An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-207
                       NORTH CAROLINA COURT OF APPEALS

                           Filed:     16 September 2014


STATE OF NORTH CAROLINA

       v.                                      Mecklenburg County
                                               No. 11 CRS 246140
KEVIN CELLENT


       Appeal   by   defendant      from   judgment    entered    12     April

2013   by   Judge    C.    Thomas    Edwards    in    Mecklenburg       County

Superior Court.       Heard in the Court of Appeals 5 June 2014.


       Roy Cooper, Attorney General, by Narcisa                         Woods,
       Assistant Attorney General, for the State.

       Staples Hughes, Appellate Defender, by David W.
       Andrews, Assistant Appellate Defender, for defendant-
       appellant.


       DAVIS, Judge.


       Kevin     Cellent      (“Defendant”)          appeals     from      his

conviction for first-degree rape.               On appeal, he contends

that the trial court (1) abused its discretion by limiting

the scope of his cross-examination of the victim; and (2)

committed plain error by admitting into evidence unredacted

police reports concerning the investigation of the crime
                                    -2-


for   which    he     was   charged.      After      careful    review,   we

conclude that Defendant received a fair trial free from

prejudicial error.

                            Factual Background

      The   State      presented    evidence    at    trial     tending   to

establish the following facts:            On 1 August 2011, Jennifer

Lambert1      (“Ms.     Lambert”)      met     her     Social      Security

representative, Debra Green, at approximately 3:00 p.m. in

front of a CVS store located on the corner of Mallard Creek

Road and Sugar Creek Road in Charlotte, North Carolina and

received payment for disability benefits.               Ms. Lambert then

proceeded to spend the remainder of the afternoon playing

Internet sweepstakes at the Sugar Creek Business Center —

which was in the same strip mall as the CVS store at which

she had met Ms. Green — and at the AA Business Center

directly across the street.

      Around 9:00 p.m., Ms. Lambert called her mother and

several friends in an unsuccessful attempt to obtain a ride

home.   She ultimately decided to take the bus home.                  While

she was waiting at the bus stop on Mallard Creek Road by

the CVS store, she saw a white SUV with two male occupants

drive past her.        The SUV then turned around and drove past


1
  To protect the identity of the victim, the pseudonym
“Jennifer Lambert” will be used throughout this opinion.
                                     -3-


her again.

      Several     minutes    later,       Ms.   Lambert     saw    Defendant

walking    down    the      sidewalk       towards    her.         Defendant

approached her and inquired when the next bus was arriving.

Ms. Lambert indicated to Defendant that there was a nearby

sign with the bus schedule on it.                Defendant then walked

directly up to Ms. Lambert, pressed a pistol against her

stomach and said: “You know what it is.”                    At that point,

Defendant grabbed Ms. Lambert’s arm and forced her into a

wooden enclosure directly behind the bus stop.

      Defendant ordered Ms. Lambert to get on the ground in

front of him.      He took Ms. Lambert’s purse and emptied its

contents onto the ground.              Defendant then commanded Ms.

Lambert    to   perform     oral    sex    on   him   and    she   complied.

Defendant picked up Ms. Lambert’s debit card and ordered

her   to   give    him    her      personal     identification      number.

Defendant then called the phone number printed on the card

and was told that the account number linked with the card

had a net balance of zero.

      Defendant told Ms. Lambert to get on her hands and

knees and proceeded to have vaginal intercourse with her.

While doing so, Defendant hit her forehead, kicked her back

and shoulders, and stepped on her fingers.

      Ms. Lambert then saw the white SUV she had previously
                                      -4-


observed pull up to the bus stop.                     She heard the driver

yell to Defendant to hurry up because the SUV was running

low on gas.        Defendant responded: “[A]ll right, man, I’m

coming.”     He then got into the SUV, taking Ms. Lambert’s

phone with him.

      Ms. Lambert gathered her belongings and ran to the

Sugar    Creek    Business        Center.       Upon     her    arrival,       she

encountered Deann Gordon (“Ms. Gordon”) who observed that

Ms.     Lambert   was      shaking     uncontrollably.              After    going

inside, Ms. Lambert told Ms. Gordon that she had been raped

and robbed and asked in a “frantic voice” for someone to

call the police and her mother.               Ms. Lambert then suffered

a seizure, so an employee called 911.

      Officer N. Gould (“Officer Gould”) with the Charlotte-

Mecklenburg       Police     Department       (“CMPD”)        was    the     first

officer to arrive on the scene, and Officer Kirsten Bartsch

(“Officer    Bartsch”),      also     employed     by    the    CMPD,       arrived

approximately      fifteen        seconds    later.      Ms.    Lambert       told

Officer Bartsch that she had been raped by a man who had

fled in a white SUV.          Shortly thereafter, emergency medical

personnel arrived to assist Ms. Lambert.

      Ms.    Lambert        was      transported        via    ambulance        to

Presbyterian Hospital at approximately 11:00 p.m.                          She was

examined    the    following       morning    by   Nurse      Heather       Waleski
                                     -5-


(“Nurse Waleski”), a sexual assault nurse examiner.                        Nurse

Waleski performed an examination of Ms. Lambert and used a

rape kit to collect a DNA sample as well as other forensic

evidence.

    Detective Christopher Rush (“Detective Rush”) with the

CMPD’s Sexual Assault Unit was assigned to investigate the

case on 2 August 2011.            Detective Rush met with Ms. Lambert

on 11 October 2011 and showed her a picture of Defendant.

Ms. Lambert identified Defendant as her assailant.                         On 14

October 2011, Detective Rush met with Defendant, and after

interviewing     him,        he   obtained        two   DNA    samples      from

Defendant.

    Shereen Elghamrawi            (“Ms. Elghamrawi”), an expert in

forensic serology and DNA analysis with the CMPD Crime Lab,

analyzed the evidence obtained from the rape kit used on

Ms. Lambert.         Ms. Elghamrawi developed a DNA profile from

the rape kit samples and compared them to the DNA samples

obtained      from     Defendant      by        Detective     Rush.        Using

statistical analysis software, she formed the opinion that

the DNA profiles were a match and that “[t]he probability

of selecting an unrelated person at random who could be the

source   of   this     DNA    profile      is    approximately    1   in    16.5

quadrillion for Caucasians; 1 in 121 trillion for African-

Americans, and 1 in 21.1 quadrillion for Hispanics.”
                                      -6-


       On 24 October 2011, Defendant was indicted on (1) one

count of first-degree rape; (2) one count of first-degree

sexual offense; (3) one count of first-degree kidnapping;

(4) one count of robbery with a dangerous weapon; and (5)

one count of communicating threats.              A jury trial was held

in Mecklenburg County Superior Court on 8 April 2013.

       Nurse Waleski testified at trial and stated that Ms.

Lambert suffered an acute break in the skin of her fossa

navicularis in her vaginal area that, in her opinion, was

caused by blunt force trauma.                Nurse Waleski also stated

that during her examination of Ms. Lambert, Ms. Lambert

related the manner in which the incident occurred, telling

Nurse Waleski that she had been hit on her forehead, back,

and shoulders and that her fingers had been stepped on.

Nurse Waleski testified that Ms. Lambert’s injuries were

consistent with her account of the incident.

       Defendant was convicted of one count of first-degree

rape   and   was    acquitted    of    first-degree     sexual    offense,

first-degree       kidnapping,   and        robbery   with   a   dangerous

weapon.      The     trial   judge      dismissed     the    communicating

threats charge.       Defendant was sentenced to 220-273 months

imprisonment and ordered to register as a sex offender and

to enroll in satellite-based monitoring for the remainder

of his natural life.         Defendant gave notice of appeal in
                                     -7-


open court.

                                  Analysis

I.    Cross-Examination of Victim

      Defendant’s      first   argument         is    that     the    trial      court

abused its discretion by limiting the scope of Defendant’s

cross-examination of Ms. Lambert pursuant to North Carolina

Rule of Evidence 611(b).           Specifically, Defendant contends

that the trial court erred by prohibiting his trial counsel

from fully cross-examining Ms. Lambert, and attempting to

impeach her credibility, by questioning her about (1) a

bottle of pills found in her purse; and (2) the fact that

prior    to     this   incident   she      had       committed       a    probation

violation by failing to provide an accurate address to her

probation officer.

      At   trial,      Defendant’s    counsel          was     able      to     elicit

testimony from Ms. Lambert that at the time of the 1 August

2011 incident, she was on probation for a felony.                          However,

when Defendant’s counsel attempted to question her about

the conditions of her probation, the State objected, and

the     trial     court   proceeded        to        conduct     a       voir     dire

examination outside of the presence of the jury.                                During

the voir dire hearing, Ms. Lambert testified, in pertinent

part, as follows:
                   -8-


THE COURT: All right. Mr. Loven, what
is it that you think is relevant to
this inquiry.

VOIR DIRE BY MR. LOVEN:

Q. Didn't your probation have a curfew?

A. Not at this time, no, it didn't.

Q. Did they have any conditions upon
not being in the possession of any
controlled substances outside of your
prescription bottles?

A. I believe so.

Q. Isn't it true that one of those
bottles from your purse is not in a
prescription bottle?

A.   All   of   them     are   prescription
bottles.

Q. Isn't the Abilify in a bottle that
does not have a prescription on it?

A. This is the way the prescriptions
come in the Abilify bottle.

Q. Didn't you just previously testify
that it came in a box and that the box
had a label?

A. The box is sealed when you get your
medication, so you can't open the box
and put the label on it.

Q.   Does   that    bottle     contain   a
prescription label on it?

A. It says —

Q. Does it have your name on it?

A. No, it's the label.
                   -9-


Q. So that bottle is not a bottle with
a prescription label on it, is it?

A. The bottle itself, no.

Q. And that would have been a violation
of a condition of your probation?

A. Absolutely not. Absolutely not. My
medical   records show   that  I'm  on
Abilify. It was prescribed from all of
my doctors.

Q.   Isn't   it   true   that    you   were
subsequently    violated   for    probation
violations?

A. In the past.

Q. Right after this?

A. I was already in violation of the
probation.

Q. I'm sorry.          Why   where   you   in
violation?

A. It could have been fines.  I don't
recall   because I'm   no  longer  on
probation.

Q. At the time you were on probation;
correct?

A. I was on probation and I was also
displaced, meaning homeless, so it was
possible  that   I  was   in  violation
because I didn't have an address or I
hadn't paid the fines in a timely
fashion.

Q. Didn't you testify you were living
with your mother?

A. I was staying with my mother.   You
can't   live  in   a  senior   citizen
building.
                  -10-



Q. Had you given     an   address    to    your
probation officer?

A. Yes.   My probation officer had that
address where I could be located.

Q. So are you saying you were in
violation   of   the   terms   of   your
probation by where you were living?

A. I don't know what the terms of the
violation were at the time because at
the time I did not violate.

Q. Okay.    Did you have to         give   the
probation officer an address?

A. They always had an address.      They
came and visited me at my mother's.

Q. Okay.    And that's    where     you    told
them you were living?

A. At the time of the rape I was
staying at my mother's.    A few weeks
prior I was kind of in between houses
and did not have an address.  That may
have caused an issue.

Q. Well, did it cause an issue?             You
said   you  were   in  violation             of
probation.

A. Now that I think about it, because I
haven't thought about this, Mr. Loven,
in two years, the time the probation
officer did violate me because he did
not know the address for which I was
living because I had no contact for the
two weeks before I was able to get
permission to stay in my mother's
senior citizen building.

Q. Okay.    Weren't other conditions of
your   probation   that  you  not  test
positive for drugs?
                        -11-



A. That's true.

Q. Okay.   Had you been given any tests
ever while on probation?

A. Sure.

Q. Had you ever failed any?

A. Previously.

Q. Didn't you testify — excuse                me.
Didn't the records you gave to                the
hospital say you never used drugs?

A. No. They asked me did I use any.              I
said no.

Q. You said you tested positive.     Are
you saying those tests were incorrect?

A. Say that again.

Q. You     just   testified    that     you   used
drugs.

A. I take prescription medication. The
drugs in question are illegal street
drugs.   I was not taking them at that
time.    I had been on probation for
almost seven, eight years.     Over the
course of that eight years I hadn't.

Q. You had previously tested positive
for street drugs?

A. In the past.

Q. And that       was   a   violation    of   your
probation?

A. That violated me, it did.

Q. And if you were to test positive for
street drugs again that would also have
                     -12-


been a violation of your probation at
that time; correct?

A. If they came to test me on one of my
appointments, yes, I would have been
violated.

MR. MERRIWEATHER: I         ask   that   she   be
allowed to answer.

THE COURT: Sustained.

BY MR. LOVEN

Q. And you still had              a    probation
officer at this time?

A. That's correct.

Q. Who could have tested you?

A. That's correct.

. . . .

Q. One last question.                  You   were
subsequently     violated             on     this
probation; correct?

A. Yes, I was.

Q.   What was    the    reason         for   that
violation?

A. Because they had not been able to
locate me in the past.     They did not
know my mother's address, so he said,
and   if   you   further   continue  to
question, my probation was released and
I was not punished any further.

Q. You were found to be in violation of
probation?

A. The probation officer          violated     me
but the judge released me.
                               -13-


          Q.   Did   the  judge   terminate           your
          probation or find no violation?

          A. Terminated probation.

          Q. So there was no finding one way or
          the other, was there?

          A. Termination.  I don't know what the
          terms mean. It was terminated.

    Defendant’s     trial   counsel    then    made   the    following

argument to the trial court:

          MR. LOVEN: Your Honor, we would contend
          as far as motive here, somebody to
          claim — make a false accusation under
          these circumstances, she would have
          potentially have been in violation of
          probation had the police searched her,
          so this would be a motive for her to
          give a description of something else
          and, therefore, goes to her credibility
          as a witness.
               Also, although this is out of the
          presence of the jury, I think some
          questions as to her ability to recall
          these events and relate to — saying
          what she's done previously has come up
          yet again, but, of course, this was out
          of the presence of the jury.

          THE COURT: All right.  So your request
          to examine further into the probation
          violation is denied.   The Court will
          find that the questions posed do not
          address the issues of truthfulness of
          this client [sic] and will not allow
          you to examine her further with regard
          to that.

    Rule 611(b) of the North Carolina Rules of Evidence

provides that “[a] witness may be cross-examined on any

matter   relevant   to   any   issue   in     the   case,    including
                                     -14-


credibility.”      N.C.R. Evid. 611(b).         Rule 611(a) restricts

the scope of subsection (b), however, by providing that

“[t]he   court    shall    exercise     reasonable     control   over   the

mode and order of interrogating witnesses and presenting

evidence   so     as      to   (1)     make   the     interrogation     and

presentation effective for the ascertainment of the truth,

(2) avoid needless consumption of time, and (3) protect

witnesses from harassment or undue embarrassment.”                  N.C.R.

Evid. 611(a).

           While it is axiomatic that the cross-
           examiner    should    be   allowed    wide
           latitude,    the     trial   judge     has
           discretion to ban unduly repetitious
           and argumentative questions, as well as
           inquiry    into    matters   of    tenuous
           relevance.    Moreover, the trial judge
           retains the discretion to prohibit
           cross examination that is intended to
           harass, annoy or humiliate a witness.
           The    trial     judge's    rulings     in
           controlling cross examination will not
           be disturbed unless it is shown that
           the verdict was improperly influenced.

State v. Hatcher, 136 N.C. App. 524, 526, 524 S.E.2d 815,

816   (2000)     (internal      citations,     quotation       marks,   and

brackets omitted).

      A. Possession of Pills

      Defendant    contends     that    the   trial    court   abused   its

discretion in refusing to allow Ms. Lambert to be cross-

examined about her possession of the pills contained in her
                                      -15-


purse because “[Ms.] Lambert had a motive to lie to police

officers about what happened with [Defendant] in order to

avoid having her probation revoked because she possessed

controlled substances.”             We believe the trial court acted

within its discretion in barring cross-examination on this

topic for two reasons.

       First, Ms. Lambert testified that the bottle of pills

she possessed contained Abilify — a mood stabilization drug

that    had    been   prescribed      to     her   by      a    physician.         She

explained that the pill bottle did not have her name on it

because the Abilify bottle came packaged in a box with her

name and prescription listed on the box itself instead of

on the bottle.          Defendant failed to offer any evidence

rebutting Ms. Lambert’s testimony that the pills had been

prescribed to her by a physician such that her possession

of   them     would   not    have   constituted         a      violation     of    the

conditions of her probation.

       Second, and more basically, it was Ms. Lambert who

requested that the police be called in the first place.

Upon    reaching      the     Sugar        Creek     Business            Center    and

encountering Ms. Gordon, Ms. Lambert frantically told her

to “[p]lease call my momma.                Please call the police.”                 As

such,    Defendant’s        contention      that     she       had   a    motive    to

fabricate      the    allegation      of      rape      to      distract      police
                                       -16-


officers    from    finding      the    pills     in     her    possession      is

undermined by the fact that she was the one who requested

that law enforcement officers be called.                      Accordingly, the

trial court did not abuse its discretion in barring cross-

examination about this subject.

    B. Failure to Provide Accurate Address to Probation
       Officer

    Defendant further argues that the trial court abused

its discretion by not allowing his trial counsel to cross-

examine Ms. Lambert about the fact that she had previously

violated the terms of her probation by failing to keep her

probation   officer     continually           advised    of    the    address   at

which she was living during her probation period.                           During

voir dire, Ms. Lambert testified that she “was kind of in

between houses and did not have an address” for a short

period of time during her probation period because she was

homeless but that she subsequently moved in with her mother

and advised her probation officer that she could be reached

at her mother’s residence.

    Ms.     Lambert’s     voir    dire        testimony       did    not   clearly

establish    that   she   had     actually        lied    to    her    probation

officer about her address.              Rather, it suggested that she

had failed to make him aware of a two-week period during

which she was homeless while she sought permission to live
                                  -17-


in her mother’s building.          Given the tenuous relevance of

this testimony to Ms. Lambert’s truthfulness, we believe

the trial court acted within its discretion in refusing to

allow cross-examination on this subject.

II. Admission of Unredacted Police Reports

    Defendant’s     final    argument    is   that    the   trial    court

erred   in   admitting   into     evidence    two    unredacted     police

reports indicating that investigating officers found Ms.

Lambert’s allegations to be credible.                Because Defendant

did not object at trial to the admission of these reports,

we review this contention solely for plain error.

             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
             cautiously and only in the exceptional
             case, the error will often be one that
             seriously    affects    the     fairness,
             integrity   or   public   reputation   of
             judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334

(2012) (internal citations, quotation marks, and brackets

omitted).

    The      two   reports   at     issue     are    preprinted      forms

containing statements made by Ms. Lambert and Ms. Gordon,
                                        -18-


respectively.         Defendant does not contest the admissibility

of the witness statements themselves that are contained on

these forms.          Rather, he challenges the failure to redact

notations made by officers on these forms before the forms

were admitted into evidence.

     The      first    report     was    a     statement    provided    by    Ms.

Lambert to Officer M. Bell (“Officer Bell”) on 1 August

2011.       Ms. Lambert         dictated her account of the subject

incident, and Officer Bell transcribed her account on the

report      form   which   Ms.    Lambert       subsequently       reviewed   and

signed.

     The first page of this report contained a box titled

“Original Offense/Charge.”               Next to this box, Officer Bell

wrote: “Sexual Assault/1st Forcible Rape.”                         Officer Bell

also checked “Open” in connection with the box on this

report which was titled “UCR Clearance Status” and also

checked      “Active”      as    to     the     box    titled   “Investigative

Status.”       On the second page of the report, in the third

box titled “Original Offense/Charge,”                    Officer Bell     wrote

“1st Rape (Forcible)” and wrote “1st Degree Forcible Rape”

in      a     subsequent          box         titled     “Correct      Incident

Classification.”           Officer      Bell     also    checked    “Open”    and

“Active” in two additional boxes on that page titled “UCR

Clearance Status” and “Investigative Status,” respectively.
                                      -19-


    The    second       report      was   a   statement      provided       by   Ms.

Gordon to Officer Gould on 1 August 2011 at the Sugar Creek

Business Center shortly after Ms. Lambert had been taken to

the hospital.          Ms. Gordon          dictated the account of her

interaction with Ms. Lambert from the time Ms. Lambert ran

up to her in the Sugar Creek Business Center parking lot

until    the    time    the   911    call     was    made.        Officer    Gould

transcribed her account on the report form, and Ms. Gordon

subsequently signed it.

    On this report, Officer Gould wrote “Forcible Rape (1st

Degree)”       in     connection      with    a      box    titled    “Original

Offense/Charge” and wrote “Forcible Rape (1st Degree)” in a

subsequent      box    titled    “Correct      Incident       Classification.”

Officer Gould also checked “Open” with regard to a box

titled    “UCR       Clearance     Status”     and    checked      “Active”       in

connection with a box titled “Investigative Status.”

    Defendant argues that these notations on the two forms

conveyed to the jury the notion that the police officers

believed       Ms.   Lambert’s      account    of     the    incident.           Even

assuming, without deciding, that the trial court erred in

allowing       these    unredacted        reports     to     be   admitted,        we

believe any such error does not rise to the level of plain

error.
                                  -20-


      The   evidence       against     Defendant        at     trial   was

overwhelming as to the rape charge.             Ms. Lambert identified

Defendant as her assailant in a photograph shown to her by

Detective Rush.    DNA analysis matched Defendant’s DNA with

the semen found in Ms. Lambert’s body.               At the time Ms.

Lambert reported the rape, she was shaking uncontrollably

and   speaking    in   a    “frantic”     tone     of        voice.    She

subsequently     suffered     a      seizure.        Nurse       Waleski’s

examination of Ms. Lambert confirmed the presence of the

injuries to her forehead, back, shoulders, and fingers that

corroborated Ms. Lambert’s account of the incident.                     In

addition, Nurse Waleski testified that the injuries to Ms.

Lambert’s genital area, notably a break in the skin of her

fossa navicularis, were caused — in her opinion — by blunt

force trauma and were consistent with the types of injuries

commonly suffered in cases of sexual assault.2

      Thus, we conclude that Defendant has failed to meet

his heavy burden of demonstrating plain error.                   See State

v. Ross, 207 N.C. App. 379, 396, 700 S.E.2d 412, 424 (2010)


2
  While Defendant points to a statement made by Nurse
Waleski on cross-examination that she could not say whether
Ms.   Lambert’s    injuries   came   from   consensual   or
nonconsensual intercourse, there was no evidence offered at
trial regarding a consensual sexual encounter.    Moreover,
as noted above, Nurse Waleski’s opinion was that the injury
to Ms. Lambert’s vaginal area was the result of blunt force
trauma.
                                          -21-


(“Even assuming arguendo that it was error for the trial

court    to     allow       the     introduction          of        the        detective's

[hearsay] testimony . . . we conclude that it did not rise

to the level of plain error, as the record in the case sub

judice       contains       overwhelming         evidence           of         defendant's

guilt.”), disc. review denied, 365 N.C. 346, 717 S.E.2d 377

(2011); see also State v. Johnson, 203 N.C. App. 718, 723,

693 S.E.2d 145, 147-48 (2010) (declining to decide whether

trial    court      erred    in     admitting      statement              in    computer-

generated police report summarizing actions police officer

took    on    morning   of        defendant’s      arrest       because           even   if

admission of document was erroneous, its admission was not

prejudicial).

                                    Conclusion

       For    the    reasons        stated       above,        we     conclude       that

Defendant      received      a     fair    trial    free        from       prejudicial

error.

       NO PREJUDICIAL ERROR.

       Judges HUNTER, JR. and ERVIN concur.

       Report per Rule 30(e).

       Judge HUNTER, JR. concurred in this opinion prior to 6

       September 2014.
