An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA04-1168

NORTH CAROLINA COURT OF APPEALS

Filed: 05 July 2005

STATE OF NORTH CAROLINA

v .                         Mecklenburg County
                            No. 02 CRS 208248-51
DONNIE ALEXANDER ROGERS

    Appeal by defendant from judgment entered 6 February 2004 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 22 April 2005.

    Attorney General Roy Cooper, by Assistant Attorney General     Dennis Myers, for the State.

    Parish & Cooke, by James R. Parish, for defendant-appellant.
    

    STEELMAN, Judge.

    Diane Tremont (Tremont) was raped and otherwise sexually assaulted in the early morning hours of 4 October 1998 by an intruder who broke into her apartment and attacked her as she slept. The attacker bound her hands with a purse strap he had cut off of her purse prior to entering her bedroom, and tied something around her eyes. She never saw her attacker, who held a knife to her throat while he raped and sodomized her. She was then dragged from the bed to her bathroom, where her attacker threatened to kill her if she moved while he scoured her home for valuables. He returned several times to the bathroom to give her further instructions, or make inquiries concerning valuables. After Tremont believed he had left, she freed herself and called 911. Tremont was interviewed by police at her apartment, then taken to a hospital where a rape kit was performed and semen collected. DNA testing was done on the semen sample recovered from the victim. Jessie Hooks, (Hooks) was delivering papers at approximately 6:45 in Tremont's apartment complex when he saw a black man exiting the building where Tremont resided.
    In January of 2000, a blood sample was taken from defendant and later submitted for DNA testing. In February of 2002 defendant's DNA profile was entered into the state DNA database (CODIS). When defendant's DNA was run through the CODIS search by Special Agent Earle of the North Carolina State Bureau of Investigation, it matched the DNA sample collected from Tremont, and defendant was charged with the instant crimes. The case was tried in Mecklenburg County Superior Court, and on 6 February 2004, the jury returned verdicts of guilty of first-degree rape, first- degree sexual offense, first-degree burglary, and first-degree kidnapping. The kidnapping and burglary charges were consolidated for sentencing, and defendant received three consecutive active sentences totaling 999 to 1227 months. Defendant appeals.
    In his first argument defendant contends that the trial court committed plain error by instructing the jury that it could find defendant guilty of first-degree burglary based on evidence not presented at trial. We disagree.
    “ The plain error rule applies only in truly exceptional cases.” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). “[T]he term 'plain error' does not simply mean obvious or apparenterror . . . .” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). “[T]o reach the level of 'plain error' contemplated in Odom, the error . . . must be 'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'” State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993)(citations omitted).
        In other words, the appellate court must determine that the error in question “tilted the scales” and caused the jury to reach its verdict convicting the defendant. Therefore, the test for “plain error” places a much heavier burden upon the defendant than that imposed by N.C.G.S. § 15A-1443 upon defendants who have preserved their rights by timely objection. This is so in part at least because the defendant could have prevented any error by making a timely objection.

Walker, 316 N.C. at 39, 340 S.E.2d at 83.
    “The common-law offense of burglary is committed when a person breaks or enters into the dwelling house or sleeping apartment of another in the nighttime with the intent to commit a felony therein.” State v. Little, 163 N.C. App. 235, 239, 593 S.E.2d 113, 116 (2004)(citation omitted). “A person is guilty of first-degree burglary when the crime is committed while 'any person is in the actual occupation of any part of said dwelling house or sleeping apartment at the time of the commission of such crime. . . .' N.C. Gen. Stat. § 14-51 (2003).” Id.
    In the instant case, the trial court instructed the jury that they could convict defendant of first-degree burglary if the State proved (along with the other elements of burglary) beyond areasonable doubt that defendant intended to commit a felony sexual offense. The trial court then mentioned that there were sex acts other than anal intercourse which were defined under the statute to constitute a sex act for purposes of first or second-degree sex offense. The trial court went on to briefly describe these acts. The jury was instructed that the state had to prove, beyond a reasonable doubt, that the defendant intended to commit a sex act at the time of the breaking or entering. Defendant argues that the trial court's charge as to the element of the defendant's intent to commit a felony at the time of the breaking or entering, should have been limited to forced anal intercourse.
    However, the contested portion of the charge deals with intent, not completed acts. In light of the fact that defendant committed the acts of both rape and anal intercourse upon the victim, it was not error for the trial court to instruct on a definition of sexual offense that was broader than the act actually committed by defendant. It is the intent of defendant to commit a felony that is an element of first-degree burglary, not the act actually committed. Assuming arguendo that the charge was error, we hold that it does not rise to the level of plain error as there is no probability that the jury would have reached a different verdict had the trial court omitted the parts of the instruction to which defendant objects. This argument is without merit.
    In defendant's second argument he contends the trial court committed plain error in its instruction on kidnapping “wherein the trial court instructed the jury that defendant would be guilty ofkidnapping if the defendant restrained or removed the person 'for the purpose of facilitating his commission of the crime of felonious sexual assault' in that there is no such crime . . . .” We disagree.
    Although the trial court erred in the language of its instruction, we hold that the error does not rise to the level of plain error on these facts. The jury convicted defendant of both first-degree rape, and first-degree sexual offense. These were the only two sexual assaults charged. If the trial court had properly replaced “sexual assault” with the words “rape” or “first-degree sexual offense” in its charge there is no probability that the jury would have reached a different verdict. This argument is without merit.
    In his third argument defendant contends that the trial court violated his rights of confrontation under the Sixth Amendment of the United States Constitution and Article I of the North Carolina Constitution by overruling his objection to Special Agent Budzynski's testimony concerning a CODIS search conducted by Special Agent Buddy Earle. We disagree.
    Special Agent Earle performed a routine computer search of the SBI CODIS database after importing defendant's DNA profile obtained from the Charlotte-Mecklenburg Police Department. The computer made a match between defendant's DNA profile, and the DNA profile previously imported into the database from the rape kit done on Tremont the morning of 4 October 1998. Special Agent Earle then brought the printout of the two DNA profiles to Special AgentBudzynski, who personally compared the DNA profile values and made an independent determination that the two profiles matched.
    Defendant argues that the Confrontation Clause jurisprudence of the United States Supreme Court, as most recently revisited in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), requires that defendant have an opportunity to confront Special Agent Earle concerning his methodology in conducting the CODIS search. However, “The Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Id. at 59, note 9, 158 L. Ed. 2d at 197 (citation omitted). Expert witnesses are generally allowed to rely on otherwise inadmissible evidence to formulate their opinions without running afoul of the Confrontation Clause. See Howard v. Walker, 2005 U.S. App. LEXIS 7110 (2d Cir., 2005). The testimony concerning Special Agent Earle's involvement simply explained to the jury how the CODIS data came to the attention of Special Agent Budzynski. It was not offered to establish the CODIS match. Special Agent Budzynski testified that he conducted his own independent analysis of the data, concluded that the two DNA profiles matched, and presented the results of his analysis to the jury. The trial court did not err in overruling defendant's objection.
    In his fourth argument defendant contends that the trial court erred in denying his motion to dismiss the charge of burglary at the close of all evidence due to an insufficiency of the evidence. We disagree.    “Upon defendant's motion for dismissal, the question for the [trial court] is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)(citations omitted). Substantial evidence is relevant evidence that a reasonable person would find sufficient to support a conclusion. State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987)(citation omitted). When reviewing a motion to dismiss based on insufficiency of the evidence, this Court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. State v. Barnes, 334 N.C. 67, 75-6, 430 S.E.2d 914, 918-19 (1993). “In addition, the defendant's evidence should be disregarded unless it is favorable to the State or does not conflict with the State's evidence.” State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (2000)(citation omitted), cert. denied, Fritsch v. North Carolina, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).
    Defendant argues that the State failed to produce sufficient evidence of one of the elements of burglary, specifically that the breaking or entering occurred at night. Defendant asks this Court to take judicial notice that in Charlotte on the morning in question, 4 October 1998, sunrise occurred at 6:20 am. We first note that the official time of sunrise does not establish whether is was still “nighttime” for the purposes of burglary.         The law considers it to be nighttime when it is so dark that a man's face cannot be identified except by artificial light or moonlight. “The rule is thus laid down by Blackstone: 'If there be daylight or crepusculum enough, begun or left, to discern a man's face withal, it is not burglary. But this does not extend to moonlight.' This rule of Blackstone is substantially supported in those states where there is no statutory definition of nighttime.” With respect to burglary, there is no statutory definition of nighttime in North Carolina.

State v. Frank, 284 N.C. 137, 145, 200 S.E.2d 169, 175 (1973)(internal citations omitted). There was testimony at trial that Jessie Hooks (Hooks), who was delivering papers the morning of the fourth of October 1998, saw a black man exiting Tremont's apartment building at approximately 6:45 to 6:50 am. Hooks did not observe the man's face, and could not identify defendant as the man he saw that morning. Defendant argues that Tremont never testified that it was still dark when she was attacked, and that the State's evidence only allowed for surmise or conjecture that the breaking or entering occurred at night. State v. Stephens, 244 N.C. 380, 383, 93 S.E.2d 431, 433 (1956).
    The State's evidence tended to show that defendant broke into Tremont's house, collected materials within the house to assist him in subduing Tremont, then later entered Tremont's bedroom and sexually assaulted her. Tremont testified that the attack continued for between twenty minutes to half an hour. Responding to a question concerning the time of the attack, Tremont testified: “It was still nighttime. It was still dark out. And I have no idea what time.” [T. vol. 1 p. 191] When taken in the light mostfavorable to the State, and discounting defendant's evidence, there was ample evidence presented at trial to submit the burglary charge to the jury. This argument is without merit.
    In his fifth argument defendant contends that “during the prosecutor's closing argument to the jury he committed prejudicial error and plain error by referring to the defendant as a 'professional rapist'.” We disagree.
    The control of closing arguments of counsel rests “within the sound discretion of the trial court, and in the argument of hotly contested cases, counsel will be granted wide latitude. Counsel may properly argue the facts in evidence as well as any reasonable inferences which can be drawn therefrom.” State v. Roseboro, 344 N.C. 364, 376, 474 S.E.2d 314, 320 (1996)(citations omitted).
    Because defendant objected to the district attorney's use of the term “professional rapist” once, but did not object on the other occasions it was used, he argues that we should review this alleged error under the plain error rule. “ Plain error, however, only applies to jury instructions and evidentiary matters in criminal cases. State v. Freeman, 164 N.C. App. 673, 677, 596 S.E.2d 319, 322 (2004).
        Our standard of review of the prosecutor's statements depends on whether defendant objected at trial. If defendant objected, “this Court must determine whether 'the trial court abused its discretion by failing to sustain the objection.'” “When defendant fails to object to an argument, this Court must determine if the argument was 'so grossly improper that the trial court erred in failing to intervene ex mero motu.'”
State v. Frink, 158 N.C. App. 581, 589, 582 S.E.2d 617, 622 (2003)(internal citations omitted). Assuming arguendo that defendant properly objected to these statements, our standard of review is abuse of discretion.
        “Application of the abuse of discretion standard to closing argument requires this Court to first determine if the remarks were improper.” “'Improper remarks include statements of personal opinion, personal conclusions, name-calling, and references to events and circumstances outside the evidence, such as the infamous acts of others.'” Upon finding improper remarks were made, “'we determine if the remarks were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court.'” “In order to demonstrate prejudicial error, a defendant must show that there is a reasonable possibility a different result would have been reached had the error not occurred.”

Id. at 591, 582 S.E.2d at 623 (internal citations omitted). Tremont testified at trial that the rapist told her he had “been doing this in Charlotte for nearly twenty years. And that the cops could never catch him.” [T. vol. 1 p. 192] Defendant was on trial for rape, and the State presented strong evidence at trial that defendant committed rape. It was reasonable for the State to argue from evidence admitted at trial that defendant was a rapist, and after twenty years without being caught, that he was skilled in the commission of that crime, and avoiding capture. We hold that the trial court did not abuse its discretion by allowing the State to refer to defendant as a professional rapist in its closing argument. This assignment of error is without merit.    In his sixth argument defendant contends that the “prosecutor committed prejudicial error during his closing wherein he erroneously advised the jury the reason the defendant had not conducted his own independent testing of the DNA samples was that under reciprocal discovery” he would have had to provide the results to the State. We disagree.
    As stated above, the standard of review for an improper closing argument is whether the trial court abused its discretion in refusing to sustain defendant's objection. Frink, at 591, 582 S.E.2d at 623. In this case, the trial court sustained defendant's objection to the argument of which defendant now complains. This argument is without merit.
    In his seventh argument defendant contends that the “prosecutor committed prejudicial error when during his closing argument he commented on the defendant's failure to testify, offer evidence, or to contradict the State's case.” We disagree.
    Defendant argues that three comments made by the State in closing constituted impermissible and prejudicial comments in that they directly addressed defendant's choice not to testify on his own behalf. See State v. Reid, 334 N.C. 551, 556, 434 S.E.2d 193, 197 (1993). However, “'this Court has held the error may be cured by a withdrawal of the remark or by a statement from the court that it was improper, followed by an instruction to the jury not to consider the failure of the accused to offer himself as a witness.'” Id., quoting State v. McCall, 286 N.C. 472, 487, 212 S.E.2d 132, 141 (1975), sentence of death vacated by, McCall v.North Carolina, 429 U.S. 912, 50 L. Ed. 2d 278 (1976). Two of the comments made by the State were objected to, and the trial court sustained the objection and immediately instructed the jury not to consider those statements. The trial court further instructed the jury in its charge not to consider defendant's failure to testify as evidence against him. “[T]he law presumes the jury followed the judge's instructions.” State v. Long, 280 N.C. 633, 641, 187 S.E.2d 47, 52 (1972).
    Defendant also objected to the following comment, but the trial court overruled this objection:
        No one, no one got on that stand and gave any evidence, evidence, not what [defense counsel] says, not what he wishes that the law would be - - no one got on that stand and gave any evidence that would give you any reason whatsoever, any reason to have any sort of belief, other than the fact that Donnie Rogers is a professional rapist. [T. vol 3 p. 24]

There is no direct reference to defendant's failure to testify in this comment. “A prosecutor may not make any reference to or comment on a defendant's failure to testify. However, a 'defendant's failure to produce exculpatory evidence or to contradict evidence presented by the State may properly be brought to the jury's attention by the State in its closing argument.'” State v. Mason, 315 N.C. 724, 732, 340 S.E.2d 430, 436 (1986)(citations omitted). These comments by the State were not improper. We are unconvinced by defendant's argument that we should apply the law differently to these comments in light of the two other instances where the trial court sustained defendant'sobjection and instructed the jury to disregard the State's comments. This argument is without merit.
    In his eighth argument defendant contends that the trial court erred in denying his motion for a mistrial based on the prosecutor's closing arguments which “impermissibly suggested the burden of proof could be shifted to the defendant and his improper commentary on the defendant's decision not to testify or to put on evidence.” We disagree.
        A trial judge “must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.” The decision to grant or deny such a motion will not be disturbed on appeal unless it is so clearly erroneous as to amount to a manifest abuse of discretion.

State v. Diehl, 353 N.C. 433, 436, 545 S.E.2d 185, 187 (2001).
    Defendant argues that the trial court erred in denying his motion for a mistrial based on the arguments we have previously addressed in his fifth, sixth and seventh arguments above. For the reasons we rejected defendant's fifth, sixth and seventh arguments above, we reject this argument as well. Defendant attempts to make additional arguments not preserved by assignment of error in the record, which we do not address. N.C. R. App. P. Rule 10; State v. White, 82 N.C. App. 358, 360, 346 S.E.2d 243, 245 (1986). This argument is without merit.
    In his ninth and final argument defendant contends that the trial court violated his Fifth, Sixth and Fourteenth Amendment rights as guaranteed by the United States Constitution bysentencing him for first-degree rape and first-degree sex-offense when the indictments failed to allege any use of a deadly weapon. We disagree.
    Defendant acknowledges that the use of short-form indictments like the ones used in the instant case have been repeatedly held proper and constitutional, but he argues that we should ignore our established law and remand his case for resentencing for second- degree rape and second-degree sex-offense. This we decline to do. State v. Wallace, 351 N.C. 481, 528 S.E.2d 326 (2000). This argument is without merit.
    Because defendant has not argued his other assignments of error in his brief, they are deemed abandoned. N.C. R. App. P. Rule 28(b)(6) (2003).
    NO ERROR.
    Judges TIMMONS-GOODSON and McCULLOUGH concur.
    Report per Rule 30(e).

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