IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-411
Filed 31 December 2024
Henderson County, Nos. 22 CRS 22; 22 CRS 50109; 23 CRS 75
STATE OF NORTH CAROLINA
v.
DAVID B. PRESSLEY, Defendant.
Appeal by defendant from judgments entered 16 November 2023 by Judge
George Cooper Bell in Henderson County Superior Court. Heard in the Court of
Appeals 23 October 2024.
Attorney General Joshua H. Stein, by Assistant Attorney General Jason Caccamo, for the State.
Attorney Drew Nelson for defendant-appellant.
THOMPSON, Judge.
David Pressley (defendant) appeals his convictions of first-degree forcible rape,
first-degree forcible sex offense, and violent habitual felon, contending that the trial
court erred by failing to inform defendant that he had the right to both open and close
during closing arguments to the jury. After careful consideration, defendant’s appeal
is dismissed for failure to preserve the issue for appellate review.
I. Factual Background and Procedural History
On 6 January 2022, Sierra Stahr (Sierra) and her father Ralph (Mr. Stahr) STATE V. PRESSLEY
Opinion of the Court
found defendant waiting for them outside their home in Hendersonville upon
returning from dinner. Sierra and Mr. Stahr knew defendant, but it had been nearly
two years since they had last seen him. Defendant, who was walking with a limp, told
Mr. Stahr he’d been in a motorcycle accident and Mr. Stahr invited defendant into
the residence. Mr. Stahr offered defendant food and medicine for his leg and visited
with defendant while Sierra went to her room to go to bed.
Mr. Stahr was going in to work the evening of 6 January 2022 and offered to
give defendant a ride on the way to his job. Shortly after 9:00 p.m., Mr. Stahr woke
up Sierra to let her know he was leaving for work, then Mr. Stahr dropped defendant
off “down the road . . . down past my house . . . . where [defendant] said his girlfriend
lived.” After arriving at work, Mr. Stahr and Sierra spoke once on the phone briefly;
later that evening, Mr. Stahr received word that someone had called, asked to speak
to him, and reported that Mr. Stahr needed to go home because there was a family
emergency at Mr. Stahr’s residence. When Mr. Stahr was unable to reach Sierra by
phone, he left work and went home to check on Sierra. Upon his arrival, Mr. Stahr
found the screen door to the residence uncharacteristically locked, so he called for
Sierra to come and open the door. When Mr. Stahr entered the residence, he stated
that “it was like a cyclone went through it[,]” and Sierra immediately began
apologizing to him for “tearing the house up” because she had been looking for her
cell phone and her debit card.
Sierra testified that after she fell asleep, she awoke to someone knocking on
-2- STATE V. PRESSLEY
the door. Assuming it was her father coming home for “lunch,” Sierra opened the door
to find defendant asking to come in to retrieve some items he had left in the residence.
According to Sierra, she turned to look for the items to which defendant was referring
and could remember nothing after that. Sierra stated that the next thing she
remembered was her father knocking on the door and she got up to let him in. Sierra
recounted feeling “anxious” and “different, like something happened” to her, as well
as experiencing pain in her knees, her jaw and neck, and her vaginal area. When
Sierra told her father she felt like she had been attacked, Mr. Stahr called 911.
EMS transported Sierra to the hospital where she was evaluated, a rape kit
was performed by a sexual assault nurse examiner (SANE), and Sierra was
interviewed by law enforcement officers. The results of the rape kit revealed male
DNA present on the vaginal and anal swabs taken from Sierra. The DNA profile
“obtained from . . . the vaginal swabs was approximately 6.90 octillion times more
likely [to have] originated from [Sierra] and [defendant] than . . . from [Sierra] and
an unknown person.” The DNA profile “obtained from . . . the rectal swabs was . . . .
approximately 332 octillion times more likely [to have] originated from [defendant]
than . . . from an unknown, unrelated individual.”
Defendant was indicted for first-degree forcible rape and obtaining the status
of violent habitual felon on 24 January 2022 and first-degree forcible sexual offense
on 5 May 2023. Defendant’s case came on for hearing at the 6 November 2023
criminal session of Henderson County Superior Court. At the beginning of the trial,
-3- STATE V. PRESSLEY
defendant made a motion to continue and a motion to release his trial attorneys due
to ineffective assistance of counsel. The trial court denied defendant’s motion to
continue, informing defendant he could fire his attorneys and represent himself if
that was defendant’s preference. Defendant initially proceeded with his attorneys but
halfway through the trial, defendant advised the court that he wished to fire his
counsel and proceed pro se. The trial court appointed defendant’s attorneys to act as
standby counsel. After choosing to represent himself, defendant made several
inquiries of the court regarding his ability to maintain the final closing argument to
the jury.
The jury returned verdicts of guilty for the charges of first-degree forcible rape
and first-degree forcible sex offense, as well as guilty of being a violent habitual felon.
Defendant gave oral notice of appeal in open court.
II. Jurisdiction
On appeal, defendant contends that he is entitled to a new trial because “the
trial court erred by failing to inform [defendant] that he had the right to open the
[closing] argument before the jury,” as proscribed by Rule 10 of the North Carolina
General Rules of Practice for Superior and District Courts.
As a preliminary matter, we must address appellate jurisdiction. Defendant
failed to preserve his argument for appellate review. Rule 10 of the North Carolina
Rules of Appellate Procedure states, “to preserve an issue for appellate review, a
party must have presented to the trial court a timely request, objection, or motion,
-4- STATE V. PRESSLEY
stating the specific grounds for the ruling the party desired the court to make if the
specific grounds were not apparent from the context.” N.C.R. App. P. 10(a)(1) (2023).
Here, after both parties rested, the trial court conducted the charge conference.
Following the charge conference, the trial court stated, “[i]n this case [ ] defendant
has not presented any evidence. So that means that he has the opportunity to close
last. And I assume that[ is] what you would like to do. Is that correct, sir?” Defendant
responded, “[y]es.” The trial court then indicated that the State would go first,
followed by defendant. Defendant failed to object, request, or make a motion
regarding his opportunity to both open and close the closing arguments to the jury,
and therefore, this issue is unpreserved. Accordingly, we lack jurisdiction to review
defendant’s appeal.
III. Suspension of Rules
As an alternative argument, defendant contends that this Court should invoke
Rule 2 of the North Carolina Rules of Appellate Procedure should we determine that
defendant has failed to preserve the issue for appellate review. Rule 2 states that this
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-411
Filed 31 December 2024
Henderson County, Nos. 22 CRS 22; 22 CRS 50109; 23 CRS 75
STATE OF NORTH CAROLINA
v.
DAVID B. PRESSLEY, Defendant.
Appeal by defendant from judgments entered 16 November 2023 by Judge
George Cooper Bell in Henderson County Superior Court. Heard in the Court of
Appeals 23 October 2024.
Attorney General Joshua H. Stein, by Assistant Attorney General Jason Caccamo, for the State.
Attorney Drew Nelson for defendant-appellant.
THOMPSON, Judge.
David Pressley (defendant) appeals his convictions of first-degree forcible rape,
first-degree forcible sex offense, and violent habitual felon, contending that the trial
court erred by failing to inform defendant that he had the right to both open and close
during closing arguments to the jury. After careful consideration, defendant’s appeal
is dismissed for failure to preserve the issue for appellate review.
I. Factual Background and Procedural History
On 6 January 2022, Sierra Stahr (Sierra) and her father Ralph (Mr. Stahr) STATE V. PRESSLEY
Opinion of the Court
found defendant waiting for them outside their home in Hendersonville upon
returning from dinner. Sierra and Mr. Stahr knew defendant, but it had been nearly
two years since they had last seen him. Defendant, who was walking with a limp, told
Mr. Stahr he’d been in a motorcycle accident and Mr. Stahr invited defendant into
the residence. Mr. Stahr offered defendant food and medicine for his leg and visited
with defendant while Sierra went to her room to go to bed.
Mr. Stahr was going in to work the evening of 6 January 2022 and offered to
give defendant a ride on the way to his job. Shortly after 9:00 p.m., Mr. Stahr woke
up Sierra to let her know he was leaving for work, then Mr. Stahr dropped defendant
off “down the road . . . down past my house . . . . where [defendant] said his girlfriend
lived.” After arriving at work, Mr. Stahr and Sierra spoke once on the phone briefly;
later that evening, Mr. Stahr received word that someone had called, asked to speak
to him, and reported that Mr. Stahr needed to go home because there was a family
emergency at Mr. Stahr’s residence. When Mr. Stahr was unable to reach Sierra by
phone, he left work and went home to check on Sierra. Upon his arrival, Mr. Stahr
found the screen door to the residence uncharacteristically locked, so he called for
Sierra to come and open the door. When Mr. Stahr entered the residence, he stated
that “it was like a cyclone went through it[,]” and Sierra immediately began
apologizing to him for “tearing the house up” because she had been looking for her
cell phone and her debit card.
Sierra testified that after she fell asleep, she awoke to someone knocking on
-2- STATE V. PRESSLEY
the door. Assuming it was her father coming home for “lunch,” Sierra opened the door
to find defendant asking to come in to retrieve some items he had left in the residence.
According to Sierra, she turned to look for the items to which defendant was referring
and could remember nothing after that. Sierra stated that the next thing she
remembered was her father knocking on the door and she got up to let him in. Sierra
recounted feeling “anxious” and “different, like something happened” to her, as well
as experiencing pain in her knees, her jaw and neck, and her vaginal area. When
Sierra told her father she felt like she had been attacked, Mr. Stahr called 911.
EMS transported Sierra to the hospital where she was evaluated, a rape kit
was performed by a sexual assault nurse examiner (SANE), and Sierra was
interviewed by law enforcement officers. The results of the rape kit revealed male
DNA present on the vaginal and anal swabs taken from Sierra. The DNA profile
“obtained from . . . the vaginal swabs was approximately 6.90 octillion times more
likely [to have] originated from [Sierra] and [defendant] than . . . from [Sierra] and
an unknown person.” The DNA profile “obtained from . . . the rectal swabs was . . . .
approximately 332 octillion times more likely [to have] originated from [defendant]
than . . . from an unknown, unrelated individual.”
Defendant was indicted for first-degree forcible rape and obtaining the status
of violent habitual felon on 24 January 2022 and first-degree forcible sexual offense
on 5 May 2023. Defendant’s case came on for hearing at the 6 November 2023
criminal session of Henderson County Superior Court. At the beginning of the trial,
-3- STATE V. PRESSLEY
defendant made a motion to continue and a motion to release his trial attorneys due
to ineffective assistance of counsel. The trial court denied defendant’s motion to
continue, informing defendant he could fire his attorneys and represent himself if
that was defendant’s preference. Defendant initially proceeded with his attorneys but
halfway through the trial, defendant advised the court that he wished to fire his
counsel and proceed pro se. The trial court appointed defendant’s attorneys to act as
standby counsel. After choosing to represent himself, defendant made several
inquiries of the court regarding his ability to maintain the final closing argument to
the jury.
The jury returned verdicts of guilty for the charges of first-degree forcible rape
and first-degree forcible sex offense, as well as guilty of being a violent habitual felon.
Defendant gave oral notice of appeal in open court.
II. Jurisdiction
On appeal, defendant contends that he is entitled to a new trial because “the
trial court erred by failing to inform [defendant] that he had the right to open the
[closing] argument before the jury,” as proscribed by Rule 10 of the North Carolina
General Rules of Practice for Superior and District Courts.
As a preliminary matter, we must address appellate jurisdiction. Defendant
failed to preserve his argument for appellate review. Rule 10 of the North Carolina
Rules of Appellate Procedure states, “to preserve an issue for appellate review, a
party must have presented to the trial court a timely request, objection, or motion,
-4- STATE V. PRESSLEY
stating the specific grounds for the ruling the party desired the court to make if the
specific grounds were not apparent from the context.” N.C.R. App. P. 10(a)(1) (2023).
Here, after both parties rested, the trial court conducted the charge conference.
Following the charge conference, the trial court stated, “[i]n this case [ ] defendant
has not presented any evidence. So that means that he has the opportunity to close
last. And I assume that[ is] what you would like to do. Is that correct, sir?” Defendant
responded, “[y]es.” The trial court then indicated that the State would go first,
followed by defendant. Defendant failed to object, request, or make a motion
regarding his opportunity to both open and close the closing arguments to the jury,
and therefore, this issue is unpreserved. Accordingly, we lack jurisdiction to review
defendant’s appeal.
III. Suspension of Rules
As an alternative argument, defendant contends that this Court should invoke
Rule 2 of the North Carolina Rules of Appellate Procedure should we determine that
defendant has failed to preserve the issue for appellate review. Rule 2 states that this
Court may “suspend or vary the requirements or provisions of any of these rules in a
case pending before it upon application of a party or upon its own initiative” in order
to “prevent manifest injustice to a party, or to expedite decision in the public
interest[.]” N.C.R. App. P. 2.
Defendant cites to case precedent that exclusively emphasizes the importance
of a defendant receiving the final closing argument to the jury if the defendant did
-5- STATE V. PRESSLEY
not put on any evidence. This Court has expressed that Rule 10 of the North Carolina
General Rules of Practice for Superior and District Courts imposes a right that “has
been deemed to be critically important and the improper deprivation of this right
entitles a defendant to a new trial.” State v. English, 194 N.C. App. 314, 317, 669
S.E.2d 869, 871 (2008). However, in English, the defendant received a new trial
because the “trial court erroneously deprived defendant of his right to make the final
closing argument to the jury.” Id. at 321, 669 S.E.2d at 873 (emphasis added). In the
present matter, defendant gave the final closing argument. Furthermore, defendant
has failed to cite to any case precedent that indicates that he is entitled to a new trial
because he was not informed of his right to open the closing arguments, nor has
defendant pointed to any case precedent that indicates the trial court had an
affirmative duty to inform him of such right.
After careful review, we decline to invoke Rule 2 because defendant gave the
final closing argument to the jury and that is what our case precedent places “critical
importance” on. Moreover, defendant has failed to demonstrate how his proposed
issue on appeal constitutes “exceptional circumstances” or how “manifest injustice”
would be prevented.
IV. Conclusion
For the foregoing reasons, defendant’s appeal is dismissed as he failed to
preserve the issue for appellate review in accordance with Rule 10 of the North
Carolina Rules of Appellate Procedure. Moreover, we decline to invoke Rule 2 of the
-6- STATE V. PRESSLEY
North Carolina Rules of Appellate Procedure.
DISMISSED.
Judges GORE and STADING concur.
-7-