An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e .
NO. COA13-1192
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
v. Edgecombe County Nos. 12 CRS 51319—21, 12 IFS 450 MELISSA NATASHA SPELLMAN, Defendant.
Appeal by defendant from judgments entered 5 March 2013 by
Judge Walter H. Godwin, Jr., in Edgecombe County Superior Court.
Heard in the Court of Appeals 8 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellant.
BRYANT, Judge.
Where the trial court conducted a balancing test pursuant
to Rule 403, the trial court did not abuse its discretion by the
admission of evidence. Where a prosecutor’s closing remarks are -2- a reiteration of the evidence, such remarks are proper and do
not require the trial court to intervene ex meru moto.
On 24 September 2012, defendant Melissa Natasha Spellman
was indicted by an Edgecombe County Grand Jury on one count each
of second-degree murder, aggravated felony serious injury by
vehicle, driving while license revoked, reckless driving, and
failure to stop at a stop sign. Defendant pled not guilty to
all counts, and the charges came on for trial at the 4 March
2013 Criminal Session of Edgecombe County Superior Court.
The State’s evidence tended to show the following. On 12
May 2012, eyewitness Daryle Whitfield was driving with his son
on Highway 43. Whitfield testified that a motorcyclist was
driving in front of his car; the motorcyclist was later
identified as Chris Taylor. As Whitfield approached the
intersection of Highway 43 and State Road 1003, he noticed “a
white sedan coming to that intersection at a high rate of speed”
and thought to himself that “they ain’t got time to stop.” The
intersection was clearly marked with stop signs and flashing red
stop lights for traffic driving along State Road 1003.
As the white sedan came through the intersection, it hit
Taylor, causing the sedan to flip. Whitfield testified that he
saw Taylor moving immediately after the accident and told Taylor -3- that he was going to get help. Taylor was later pronounced dead
at the scene, and the cause of death was attributed to “massive
head injury from a motor vehicle collision.” Whitfield stated
that when he approached the white sedan which had flipped onto
its roof, he saw three people inside. Whitfield testified that
two of the sedan’s occupants, defendant and a man, were moving
while a third, a female in the back seat, was not and appeared
to be dead.
State Highway Patrol Trooper Kearstin Howald testified that
as she began to investigate the accident scene, she noticed that
the white sedan “reeked of beer” and saw a beer can inside the
vehicle. Trooper Howald stated that when she went to Vidant
Edgecombe Hospital to speak with the occupants of the white
sedan, she spoke first with defendant. Trooper Howald testified
defendant smelled strongly of alcohol, had red, glassy eyes and
slurred speech, and was very talkative. Defendant, who was then
nineteen years old, told Trooper Howald she had been driving the
white sedan but it was not her car; she thought she had been in
a single-car wreck caused by her losing control on a curve in
the road near the intersection; and that she had been drinking
that day but was not drunk. Trooper Howald testified that
defendant told her she had consumed a bottle of Corona beer and -4- a vodka shot earlier that day. A chemical analysis of
defendant’s blood determined that defendant’s blood alcohol
content (“BAC”) at the time of the accident was approximately
0.40, five times the legal limit.
Defendant identified to Trooper Howald the two other
occupants of the white sedan as her friends Brandon Harrell and
Mareshah McCray. The accident left McCray in a coma. McCray
suffered brain trauma, fractures in her neck, spine, collar
bone, and ribs, her ear was severed, and she would require
facial reconstruction. Harrell was not seriously injured.
Defendant testified she had been drinking with Harrell and
McCray the day of the accident but drove the white sedan because
she “felt like, you know, I would be the one to drive.”
Defendant stated she did not learn of Taylor’s death until
Trooper Howald told her at the hospital; Trooper Howald
testified that when defendant learned of Taylor’s death
defendant became upset and said “I shouldn’t have been
drinking.”
Before trial on 30 January 2013, the State filed a notice
of intent to introduce evidence concerning defendant’s prior
conviction on 21 October 2010 for driving while impaired
(“DWI”). Defendant filed a motion to exclude evidence of her -5- prior DWI conviction under Rule 404(b), and a motion to exclude
evidence of social networking activity. The trial court denied
defendant’s motion to exclude evidence of her prior DWI
conviction at the beginning of trial, and reserved judgment on
the motion to exclude evidence of social networking activity
until the State sought to introduce such evidence into the
trial.
At trial, the court excluded evidence of a photograph taken
from defendant’s Facebook page, but allowed evidence of
defendant’s “About Me” statement made on her Facebook page.
On 5 March 2013, a jury convicted defendant of all counts.
Defendant was sentenced to consecutive sentences totaling 182 to
243 months on the felony counts and received a consolidated
sentence of 45 days and a $100.00 fine for the traffic
misdemeanors. Defendant appeals.
_________________________
Defendant raises two issues on appeal: whether the trial
court erred (I) under Rule 403 in admitting evidence of
defendant’s Facebook statement; and (II) by failing to intervene
ex mero motu during the State’s closing argument.
I. -6- Defendant argues that the trial court erred in not
conducting a Rule 403 balancing test prior to admitting evidence
of defendant’s Facebook statement. We disagree.
Pursuant to Rule 403 of the North Carolina Rules of
Evidence, “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” N.C. Gen. Stat.
§ 8C-1, Rule 403 (2013). We review a trial court’s Rule 403
ruling for abuse of discretion. State v. Beckelheimer, 366 N.C.
127, 130, 726 S.E.2d 156, 159 (2012).
The State sought to introduce into evidence, pursuant to
Rule 404(b), a photograph and a personal statement from
defendant’s Facebook page. After hearing arguments by both
sides concerning the photograph’s admissibility pursuant to Rule
404(b), the trial court conducted a Rule 403 balancing test and
determined that although the photograph was relevant, it could
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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 A p p e l l a t e P r o c e d u r e .
NO. COA13-1192
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
v. Edgecombe County Nos. 12 CRS 51319—21, 12 IFS 450 MELISSA NATASHA SPELLMAN, Defendant.
Appeal by defendant from judgments entered 5 March 2013 by
Judge Walter H. Godwin, Jr., in Edgecombe County Superior Court.
Heard in the Court of Appeals 8 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellant.
BRYANT, Judge.
Where the trial court conducted a balancing test pursuant
to Rule 403, the trial court did not abuse its discretion by the
admission of evidence. Where a prosecutor’s closing remarks are -2- a reiteration of the evidence, such remarks are proper and do
not require the trial court to intervene ex meru moto.
On 24 September 2012, defendant Melissa Natasha Spellman
was indicted by an Edgecombe County Grand Jury on one count each
of second-degree murder, aggravated felony serious injury by
vehicle, driving while license revoked, reckless driving, and
failure to stop at a stop sign. Defendant pled not guilty to
all counts, and the charges came on for trial at the 4 March
2013 Criminal Session of Edgecombe County Superior Court.
The State’s evidence tended to show the following. On 12
May 2012, eyewitness Daryle Whitfield was driving with his son
on Highway 43. Whitfield testified that a motorcyclist was
driving in front of his car; the motorcyclist was later
identified as Chris Taylor. As Whitfield approached the
intersection of Highway 43 and State Road 1003, he noticed “a
white sedan coming to that intersection at a high rate of speed”
and thought to himself that “they ain’t got time to stop.” The
intersection was clearly marked with stop signs and flashing red
stop lights for traffic driving along State Road 1003.
As the white sedan came through the intersection, it hit
Taylor, causing the sedan to flip. Whitfield testified that he
saw Taylor moving immediately after the accident and told Taylor -3- that he was going to get help. Taylor was later pronounced dead
at the scene, and the cause of death was attributed to “massive
head injury from a motor vehicle collision.” Whitfield stated
that when he approached the white sedan which had flipped onto
its roof, he saw three people inside. Whitfield testified that
two of the sedan’s occupants, defendant and a man, were moving
while a third, a female in the back seat, was not and appeared
to be dead.
State Highway Patrol Trooper Kearstin Howald testified that
as she began to investigate the accident scene, she noticed that
the white sedan “reeked of beer” and saw a beer can inside the
vehicle. Trooper Howald stated that when she went to Vidant
Edgecombe Hospital to speak with the occupants of the white
sedan, she spoke first with defendant. Trooper Howald testified
defendant smelled strongly of alcohol, had red, glassy eyes and
slurred speech, and was very talkative. Defendant, who was then
nineteen years old, told Trooper Howald she had been driving the
white sedan but it was not her car; she thought she had been in
a single-car wreck caused by her losing control on a curve in
the road near the intersection; and that she had been drinking
that day but was not drunk. Trooper Howald testified that
defendant told her she had consumed a bottle of Corona beer and -4- a vodka shot earlier that day. A chemical analysis of
defendant’s blood determined that defendant’s blood alcohol
content (“BAC”) at the time of the accident was approximately
0.40, five times the legal limit.
Defendant identified to Trooper Howald the two other
occupants of the white sedan as her friends Brandon Harrell and
Mareshah McCray. The accident left McCray in a coma. McCray
suffered brain trauma, fractures in her neck, spine, collar
bone, and ribs, her ear was severed, and she would require
facial reconstruction. Harrell was not seriously injured.
Defendant testified she had been drinking with Harrell and
McCray the day of the accident but drove the white sedan because
she “felt like, you know, I would be the one to drive.”
Defendant stated she did not learn of Taylor’s death until
Trooper Howald told her at the hospital; Trooper Howald
testified that when defendant learned of Taylor’s death
defendant became upset and said “I shouldn’t have been
drinking.”
Before trial on 30 January 2013, the State filed a notice
of intent to introduce evidence concerning defendant’s prior
conviction on 21 October 2010 for driving while impaired
(“DWI”). Defendant filed a motion to exclude evidence of her -5- prior DWI conviction under Rule 404(b), and a motion to exclude
evidence of social networking activity. The trial court denied
defendant’s motion to exclude evidence of her prior DWI
conviction at the beginning of trial, and reserved judgment on
the motion to exclude evidence of social networking activity
until the State sought to introduce such evidence into the
trial.
At trial, the court excluded evidence of a photograph taken
from defendant’s Facebook page, but allowed evidence of
defendant’s “About Me” statement made on her Facebook page.
On 5 March 2013, a jury convicted defendant of all counts.
Defendant was sentenced to consecutive sentences totaling 182 to
243 months on the felony counts and received a consolidated
sentence of 45 days and a $100.00 fine for the traffic
misdemeanors. Defendant appeals.
_________________________
Defendant raises two issues on appeal: whether the trial
court erred (I) under Rule 403 in admitting evidence of
defendant’s Facebook statement; and (II) by failing to intervene
ex mero motu during the State’s closing argument.
I. -6- Defendant argues that the trial court erred in not
conducting a Rule 403 balancing test prior to admitting evidence
of defendant’s Facebook statement. We disagree.
Pursuant to Rule 403 of the North Carolina Rules of
Evidence, “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” N.C. Gen. Stat.
§ 8C-1, Rule 403 (2013). We review a trial court’s Rule 403
ruling for abuse of discretion. State v. Beckelheimer, 366 N.C.
127, 130, 726 S.E.2d 156, 159 (2012).
The State sought to introduce into evidence, pursuant to
Rule 404(b), a photograph and a personal statement from
defendant’s Facebook page. After hearing arguments by both
sides concerning the photograph’s admissibility pursuant to Rule
404(b), the trial court conducted a Rule 403 balancing test and
determined that although the photograph was relevant, it could
not be authenticated; therefore, its probative value was
outweighed by its prejudicial effect and, thus, should be
excluded from evidence. -7- The State then sought to introduce evidence of defendant’s
“About Me” Facebook statement during its cross-examination of
defendant. Defendant’s statement was as follows: “Getting
wasted is my lifestyle. If you don’t like it, then f*** off.
I’m a party animal and a rapper and, oh, yeah, I’m a f******
boss.”
In its offer of proof outside the jury’s presence, the
State argued that defendant’s Facebook statement was admissible
for the same reasons the State sought to have defendant’s
Facebook photograph admitted into evidence because this evidence
went to the issue of malice. In admitting the statement into
evidence, the trial court noted that:
You got a difference in what she wrote and authenticated. She just sat there during the offer of proof and said it was her facebook page and that is what she wrote on it.
. . .
That's different than the picture that she says someone else [took]. So my ruling is is [sic] that the picture cannot come in as I ruled before, but what she wrote on that limited thing on what he is offering it as proof may be admitted.
In reviewing a Rule 403 balancing test, this Court has held
that a specific finding as to probative value versus prejudicial
effect is not required provided it is clear from the procedure -8- used that the trial court conducted a balancing test. See State
v. Washington, 141 N.C. App. 354, 367, 540 S.E.2d 388, 397—98
(2000) (“Here, when defendant objected, the trial court excused
the jury, conducted a voir dire examination of [a witness] to
determine the substance of her testimony, and then considered
arguments of counsel before overruling defendant and permitting
the jury to hear the testimony. Although the trial court did
not make a specific finding that the probative value of the
evidence outweighed its prejudicial effect, the procedure that
was followed demonstrated that the trial court conducted the
balancing test under Rule 403. We cannot say that the trial
court abused its discretion in admitting the evidence.
Accordingly, this assignment of error is overruled.”).
Here, as in Washington, the trial court held a voir dire
out of the presence of the jury as to the proposed statement and
listened to the arguments of counsel, including the State’s
offer of proof that the statement was evidence of malice.
Although the trial court did not make specific findings on the
record that it found the probative value was outweighed by any
prejudicial effect, it is clear from the record that the trial
court considered the substance of the proposed statement of
defendant and the arguments of counsel before allowing -9- defendant’s Facebook statement into evidence and that such
decision was made pursuant to a Rule 403 balancing test. See
id. Therefore, the trial court did not abuse its discretion in
admitting the evidence. Id.
Defendant further contends the trial court erred in
admitting her Facebook statement because had this evidence not
been admitted, the jury would have reached a different result.
Specifically, defendant contends that the admission of her
Facebook statement was prejudicial error in that it caused the
jury to convict her of second-degree murder rather than the
lesser charge of involuntary manslaughter. As we have held the
trial court did not err in admitting defendant’s Facebook
statement, defendant’s prejudicial argument is without merit.
Nevertheless, assuming arguendo the trial court erred, we
address defendant’s argument alleging prejudicial error.
"The test for prejudicial error is whether there is a
reasonable possibility that, had the error not been committed, a
different result would have been reached at trial." State v.
Scott, 331 N.C. 39, 46, 413 S.E.2d 787, 791 (1992) (citation
omitted).
In pursuing a charge of second-degree murder against
defendant, the State needed to show that defendant acted with -10- malice when she drove while intoxicated. This Court has held
that malice can be shown through evidence of defendant’s prior
convictions for DWI. See State v. Edwards, 170 N.C. App. 381,
385, 612 S.E.2d 394, 396 (2005) ("[P]rior driving convictions of
a defendant are admissible to show malice . . . in a second-
degree murder case[.]” (citation omitted)).
The State’s evidence showed: defendant admitted to driving
the white sedan that struck and killed Taylor; defendant was
noticeably intoxicated after the accident and her BAC was 0.40,
five times the legal limit; and defendant was nineteen-years-old
at the time of the accident, two years below the legal drinking
age. In addition, the State’s evidence concerning defendant’s
prior conviction for DWI showed: defendant was in a serious one-
car wreck exactly two years prior to her fatal accident with
Taylor; defendant was seventeen-years-old at the time of the
accident; chemical analysis showed defendant had a 0.29 BAC at
the time of the accident; defendant’s license was revoked after
the accident, and she failed to undergo substance abuse classes
or perform community service to restore her license; and,
defendant spent time in jail for failure to perform community
service. While defendant’s statement beginning with “Getting
wasted is my lifestyle . . .” was certainly damaging, her own -11- actions which showed serious drinking (0.29) at seventeen-years-
old which resulted in a serious accident, loss of license, and
failure to perform required community service, were more
damaging than her words. Therefore, even absent defendant’s
statement there was sufficient evidence for the jury to find
defendant guilty of second-degree murder. Defendant’s argument
is overruled.
II.
Defendant next argues that the trial court erred by failing
to intervene ex mero motu during the State’s closing argument.
We disagree.
Prosecutors are allowed wide latitude in the scope of their
argument. State v. Monk, 286 N.C. 509, 515, 212 S.E.2d 125, 131
(1975). A prosecutor's argument is not improper where it is
consistent with the record and does not travel into the fields
of conjecture or personal opinion. State v. Craig, 308 N.C.
446, 457—58, 302 S.E.2d 740, 747 (1983) (citations omitted). A
prosecutor can make closing arguments based on evidence
presented as well as reasonable inferences which can be drawn
therefrom. State v. Williams, 317 N.C. 474, 481, 346 S.E.2d
405, 410 (1986) (citations omitted). Only where the
prosecutor's argument affects the right of the defendant to a -12- fair trial will the trial judge be required to intervene where
no objection has been made. State v. Harris, 308 N.C. 159, 169,
301 S.E.2d 91, 98 (1983). "[F]or an inappropriate prosecutorial
comment to justify a new trial, it must be sufficiently grave
that it is prejudicial error." State v. Soyars, 332 N.C. 47,
60, 418 S.E.2d 480, 487—88 (1992) (citation and quotation
Defendant contends the trial court erred in failing to
intervene ex meru moto during the State’s closing argument
because the closing remarks were “grossly improper.” As
previously discussed in Issue I, the trial court allowed the
State to present evidence of defendant’s “About Me” statement on
her Facebook page. The statement, which defendant acknowledged
was hers, was read into evidence by defendant in open court. In
its closing argument, the State made the following remarks:
Now, I'll tell you something, ladies and gentlemen, [there are] not many cases that you can look into a person's mind. You know, nine times out of ten when a judge talks about what's on somebody's mind, he tells you that you have to infer that from the person's actions because we can't read minds.
It's rare that we get evidence of what's on somebody's mind. We have it in this case. About [defendant], you know, this was a youthful thing and that culture and all this and it doesn't have any meaning -13- according to her argument.
Well, getting wasted is my lifestyle. Well, it's interesting that [defendant] wants you to say, well, she didn't mean that. Well, her actions sure indicate she meant it. She got wasted in 2010 to the point of a .29 and she got wasted on that day. So she told the truth here. She was wasted.
And if you don't like it, then, blank off. I'm a party animal and rapper and, oh, yeah, I'm a blanking boss. Her words, not mine. Party animal and I like to get wasted. You don't like it, blank off.
Well, I'll tell you. I'm going to sit down. This is in your hands. You've heard it. You can adopt the mailbox empty or the mailbox full. You heard the evidence. I'm not going to belabor the point. But I do feel compelled to say this to you.
If you find her guilty of anything in this case but second-degree murder, then you will join her by telling this man and this family to blank off.
"A lawyer's function during closing argument is to provide
the jury with a summation of the evidence, which in turn serves
to sharpen and clarify the issues for resolution by the trier of
fact, and should be limited to relevant legal issues." State v.
Jones, 355 N.C. 117, 127, 558 S.E.2d 97, 103 (2002) (citations
and quotation omitted). Thus, during closing argument “[a]n
attorney may, however, on the basis of his analysis of the -14- evidence, argue any position or conclusion with respect to a
matter in issue.” N.C. Gen. Stat. § 15A-1230(a) (2013).
Here, the State used defendant’s own words in making its
closing argument to remind the jury that defendant had acted
with malice when she drove while intoxicated and killed Taylor
and, thus, was guilty of second-degree murder. As such, the
State used defendant’s Facebook statement to argue a “conclusion
with respect to a matter in issue.” Id. Therefore, defendant’s
argument that the State prejudiced the jury with improper
remarks and the trial court erred by failing to intervene is
overruled.
No error.
Judges HUNTER, Robert C., and STEELMAN concur.
Report per Rule 30(e).