An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 Appellate Procedure.

NO. COA13-701

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

STATE OF NORTH CAROLINA

v. Cumberland County

Nos. 09 CRS 56531–32

ZACHARY LEE OAKS

Appeal by Defendant from judgments entered 29 November 2012 

by Judge James F. Ammons Jr. in Cumberland County Superior 

Court. Heard in the Court of Appeals 11 December 2013.

Attorney General Roy Cooper, by Assistant Attorney General 

Jess D. Mekeel, for the State. 

Unti & Lumsden LLP, by Sharon L. Smith, for Defendant. 

STEPHENS, Judge.

Background

This case arises from the death of James “Jimmy” Ali

McCullen1 (“the decedent”) and the stabbing of Linda Paige.

 

1 There is some discrepancy regarding the decedent’s last name. 

The State refers to him as Jimmy McCullough, and he is listed as 

such in the warrant for Defendant’s arrest. However, the 

transcript and Defendant’s brief exclusively refer to him as 

Jimmy McCullen. Relying on the transcript as authoritative, we 

employ that spelling here.
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Around 9:00 p.m. on 14 April 2009, the decedent was seen walking 

outside the Club Spectrum, near Bragg Boulevard in Fayetteville, 

dressed in drag. The decedent was working as a prostitute. Later 

that night, the decedent was found lying in a pool of blood with 

five stab wounds. A gray shirt and footprints indicating a 

struggle were discovered nearby. No one at the scene knew the 

identity of the perpetrator. 

A few weeks later, on 8 May 2009, Defendant hired a female 

prostitute, Linda Paige, to perform oral sex. This occurred 

behind a vacant house near Mickey’s, a nightclub. Once Paige 

finished, Defendant “snapped” and attacked her, stabbing her 

several times. While Paige was helpless, Defendant took back his 

payment and left the scene of the attack. According to 

Defendant, people then started to chase him, and he ran to

Mickey’s. There he approached the bouncer, Nathaniel Butler, and 

claimed that he was being chased by someone who was trying to 

kill him. Butler put Defendant in a cab and told him to leave. 

When Butler learned that police were coming, however, he removed 

Defendant from the cab. Butler then frisked Defendant and found 

a large knife in his sock. 

Paramedics and police arrived at the scene of the stabbing. 

They discovered Paige on the ground, “hurting and kind of crying 
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[hysterically],” and Officer Alexander Herrera was informed that

the perpetrator had gone to Mickey’s. Paige was taken to the 

hospital and released later that night. She did not testify at 

trial. Herrera proceeded to the nightclub and asked the crowd

standing outside “who stabbed the lady across the street.”

Defendant stood up and responded, “I stabbed her.” Defendant was

then taken into custody, and one of the bouncers gave the knife 

to Herrera. 

Defendant was questioned on 9 May 2009. During the 

interrogation, Defendant agreed to speak to the investigators 

and waived his right to an attorney. Defendant then admitted to 

murdering the decedent and stabbing Paige. He explained that he 

had previously solicited a prostitute for oral sex without 

realizing that the person was biologically male. When he 

discovered this fact, Defendant became angry and wanted revenge. 

According to Defendant, the desire for revenge against male

prostitutes became so strong that he “went up [Bragg Boulevard] 

and I got the first one I saw,” i.e., the decedent. Defendant 

admitted that he wanted the decedent to die and stabbed the 

decedent multiple times “[a]ll over his body[,] all over his 

body. I wanted to make sure he was dead.” Defendant also 

referenced voices in his head, suicidal thoughts, and the 
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feeling that there were demons inside him trying to escape.

Defendant was charged with assault with a deadly weapon 

with intent to kill inflicting serious injury and first-degree 

murder. Those charges were joined for trial.2 On 7 February 2011, 

Defendant’s attorney filed a motion for a competency evaluation. 

No further documentation regarding the request for such an

evaluation exists in the record on appeal, and Defendant’s 

appellate counsel states that she “was unable to locate either a 

transcript of a pre-trial hearing regarding [Defendant’s] 

capacity to proceed or a written order by the trial court 

finding him capable of proceeding to trial.” 

The trial began on 26 November 2012 in Cumberland County 

Superior Court. During the trial, a laboratory analyst for the

State Bureau of Investigation (“SBI”) testified regarding the 

deoxyribonucleic acid (“DNA”) test results from the blood on the 

decedent’s clothes and the gray shirt found at the scene. The 

blood from the shirt was consistent with the decedent’s DNA, and

samples obtained from under the armpits and neck were consistent 

with Defendant’s DNA. Additionally, the videotape of the 

interrogation of Defendant was shown to the jury, and the 

 

2 The record contains a copy of the motion and order for joinder, 

but lacks a transcript of the hearing on that motion.
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transcript was admitted into evidence. After the evidence was 

presented, the jury found Defendant guilty of first-degree 

murder and assault with a deadly weapon inflicting serious 

injury. Defendant was sentenced to life imprisonment without 

parole for the murder and 25 to 39 months for the assault. 

Defendant appeals. 

Discussion

On appeal, counsel for Defendant states her opinion that 

there are no meritorious issues for appellate review in this 

case and files her brief pursuant to the procedure established

in Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967) 

and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985). 

Accordingly, counsel requests that this Court conduct an

independent examination of the record for any possible error and

properly appends a letter informing Defendant that she was 

unable to identify any meritorious arguments on appeal. Counsel 

also properly informed Defendant that he has the right to submit 

his own written arguments in support of his appeal and provided

him with the necessary contact information to “request 

additional time to prepare and submit [his] argument.” Counsel 

included a copy of her brief and the record on appeal with her 

letter to Defendant. She also indicated that she would provide a 
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copy of the trial transcript if Defendant elected to file a 

brief with this Court. This comports with the requirements set 

forth in Anders and Kinch. See Kinch, 314 N.C. at 101–02, 331 

S.E.2d at 667. 

Defendant has failed to file any arguments with this Court. 

Though counsel for Defendant believes there are no meritorious 

arguments on appeal, she has directed our attention to two 

possible issues: (1) whether the trial court abused its 

discretion in allowing the State’s motion for joinder and (2) 

whether the trial court erred in admitting the testimony of the 

SBI analyst. After reviewing those issues and the entire record 

on appeal, we find no error. 

I. Joinder of Charges Against Defendant

The first possible issue suggested by defense counsel is 

“[w]hether the trial court abused its discretion in joining the 

two charges for trial, as joinder [may have] prejudiced Mr. 

Oaks’[s] right to a fair trial.” We conclude that it did not. 

“The motion to join is within the sound discretion of the 

trial judge, and the trial judge’s ruling will not be disturbed 

absent an abuse of discretion.” State v. Simmons, 167 N.C. App. 

512, 516, 606 S.E.2d 133, 136 (2004), appeal dismissed and disc. 

review denied, 359 N.C. 325, 611 S.E.2d 845 (2005). “Abuse of 
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discretion results where the court’s ruling is manifestly 

unsupported by reason or is so arbitrary that it could not have 

been the result of a reasoned decision.” State v. Hennis, 323 

N.C. 279, 285, 372 S.E.2d 523, 527 (1988).

Two or more offenses may properly be joined 

for trial if the offenses are “based on the 

same act or transaction or on a series of 

acts or transactions connected together or 

constituting parts of a single scheme or 

plan.” N.C. Gen. Stat. § 15A-926(a) (2003) 

. . . . This Court has held that in ruling 

upon a motion for joinder, a trial judge 

must utilize a two-step analysis: (1) a 

determination of whether the offenses have a

transactional connection and (2) if there is 

a connection, a consideration of whether the 

accused can receive a fair hearing on the 

consolidated offenses at trial. 

Simmons, 167 N.C. App. at 516, 606 S.E.2d at 136 (certain 

citations omitted; emphasis in original). Joinder is generally 

favored on public policy grounds because it “expedites the 

administration of justice, reduces the congestion of trial 

dockets, conserves judicial time, lessens the burden upon 

citizens who must sacrifice both time and money to serve on 

juries[,] and avoids the necessity of recalling witnesses who 

would otherwise be called upon to testify only once.” State v. 

Maness, 321 N.C. 454, 458, 364 S.E.2d 349, 351 (1988). 
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As the State notes in its brief, the offenses in this case 

were clearly connected by a series of acts as contemplated by

section 15A-926(a):

(1) [B]oth victims were prostitutes; (2) the 

stabbings were committed in a span of mere 

weeks and in roughly the same geographical 

location; (3) the victims were stabbed 

multiple times . . . ; and (4) [D]efendant’s 

apprehension for and confession to the 

second stabbing led directly to his 

confession to the first stabbing. 

We agree and, therefore, conclude that joining these offenses 

did not deprive defendant of a fair trial. Accordingly, we hold 

that the trial court did not abuse its discretion in allowing 

the State’s motion for joinder.

II. The Testimony of the SBI Analyst

The second possible issue suggested by defense counsel is

whether the trial court erred in admitting the testimony of the 

SBI analyst to show random match probability, where such 

testimony may have relied on the “prosecutor’s fallacy” as 

discussed in State v. Ragland, __ N.C. App. __, 739 S.E.2d 616 

(2013). We conclude that the trial court did not err in allowing 

the analyst’s testimony. 

The North Carolina Supreme Court “has elected to review 

unpreserved issues for plain error when they involve either (1) 

errors in the judge’s instructions to the jury, or (2) rulings 
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on the admissibility of evidence.” State v. Gregory, 342 N.C. 

580, 584, 467 S.E.2d 28, 31 (1996). The testimony of the SBI 

analyst was admitted at trial without objection and, thus, is 

reviewed for plain error. Plain error arises when the alleged 

error is “so basic, so prejudicial, so lacking in its elements 

that justice cannot have been done.” State v. Odom, 307 N.C. 

655, 660, 300 S.E.2d 375, 378 (1983) (citation and internal 

quotation marks omitted). “Under the plain error rule, [the]

defendant must convince [the appellate court] not only that 

there was error, but that absent the error, the jury probably 

would have reached a different result.” State v. Jordan, 333 

N.C. 431, 440, 426 S.E.2d 692, 697 (1993) (citation omitted).

According to the United States Supreme Court,

[t]he prosecutor’s fallacy is the assumption

that the random match probability is the 

same as the probability that the defendant 

was not the source of the DNA sample. In 

other words, if a juror is told the 

probability a member of the general 

population would share the same DNA is 1 in 

10,000 (random match probability), and he 

takes that to mean there is only a 1 in 

10,000 chance that someone other than the 

defendant is the source of the DNA found at 

the crime scene (source probability), then 

he has succumbed to the prosecutor’s 

fallacy. It is further error to equate 

source probability with probability of 

guilt, unless there is no explanation other 

than guilt for a person to be the source of 

crime-scene DNA. This faulty reasoning may 
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result in an erroneous statement that, based 

on a random match probability of 1 in 

10,000, there is a .01% chance the defendant 

is innocent or a 99.99% chance the defendant 

is guilty. 

McDaniel v. Brown, 558 U.S. 120, 128, 175 L. Ed. 2d 582, 588 

(2010) (citation omitted; emphasis added). The critical element 

of the prosecutor’s fallacy is not the existence of testimony

about random match probability. Rather, it is the act of 

assuming that such evidence also constitutes source probability 

or — at the very least — the failure to correct such an

assumption.

In McDaniel, the defendant did not challenge 

the State’s expert’s random match 

probability opinion that only 1 in 3,000,000 

people would have the same DNA profile as 

the rapist. However, the Court explained 

that the State’s expert failed to properly 

dispel the prosecutor’s fallacy when the 

prosecutor asked the State’s expert, in a 

classic example of erroneously equating 

source probability with random match 

probability, whether “it would be fair to 

say that . . . the likelihood that [the DNA 

was] not the defendant[’s] would be 

.000033,” and the State’s expert ultimately 

agreed that it was not inaccurate to state 

it that way.

State v. Ragland, __ N.C. App. __, __, 739 S.E.2d 616, 624

(2013) (brackets, ellipses, and certain internal quotation marks

omitted; emphasis added) (citing McDaniel, 558 U.S. at 128–29, 

175 L. Ed. 2d at 588). Similarly, in Ragland, we held that an 
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investigator “properly testified” at trial when he stated that

“the probability of randomly selecting an unrelated individual 

with the DNA profile that matches the DNA profile obtained [in 

this case] is greater than 1 trillion, which is more than the 

world’s population for North Carolina Caucasian, Black, Lumbee 

Indian[,] and Hispanic populations.” Id. at __, 739 S.E.2d at 

625. It was only when the analyst expanded on his testimony by 

concluding that the random match probability meant, “if it’s 

over the world’s population, . . . that there could be no one 

else other than [the defendant] in the world” and opined that 

the DNA evidence in that case could “be no one other than [the 

defendant]” that he engaged in the logical fallacy. Id.

Like the investigator in Ragland, the SBI analyst in this 

case testified that, as to both the decedent and Defendant, the 

“probability of randomly selecting an unrelated individual with 

a DNA profile that matches the DNA profile obtained from the 

cutting of the shirt [(i.e., random match probability)] . . . is 

one in greater than one trillion which is more than the world’s 

population in the North Carolina Caucasian, [B]lack, Lumbee,

Indian[,] and Hispanic populations.” Following that statement, 

the analyst explained that it is “scientifically unreasonable”

to believe that the DNA obtained from the shirt could have 
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originated from anyone other than the decedent or Defendant 

unless either had an identical twin. This conclusion does not 

assume that the random match probability is the same as the 

source probability (i.e., the likelihood that Defendant and the 

decedent are the sources of the DNA). Rather, it offers an 

opinion regarding whether Defendant and the decedent are the 

sources of the DNA pursuant to the low random match probability. 

This is not a logical fallacy. Therefore, we hold that the trial 

court did not err — much less plainly err — in admitting the 

analyst’s testimony. 

After carefully reviewing the transcript and record, we are 

unable to find any possible prejudicial error at trial. The 

offenses in this case were clearly connected by a series of 

acts, and the trial court did not commit plain error in 

admitting the testimony of the SBI analyst. Accordingly, we find

no error in Defendant’s trial. 

NO ERROR.

Judges STEELMAN and DAVIS concur.

Report per Rule 30(e).