NO. COA13-482

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

STATE OF NORTH CAROLINA

v. Watauga County

Nos. 05 CRS 6683-85, 52810, 

NEIL MATTHEW SARGENT

Appeal by defendant from judgments entered 8 November 2012

by Judge James U. Downs in Watauga County Superior Court. Heard 

in the Court of Appeals 22 October 2013.

Attorney General Roy Cooper, by Special Deputy Attorney 

David J. Adinolfi II, for the State.

Michele Goldman for defendant-appellant.

BRYANT, Judge.

Where the prosecutor responded to defense counsel’s 

endorsement of defendant’s witness as truthful by stating that 

defendant’s witness did not give truthful testimony, the trial 

court did not err in failing to intervene during the 

prosecutor’s closing argument. Where defendant placed his 

character at issue by testifying at length about his positive 

military service, the prosecution was allowed to examine the 
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circumstances of his general discharge from the United States 

Army.

On 28 November 2005, a Watauga County grand jury indicted

defendant Neil Matthew Sargent on charges of first-degree murder

with aggravating factors, first-degree kidnapping, burning of 

personal property, and robbery with a dangerous weapon stemming 

from events leading to the death of Steven William Harrington. 

On 5 November 2007, defendant was indicted on a second count of 

robbery with a dangerous weapon.

On 24 April 2008, following a jury trial in Watauga County 

Superior Court, the Honorable Ronald K. Payne, Judge presiding, 

entered judgment against defendant on the charges of firstdegree murder, first-degree kidnapping, robbery with a dangerous 

weapon, and burning of personal property. Defendant appealed to 

this Court from the entry of these judgments. In State v. 

Sargeant, 206 N.C. App. 1, 696 S.E.2d 786 (2010), this Court 

granted defendant a new trial due in part to the exclusion of a 

statement made by Matthew Brandon Dalrymple to law enforcement 

officers on 10 September 2007. Following an appeal by the 

State, our Supreme Court affirmed the decision of this Court to 

grant defendant a new trial. See State v. Sargent, 365 N.C. 58, 

707 S.E.2d 192 (2011) (hereinafter Sargent I).
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A new trial commenced during the 29 October 2012 session of 

Watauga County Criminal Superior Court, the Honorable James U. 

Downs, Judge presiding. The evidence presented at trial tended 

to show that on the evening of 7 November 2005, Harrington was 

assaulted, robbed, and asphyxiated in a residence located at 121 

Poplar Drive in Boone, then driven to another location where his 

body was doused with lighter fluid and set on fire in the trunk 

of a car. Three people were present in the home at the time of 

Harrington’s death and at the location of the burning car: 

defendant, Kyle Triplett, and Dalrymple.

During the prosecution’s case-in-chief, the prosecutor

called Kyle Triplett, a witness who had also testified at 

defendant’s first trial. Triplett testified that defendant 

orchestrated an ambush of Harrington. On the evening in 

question, Triplett followed defendant’s explicit instructions 

whereby Triplett was to grab Harrington by the throat and hold a 

gun to his head. Defendant provided Triplett with a gun. 

Triplett testified that when Harrington appeared, Triplett

grabbed Harrington by the throat and choked him until his face 

turned red. When Harrington dropped to the floor, defendant 

began wrapping Harrington’s head in duct tape. Triplett 

testified that following this, he and defendant began punching 
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Harrington and then kicking him, at which point Dalrymple joined 

in. After Harrington stopped moving, Dalrymple reached into 

Harrington’s pants pocket and removed a softball sized box that 

contained four to six ounces of cocaine. Harrington’s body was 

then carried outside and placed in the trunk of Harrington’s 

car. Triplett testified that he drove Harrington’s car with 

defendant as a passenger and Dalrymple following in a second 

vehicle. Triplett stopped Harrington’s car on a roadside along 

Sleepy Hollow Lane. Triplett testified that defendant opened 

the trunk, doused lighter fluid on Harrington’s body and ignited 

a fire. Triplett and defendant then got into the car driven by 

Dalrymple and returned to defendant’s residence.

During the presentation of defendant’s case, defendant 

called Dalrymple to testify. Dalrymple testified that on the 

evening of 7 November 2005, he was using the bathroom when he 

heard a knock on an outside door. When Dalrymple exited the 

bathroom, he observed Triplett choking a man at gunpoint. 

Dalrymple had never before seen the man being choked. Dalrymple 

testified that Triplett hit the victim in the temple with the 

butt of a handgun. When the victim dropped to the floor, 

Triplett began kicking the victim in the ribs. Dalrymple 

testified that Triplett wrapped the victim’s head in duct tape 
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and taped his hands behind his back. Dalrymple testified that 

when Triplett told Dalrymple that Dalrymple was to drive one of 

the vehicles, Dalrymple refused, but then Triplett pointed the 

gun at him. When Dalrymple headed toward a bedroom to retrieve 

his clothes, he passed defendant in the hallway. Defendant 

asked, “what the f**k is going on[.]” Having gotten dressed and 

stepped outside, Dalrymple testified that he observed Triplett 

placing the victim’s body in the trunk of a car. Triplett then

drove the car containing the victim’s body while Dalrymple 

followed in a second vehicle with defendant as a passenger. 

When Triplett pulled onto the roadside off of Sleepy Hollow 

Lane, Dalrymple observed Triplett open the trunk of the vehicle. 

Dalrymple soon saw flames. Triplett got into Dalrymple’s car,

and the three men drove off. According to Dalrymple, defendant 

did not exit the vehicle in which he was riding.

Defendant testified on his own behalf, consistent with the 

version of events testified to by Dalrymple.

Following the close of the evidence, the jury returned 

verdicts finding defendant guilty of first-degree murder on the 

bases of lying in wait, felony murder, and premeditation and 

deliberation; first-degree kidnapping; robbery with a dangerous 

weapon; and burning personal property. The trial court entered 
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judgment in accordance with the jury verdicts. On the charge of 

first-degree murder, the trial court sentenced defendant to a 

term of life imprisonment without parole. On the charges of 

first-degree kidnapping, robbery with a dangerous weapon, and 

burning personal property, the trial court entered a separate 

consolidated judgment and sentenced defendant to a term of 80 to 

105 months to be served consecutive to the life sentence. 

Defendant appeals.

___________________________________

On appeal, defendant raises the following issues: whether 

the trial court (I) erred in failing to intervene during the 

prosecutor’s closing argument; and (II) committed plain error in 

allowing the prosecution to introduce evidence of defendant’s 

prior assault.

I

Defendant first argues that the trial court erred by 

failing to intervene ex mero motu during closing arguments to 

address the prosecutor’s discussion of facts not in evidence, 

misstating the evidence not in evidence, and offering an opinion 

on the credibility of a witness. We disagree.

“The standard of review for assessing alleged improper 

closing arguments that fail to provoke timely objection from 
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opposing counsel is whether the remarks were so grossly improper 

that the trial court committed reversible error by failing to 

intervene ex mero motu.” State v. Jones, 355 N.C. 117, 133, 558 

S.E.2d 97, 107 (2002) (citation omitted).

Pursuant to North Carolina General Statutes, section 15A1230, “Limitations on argument to the jury,”

[d]uring a closing argument to the jury an 

attorney may not become abusive, inject his 

personal experiences, express his personal 

belief as to the truth or falsity of the 

evidence or as to the guilt or innocence of 

the defendant, or make arguments on the 

basis of matters outside the record except 

for matters concerning which the court may 

take judicial notice. An attorney may, 

however, on the basis of his analysis of the 

evidence, argue any position or conclusion 

with respect to a matter in issue.

N.C. Gen. Stat. § 15A-1230(a) (2013); see also State v. Gladden, 

315 N.C. 398, 422, 340 S.E.2d 673, 688 (1986) (“Although the 

closing arguments of counsel are largely within the control and 

discretion of the trial court, it is well established that 

counsel is to be afforded wide latitude in the argument of 

fiercely contested cases. Counsel for both sides may argue the 

law and the facts in evidence, along with all reasonable 

inferences to be drawn from them. Counsel may not, however, 

raise incompetent and prejudicial matters nor refer to facts not 

in evidence. Counsel is also prohibited from placing before the 
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jury his own knowledge, beliefs, and personal opinions not 

supported by the evidence.”). “Only where the prosecutor's 

argument affects the right of the defendant to a fair trial will 

the trial judge be required to intervene where no objection has 

been made.” State v. Zuniga, 320 N.C. 233, 253, 357 S.E.2d 898, 

911 (1987) (citation omitted). “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.” Id.

a. Argument of Facts Not In Evidence

Defendant contends the State lacked evidence to support its 

claims that “Dalrymple [was] [the State’s] deal with the 

devil[,]” that the deal “was a mistake[,]” that the State had 

“figured if we put a big enough carrot in front of [Dalrymple], 

maybe [Dalrymple would] tell the truth[,]” that Dalrymple did 

not tell the truth, and the State was “stuck with [Dalrymple’s] 

plea.”

The State responds that the Dalrymple plea offer was in 

evidence as defense exhibit #9. However, defense exhibit #9 was 

actually an agreement wherein the State agreed to forego seeking 

the death penalty in exchange for Dalrymple’s truthful testimony 

at his own trial. The agreement provided that the truthfulness 

of his testimony was to be measured against his September 2007 
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statement.

Defendant contends that the State’s claim that it would not 

call Dalrymple as a witness because he “would not know the truth 

if it came up and slapped him in the head” was refuted by 

defense exhibit #9. However, even assuming that defense exhibit 

#9 does refute the State’s claim, the fact that evidence refutes 

the State’s closing argument does not indicate that the State 

argued facts not in evidence.

Defendant further challenges the State’s remarks that the 

Dalrymple plea was a mistake “because that man was just as 

guilty of first-degree murder [and] kidnapping as every other 

defendant here.” Defendant contends that the remarks were 

improper because, by “offering unchallenged testimony to the 

jury during its closing, the State was able to strike an unfair 

blow against [defendant’s] most crucial witness.” However, the 

State’s remarks are supported by evidence presented at trial 

that Dalrymple played an active role in the murder of Harrington

as discussed earlier in this opinion. Defendant has not shown 

error on this basis and his argument is overruled.

b. Offered A Personal Opinion On Witness Credibility

Defendant also argues that the State’s claim that “it would 

not call Dalrymple to testify because Dalrymple ‘would not know 
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the truth if it came up and slapped him on the head’ offered a 

personal opinion” as to witness credibility. Defendant cites 

State v. Holloway, 82 N.C. App. 586, 347 S.E.2d 72 (1986), in 

which two doctors were improperly permitted to testify “that in 

their opinion the child had testified truthfully.” Id. at 587, 

347 S.E.2d at 73. The present case is distinguishable from 

Holloway because the prosecutor was not giving an opinion as to 

witness credibility in the form of sworn testimony.

Defendant’s argument emphasizes the significance of any 

improprieties in this case where the jury’s verdict “hinged on 

its determination of Triplett’s, Dalrymple’s, and [Defendant’s] 

credibility[.]” Similarly, our Supreme Court noted that the 

first trial indicated that “the objective facts of what happened 

the night the victim was killed are elusive.” Sargeant I, 365 

N.C. at 67, 707 S.E.2d at 198. The Supreme Court further noted 

that “the reason for the State’s decision to jettison Dalrymple 

in favor of Triplett is not in the record.” Id.

In the present case, Defendant made the following 

statements in his closing argument to the jury:

Just as Mr. Dalrymple’s agreement states, he 

will testify truthfully if called upon by 

the State to do so. Why didn’t the State 

call him at this trial? Why not? It’s in 

black and white. Don’t take my word for it. 

Look at this. They never called him. I had 
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to call him, and he gave truthful testimony. 

He has been pretty much consistent 

throughout.

In its closing, the State made the following statements to 

the jury regarding Dalrymple:

You darn right we’re not going to put him 

up, because that man would not know the 

truth if it came up and slapped him in the 

head. But they want you to believe that 

version of truth or what they believe the 

truth was.

The challenged portion of the prosecutor’s argument seems to 

answer the very question that the Supreme Court noted was not in 

the record of the first trial. As to the question of why the 

State jettisoned Dalrymple in favor of Triplett, the prosecutor 

stated:

Dalrymple is our deal with the devil. It 

was a mistake . . . . We’re stuck with that 

plea. The plea was a mistake and should 

never have happened . . . because that man 

was just as guilty of first-degree murder 

[and] kidnapping as every other defendant 

here.

Evidence that Dalrymple entered into a plea agreement with the 

State does not tell why the State “jettison[ed] Dalrymple in 

favor of Triplett” at this trial. Id. The prosecutor informed 

the jury, by way of closing argument, of her opinion and belief 

as to the credibility of the various defendants and that the 

prosecution had made a mistake by entering into the plea 
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agreement with Dalrymple. This statement, made in response to 

defendant’s closing argument, seems to venture close to the area 

of “conjecture or personal opinion.” Zuniga, 320 N.C. at 253, 

357 S.E.2d at 911. However, our Supreme Court has found no 

error in a credibility argument based on personal opinion from 

the State where the defendant “opened the door” to the argument. 

State v. Gladden, 315 N.C. 398, 423, 340 S.E.2d 673, 689 (1986). 

In Gladden, the defendant stated that a State’s witness “could 

not possibly remember . . . every detail in this case” and 

“insinuated that [the witness’s] testimony had not been 

truthful.” Id. The State, in its closing, argued that its 

witness was “one of the finest Sheriffs that [the prosecutor 

had] ever met[.]” Id. at 423, 340 S.E.2d at 688. Our Supreme 

Court held that the “expression of personal opinion by the

prosecutor, while improper, was not, however, so grossly 

improper as to require the trial court to intervene ex mero 

motu.” Id. at 423, 340 S.E.2d at 688-89.

The State’s remarks appear to be in response to defendant’s 

attempt to bolster Dalrymple’s credibility. As in Gladden, 

defendant’s statements in closing opened the door to the State’s 

response. Therefore, while the State’s remarks may have been

improper, they were “not, however, so grossly improper as to 
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require the trial court to intervene ex mero motu.” Id. at 423, 

340 S.E.2d at 689. Defendant’s argument is overruled.

II

Next, defendant argues that the State’s evidence of a prior 

assault constituted evidence of a propensity for violence and 

amounted to plain error. We disagree.

[T]he plain error rule ... is always to be 

applied cautiously and only in the 

exceptional case where, after reviewing the 

entire record, it can be said the claimed 

error is a fundamental error, something so 

basic, so prejudicial, so lacking in its 

elements that justice cannot have been done, 

or where [the error] is grave error which 

amounts to a denial of a fundamental right 

of the accused, or the error has resulted in 

a miscarriage of justice or in the denial to 

appellant of a fair trial or where the error 

is such as to seriously affect the fairness, 

integrity or public reputation of judicial 

proceedings or where it can be fairly said 

the instructional mistake had a probable 

impact on the jury's finding that the 

defendant was guilty.

State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333 

(2012) (citation and quotations omitted).

For error to constitute plain error, a 

defendant must demonstrate that a 

fundamental error occurred at trial. To show 

that an error was fundamental, a defendant 

must establish prejudice—that, after 

examination of the entire record, the error 

had a probable impact on the jury's finding 

that the defendant was guilty. Moreover, 

because plain error is to be applied 
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cautiously and only in the exceptional case 

the error will often be one that seriously 

affect[s] the fairness, integrity or public 

reputation of judicial proceedings.

Id. at 518, 723 S.E.2d at 334 (citations and quotations 

omitted).

Pursuant to General Statutes, section 8C-404,

Evidence of a person's character or a trait 

of his character is not admissible for the 

purpose of proving that he acted in 

conformity therewith on a particular 

occasion, except . . . [e]vidence of a 

pertinent trait of his character offered by 

an accused, or by the prosecution to rebut 

the same[.]

N.C. Gen. Stat. ' 8C-1, Rule 404(a)(1) (2013); see also State v. 

Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12 (2000) (“A

criminal defendant is entitled to introduce evidence of his good 

character, thereby placing his character at issue. The State in 

rebuttal can then introduce evidence of defendant's bad 

character. See State v. Gappins, 320 N.C. 64, 69, 357 S.E.2d 

654, 658 (1987). Such evidence offered by the defendant or the 

prosecution in rebuttal must be ‘a pertinent trait of his 

character.’ N.C.G.S. § 8C–1, Rule 404(a)(1) (1999).”).

Before this Court, defendant challenges the prosecution’s 

cross-examination of him as to his use of cocaine and prior

accusation of assaultive behavior while a member of the United 
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States Army. In response, the State argues that on direct 

examination, defendant placed his character at issue by 

testifying about his military service. On direct examination, 

defendant testified at length about his positive military 

service: serving in the United States Army from September 1999 

to January 2003, defendant worked with a field artillery unit in 

both Kosovo and Afghanistan; also, he was awarded the United 

Nations Kosovo Liberation Medal, Army Service Ribbon, and a 

National Defense bar. Defendant’s Kosovo Liberation medal was 

admitted into evidence. Defendant engaged in the following 

examination on direct examination:

Q Now, Mr. Sargent, when did you get 

discharged from the US Army?

A I believe the exact date was January 

3rd, 2003.

Q And do you remember, do you recall what 

the character of your discharge was?

A It was on, on other than honorable 

conditions.

Q What they call general?

A General.

. . .

Q Who were you living with?

A Well, when I initially got out of the 

Army I was having some substance abuse 
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problems with alcohol and marijuana so 

my aunt and uncle that I lived with 

before I went in the Army they thought 

it would be a good idea if I came back 

and was in a better environment . . . .

On cross-examination, the prosecutor focused on the 

circumstances of defendant’s discharge from the military. We 

look to the following exchange, which took place in the absence 

of any objection by defendant:

Q . . . [I]n fact, when you were talking 

about all of your military 

accomplishments, you didn't tell the 

jury [about your] less than honorable 

circumstances for using cocaine, did 

you?

A I said I was discharged for other than 

honorable conditions, I said that.

Q Did you tell the jury that you were 

discharged for other than honorable 

conditions you were discharged . . . on 

11 December, 2002 for using cocaine and 

for assault, is that right?

A That is correct.

Q And in fact, it was so bad, sir, that 

the commander there at Fort Bragg . . .

requested that you be barred from Fort 

Bragg pending your hearing because of 

your assault and use of cocaine, didn't 

he?

A That's correct.

Q You didn't tell the jury that, did you?

A I wasn't asked.
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Q Well, sir, you told the jury all about 

all the fine things you had done in the 

military, and all the honors, I believe 

you held up a certificate here about 

service overseas and the battalions you 

were in, and how you supported the 

artillery, supported people over in 

the, the Vulcans and all of that, but 

you didn't tell them about being 

dishonorably discharged, did you?

A I just answered the questions my lawyer 

asked me.

. . .

Q You tried to mislead the jury into 

believing you were a wonderful fine 

soldier serving your country when in 

fact you were dishonorably discharged 

for the use of cocaine and for assault?

. . .

And that is exactly what you're here 

today for is using cocaine and murder, 

isn't it?

A That's correct.

Because defendant placed his character at issue by 

testifying at length about his positive military service record 

and acknowledging that he received a general discharge from the 

United States Army, the State was entitled to examine the 

circumstances that led to defendant’s discharge. See Roseboro, 

351 N.C. 536, 553, 528 S.E.2d 1, 12 (2000) (“A criminal 

defendant is entitled to introduce evidence of his good 
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character, thereby placing his character at issue. The State in 

rebuttal can then introduce evidence of defendant's bad 

character.”). Therefore, we hold there was no error in the 

admission of this evidence. Defendant’s argument is overruled.

No error.

Judges McGEE and STROUD concur.