STATE OF NORTH CAROLINA
v. Nash County
No. 04 CRS 51790
WILLIE CLARENCE ALSTON
Attorney General Roy Cooper, by Assistant Attorney General
Sarah Y. Meacham, for the State
Nora H. Hargrove for defendant-appellant.
LEVINSON, Judge.
On 12 July 2004, Willie Clarence Alston (defendant)
was
indicted for a statutory sex offense
. The case was tried at the 10
October 2005 Criminal Session of Nash County Superior Court.
The State presented evidence at trial which tended to show the
following:
On 10 March 2004, the victim, TD, a fifteen year old
girl, had just gotten off the school bus when she saw the
defendant, Willie Clarence Alston. Defendant told TD to get in the
car because he was going to take her to pick up Shirley Johnson.
Johnson, TD's aunt, had custody of TD and had raised her since she
was two years old. TD's brother and his girlfriend were already in
the car, and TD got in the car. They dropped TD's brother andgirlfriend off at a Travel Lodge and continued driving to Rocky
Mount, where they stopped at a bank and purchased sodas. While
they were driving, defendant started feeling TD's breasts. He
pulled her shirt out, and then took his finger and put it in TD's
vagina. TD told him to stop, and defendant replied that he was
sorry.
At trial, Johnson testified on cross-examination that several
days later, she took TD to the emergency room to have her examined.
Johnson testified that the doctor told her “there weren't no
penetration.” Defendant's counsel then asked:
Q: That's what the doctor said?
A: Yes, no penetration, penis or nothing, but
he didn't say nothing about no finger.
Following the presentation of evidence, but prior to closing
arguments, the trial court handed the parties a verbatim transcript
of Johnson's testimony. The trial court then instructed counsel
for both parties that if they used any part of Johnson's testimony
in their argument, they should “use the entire verbatim response.”
Defendant was convicted of a statutory sex offense and
sentenced to a term of 192 to 240 months imprisonment.
Defendant
appeals.
Defendant's sole argument on appeal is that the trial court
erred by improperly limiting his counsel's use of Johnson's
testimony in his closing argument. Defendant contends that by
imposing a verbatim reading requirement, counsel was deprived of
his right to argue the evidence in the strongest manner possible in
favor of the defendant
.
After careful review of the record, briefs and contentions of
the parties, we find no error.
Control of closing arguments is
left to the sole discretion of the trial court. State v. Barrett,
343 N.C. 164, 181, 469 S.E.2d 888, 898 (1996). “'Trial counsel is
allowed wide latitude in argument to the jury and may argue all of
the evidence which has been presented as well as reasonable
inferences which arise therefrom.'” State v. McNeil, 350 N.C. 657,
685, 518 S.E.2d 486, 503 (1999)(quoting State v. Guevara, 349 N.C.
243, 257, 506 S.E.2d 711, 721 (1998)). Here, we hold that the
trial court did not abuse its discretion by placing the limitation
on counsel's use of Johnson's testimony.
Prior to closing arguments, defendant moved to dismiss the
charges. In support of the motion, counsel for defendant argued
that Johnson testified that the doctor told her no penetration
occurred. In response, the prosecutor argued that counsel had
misquoted Johnson. The trial court denied the motion to dismiss.
Then, prior to closing, the trial court issued its directive that
Johnson's testimony be used verbatim. The court's directive was
evidently based on its belief that counsel had misquoted Johnson's
testimony, and it acted sua sponte to prevent further misuse of the
testimony during closing argument. The court did not prevent
counsel from using Johnson's testimony, or mandate that it be used,
but merely placed limits on its use in order to ensure that it was
presented fairly. Thus, we conclude that the trial court's
directive was not “so arbitrary that it could not have been the
result of a reasoned decision.” State v. Blakeney, 352 N.C. 287,298, 531 S.E.2d 799, 809 (2000). Accordingly, we find no error.
No error.
Judges TYSON and BRYANT concurr.
Report per Rule 30(e).
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