NO. COA13-543

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

STATE OF NORTH CAROLINA

v. Caswell County

Nos. 11 CRS 618-19

 11 CRS 621

11 CRS 623

11 CRS 625

11 CRS 627

11 CRS 629

11 CRS 631

DONNELL TRACY COUSIN,

Defendant.

Appeal by defendant from judgments entered 2 November 2012

by Judge W. Osmond Smith, III in Caswell County Superior Court. 

Heard in the Court of Appeals 23 October 2013.

Roy Cooper, Attorney General, by Ryan Haigh, Special Deputy 

Attorney General, for the State.

McCotter Ashton, P.A., by Rudolph A. Ashton, III and Kirby 

H. Smith, III for defendant-appellant.

DAVIS, Judge.

Defendant Donnell Tracy Cousin (“Defendant”) appeals from 

his convictions of felonious obstruction of justice and 

accessory after the fact. His primary contentions on appeal are 

that the trial court erred in (1) denying him the opportunity to 
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question and cross-examine an investigator about suspects in the 

murder out of which Defendant’s charges arose; (2) denying his

motions to dismiss; (3) allowing the prosecution to make 

statements during closing argument that appealed to the passion 

and prejudice of the jury; and (4) imposing multiple consecutive

sentences for the same acts and offenses in violation of his 

constitutional rights. After careful review, we conclude that 

Defendant received a fair trial free from prejudicial error.

Factual Background

The State presented evidence at trial tending to establish 

the following facts: On 8 July 2005, Larry Mebane (“Mebane”) 

was found mortally wounded in his car in Caswell County with 

three gunshot wounds to his head. Lieutenant Michael Adkins

(“Lt. Adkins”) of the Caswell County Sheriff’s Office was one of

the first officers to arrive on the scene after emergency 

services had been contacted via a 911 call. He found a handgun 

wedged between the driver’s seat and the center console of the

car. Lt. Adkins also noticed that the front passenger window of 

Mebane’s car was “busted out” and that a beer can was lying near 

the car. The car was running with loud music playing on the 

radio.
-3-

Law enforcement officers first became aware of Defendant on 

15 July 2005 when he was stopped at a checkpoint set up in the 

area of the shooting, which led to a subsequent interview of 

Defendant 11 days later at the Caswell County Sheriff’s Office.

When Defendant arrived at the Sheriff’s Office on 26 July 2005,

he gave a written statement to Investigator Jerald Brown

(“Investigator Brown”), who was heading the investigation into 

the Mebane shooting along with State Bureau of Investigation 

(“SBI”) Special Agent Brian Norman (“Agent Norman”). In this 

statement, Defendant indicated to Investigator Brown that he had 

seen Mebane around 10:30 p.m. on the night of the shooting. 

Defendant also named three specific individuals, Josh Anderson, 

Hugh Anderson, and Terrance Jackson, as having been with Mebane

at the time of the shooting.

Defendant then voluntarily returned to the Caswell County 

Sheriff’s Office on 30 March 2006 and provided additional

information to Investigator Brown. During this meeting,

Defendant stated that Mebane had been stopped earlier in the day

by a man named Jeffrey Murdock and that Murdock had demanded 

money from Mebane. However, Defendant did not directly 

implicate Jeffrey Murdock in the shooting.
-4-

Defendant gave his next statement on 22 June 2006 at the 

Alamance County Sheriff’s Office where he was being questioned 

in regard to unrelated felony charges in Alamance County. 

Defendant told investigators that “I know who the damn shooter 

is and I ain’t going to tell him [referring to Agent Norman]

nothing.” Defendant proceeded to say that “Tego1 [sic] Anderson 

is your shooter.” Defendant added that “Josh and Hugh 

(Anderson) were on [sic] Josh’s car and the two of them pulled 

over in front of Larry and got out.” He then stated that “Tego

[sic] pulled up behind Larry on [sic] the white truck and boxed 

him in so Larry couldn’t go forwards or backwards. Larry got 

out of his car and was arguing with Josh and Hugh when Tego

[sic] walked up from behind and shot Larry in the head!”

On 26 June 2006, Defendant gave another statement to 

Investigator Brown in which — this time — he stated that he was 

actually with Mebane when he was shot. Defendant stated that 

Mebane was being chased by Josh Anderson, Hugh Anderson, and

Tino Anderson. He further related that Hugh Anderson “took a 

pistol and smacked Larry upside the face with it.” He also said

that “Hugh was the only one I saw with my own eyes with a gun.”

 

1 Tino Anderson’s name is spelled in various places in the record 

as “Tego” Anderson. Both spellings refer to the same 

individual.
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Defendant subsequently gave a different statement on 6 July 

2006 to the Alamance County Sheriff’s Office. On this occasion

he stated that “[t]he night of the shooting I saw the man who 

shot Larry. It was Tino.”

On 17 October 2006, Defendant was interviewed by Sheriff 

Michael Welch (“Sheriff Welch”) of the Caswell County Sheriff’s 

Office. During this interview, Defendant stated that “Tino was 

there, but he didn’t shoot Larry.”

On 14 November 2006, Defendant requested to speak with the 

“sheriff or someone in charge” about Mebane’s murder. Chief 

Deputy Tim Britt (“Chief Deputy Britt”) of the Alamance County 

Sheriff’s Office was notified of Defendant’s request and 

conducted an interview with him that was observed by 

Investigator Brown and Sheriff Welch. Defendant proceeded to 

give the following statement to Chief Deputy Britt:

We [Defendant and Mebane] then turned right 

onto Dailey Store Road. . . . Sylvester 

Harris was in the middle of the road waving 

his hands. Larry Mebane stopped and got out.

. . . As I was getting out of the car, I 

heard Sylvester Harris say to Larry Mebane, 

“Where is the drugs and money at, I know you 

got it!” . . . Sylvester’s brother was 

standing beside the car they had been in. 

His name is Maurice Harris. . . . The next 

thing I saw as I got out of the car was 

Sylvester Harris shoot Larry Mebane in the 

back of the head.
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The last statement that Defendant gave investigators 

occurred on 14 April 2008. Defendant claimed he had information 

regarding the gun used in the Mebane murder, and Investigator 

Brown and Sheriff Welch conducted an interview with him. 

Defendant denied knowing the location of the weapon but stated 

he could point them “in the right direction of that.” He stated 

that Josh Anderson was Mebane’s killer and admitted that his 

prior statements naming Tino Anderson as the shooter were

deliberate falsehoods designed to mislead and misdirect law 

enforcement in their ongoing investigation into the murder. He 

admitted that “I put Tino in the middle as a block one time” and 

that in his earlier statements he had been “making you waste 

your time and gas and your ink pen.” Defendant then stated that 

“I wasn’t there on the scene period. Never was.” At the end of 

the interview, Investigator Brown asked if everything he had 

told the officers was truthful, and Defendant replied “nope.”

On 15 November 2011, Defendant was indicted on one count of 

accessory after the fact to first degree murder and seven counts 

of felonious obstruction of justice. A jury trial was held in 

Caswell County Superior Court on 29 October 2012. At the 

conclusion of the State’s evidence, Defendant moved to dismiss 
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all of the charges against him. The motion was denied.

Defendant renewed his motion to dismiss at the close of all the 

evidence, and the trial court once again denied the motion.

Defendant was convicted of all charges. He was sentenced 

consecutively to: (1) 168 to 211 months on the accessory after 

the fact charge; and (2) 168 to 211 months on the seven counts 

of obstruction of justice charges after the charges were 

consolidated. Defendant gave notice of appeal in open court.

Analysis

I. Denial of Defendant’s Opportunity to Question Investigator 

Brown Regarding Other Suspects.

Defendant first argues that the trial court erred by 

denying him the opportunity to question Investigator Brown about 

other suspects in the Mebane murder. At trial, Defendant’s 

counsel sought to elicit from Investigator Brown during crossexamination information about his interviews with persons 

involved in the Mebane murder investigation. Specifically, she 

inquired whether during his interviews with Oscar Jackson and 

Terrence Jackson, either of those individuals had discussed or 

divulged any information relating to the identity of the 

shooter. The State objected to this entire line of questioning 

on the ground that the questions sought inadmissible hearsay 
-8-

because the statements sought were being offered to prove the 

truth of the matter asserted. The trial court sustained the 

State’s objections. As an alternative basis, the trial court 

excluded the evidence under Rule 403 of the North Carolina Rules 

of Evidence based on the danger of unfair prejudice, confusion 

of the issues, and the possibility of confusing the jury.

Defendant argues the trial court’s exclusion of the 

statements as inadmissible hearsay and under Rule 403 was 

erroneous. Defendant contends that this evidence was directly 

relevant to the issues presented and that its exclusion violated 

his constitutional right to present a defense.

Rule 801(c) of the North Carolina Rules of Evidence defines 

“hearsay” as “a statement, other than one made by the declarant 

while testifying at the trial or hearing, offered in evidence to 

prove the truth of the matter asserted.” N.C. R. Evid. 801(c).

Defendant asserts that in pursuing this line of 

questioning, he sought to “show how the investigation of Larry 

Mebane unfolded. More importantly, these questions were 

designed to determine if any of Cousin’s statements to law 

enforcement were true and/or corroborated.”

We rejected a similar argument in State v. Hairston, 190 

N.C. App. 620, 625, 661 S.E.2d 39, 42 (2008), disc. review 
-9-

denied, 363 N.C. 133, 676 S.E.2d 47 (2009). In Hairston, this 

Court found no error in the trial court’s ruling that testimony

by a detective about a third party’s statements indicating that 

the third party did not know the defendant would constitute

inadmissible hearsay:

Defendant contends that the statement was 

not offered for the truth of the matter 

asserted, but instead was offered as a 

historical fact — that is, whether Hicks 

knew defendant or not. Defendant, however, 

goes on to argue that the trial court's 

ruling requires reversal because, according 

to defendant, such evidence would have aided 

defendant's arguments concerning his alibi 

defense. According to defendant, had the 

testimony been admitted, the jury could have 

used the information as "proof" that Brown 

and another person, not defendant, committed 

the robbery. In essence, defendant argues 

that the testimony was not elicited for its 

truth, but had it been admitted, the jury 

could have used the statement for the truth 

of the matter asserted, that Hicks, who had 

used the stolen credit cards, did not know 

defendant — thus making it less likely that 

defendant participated in the robbery of 

Moore. Accordingly, the trial court did not 

err in sustaining the State's objection as 

the testimony was offered for the truth of 

the matter asserted.

Id.

We believe the same is true here. By Defendant’s own 

admission, he sought to offer this testimony at least in part 

for the purpose of demonstrating the truth of the matter 
-10-

asserted. As such, the trial court did not abuse its discretion 

in sustaining the State’s objections to this line of questioning

on hearsay grounds. See State v. Waring, 364 N.C. 443, 498, 701 

S.E.2d 615, 649 (2010) (holding that “[t]he range of crossexamination, though broad, is subject to the trial judge's 

discretionary powers to keep it within reasonable bounds. The 

trial court's rulings on cross-examination will not be held in 

error absent a showing that the verdict was improperly 

influenced thereby.”) (internal quotation marks and citations 

omitted), cert. denied, ___ U.S. ___, 181 L.Ed.2d 53 (2011).2

Even assuming arguendo that the trial court erred in 

excluding the evidence, we believe any such error was harmless.

See State v. Augustine, 359 N.C. 709, 731, 616 S.E.2d 515, 531 

(2005) (holding that to establish prejudice resulting from an 

evidentiary ruling by the trial court, a defendant must show a 

reasonable possibility that a different result would have been 

reached had an evidentiary ruling not been made), cert. denied, 

548 U.S. 925, 165 L.Ed.2d 988 (2006).

 

2 Because we conclude the trial court’s exclusion of the evidence 

on hearsay grounds did not constitute an abuse of discretion, we

elect not to address the trial court’s alternative basis for 

exclusion based on Rule 403.
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Here, no prejudice to Defendant occurred as a result of the 

trial court’s ruling. Our review of the record reveals that 

Defendant was still able to elicit similar evidence concerning 

the Mebane murder investigation by alternative means. See State 

v. Rinck, 303 N.C. 551, 572, 280 S.E.2d 912, 927 (1981) (holding 

that “any error by the trial court in sustaining the State’s 

objections was cured when the evidence sought to be admitted was 

subsequently admitted without objection.”). At trial, evidence 

concerning persons of interest in Investigator Brown’s 

investigation was elicited through Defendant’s subsequent line 

of questioning to Investigator Brown. Therefore, any error in 

the exclusion of this evidence was harmless.

Defendant also contends that the exclusion of this evidence 

violated his constitutional rights but concedes that no 

constitutional argument was asserted by him at trial.

“Constitutional issues not raised and passed upon at trial will 

not be considered for the first time on appeal, not even for 

plain error.” State v. Jones, 216 N.C. App. 225, 230, 715 

S.E.2d 896, 900-01 (2011) (citation and quotation marks 

omitted). Therefore this claim is not properly before us.

II. Denial of Motions to Dismiss
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Defendant next contends that the trial court erred in 

denying his motions to dismiss the charges of felonious 

obstruction of justice and accessory after the fact based on the

insufficiency of the evidence. A trial court's denial of a 

defendant's motion to dismiss is reviewed de novo. State v. 

Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). On 

appeal, this Court must determine “whether there is substantial 

evidence (1) of each essential element of the offense charged, 

or of a lesser offense included therein, and (2) of defendant's 

being the perpetrator.” State v. Fritsch, 351 N.C. 373, 378, 

526 S.E.2d 451, 455 (citation and quotation marks omitted), 

cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). Substantial 

evidence is “such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” State v. Smith,

300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). Evidence must 

be viewed in the light most favorable to the State with every 

reasonable inference drawn in the State's favor. State v. Rose,

339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 

U.S. 1135, 132 L.Ed.2d 818 (1995).

A. Felonious Obstruction of Justice

[I]n order to convict [a] Defendant of the 

common law offense of obstruction of 

justice, the State [is] required to 
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demonstrate that Defendant ha[s] committed 

an act that prevented, obstructed, impeded 

or hindered public or legal justice. 

Although obstruction of justice is 

ordinarily a common law misdemeanor, N.C. 

Gen. Stat. § 14-3(b) provides that "[i]f a 

misdemeanor offense as to which no specific 

punishment is prescribed be infamous, done 

in secrecy and malice, or with deceit and 

intent to defraud, the offender shall . . . 

be guilty of a Class H felony." For that 

reason, [u]nder N.C. Gen. Stat. § 14-3(b) 

(1979), for a misdemeanor at common law to 

be raised to a Class H felony, it must be 

infamous, or done in secret and with malice, 

or committed with deceit and intent to 

defraud. If the offense falls within any of 

these categories, it becomes a Class H 

felony and is punishable as such.

State v. Taylor, 212 N.C. App. 238, 246, 713 S.E.2d 82, 88 

(2011) (internal citations and quotation marks omitted). We 

have previously noted that “this State has a policy against 

parties deliberately frustrating and causing undue expense to 

adverse parties gathering information about their claims. . . .”

State v. Wright, 206 N.C. App. 239, 242, 696 S.E.2d 832, 835 

(2010).

In the present case, Defendant gave eight written 

statements to law enforcement officers concerning the events 

surrounding the murder of Mebane. In his first two written 

statements on 26 July 2005 and 30 March 2006, he denied being at 
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the scene of Mebane’s murder but identified individuals who may 

have been involved with Mebane’s death.

In his next six statements on 22 June 2006, 26 June 2006, 6 

July 2006, 17 October 2006, 14 November 2006, and 14 April 2008,

Defendant admitted being present at the scene of the crime. In 

these statements, Defendant identified various alternating

persons as the killer. On 22 June 2006, Defendant named Tino

Anderson as the shooter and stated that Hugh Anderson and Josh 

Anderson were also involved. On 26 June 2006, Defendant named 

Hugh Anderson as the killer as he was “the only one I saw with 

my own eyes with a gun.”

On 17 October 2006, Defendant did not identify any specific 

individual as the shooter but placed Tino, Hugh, and Josh 

Anderson at the scene and stated: “Tino was there, but he 

didn’t shoot Larry.” On 14 November 2006, Defendant gave a 

different story, indicating that Maurice Harris and Sylvester

Harris tried to rob Mebane and that Sylvester Harris was the 

shooter and then stated that “the next thing I saw as I got out 

of the car was Sylvester Harris shoot Larry Mebane in the back 

of the head.”

On 15 April 2008, Defendant changed his story once again, 

stating that “I done already gave [sic] told you the name of who 
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killed him already . . . Josh Anderson.” Defendant also claimed 

in that statement that he was not at the scene when Mebane was 

murdered. Defendant then admitted that he had named Tino 

Anderson as the shooter in a previous statement as a “block.”

At the end of the interview, Defendant was asked if he was 

telling the truth and he responded “nope.”

Defendant argues that the State offered no evidence that 

any of his statements were false or misleading and instead 

simply relied on the contradictory nature of Defendant’s 

statements. We disagree.

Agent Norman of the SBI testified as to the significant 

burden imposed on the investigation of Mebane’s murder resulting 

from Defendant’s various conflicting statements. Agent Norman

further explained that each lead was “followed up” and that the

SBI ultimately determined that each person identified by 

Defendant had an alibi and was not present at the scene when the 

shooting occurred.

Clearly, when viewed in the light most favorable to the 

State, a jury question existed as to whether Defendant (1) 

unlawfully and willfully (2) obstructed justice by providing 

false statements to law enforcement officers investigating the 

death of Larry Mebane (3) with deceit and intent to defraud.
-16-

Therefore, the trial court properly denied Defendant’s motion to 

dismiss the felonious obstruction of justice charges.

B. Accessory After the Fact

Defendant also asserts the trial court should have granted 

his motion to dismiss the charge of accessory after the fact 

because the State failed to produce substantial evidence that 

Defendant made false statements with the intent to help the 

actual perpetrator escape detection, arrest, or punishment.

The elements of accessory after the fact are as follows: 

“(1) the felony has been committed by the principal; (2) the 

alleged accessory gave personal assistance to that principal to 

aid in his escaping detection, arrest, or punishment; and (3) 

the alleged accessory knew the principal committed the felony.”

State v. Duvall, 50 N.C. App. 684, 691, 275 S.E.2d 842, 849, 

rev'd on other grounds, 304 N.C. 557, 284 S.E.2d 495 (1981); see

also N.C. Gen Stat. § 14-7; State v. Barnes, 116 N.C. App. 311, 

316, 447 S.E.2d 478, 480 (1994). We note that N.C. Gen. Stat. §

14–7 permits the conviction of an accessory after the fact 

“whether the principal felon shall or shall not have been 

previously convicted, or shall or shall not be amenable to 

justice. . . .” N.C. Gen. Stat. § 14-7 (2013). Furthermore,

[t]his Court has recognized that an 
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indictment may properly allege unknown 

conspirators in charging a criminal 

conspiracy. It rationally follows that an 

indictment is valid which alleges the 

existence of an unknown co-principal in 

charging a crime. Here the bills of 

indictment do not allege that [the 

defendant’s co-conspirator] was the person 

who actually perpetrated the offenses. The 

indictments charged that a crime was 

committed by an unknown person and that 

defendant was present, aiding and abetting 

in the deed. Thus the acquittal of [the 

defendant’s co-conspirator] was not a 

sufficient basis for dismissal of the 

charges.

State v. Beach, 283 N.C. 261, 269, 196 S.E.2d 214, 220 (1973) 

(internal citations omitted), overruled on other grounds by

State v. Adcock, 310 N.C. 1, 33, 310 S.E.2d 587, 605-06 (1981). 

Moreover, Defendant concedes in his brief that “[t]he State does 

not have to identify the killer of Larry Mebane, in order to 

convict [Defendant] of Accessory After the Fact of First Degree 

Murder.”

Here, as discussed above, the evidence — when viewed in the 

light most favorable to the State — tended to show that 

Defendant gave eight different written statements to authorities 

on his own volition providing a wide array of scenarios

surrounding the death of Mebane. In these various statements,

Defendant identified four different individuals as being the 
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person who shot Mebane. Furthermore, he admitted near the end

of his 14 April 2008 interview with Investigator Brown and 

Sheriff Welch that he had not been truthful to investigators. 

The jury could rationally have concluded that his false 

statements were made in an effort to shield the identity of the 

actual shooter.

There was competent evidence introduced at trial that 

allowed the jury to rationally conclude that Defendant knew the 

identity of Mebane’s shooter and was protecting that person. 

First, Defendant’s statements to investigators suggested that he 

had, in fact, been present at the murder scene as his statements 

revealed his knowledge of information that could only have been 

obtained by someone physically present at the scene. In 

addition to knowing the location of the shooting, he also knew 

that (1) Mebane had been left for dead in the passenger seat of 

the car; (2) a handgun was found wedged in between the seat and 

the console of the car; (3) a beer can was left beside the car;

(4) Mebane had been shot in the head; (5) the car radio was on 

and playing loud music following the shooting; and (6) Mebane’s 

jaw was broken.
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Second, the fact that Defendant knew the true identity of 

the shooter was demonstrated by the testimony of his former 

girlfriend, Sheila Satterfield, who testified as follows:

Q. Sheila, the question is, did Tracy tell 

you he was with Larry when he got shot?

A. He did. He did.

Q. And did Tracy tell you how the shooting 

occurred?

A. He said he jumped out the car and ran. 

All I know somebody was shooting guns. 

That's all I know.

Q. Did Tracy eventually tell you who that 

shooter was?

A. I can't remember the name, but we was at 

a store one day, and he told me it was a guy 

that was in a brown Honda.

Q. Did he actually point out the person in 

the store?

A. I -- see I wasn't in the store. I was in 

the car, and um, when he came back, he said 

that's the guy that killed Little Larry. 

Look. Look. Look. I said, Oh, I ain't 

looking. Get in this car, and let's go.

Finally, Defendant admitted in his 14 April 2008 statement

that “I put Tino [Anderson] in the middle as a block one time,”

thereby raising the inference that he was deliberately thwarting 

the investigators’ attempts to apprehend Mebane’s killer. In 
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that same statement, Defendant further acknowledged that his 

false statements had made “you waste your time and gas and your 

ink pen,” indicating that he was fully aware his false 

statements were resulting in a misuse of law enforcement time 

and resources by causing the investigators to chase false leads.

The jury could rationally have concluded that the purpose of his 

actions was to prevent the officers from learning the identity 

of the actual killer.

We conclude that the evidence presented by the State was

sufficient to raise a jury question as to the accessory after 

the fact charge. Accordingly, Defendant’s argument is 

overruled.

III. State’s Closing Argument

Defendant next argues that the trial court abused its 

discretion by improperly allowing the State to make a closing 

argument that appealed to the jury’s passion and prejudice

without intervening ex mero motu. This argument likewise lacks 

merit.

“The standard of review when a defendant fails to object at 

trial [to statements in a closing argument] is whether the 

argument complained of was so grossly improper that the trial 

court erred in failing to intervene ex mero motu.” State v. 
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Trull, 349 N.C. 428, 451 509 S.E.2d 178, 193 (1998), cert. 

denied, 528 U.S. 835, 145 L.Ed.2d 80 (1999).

In other words, the reviewing court must 

determine whether the argument in question 

strayed far enough from the parameters of 

propriety that the trial court, in order to 

protect the rights of the parties and the 

sanctity of the proceedings, should have 

intervened on its own accord and: (1) 

precluded other similar remarks from the 

offending attorney; and/or (2) instructed 

the jury to disregard the improper comments 

already made.

Id. “Statements or remarks in closing argument must be viewed 

in context and in light of the overall factual circumstances to 

which they refer.” State v. Phillips, 365 N.C. 103, 135, 711 

S.E.2d 122, 145 (2011) (citation and internal quotation marks 

omitted), cert. denied, ___ U.S. ___, 182 L.Ed.2d 176 (2012).

Consequently, “statements contained in closing arguments to 

the jury are not to be placed in isolation or taken out of 

context on appeal.” State v. Murrell, 362 N.C. 375, 394 665 

S.E.2d 61, 74 (2008) (citations and internal quotation marks 

omitted). Our Supreme Court has further held that “[t]o merit a 

new trial, the prosecutor's remarks must have perverted or 

contaminated the trial such that they rendered the proceedings 

fundamentally unfair." Phillips, 365 N.C. at 136, 711 S.E.2d at

146.
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Here, Defendant contends that the State’s closing argument 

was improper because it “sought pity and passion for victim’s 

family, tried to make the jury share the responsibility of the 

prosecutor for prosecuting this case, and sought to convict 

Defendant for not cooperating with law enforcement.” 

Specifically, he appears to be challenging the prosecutor’s

statement that “[t]his community deserves to be safe from a 

murderer.”

Our Supreme Court has held that “it is not improper for the 

State to remind the jurors that they are the voice and 

conscience of the community.” State v. Garcell, 363 N.C. 10, 

63, 678 S.E.2d 618, 651 (2009) (citation and internal quotation 

marks omitted). Therefore, we do not believe that this 

statement when viewed in the overall context of the closing 

argument in its totality required intervention ex mero motu by 

the trial court.

Defendant also appears to be contending the trial court 

should have intervened when the prosecutor made a comment that

this is still somebody's child, and he

didn't deserve to die like that, and his 

Momma didn't deserve to endure that loss, 

and his son from last night all the way for 

the rest of his life will not have his 

father to take him tricker-treating, to buy

his Christmas or be there for Easter or 
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spend summer vacations, and that matters, 

and the State values that life, and you, the

jury, values (sic) that life, and justice 

cries out that the person who did it be 

prosecuted. How many times could you have 

ever imagined that this case, the person who

pulled the trigger and killed this young 

man, this father, in this room right now, in 

this moment there is one person in here who 

knows who did it, and it's the defendant. 

Right now. The pain and suffering that 

could be released. The justice that could 

be done, but instead of that, not once, not

twice, not three times, not four times, 5, 

6, 7 times over the span of seven years this 

man chose to lie about it in detail.

This portion of the State’s argument sought to convey the 

notion that Defendant’s pattern of false and misleading 

statements to investigators had prevented Mebane’s family from 

learning the identity of his killer. “The admissibility of 

victim impact testimony is limited by the requirement that the 

evidence not be so prejudicial it renders the proceeding 

fundamentally unfair. Victim impact testimony is admissible to 

show the effect the victim's death had on friends and family 

members.” State v. Raines, 362 N.C. 1, 15, 653 S.E.2d 126, 135 

(2007) (internal citations and quotation marks omitted), cert. 

denied, 557 U.S. 934, 174 L.Ed.2d 601 (2009).

After reviewing the entirety of the State’s closing 

argument and considering the context in which the challenged 
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statements were made, we hold once again that Defendant has 

failed to carry his burden of demonstrating that the trial court 

had a duty to intervene ex mero motu. Therefore, we reject

Defendant’s arguments on this issue.

IV. Double Jeopardy

Defendant’s final argument is that the trial court erred in 

sentencing Defendant for two crimes — felonious obstruction of 

justice and accessory after the fact — arising out of the same 

transaction, thereby violating his constitutional rights by 

subjecting him to double jeopardy. This argument likewise lacks 

merit.

Our Supreme Court has stated that “[b]oth the fifth 

amendment to the United States Constitution and article I, 

section 19 of the North Carolina Constitution prohibit multiple 

punishments for the same offense absent clear legislative intent 

to the contrary.” State v. Etheridge, 319 N.C. 34, 50, 352 

S.E.2d 673, 683 (1987).

Where, as here, a single criminal 

transaction constitutes a violation of more 

than one criminal statute, the test to 

determine if the elements of the offenses 

are the same is whether each statute 

requires proof of a fact which the others do 

not. Blockburger v. United States, 284 U.S. 

299, 76 L.Ed. 306 (1932); State v. Perry, 

305 N.C. 225, 287 S.E. 2d 810 (1982). By 
-25-

definition, all the essential elements of a 

lesser included offense are also elements of 

the greater offense. Invariably then, a 

lesser included offense requires no proof 

beyond that required for the greater 

offense, and the two crimes are considered 

identical for double jeopardy purposes. 

Brown v. Ohio, 432 U.S. 161, 53 L.Ed. 2d 187 

(1977); State v. Revelle, 301 N.C. 153, 270 

S.E. 2d 476 (1980). If neither crime 

constitutes a lesser included offense of the

other, the convictions will fail to support 

a plea of double jeopardy. See State v. 

Walden, 306 N.C. 466, 293 S.E. 2d 780 

(1982).

Id.

The Supreme Court further clarified the double jeopardy

analysis in State v. Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 

534 (2004), cert. denied sub nom. Queen v. N.C., 544 U.S. 909, 

161 L.Ed.2d 285 (2005):

Even where evidence to support two or more 

offenses overlaps, double jeopardy does not 

occur unless the evidence required to 

support the two convictions is identical. 

If proof of an additional fact is required 

for each conviction which is not required 

for the other, even though some of the same 

acts must be proved in the trial of each, 

the offenses are not the same.

Id. at 579, 599 S.E.2d at 534, (internal citation and brackets 

omitted).

In Tirado, the Supreme Court determined that the charges of 

attempted first-degree murder and assault with a deadly weapon 
-26-

with intent to kill inflicting serious injury are not comprised 

of the same elements in that each requires an additional element 

not included in the other offense. Id. at 579, 599 S.E.2d at 

534. Therefore, even though the crimes charged in Tirado arose 

from the exact same underlying transaction, the Court held that 

“[b]ecause each offense contains at least one element not 

included in the other, defendants have not been subjected to 

double jeopardy.” Id. See State v. Mulder, No. COA13-672, ___ 

N.C. App. ___, ___, ___ S.E.2d. ___, ___ (filed Mar. 18, 2014) 

(“[A] defendant convicted of multiple criminal offenses in the 

same trial is only protected by double jeopardy principles if 

(1) those criminal offenses constitute the same offense . . . ; 

and (2) the legislature did not intend for the offenses to be 

punished separately. . . . [T]he applicable test to determine 

whether double jeopardy attaches in a single prosecution is 

whether each statute requires proof of a fact which the others 

do not.” (internal citations and quotation marks omitted)).

The elements of common law felonious obstruction of justice 

are: (1) the defendant unlawfully and willfully; (2) obstructed 

justice; (3) with deceit and intent to defraud. In re Kivett, 

309 N.C. 635, 670, 309 S.E.2d 442, 462 (1983); State v. 

Clemmons, 100 N.C. App. 286, 292-93, 396 S.E.2d 616, 619 (1990). 
-27-

The elements of accessory after the fact are: “(1) the felony 

has been committed by the principal; (2) the alleged accessory 

gave personal assistance to that principal to aid in his 

escaping detection, arrest, or punishment; and (3) the alleged 

accessory knew the principal committed the felony.” Duvall, 50 

N.C. App. at 691, 275 S.E.2d at 849.

Therefore, the elements of these two crimes are clearly not 

identical. Obstruction of justice, unlike accessory after the 

fact, requires deceit and intent to defraud. Accessory after 

the fact, unlike obstruction of justice, requires that the 

defendant personally assisted the principal who committed the 

crime in escaping detection, arrest, or punishment. The two 

offenses are distinct, and neither is a lesser included offense 

of the other. Consequently, because the charges of felonious 

obstruction of justice and accessory after the fact contain

separate and distinct legal elements, Defendant has failed to 

show a double jeopardy violation.

Conclusion

For the reasons stated above, we hold that Defendant 

received a fair trial free from prejudicial error.

NO PREJUDICIAL ERROR.

Judges ELMORE and MCCULLOUGH concur.