defendant to register as a sex offender for the remainder of his

life and to enroll in satellite-based monitoring if he were released from prison.

Defendant gave notice of appeal in open court.

           II. Admission of Statements by Deceased Witnesses to Major Lester

      Defendant argues first that the trial court erred by admitting the statements

made by Alice and Patricia to Major Lester to corroborate the women’s statements to

medical personnel. Defendant contends that the statements were “not corroborative

as they were used by the State and the court for the truth of the matter asserted in



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                                  Opinion of the Court



the statements” and that the admission of these statements “violated [defendant’s]

constitutional guarantee to confrontation” under the North Carolina and United

States Constitutions. Defendant does not challenge the admission of          Louise’s

statement to Major Lester, as Louise was available for cross-examination at trial.

Therefore, this issue pertains only to defendant’s convictions for offenses committed

against Alice and Patricia. We conclude that the trial court did not err by admitting

the witnesses’ statements as corroboration of their statements to medical personnel.

                          A. Preservation of Constitutional Issue

      We first address the State’s argument that defendant failed to preserve for

appellate review his argument that admission of these statements violated his rights

under the Sixth Amendment to the United States Constitution. When Major Lester

was asked to read Patricia’s statement, defendant objected to the introduction of

Patricia’s statement and asked to be heard outside the presence of the jury. The trial

court overruled defendant’s objection and denied his request to be heard. After Major

Lester read the statement, defendant addressed the trial court outside of the jury’s

presence and moved for a mistrial on the grounds that he was unable to cross-

examine Patricia.    Defendant read aloud from the discussion in Crawford v.

Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), concerning the constitutional right

to cross-examine the declarant of a statement introduced for substantive purposes.

The trial court ruled that Patricia’s statement to Major Lester was admissible to



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                                   Opinion of the Court



corroborate her statements to medical personnel and denied defendant’s motions for

a mistrial and to exclude the statement. Defendant also objected to the introduction

of Alice’s statement to Major Lester. We conclude that defendant properly preserved

this issue for our review.

                                   B. Standard of Review

      “When a defendant objects to the admission of evidence, we consider, whether

the evidence was admissible as a matter of law, and if so, whether the trial court

abused its discretion in admitting the evidence.” State v. Blackwell, 207 N.C. App.

255, 257, 699 S.E.2d 474, 475 (2010). “The standard of review for alleged violations

of constitutional rights is de novo.” State v. Graham, 200 N.C. App. 204, 214, 683

S.E.2d 437, 444 (2009), disc. review denied, 363 N.C. 857, 694 S.E.2d 766 (2010).

                                        C. Discussion

      Defendant argues that the trial court erred by admitting the statements of

Alice and Patricia to Major Lester, on the grounds that the statements were not

admitted as corroborative evidence. Defendant contends that the admission of these

statements violated his right to confront the witnesses against him as guaranteed by

the Sixth Amendment to the United States Constitution. We disagree.

      Hearsay is defined as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2015). “As a general rule, hearsay is



                                          -7-
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                                  Opinion of the Court



inadmissible at trial.” State v. Morgan, 359 N.C. 131, 154, 604 S.E.2d 886, 900 (2004).

In Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), the United States

Supreme Court held that the admission of an out-of-court testimonial statement

made by an unavailable declarant who did not testify at trial and who was not

previously available for cross-examination by the defendant is barred by the

Confrontation Clause of the Sixth Amendment. However:

             “[If] evidence is admitted for a purpose other than the truth
             of the matter asserted,” such as when evidence is admitted
             solely for purposes of corroboration, then “the protection
             afforded by the Confrontation Clause against testimonial
             statements is not at issue.” . . . According to our Supreme
             Court, North Carolina case law establishes “the rule that
             prior consistent statements are admissible even though
             they contain new or additional information so long as the
             narration of events is substantially similar to the witness’
             in-court testimony.”

State v. Ross, 216 N.C. App. 337, 346-47, 720 S.E.2d 403, 409 (2011) (quoting State v.

Walker, 170 N.C. App. 632, 635, 613 S.E.2d 330, 333 (2005), and State v. Williamson,

333 N.C. 128, 136, 423 S.E.2d 766, 770 (1992)), disc. rev. denied, 366 N.C. 400, 735

S.E.2d 174 (2012). “Prior statements admitted for corroborative purposes are not to

be received as substantive evidence.” State v. Harrison, 328 N.C. 678, 681, 403 S.E.2d

301, 303-04 (1991) (citation omitted). “[A]dmission of nonhearsay raises no

Confrontation Clause concerns.’ State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473

(2002).




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                                STATE V. THOMPSON

                                  Opinion of the Court



      The trial court admitted statements by Alice and Patricia to the health care

personnel who treated them at the time of the assaults, under the exception to the

hearsay rule contained in Rule 803(4), for statements given for purposes of medical

diagnosis or treatment. Defendant does not challenge the admission of these

statements, and the witnesses’ statements to Major Lester were admitted to

corroborate their statements to medical personnel. We conclude that the challenged

statements meet the requirements for admission as corroborative evidence.

      Patricia was treated by Nurse Janet Gillespie, who testified at trial. Nurse

Gillespie testified that Patricia told her that at around 2:30 a.m. on 7 May 1991, she

was walking near a location in Charlotte known as The Plaza, when she accepted a

ride with two African-American men whom Patricia did not know. When Patricia got

into the front seat of the car, the man in the back seat put a towel over her head and

an iron bar against her neck. The men drove to a house where they led Patricia inside

with the towel over her head. The men forced her to engage in vaginal intercourse

and fellatio. Patricia was also treated by Dr. David Maxwell Gray, who testified as

an expert in emergency medicine. Dr. Gray’s testimony included the following

summary of Patricia’s statements to him:

             Dr. Gray: She says she was walking home and accepted a
             ride in a car that had two men in it. One moved to the
             backseat when she got in the front seat, and she was
             attacked from behind with a crowbar across her neck. That
             part I remember. And she had a towel put over her head



                                         -9-
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                                   Opinion of the Court



             and was driven -- actually, I’ll read it word for word, I'm
             sorry.

                                           ...

             Dr. Gray: Was attacked from behind with a crowbar in
             front of neck. Attackers put a towel over patient’s head and
             took patient to house. . . . One placed a penis in her mouth
             and then had vaginal intercourse, and the second attacker
             repeated the same things as the first attacker but with the
             addition of attempting anal intercourse.

      Major Lester testified that on 7 May 1991, she took a statement from Patricia,

who told Major Lester that she had accepted a ride with two unknown African-

American men. After Patricia got into the car, the men put a towel over her head and

choked her with an iron bar. The men took Patricia to a house where they forced her

to engage in vaginal intercourse and fellatio. Patricia’s statement to Major Lester

included additional details about the incident, but was substantially similar to her

statements to medical personnel.

      Alice was treated by Nurse Gillespie and Dr. Russell Howard Greenfield. On

19 July 1991, Alice told Nurse Gillespie that she had been sexually assaulted by two

unknown African-American men a few hours earlier. The men had threatened her

with a knife, choked and blindfolded her, and subjected her to forcible vaginal

intercourse, anal intercourse, and fellatio. Dr. Greenfield testified as an expert in

emergency medicine. Alice told Dr. Greenfield that she and her sister had voluntarily

gotten into a car with two men. When Alice’s sister got out of the car at a convenience



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                                  Opinion of the Court



store, the passenger in the car covered Alice’s head, choked her, and threatened to

stab her. The men took Alice to a house and raped her. Dr. Greenfield testified that

the results of his pelvic examination of Alice were consistent with her having been

sexually assaulted by two men.

      Major Lester took a statement from Alice on 16 July 1991. Alice told Major

Lester that earlier that night she and her sister got into a car with two unknown

African-American men. After a short drive, Alice’s sister got out of the car. A man in

the car then covered Alice’s head, choked her, hit her with his fist, and threatened to

stab her. They drove her to a house where both men forced her to engage in vaginal

intercourse. One man also attempted to have anal intercourse and placed his penis

in her mouth. We conclude that Alice’s statement to Major Lester was substantially

similar to her statements to health care personnel.

      Based upon our review of the transcript of this case, we conclude that the

statements by Patricia and Alice to Major Lester were properly admitted to

corroborate their statements to the medical personnel who treated them shortly after

each witness was sexually assaulted. In reaching this conclusion, we have carefully

considered defendant’s arguments for a contrary result.

      On appeal, defendant does not argue that the statements of Patricia and Alice

to Major Lester were inadmissible as corroborative evidence because the statements

contradicted, rather than corroborated, the witnesses’ statements to medical



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                                  Opinion of the Court



personnel. Defendant contends, however, that the trial court “must not consider the

corroborative nature of the statement when determining whether it qualifies as an

exception to hearsay.” Defendant cites State v. Champion, 171 N.C. App. 716, 722,

615 S.E.2d 366, 371 (2005), in support of this position. In Champion, however, the

issue was whether a statement qualified under the residual hearsay exception in N.C.

Gen. Stat. § 8C-1, Rule 804(b)(5). Champion does not hold that the trial court should

not consider the corroborative nature of a statement in determining whether it falls

within the exception for corroborative statements.

      Defendant’s primary argument is that the statements contained additional

information not included in the witnesses’ statements to health care workers and that

the statements were admitted as substantive evidence for the truth of these

additional details, rather than as corroborative evidence. However, the mere fact

that a corroborative statement contains additional facts not included in the statement

that is being corroborated does not render the corroborative statement inadmissible:

             “In order to be admissible as corroborative evidence, a
             witness’ prior consistent statements merely must tend to
             add weight or credibility to the witness’ testimony.
             Further, it is well established that such corroborative
             evidence may contain new or additional facts when it tends
             to strengthen and add credibility to the testimony which it
             corroborates.” Moreover, “if the previous statements are
             generally consistent with the witness’ testimony, slight
             variations will not render the statements inadmissible, but
             such variations . . . affect [only] the credibility of the
             statement.”



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                                  Opinion of the Court



State v. Walters, 357 N.C. 68, 88-89, 588 S.E.2d 344, 356-57 (2003) (quoting State v.

Farmer, 333 N.C. 172, 192, 424 S.E.2d 120, 131 (1993), and State v. Martin, 309 N.C.

465, 476, 308 S.E.2d 277, 284 (1983)).

      Defendant contends that the statements to Nurse Gillespie and the treating

physicians were “bare-bones,” but that Patricia’s statement to Major Lester “provided

the State with evidence, not available from the medical records, which was necessary

to convict [defendant] of many counts.” Defendant does not identify any specific

charge for which the evidence was insufficient without information in the statements

to Major Lester, and our review of the evidence establishes that the statements of

Patricia and Alice to health care personnel, in combination with the DNA evidence

discussed below, provided sufficient evidentiary support for all of the charges that

were submitted to the jury.

      When Patricia spoke with the health care professionals who treated her shortly

after she was assaulted, she described being kidnapped and subjected to forcible

sexual intercourse and forcible oral sex with two men. The charges pertaining to

Patricia that were submitted to the jury were two charges of first-degree rape, one

charge of first-degree sex offense, and one charge of first-degree kidnapping. These

charges were adequately supported by Patricia’s statements to medical personnel.

The charges submitted to the jury in which Alice was the alleged victim were two

charges of first-degree rape, one charge of first-degree sex offense, and one charge of



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                                   Opinion of the Court



second-degree kidnapping. These charges were supported by the statements that

Alice gave to medical personnel. Defendant does not specify which convictions

required evidence contained only in the witnesses’ statements to Major Lester and

does not argue that the State’s evidence was insufficient as to any element of any

charged offense in the absence of Patricia’s or Alice’s statement to Major Lester. We

conclude that this argument lacks merit.

      Defendant also argues that the “State’s dependence on the statements for

substantive evidence is shown in the State’s . . . closing argument.” Defendant cites

no authority, and we know of none, holding that the State’s reference in a closing

argument to arguably inadmissible evidence establishes that the State had offered

insufficient evidence to convict a defendant without the challenged evidence.

      Defendant additionally asserts that the trial court “used the police statements

in charging the jury,” citing a quote from the transcript in which defendant contends

that the trial court was discussing information that “was only available in [Patricia’s]

statement to the police.” However, the quote identified by defendant came not from

the trial court’s charge to the jury, but from a discussion between the trial court, the

prosecutor, and defendant concerning which charges could properly be submitted to

the jury. In fact, the prosecutor and the trial court dismissed those charges that were

not adequately supported by the witnesses’ statements in the hospital. Defendant

also argues that the introduction of the witnesses’ statements for substantive



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                                  Opinion of the Court



purposes is demonstrated by the fact that in the prosecutor’s argument for the joinder

of offenses for trial, he referred to information from these statements:

             The court also depended on the testimonial statements to
             grant the State’s motion for joinder and for admission of
             404(b) evidence, by finding the State had established
             sufficient facts relating to mode of operation, similar
             scheme and location, based on the State’s list of similarities
             which was derived from the testimonial statements.

      N.C. Gen. Stat. § 15A-926(a) (2015) provides in relevant part that two or more

offenses may be joined for trial when the offenses are based “on a series of acts or

transactions connected together or constituting parts of a single scheme or plan.” In

this case, the State’s motion for joinder included the following circumstances that

were not, as contended by defendant, “derived from the testimonial statements.”

             1. Location – All offenses were committed in Charlotte.

             2. Date and Time – All offenses occurred late at night
             between May and August, 1991.

             3. Victims - All of the victims were African-American
             females in their 20s who had been drinking.

             4. Modus Operendi - In each case:

                    a. The victim was walking before getting into a car
                    with the assailants.
                    b. The victim was physically assaulted in the car,
                    and something was put on her head.
                    c. Similar sexual assaults were perpetrated against
                    each victim.
                    d. All of the victims were taken by car to an unknown
                    location where the sexual assaults occurred.



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                                   Opinion of the Court



             5. DNA - In each case, defendant’s DNA matched the DNA
             taken from evidence collected at the time of the assaults.

      The circumstances noted above were sufficient to support the trial court’s

decision to allow joinder of the offenses, notwithstanding the fact that the State’s

motion for joinder also included the following circumstances included in the victims’

statements to Major Lester, but not in their statements to medical personnel: (1) all

of the victims were released at a location different from where they were abducted,

and (2) the victims’ descriptions to Major Lester of the car and the assailants’

appearance were similar.

      The record does not contain a formal written order allowing joinder, and “[t]he

rule is that a trial judge sitting without a jury is presumed to have considered only

the competent, admissible evidence and to have disregarded any inadmissible

evidence that may have been admitted.” Woncik v. Woncik, 82 N.C. App. 244, 249,

346 S.E.2d 277, 280 (1986) (citing City of Statesville v. Bowles, 278 N.C. 497, 180 S.E.

2d 111 (1971)). We conclude that the trial court’s ruling allowing joinder was

supported by the circumstances established from sources other than Patricia’s and

Alice’s statements to Major Lester, and that the record contains no basis on which to

assume that the trial court relied upon other factors.

      Defendant further contends that the admission of the testimony of Ms. Eva

Fernandez pursuant to North Carolina Rule of Evidence 404(b) was dependent upon

details found only in Patricia’s and Alice’s statements to Major Lester. Defendant


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                                  Opinion of the Court



argues that in the State’s argument to the trial court for admission of this evidence,

the State referred to the specific location in Charlotte where Ms. Fernandez was

picked up, and linked it to the location where Patricia had been dropped off, and that

this information was only found in Patricia’s statement to Major Lester. However,

there were significant similarities between the charged offenses and Ms. Fernandez’s

experience. In 1991, Ms. Fernandez, like the other victims, was walking in Charlotte

at night, was intoxicated, and accepted a ride from two unknown African-American

men. Once she was in the car, the men hit her on the head with “something silver”

and put a cloth over her head. Fortunately, Ms. Fernandez was able to escape from

the car. We conclude that these similarities, not derived from Patricia’s statement to

Major Lester, were sufficient to support the trial court’s admission of the evidence.

The record does not contain a written or oral order indicating that the trial court

relied upon inadmissible evidence, and we presume that the trial court based its

ruling on admissible evidence. Therefore, even if the prosecutor improperly referred

to the location where Patricia was released in his argument for admission of Ms.

Fernandez’s testimony, there is no basis upon which to conclude that the trial court

based its ruling in part upon this information. We also note that defendant did not

object in the presence of the jury to Ms. Fernandez’s testimony, and does not argue

on appeal that it was inadmissible.




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                                  Opinion of the Court



      Defendant also argues that the statements given by Patricia and Alice to Major

Lester provided the only evidence to support certain “indicted” charges. However, at

the close of all the evidence the trial court, the prosecutor, and defendant reviewed

the evidence and dismissed charges that were not supported by Patricia’s and Alice’s

statements to health care personnel. Defendant specifically limits his argument to

“indicted” offenses and does not challenge the evidentiary support for the charges

that were actually submitted to the jury.

      The only basis for defendant’s argument that the statements were inadmissible

is that they were admitted for the truth of the matters asserted. We have rejected

this argument and conclude that (1) the statements were admissible to corroborate

the witnesses’ statements to medical personnel, and (2) there was sufficient evidence

to support submission of the various charges to the jury based on the witnesses’

statements to medical personnel and on the overwhelming statistical likelihood that

defendant’s DNA matched that found on the victims.

      Finally, defendant argues that the details in the statements increased the

likelihood of a verdict based on emotion. We have concluded that it was not error to

admit the witnesses’ statements. Accordingly, we do not reach defendant’s argument

that the alleged error was a constitutional violation. N.C. Gen. Stat. § 15A-1443(a)

provides that a criminal defendant is prejudiced by non-constitutional errors only if

“there is a reasonable possibility that, had the error in question not been committed,



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a different result would have been reached at the trial out of which the appeal arises.

The burden of showing such prejudice under this subsection is upon the defendant.”

In this case, defendant has failed to establish that there is a reasonable possibility

that he would have been acquitted if the statements had been excluded.

      For the reasons discussed above, we conclude that the trial court did not err by

admitting the statements given by Patricia and Alice to Major Lester to corroborate

the witnesses’ statements to the medical personnel who treated them at the time of

the assaults. Defendant’s arguments to the contrary do not have merit.

             III. Denial of Defendant’s Motion for Retesting of DNA Samples

      Defendant argues next that the trial court erred by denying his motion seeking

funds with which to hire an expert to retest the DNA samples. We disagree.

      In October 2009, Charlotte Mecklenburg Police Department DNA team leader

Eve Rossi, who testified at trial as an expert in forensic DNA analysis, conducted

DNA testing of evidence obtained in the assault cases of Patricia, Alice, and Louise,

and found an unknown DNA profile that was common to all three cases. In March

2011, defendant voluntarily provided a buccal swab from which a DNA profile could

be established. In April 2011, Ms. Rossi conducted a DNA analysis of the sample

obtained from defendant and found that it matched the DNA profile of the unknown

subject identified in the three cases.




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                                  Opinion of the Court



       When Ms. Rossi was asked to quantify the statistical probability that the DNA

obtained from evidence collected in Alice’s case had originated from someone other

than defendant, she testified that the “probability of selecting an unrelated person at

random who could be the source of that major DNA profile within the vaginal swabs

is approximately 1 in 60.6 trillion.” Ms. Rossi explained that this probability meant

that she "would need to look at or do DNA typing on 60.6 trillion individuals to find

somebody else who would have a DNA profile that also matched that DNA profile

from the vaginal swabs.” Regarding the match between defendant’s DNA profile and

the DNA samples obtained from Patricia, Ms. Rossi testified that the probability of

selecting an unrelated person at random who could be the source of the major DNA

profile obtained in that case was approximately 1 in 1.62 quadrillion. For Louise’s

case, Ms. Rossi testified that the statistical probability of selecting an unrelated

person at random who could be the source of that DNA profile was approximately 1

in 323 billion. Ms. Rossi also testified that the earth’s population was approximately

7.2 billion.

       Prior to trial, defendant retained Dr. Maher Noureddine to perform a review

of Ms. Rossi’s analysis of the DNA samples and prepare a report summarizing the

results of his examination. In his report, Dr. Noureddine criticized certain procedures

used in the DNA analysis and took issue with some of Ms. Rossi’s characterizations

of the degree of similarity between various DNA samples. However, Dr. Noureddine



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                                  Opinion of the Court



did not dispute the ultimate results of the DNA analysis. After Dr. Noureddine

submitted his report, defendant filed a pro se motion for funding with which to hire

another expert to retest the DNA samples. The trial court denied defendant’s motion

in an order finding in relevant part that:

             1. The Defendant is charged with multiple felonies related
             to alleged sexual assaults that took place with three
             alleged victims in 1991.

             2. There is DNA evidence in all three cases which has been
             tested by the State and purports to link the Defendant to
             the alleged crimes.

             3. Defendant seeks to have the DNA evidence retested by a
             defense expert.

             4. Previously appointed counsel for the Defendant retained
             the services of a DNA expert, Dr. Noureddine.

             5. Dr. Noureddine reviewed the DNA analysis performed
             by the State and took exception to the some of the
             procedures followed by the State, but did not conclude that
             the DNA analysis, had it been performed differently, would
             have reached a different result.

             6. Dr. Noureddine did not recommend the use of a new,
             more accurate testing procedure that was not available at
             the time of the State’s DNA test.

      A trial court’s determination as to whether to provide funding for expert

evaluation of evidence rests within the trial court’s discretion and will not be

disturbed absent a showing of abuse of that discretion. State v. Gardner, 311 N.C.

489, 498-99, 319 S.E.2d 591, 598 (1984). Defendant argues that the trial court abused



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                                   Opinion of the Court



its discretion and challenges the evidentiary support for the trial court’s statements

in Findings Nos. 5 and 6, that Dr. Noureddine “did not conclude that the DNA

analysis, had it been performed differently, would have reached a different result”

and that Dr. Noureddine “did not recommend the use of a new, more accurate testing

procedure that was not available at the time of the State’s DNA test.” Defendant

argues that because “Dr. Noureddine’s report finds procedures, analysis and

conclusions of the CMPD crime laboratory to be contrary to accepted scientific

practice, suggests re-testing evidence and finds one conclusion to be overreaching and

absurd, the court’s findings of fact and conclusions of law are incorrect.” However, the

criticisms that defendant notes from Dr. Noureddine’s report do not identify any

statement or conclusion by Dr. Noureddine either that “the DNA analysis, had it been

performed differently, would have reached a different result,” or that there currently

exists “a new, more accurate testing procedure that was not available at the time of

the State's DNA test.” As a result, defendant’s contentions do not establish that the

trial court’s findings were not supported by the evidence.

      Dr. Noureddine had several criticisms of the procedures and methodology

employed by the State’s analysts, including the following:

             1. Dr. Noureddine criticized the lab for performing the
             analysis of two cases at the same time, because this might
             increase the chance of contamination.

             2. Dr. Noureddine criticized the quality of the DNA sample
             obtained from Patricia and suggested that the lab should


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                                  Opinion of the Court



             have “considered” repeating the analysis of the cheek swab
             from Patricia.

             3. Dr. Noureddine criticized the terminology used by the
             State lab in characterizing a particular DNA profile as a
             “major contributor” instead of a “partially predominant”
             contributor and in using the term “match” to describe the
             relationship between Louise’s DNA and that found in the
             evidence from Louise’s case.

             4. In Patricia’s case, Dr. Noureddine was concerned about
             whether the samples had been properly sealed.

      In Dr. Noureddine’s report, he summarized the procedures used to conduct the

DNA analysis and noted that in each case the State had made statistical calculations

regarding the match between defendant’s DNA and that obtained from the evidence

collected in 1991. Significantly, in his report Dr. Noureddine does not express any

doubt or concern regarding the statistical conclusions reached by the State. In other

words, Dr. Noureddine’s report does not dispute the ultimate conclusion reached in

each case that it was statistically all but impossible for anyone other than defendant

to have been the source of the DNA profiles obtained from the evidence. Instead, Dr.

Noureddine’s “Final Conclusion” is that “[b]ased on the forensic DNA and serology

evidence that was developed by the CMPD Lab for case #s 1991-0507-040800, 1991-

0716-000400, and 1991-0812-042601, it is my conclusion that Mr. Thompson cannot

be excluded as a potential contributor of DNA in all three cases.”




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                                  Opinion of the Court



       We conclude that the trial court accurately summarized the results of Dr.

Noureddine’s analysis and did not abuse its discretion by denying defendant’s motion

seeking funds with which to hire an expert to retest the DNA samples.

                            IV. Instruction on Acting in Concert

       Finally, defendant argues that the trial court committed plain error by

instructing the jury in such a manner that defendant “could be found guilty either by

acting by himself or acting together with another in violation of the prohibition

against double jeopardy.” Defendant cites State v. Graham, 145 N.C. App. 483, 549

S.E.2d 908 (2001), in support of his contention. However, in Graham, the verdict

sheets submitted to the jury included one verdict sheet asking the jury to determine

whether the defendant was guilty of committing a particular offense alone and

another, separate, sheet asking the jury to decide whether the defendant was guilty

of the same offense, either acting alone or with another. On the facts of Graham, the

jury might have convicted the defendant twice for the same offense, once for acting

alone and once for acting either alone or with another. No such circumstance is

present in this case.

       For the reasons discussed above, we conclude that defendant had a fair trial,

free of reversible error.

       NO ERROR.

       Judges STEPHENS and McCULLOUGH concur.



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