IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-199
Filed 21 January 2026
Alamance County, Nos. 21CR054618-000, 21CR054619-000, 22CR000547-000
STATE OF NORTH CAROLINA
v.
EMILY JEAN ROBINSON, Defendant.
Appeal by Defendant from judgment entered 28 May 2024 by Judge Edwin
Wilson in Alamance County Superior Court. Heard in the Court of Appeals 21
October 2025.
Attorney General Jeff Jackson, by Special Deputy Attorney General Zachary K. Dunn, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S. Zimmer, for Defendant.
GRIFFIN, Judge.
Defendant Emily Jean Robinson appeals from judgment entered after a jury
found her guilty of possession with intent to sell or deliver a controlled substance
(fentanyl), maintaining a dwelling to keep controlled substance, and possession of
drug paraphernalia. Defendant argues (1) the trial court erred by denying her right
to open and close the arguments, (2) the trial court erred by allowing an expert to
testify about toxicology results, (3) the trial court erred by allowing sentencing for
both death by distribution and sale of a controlled substance, and (4) she received STATE V. ROBINSON
Opinion of the Court
ineffective assistance of counsel. We hold the trial court did not prejudicially err.
I. Factual and Procedural Background
On 14 September 2021, Robert Starner told his friend, Adlai Walters, “he
wanted to get . . . some ‘boy.’” Walters understood “boy” to mean heroin, and, thus,
tried to dissuade Starner from getting it. Starner ignored his friend’s advice and
called Defendant. Then, Starner, Walters, and Starner’s girlfriend, Kora Bott, drove
about thirty minutes to a residential house to obtain drugs. Starner went around to
the back door of the house and Defendant opened it. After a few minutes of chatting
with Defendant, Starner returned to the vehicle. Once inside the car, Starner snorted
a small amount of a drug from his hands and Bott also partook in some of the drugs.
Starner offered Walters some of the drugs, but Walters turned him down.
Shortly after snorting drugs, Starner began driving away from the house.
However, once on the road, Starner started to drive erratically, going too fast and
talking “crazy.” Walters then told Starner to stop the car and Walters replaced
Starner as the driver. As Walters drove, Starner and Bott were both moaning and
making a lot of noise. Neither Starner nor Bott responded to Walters’ request for
directions back to Bott’s apartment, so Walters drove back to town instead and ended
up at Starner’s parents’ house.
When he arrived at the house, Walters thought Starner and Bott were just
sleeping off the drugs, so he parked the car, took the keys, and went inside the home,
where he told Starner’s mother that Starner and Bott were inside the car on drugs.
-2- STATE V. ROBINSON
Walters left the keys inside to prevent Starner and Bott from attempting to drive in
their current state, checked on the couple one last time, went back inside to tell
Starner’s parents he was going to stay with an old girlfriend that night, and then
went to his old girlfriend’s house. When Walters last checked on Starner and Bott,
they were still squirming and making noises.
At about 12:30 a.m. on 15 September 2021, Burlington Police Department
Officer Bralin Haith responded to a possible overdose call at Starner’s parents’ home
and found Starner and Bott in the car in the driveway. Officer Haith secured a bag
containing some substance from the back seat and placed it in an evidence envelope;
he also found loose pills in the vehicle but refrained from seizing them.
When police and medical services arrived, Bott had difficulty breathing, but
ultimately survived. Starner was not responding, so Emergency Medical Services
(“EMS”) tried to revive him. However, EMS was unable to revive him and Starner
died at the scene. Walters learned Starner died and returned to the scene, where he
told the police about the prior night’s events. Later, Walters rode with the police to
try to locate the residence where the group had purchased the drugs. The police and
Walters successfully located the house on the second trip.
On 16 September 2021, officers spoke with Defendant at her friend’s house and
searched her bag to discover she possessed a substance they suspected was fentanyl.
Then, Defendant voluntarily went to the police station for an interview. During the
interview, she initially denied using or selling fentanyl, but later admitted she used
-3- STATE V. ROBINSON
and sold fentanyl and specifically sold to Starner and Bott. The police executed a
search warrant of Defendant’s home and found off-white powder in various locations,
suspected Xanax, digital scales, corner baggies, and bindles. Additionally, text
messages showed Defendant had communicated with both Starner and Bott dating
back to June 2021.
Dr. Michelle Aurelius, Chief Medical Examiner at the North Carolina Office of
the Chief Medical Examiner and expert in pathology and forensic pathology, began
assessing Starner’s body on 15 September 2021. Dr. Aurelius refrained from
conducting a full autopsy examination on Starner’s body, but took samples of
Starner’s urine, which tested positive for methamphetamine, cocaine, fentanyl,
amphetamine, and THC. Dr. Aurelius then submitted the urine samples to the
toxicology laboratory for examination. Dr. Aurelius made a findings report that was
admitted into evidence at trial.
Dr. Justin Brower, forensic toxicologist and expert in forensic toxicology,
approved Starner’s toxicology report, performed by other forensic chemists using
liquid chromatography. Dr. Brower testified his job is to analyze the results of such
forensic chemists and evaluate the data for completeness and accuracy. Dr. Brower
additionally testified, in his expert opinion, the test results from the toxicology report
indicated Starner had used methamphetamine, cocaine, and fentanyl prior to his
death. Furthermore, Dr. Brower opined Starner likely ingested such drugs within
-4- STATE V. ROBINSON
twenty-four hours of his death and reasoned 9.5 nanograms per milliliter, the amount
of fentanyl in Starner’s body, was sufficiently fatal.
At trial, the State delivered the first opening and closing arguments and
Defendant followed both times. Defendant objected and asserted that, because the
defense did not put on evidence, it was error to not allow the defense to open and close
the closing arguments, under Rule 10 of the North Carolina Rules of Superior and
District Courts. However, the trial court responded to this objection stating it had
discretion to allow the State to have the first closing argument. Defendant then
moved for a mistrial using the same argument, but the trial court determined any
potential error was not substantial or irreparable prejudice to Defendant.
At the close of the trial, the jury found Defendant guilty of all charges. The
trial court entered a single consolidated sentence for all of Defendant’s offenses and
sentenced her to a term of sixty to eighty-four months imprisonment. Defendant
timely appeals.
II. Analysis
A. Opening and Closing Arguments
Defendant argues the trial court erred in failing to allow Defendant the
opportunity to both open and close the jury arguments and denying her motion for
mistrial. “This Court reviews a trial court’s denial of a motion for mistrial under an
abuse of discretion standard.” State v. McDougald, 279 N.C. App. 25, 27, 862 S.E.2d
877, 880 (2021) (citation omitted).
-5- STATE V. ROBINSON
Rule 10 of the General Rules of Practice for the Superior and District Courts
of North Carolina states in part:
In all cases, civil or criminal, if no evidence is introduced by the defendant, the right to open and close the argument to the jury shall belong to him. If a question arises as to whether the plaintiff or the defendant has the final argument to the jury, the court shall decide who is so entitled, and its decision shall be final.
N.C. Super. and Dist. Ct. R. 10. A defendant has the right to have his or her counsel
at least conclude the jury argument. State v. Raper, 203 N.C. 489, 491, 166 S.E. 314,
315 (1932). However, there may be exceptions to this rule. See State Tr. Co. v.
Braznell¸ 227 N.C. 211, 215, 41 S.E.2d 744, 747 (1947) (holding the right to the
concluding argument was not infringed upon where one of the two defendants
delivered the closing argument prior to the other defendant); see State v. Lee, 277
N.C. 205, 209, 176 S.E.2d 765, 767 (1970) (citation omitted) (explaining a
codefendant’s introduction of evidence waives the other defendant’s right to closing
argument).
When a trial court refused to permit all of a defendant’s counsel to address the
jury during final argument, our Supreme Court held prejudicial error per se. State
v. Mitchell, 321 N.C. 650, 659, 365 S.E.2d 554, 559 (1988). However, appellate courts
generally refrain from finding prejudicial error per se. State v. Malachi, 371 N.C.
719, 735, 821 S.E.2d 407, 419 (2018). Normally, a defendant must demonstrate
prejudice, in addition to statutory error, before receiving a new trial. State v. Griffin,
-6- STATE V. ROBINSON
298 N.C. App. 85, 91–92, 914 S.E.2d 8, 12–13 (2025) (citation omitted). The burden
is on the defendant to show prejudice by presenting a reasonable possibility of a
different verdict had the error not been committed. N.C. Gen. Stat. § 15A-1443(a);
State v. Conner, 335 N.C. 618, 630, 440 S.E.2d 826, 833 (1994) (citation omitted).
The test as to whether a defendant “introduced,” or put an object into, evidence
is whether a party offered the object as substantive evidence such that a jury may
examine it and evaluate whether the object bolsters or undermines a witness’s
testimony. State v. English, 194 N.C. App. 314, 318, 669 S.E.2d 869, 871 (2008)
(citation omitted). Conversely, a party that presents an object to a witness to refresh
his or her recollection has not introduced evidence. Id.
Generally, testimony elicited from a witness during cross-examination is
deemed as coming from the party who calls the witness, despite the reality that cross-
examination tends to support the cross-examiner’s case. State v. Matthews, 218 N.C.
App. 277, 279, 720 S.E.2d 829, 831 (2012) (citation omitted). Yet, evidence may still
be “introduced,” under its meaning within Rule 10, during cross-examination when
(1) an object is offered into evidence and accepted as such by the trial court, or (2) a
new irrelevant matter is presented to the jury. Id. at 279, 720 S.E.2d at 832 (citation
omitted). Accordingly, new relevant matters raised during a cross-examination do
not amount to evidentiary “introduction.” State v. Shuler, 135 N.C. App. 449, 453,
520 S.E.2d 585, 588 (1999) (citation omitted). Otherwise, a defendant would have an
intolerable burden of either refraining from the “constitutional right to cross-examine
-7- STATE V. ROBINSON
and thereby suffer adverse testimony to stand in the record unchallenged and
unimpeached or forfeit the valuable procedural right to [open and close] closing
argument.” Id. at 453, 520 S.E.2d 588–89 (cleaned up).
Another consideration in determining whether an object was introduced is
whether the object was the witness’s own; for instance, a witness reading aloud her
own report will likely not constitute an introduction of evidence. State v. Hennis, 184
N.C. App 536, 539, 646 S.E.2d 398, 400 (2007) (citation omitted); State v. Wells, 171
N.C. App. 136, 140, 613 S.E.2d 705, 707–08 (2005) (citation omitted). On the other
hand, a witness reading aloud a report made by another person who did not testify
will likely qualify as an evidentiary introduction. State v. Macon, 346 N.C. 109, 113–
14, 484 S.E.2d 538, 540–41 (1997) (citation omitted).
Here, Defendant concluded the argument to the jury, but did not deliver the
first argument. Therefore, Defendant’s right to at least conclude the jury argument
was protected. Raper, 203 N.C. at 489, 166 S.E. at 315. Still, we acknowledge Rule
10 gives Defendant the ability to both open and close the jury argument when he or
she does not introduce evidence.
Assuming arguendo that Defendant did not introduce evidence within the
meaning of Rule 10 and the trial court erred in denying her ability to both open and
close the arguments to the jury, Defendant failed to show how the trial court’s error
prejudiced her. Unlike Mitchell, Defendant’s sole counselor delivered the final
argument to the jury. Given the distinction between Mitchell and our case at hand,
-8- STATE V. ROBINSON
we refrain from holding prejudicial error per se. So, Defendant maintains the burden
to demonstrate prejudice along with a Rule 10 statutory error. Defendant argued
“she lost the ability to explain the law before the State argued” and lost the primacy
effect in influencing the jury. However, Defendant inadequately explains that there
was a reasonable possibility of a different verdict absent the error, especially in the
face of the evidence mounted against her. Thus, we refrain from granting Defendant
a new trial.
B. Expert Testimony
Defendant contends the trial court erred by allowing Dr. Brower to testify
about the toxicology results because it allegedly violated the Confrontation Clause.
“This Court reviews alleged constitutional errors in the admission of testimony
in violation of the Confrontation Clause de novo.” State v. Pabon, 380 N.C. 241, 252,
867 S.E.2d 632, 640 (2022) (citation omitted). However, a defendant may waive issues
on appeal if the issues are not raised at trial. State v. Wiley, 355 N.C. 592, 624, 565
S.E.2d 22, 44–45 (2002) (citations omitted). Defendant concedes she failed to raise
this issue at trial and therefore waived appellate review. We agree Defendant waived
this testimonial admission issue, but assuming it was properly preserved, we find no
error.
The Confrontation Clause, as guaranteed by the Sixth Amendment of the
United States Constitution, ensures a defendant has the right to confront the
witnesses against him. U.S. Const. amend. VI. Thus, the Confrontation Clause bars
-9- STATE V. ROBINSON
the admission of an absent witness’ testimonial statements, unless the witness is
unavailable and the defendant had a prior opportunity to cross-examine the witness.
Smith v. Arizona, 602 U.S. 779, 783 (2024) (quoting Crawford v. Washington, 541
U.S. 36, 53–54 (2004)).
The Confrontation Clause applies in full force to forensic evidence. Id. at 783.
However, in North Carolina, the Confrontation Clause does not apply to computer-
generated data created by a machine without human judgment. State v. Lester, 387
N.C. 90, 98, 910 S.E.2d 642, 648 (2025) (citation omitted). Since machines are not
people, they cannot be declarants, and therefore cannot offer testimonial statements,
within the meaning of the Confrontation Clause. Id. at 98–99, 910 S.E.2d at 648–49
(citation omitted).
Specifically, toxicology data of liquid samples generated by lab machines, such
as chromatographs, are not out-of-court “statements,” within the meaning of the
Confrontation Clause. Id. at 99, 910 S.E.2d at 649; see U.S. v. Washington, 498 F.3d
225, 229–30 (4th Cir. 2007). Thus, an expert’s testimony regarding a toxicology report
containing machine-generated data does not violate the Sixth Amendment of the U.S.
Constitution. Washington, 498 F.3d at 230.
Here, we acknowledge Dr. Brower relied on drug test results produced by other
forensic chemists. However, the forensic chemists did not use their judgments or
independently opine on the quantity of each drug in Starner’s system; rather a
machine-produced chromatograph provided the data. The output of the drug
- 10 - STATE V. ROBINSON
screening results, produced by liquid chromatography, is not an out-of-court
statement barred by the Confrontation Clause. Furthermore, Dr. Brower analyzed
all of the data himself and testified about the drugs in Starner’s body based on the
machine-generated data. Since Dr. Brower’s testimony did not come from out-of-
court statements made by forensic chemists, the trial court’s allowance of Dr.
Brower’s testimony was not error.
C. Sentencing Consolidation
Defendant claims the trial court erred in sentencing her to both death by
distribution and sale of a controlled substance, in alleged violation of her
constitutional protection from multiple punishments for the same offense.
This Court reviews alleged constitutional rights violations de novo. State v.
Cromartie, 257 N.C. App. 790, 795, 810 S.E.2d 766, 771 (2018) (citation omitted).
However, an unpreserved constitutional question will not ordinarily be considered on
appeal. Id. Here, Defendant concedes she failed to raise the issue of double jeopardy
to the trial court. Although the issue is unpreserved on appeal, Defendant’s argument
would still fail, even assuming it was preserved properly.
When “one offense is a lesser-included offense of another, the two offenses are
considered the same criminal offense.” State v. Schalow, 251 N.C. App. 334, 352, 795
S.E.2d 567, 579 (2016) (citation omitted). The U.S. Constitution’s Double Jeopardy
Clause in part prohibits multiple punishments for the same offense, absent clear
contrary legislative intent. State v. Mulder, 233 N.C. App. 82, 87, 755 S.E.2d 98, 102
- 11 - STATE V. ROBINSON
(2014) (citation omitted). To analyze whether two offenses are actually one offense,
we use the Blockburger Test, where we determine “whether each provision requires
proof of a fact which the other does not” when the same factual circumstance
constitutes violations for two separate statutory provisions. Blockburger v. United
States, 284 U.S. 299, 304 (1932) (citations omitted). In other words, if the same
conduct constitutes two offenses, each requiring proof of a unique fact, the
Blockburger Test reveals the Double Jeopardy Clause is not violated. United States
v. Dixon, 509 U.S. 688, 689 (1993). Nevertheless, “double jeopardy does not prohibit
multiple punishment for offenses when one is included within the other under the
Blockburger test if both are tried at the same time and if the legislature intended for
both offenses to be separately punished.” State v. Gardner, 315 N.C. 444, 454, 340
S.E.2d 701, 709 (1986).
To determine whether a crime is a lesser included offense of another offense,
North Carolina courts use the definitions of each offense, as opposed to the facts.
State v. Nickerson, 365 N.C. 279, 281, 715 S.E.2d 845, 847 (2011) (citation omitted).
Accordingly, all essential elements of the lesser crime must also be essential elements
of the greater crime. Id. at 281–82, 715 S.E.2d at 847. Yet, if “the lesser crime has
an essential element which is not completely covered by the greater crime, it is not a
lesser included offense.” Id. at 282, 715 S.E.2d at 847 (citation modified).
At the applicable time, death by distribution of certain controlled substances
had the following elements: (1) the “person unlawfully sells at least one certain
- 12 - STATE V. ROBINSON
controlled substance;” (2) the “ingestion of the certain controlled substance or
substances causes the death of the user;” (3) the “commission of the offense in
subdivision (1) of this subsection was the proximate cause of the victim’s death;” and
(4) the “person did not act with malice.” N.C. Gen. Stat. § 14-18.4(b) (2021). On the
other hand, the sale and/or delivery of a controlled substance comprises a transfer of
a controlled substance “by either sale or delivery, or both.” State v. Carr, 145 N.C.
App. 335, 341, 549 S.E.2d 897, 901 (2001) (citation omitted); State v. Chevallier, 264
N.C. App. 204, 211, 824 S.E.2d 440, 447 (2019) (citation omitted).
The defined “controlled substances” for death by distribution and sale and/or
delivery of a controlled substance differ. Specifically, the alleged lesser included
offense, sale and/or delivery of a controlled substance, includes “a controlled
substance,” which indicates any controlled substance. N.C. Gen. Stat. § 90-95 (2021)
(emphasis added). The sale and/or delivery of a controlled substance statute contains
multiple lists of controlled substances. See N.C. Gen. Stat. § 90-95; N.C. Gen. Stat. §
90-90 (2021); N.C. Gen. Stat. § 90-89 (2021); N.C. Gen. Stat. § 90-91 (2021); N.C. Gen.
Stat. § 90-92 (2021); N.C. Gen. Stat. § 90-93 (2021); N.C. Gen. Stat. § 90-94 (2021).
On the other hand, the alleged greater offense, death by distribution, features a
limited list of certain controlled substances, which is a smaller subset of controlled
substances in comparison to the sale and/or delivery of a controlled substance. N.C.
Gen. Stat. § 14-18.4. Thus, this alleged lesser crime has an essential element which
- 13 - STATE V. ROBINSON
is not completely covered by the greater crime; therefore, sale and/or delivery of a
controlled substance is not a lesser included offense of death by distribution.
Furthermore, using North Carolina’s definitional approach, the alleged greater
offense is actually narrower in terms of Defendant’s actions. For death by
distribution a person is guilty if he or she unlawfully sells at least one certain
controlled substance, in addition to satisfying the offense’s other elements.
Alternatively, the sale and/or delivery of a controlled substance broadens Defendant’s
possible guilty actions to include selling, delivering, or both.
The North Carolina session law enacting the death by distribution statute
included a preamble that identified a few of the North Carolina General Assembly’s
reasons for passing this legislation. 2019 N.C. Sess. Laws 83. Section 14-18.4’s
preamble states the General Assembly’s intent is to “strengthen the laws to act as a
greater deterrent to persons who want to illegally distribute opioids and further
exacerbate the opioid epidemic.” Id. The General Assembly also expressed its
concern about dramatic increases in opioid-related overdoses in the past twenty years
and desire to limit opioid distribution to legitimate medical prescriptions. Id.
Additionally, the General Assembly included its legislative intent within the statute
itself stating it enacted “this law to encourage effective intervention by the criminal
justice system to hold illegal drug dealers accountable for criminal conduct that
results in death.” N.C. Gen. Stat. § 14-18.4(a). This highlights the General
Assembly’s intent to particularly punish illegal drug dealing that ends in the death of
- 14 - STATE V. ROBINSON
the user, which is a separate intent from punishing solely the sale and/or delivery of
a controlled substance.
In consideration of the preamble sections explaining the statute’s purpose as
well as the express legislative intent within the statute itself, the General Assembly
expressly indicates its legislative intent. The General Assembly highlights this new
legislation is necessary in light of increased opioid-related overdoses specifically in
the last two decades, illuminating a particular need to bolster the deterrent to those
distributing opioids. These sentiments of the General Assembly signal death by
distribution and sale of a controlled substance are offenses intended to be separately
punishable. Therefore, the Double Jeopardy Clause is not violated. We hold the trial
court did not err in sentencing Defendant for both death by distribution and sale of a
controlled substance.
D. Ineffective Assistance of Counsel
Defendant argues she received ineffective assistance of counsel because her
counsel failed to object to (1) Dr. Brower’s testimony and (2) convictions of both death
by distribution and sale of a controlled substance.
Both federal and North Carolina law regard ineffective assistance of counsel
claims in the same manner. State v. Braswell, 312 N.C. 553, 562–63, 324 S.E.2d 241,
248 (1985). A defendant must show (1) his or her counsel’s performance at trial was
deficient and (2) such deficiency prejudiced Defendant. Strickland v. Washington,
466 U.S. 668, 687 (1984); State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006).
- 15 - STATE V. ROBINSON
Courts presume trial counsel’s conduct was professionally acceptable. Strickland,
466 U.S. at 689–90; State v. Roache, 358 N.C. 243, 280, 595 S.E.2d 381, 406 (2004)
When counsel errs such that he or she falls below an objective standard of
reasonable professional conduct as to no longer constitute “counsel” as guaranteed by
the U.S. Constitution, counsel’s performance was deficient. Strickland, 466 U.S. at
687; Wiggins v. Smith, 539 U.S. 510, 521 (2003); Allen, 360 N.C. at 316, 626 S.E.2d
at 286. To demonstrate counsel’s deficient performance prejudiced a defendant, a
defendant must show, but for counsel’s errors, there is a substantial probability there
would have been a different proceeding outcome. Allen, 360 N.C. at 316, 626 S.E.2d
at 286; Harrington v. Richter, 562 U.S. 86, 112 (2011) (citation omitted).
Ineffective assistance of counsel “claims brought on direct review will be
decided on the merits when the cold record reveals that no further investigation is
required.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001). This Court
must dismiss such a claim without prejudice if we determine it is prematurely
brought. State v. Thompson, 359 N.C. 77, 122–23, 604 S.E.2d 850, 881 (2004).
Since we hold no error for both Dr. Brower’s testimony and the sentencing of
death by distribution and sale of a controlled substance, Defendant failed to show
how counsel erred, let alone deficiently erred. Thus, Defendant’s ineffective
assistance of counsel claim fails.
III. Conclusion
- 16 - STATE V. ROBINSON
Despite losing the ability to argue first and last, Defendant did not
demonstrate how this prejudiced her. The trial court did not err in allowing expert
testimony of machine generated data and in sentencing Defendant for both death by
distribution and sale of a controlled substance. Lastly, Defendant did not receive
ineffective assistance of counsel.
NO PREJUDICIAL ERROR.
Judges COLLINS and STADING concur.
- 17 -