{ "id": 4078955, "name": "STATE OF NORTH CAROLINA v. DAVID ONEAL TWITTY", "name_abbreviation": "State v. Twitty", "decision_date": "2011-05-17", "docket_number": "No. COA10-1320", "first_page": "100", "last_page": "112", "citations": [ { "type": "official", "cite": "212 N.C. App. 100" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "618 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633824, 12633825, 12633822, 12633823 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/618/0232-03", "/se2d/618/0232-04", "/se2d/618/0232-01", "/se2d/618/0232-02" ] }, { "cite": "653 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639848 ], "year": 2007, "pin_cites": [ { "page": "134", "parenthetical": "quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0126-01" ] }, { "cite": "571 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "259" } ], "opinion_index": 0 }, { "cite": "356 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511267, 1511270, 1511338, 1511466, 1511633 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0312-01", "/nc/356/0312-04", "/nc/356/0312-03", "/nc/356/0312-05", "/nc/356/0312-02" ] }, { "cite": "553 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "146 N.C. App. 594", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11361518 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/146/0594-01" ] }, { "cite": "579 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "157 N.C. App. 564", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188056 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/157/0564-01" ] }, { "cite": "359 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3802017, 3804545, 3803490, 3798373, 3796433, 3797715, 3796057, 3797149, 3800670 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0636-06", "/nc/359/0636-05", "/nc/359/0636-02", "/nc/359/0636-01", "/nc/359/0636-04", "/nc/359/0636-07", "/nc/359/0636-08", "/nc/359/0636-09", "/nc/359/0636-03" ] }, { "cite": "607 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "168 N.C. App. 190", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8468744 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/168/0190-01" ] }, { "cite": "157 L. Ed. 2d 388", "category": "reporters:federal", "reporter": "L. 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Ed. 2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "62" } ], "opinion_index": 0 }, { "cite": "534 U.S. 838", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9117696, 9117539, 9117635, 9117510, 9117672, 9117610, 9117586, 9117779, 9117492, 9117653, 9117716, 9117559, 9117528, 9117750 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/534/0838-11", "/us/534/0838-04", "/us/534/0838-08", "/us/534/0838-02", "/us/534/0838-10", "/us/534/0838-07", "/us/534/0838-06", "/us/534/0838-14", "/us/534/0838-01", "/us/534/0838-09", "/us/534/0838-12", "/us/534/0838-05", "/us/534/0838-03", "/us/534/0838-13" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "540 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "721", "parenthetical": "citing N.C. Gen. Stat. \u00a7 1-11" } ], "opinion_index": 0 }, { "cite": "353 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135728 ], "year": 2000, "pin_cites": [ { "page": "61", "parenthetical": "citing N.C. Gen. Stat. \u00a7 1-11" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0050-01" ] }, { "cite": "579 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2003, "pin_cites": [ { "page": "256", "parenthetical": "citation omitted" }, { "page": "254" }, { "page": "255" }, { "page": "255" }, { "parenthetical": "emphasis in original" }, { "page": "257" } ], "opinion_index": 0 }, { "cite": "357 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491870 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "121", "parenthetical": "citation omitted" }, { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0114-01" ] }, { "cite": "262 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "286" } ], "opinion_index": 0 }, { "cite": "299 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574230 ], "year": 1980, "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0229-01" ] }, { "cite": "430 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "918", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "334 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529175 ], "year": 1993, "pin_cites": [ { "page": "75", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0067-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "98", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-100", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2009, "pin_cites": [ { "page": "(a)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "357 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "666" } ], "opinion_index": 0 }, { "cite": "320 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723747 ], "year": 1987, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0328-01" ] }, { "cite": "346 S.E.2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "515" }, { "page": "515" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 273", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358667 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "277" }, { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0273-01" ] }, { "cite": "181 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "459-60", "parenthetical": "reversing the defendant's rape conviction where the State improperly described the defendant as \"lower than the bone belly of a cur dog\"" } ], "opinion_index": 0 }, { "cite": "279 N.C. 163", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566096 ], "year": 1971, "pin_cites": [ { "page": "165-67", "parenthetical": "reversing the defendant's rape conviction where the State improperly described the defendant as \"lower than the bone belly of a cur dog\"" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0163-01" ] }, { "cite": "558 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "103-105", "parenthetical": "vacating the defendant's death sentence where the State improperly compared the victim to those killed at Columbine High School and in the Oklahoma City Federal Building bombing" } ], "opinion_index": 0 }, { "cite": "355 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219899 ], "year": 2002, "pin_cites": [ { "page": "132-33", "parenthetical": "vacating the defendant's death sentence where the State improperly compared the victim to those killed at Columbine High School and in the Oklahoma City Federal Building bombing" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0117-01" ] }, { "cite": "157 L. Ed. 2d 320", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "540 U.S. 971", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8979328, 8979302, 8979133, 8979015, 8979081, 8979056, 8979282, 8979188, 8979252, 8979225, 8979162, 8979100, 8979037 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/540/0971-13", "/us/540/0971-12", "/us/540/0971-06", "/us/540/0971-01", "/us/540/0971-04", "/us/540/0971-03", "/us/540/0971-11", "/us/540/0971-08", "/us/540/0971-10", "/us/540/0971-09", "/us/540/0971-07", "/us/540/0971-05", "/us/540/0971-02" ] }, { "cite": "588 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "366" } ], "opinion_index": 0 }, { "cite": "357 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491533 ], "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0068-01" ] }, { "cite": "591 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "542", "parenthetical": "awarding a new trial for other reasons, but noting in dicta the impropriety of references to the defendant as a \"monster,\" \"demon,\" \"devil,\" \"a man without morals\" and as having a \"monster mind\"" } ], "opinion_index": 0 }, { "cite": "358 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986844 ], "year": 2004, "pin_cites": [ { "page": "111", "parenthetical": "awarding a new trial for other reasons, but noting in dicta the impropriety of references to the defendant as a \"monster,\" \"demon,\" \"devil,\" \"a man without morals\" and as having a \"monster mind\"" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0102-01" ] }, { "cite": "449 S.E.2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "472", "parenthetical": "also finding no impropriety in the State's reference to the defendant as a \"doper\" where evidence showed that the defendant had a history of drug abuse" } ], "opinion_index": 0 }, { "cite": "338 N.C. 211", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517171 ], "year": 1994, "pin_cites": [ { "page": "229-30", "parenthetical": "also finding no impropriety in the State's reference to the defendant as a \"doper\" where evidence showed that the defendant had a history of drug abuse" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0211-01" ] }, { "cite": "154 L. Ed. 2d 403", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "537 U.S. 1005", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9287360, 9287586, 9287495, 9287468, 9287538, 9287379, 9287444, 9287671, 9287702, 9287735, 9287641, 9287610, 9287420, 9287514 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/537/1005-01", "/us/537/1005-09", "/us/537/1005-06", "/us/537/1005-05", "/us/537/1005-08", "/us/537/1005-02", "/us/537/1005-04", "/us/537/1005-12", "/us/537/1005-13", "/us/537/1005-14", "/us/537/1005-11", "/us/537/1005-10", "/us/537/1005-03", "/us/537/1005-07" ] }, { "cite": "560 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "785", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220055 ], "year": 2002, "pin_cites": [ { "page": "307", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0294-01" ] }, { "cite": "174 L. Ed. 2d 601", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2007, "opinion_index": 0 }, { "cite": "362 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149153 ], "year": 2007, "pin_cites": [ { "page": "14", "parenthetical": "quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0001-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "248", "parenthetical": "holding that a defendant claiming ineffective assistance of counsel must show that (1) his attorney's performance was constitutionally deficient and (2) the deficiency deprived the defendant of a fair trial" }, { "page": "248" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "562", "parenthetical": "holding that a defendant claiming ineffective assistance of counsel must show that (1) his attorney's performance was constitutionally deficient and (2) the deficiency deprived the defendant of a fair trial" }, { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "406 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "897" } ], "opinion_index": 0 }, { "cite": "329 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554614 ], "year": 1991, "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0278-01" ] }, { "cite": "554 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138385 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0350-01" ] }, { "cite": "549 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 526", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135779, 135592, 135946, 135951, 135675 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0526-01", "/nc/353/0526-03", "/nc/353/0526-04", "/nc/353/0526-05", "/nc/353/0526-02" ] }, { "cite": "540 S.E.2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "431" } ], "opinion_index": 0 }, { "cite": "141 N.C. 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DAVID ONEAL TWITTY" ], "opinions": [ { "text": "STEPHENS, Judge.\nProcedural and Factual History\nOn 29 June 2009, Defendant David O\u2019Neal Twitty was indicted for obtaining property by false pretense and having attained the status of habitual felon. On 20 July 2009, Defendant, acting pro se, moved for a \u201cspeedy trial.\u201d A superseding indictment was returned on 4 January 2010 for the same charge.\nThe evidence at trial tended to show the following: On 22 February 2009, Defendant presented himself and a man he claimed was his son to the congregation of Mt. Olive Baptist Church in Alamance County. He claimed that his wife had died in a car accident in Greensboro and that he and his son had traveled to Greensboro from their home in Charleston, South Carolina, to retrieve her possessions. Defendant stated that he had no food, was almost out of gas, and had only 75 cents left. Defendant then broke down in tears and asked church members for money to help him get back to South Carolina. Moved by Defendant\u2019s story, several members of the congregation gave Defendant money or gas for his car.\nDefendant\u2019s story was not true. He lived in Charlotte, not Charleston, and his only known (ex-)wife was still living and testified at trial. Evidence was also presented that Defendant told the same story later that day to the congregation of nearby Mitchell Chapel A.M.E. Zion Baptist Church in Pittsboro and on later dates at three other churches in North Carolina and Virginia. In each case, Defendant asked for help and received money from sympathetic church members.\nThe jury found Defendant guilty of obtaining property by false pretense and found that he had attained the status of habitual felon. Defendant was sentenced to 151 to 191 months in prison. Defendant appeals.\nDefendant makes five arguments on appeal: that the trial court erred in (I) admitting evidence of his obtaining money from other churches; (II) allowing prosecutorial misconduct during the State\u2019s closing argument; (III) denying his motions to dismiss; (IV) depriving him of a speedy trial; and (V) sentencing him in the aggravated range. As discussed herein, we conclude that Defendant received a fair trial free of error.\nAdmission of Rule 404(b) Evidence\nDefendant first argues that the trial court erred in admitting evidence of his obtaining money from other churches. We disagree.\nDefendant\u2019s arguments on this issue are disjointed, but he appears to contend that the trial court should not have admitted evidence that Defendant told the same false story to obtain money at several churches after the incident at Mt. Olive Baptist Church for which he was charged. Defendant states that, because the evidence concerned his subsequent bad acts, it was not properly admitted under Rule 404(b). Defendant also states that the evidence had no purpose other than \u201ccharacter assassination.\u201d\nUnder Rule of Evidence 404(b):\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2009). Rule 404(b) is a rule of inclusion, allowing the admission of such evidence unless its \u201conly probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.\u201d State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990) (emphasis in original). Evidence of both prior and subsequent bad acts by a defendant is admissible under Rule 404(b). State v. Hutchinson, 139 N.C. App. 132, 136, 532 S.E.2d 569, 572 (2000). In making a determination under Rule 404(b), the trial court must consider the similarity and temporal proximity of the defendant\u2019s other acts. State v. Barnett, 141 N.C. App. 378, 389-90, 540 S.E.2d 423, 431 (2000), appeal dismissed, disc. review denied, 353 N.C. 526, 549 S.E.2d 552, affirmed, 354 N.C. 350, 554 S.E.2d 644 (2001). However, evidence admissible under Rule 404(b) can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2009). This decision is left to the trial court\u2019s sound discretion. State v. Stager, 329 N.C. 278, 315, 406 S.E.2d 876, 897 (1991).\nHere, the trial court admitted evidence, over Defendant\u2019s objection, that Defendant told a similar false story and asked for money at numerous churches for the purpose of showing a common plan or scheme, a purpose permitted under Rule 404(b). As noted above, evidence of subsequent bad acts is treated no differently than evidence of prior bad acts under Rule 404(b). The subsequent acts here were highly similar and occurred within a month of the offense for which Defendant was charged, indicating that the evidence was highly probative. We thus conclude that the evidence was properly admitted, and we see no abuse of discretion in the trial court\u2019s determination that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice to Defendant.\nDefendant also states that, to the extent his trial counsel failed to object to some of the evidence of his subsequent bad acts, he received ineffective assistance of counsel. However, Defendant does not make any argument that he was prejudiced by the performance of his trial counsel, instead simply citing the cases that establish the test for ineffective assistance. Thus, he cannot show ineffective assistance of counsel. See State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (holding that a defendant claiming ineffective assistance of counsel must show that (1) his attorney\u2019s performance was constitutionally deficient and (2) the deficiency deprived the defendant of a fair trial). Defendant\u2019s arguments are overruled.\nAlleged Prosecutorial Misconduct\nDefendant also argues that the trial court erred in allowing prosecutorial misconduct during the State\u2019s closing argument. We disagree.\nHere, during closing argument, the prosecutor referred to Defendant as a con man, a liar, and a parasite. Defendant characterizes these references as prosecutorial misconduct. Defendant did not object to any of these remarks at trial, but now contends that the trial court should have intervened ex mero motu.\nAppellate courts \u201cwill not find error in a trial court\u2019s failure to intervene in closing arguments ex mero motu unless the remarks were so grossly improper they rendered the trial and conviction fundamentally unfair.\u201d State v. Raines, 362 N.C. 1, 14, 653 S.E.2d 126, 134 (2007) (quotation marks and citations omitted), cert. denied, \u2014 U.S. \u2014, 174 L. Ed. 2d 601 (2007). \u201c[0]nly an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.\u201d State v. Mann, 355 N.C. 294, 307, 560 S.E.2d 776, 785 (2002) (citations and quotation marks omitted), cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002). Further, it is not improper for the State to refer to a defendant in terms that reflect the offense which has been charged or the evidence presented at trial. For example, in \u201ca trial for first-degree murder involving a calculated armed robbery and an unprovoked killing, it [is] not improper for the State to refer to [the] defendant as \u2018coldblooded murderer.\u2019 \u201d State v. Harris, 338 N.C. 211, 229-30, 449 S.E.2d 462, 472 (1994) (also finding no impropriety in the State\u2019s reference to the defendant as a \u201cdoper\u201d where evidence showed that the defendant had a history of drug abuse).\nHere, Defendant was charged with obtaining property by false pretense, an offense which by definition is committed by deceiving or lying in order to win the confidence of victims. The evidence presented tended to show that Defendant lied to a church congregation in order to convince them to give him money. As in Harris, we see no impropriety in the State\u2019s reference to Defendant as a liar and con man, as those terms accurately characterize the offense with which he was charged and the evidence presented at trial. As for the term \u201cparasite,\u201d this name-calling by the State was unnecessary and unprofessional, but does not rise to the level of gross impropriety. Compare State v. Matthews, 358 N.C. 102, 111, 591 S.E.2d 535, 542 (2004) (awarding a new trial for other reasons, but noting in dicta the impropriety of references to the defendant as a \u201cmonster,\u201d \u201cdemon,\u201d \u201cdevil,\u201d \u201ca man without morals\u201d and as having a \u201cmonster mind\u201d); State v. Walters, 357 N.C. 68, 105, 588 S.E.2d 344, 366 (holding the State improperly compared the defendant to Hitler), cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320 (2003); State v. Jones, 355 N.C. 117, 132-33, 558 S.E.2d 97, 103-105 (2002) (vacating the defendant\u2019s death sentence where the State improperly compared the victim to those killed at Columbine High School and in the Oklahoma City Federal Building bombing); State v. Smith, 279 N.C. 163, 165-67, 181 S.E.2d 458, 459-60 (1971) (reversing the defendant\u2019s rape conviction where the State improperly described the defendant as \u201clower than the bone belly of a cur dog\u201d).\nDefendant also notes that the prosecutor remarked several times that there was \u201cno evidence to contradict\u201d evidence presented by the State. Defendant contends that these comments constituted a reference to his decision not to testify in violation \u00f3f his rights under the United States and North Carolina Constitutions. We do not believe that these comments constituted a reference to Defendant\u2019s right to remain silent. In addition, it is well established that, on appeal, we will not consider constitutional arguments not raised and passed on in the trial court. In re Adoption of Searle, 82 N.C. App. 273, 277, 346 S.E.2d 511, 515 (1986). Because Defendant did not make his constitutional argument regarding his right not to testify below, we will not consider it here.\nDefendant again raises ineffective assistance of counsel based on his trial counsel\u2019s failure to object to comments of the prosecutor as an alternative basis to support his position. However, again, Defendant makes no argument that he was prejudiced by the performance of his trial counsel, and, thus, he cannot show ineffective assistance of counsel. See Braswell, 312 N.C. at 562, 324 S.E.2d at 248. Defendant\u2019s arguments are overruled.\nMotions to Dismiss\nDefendant next argues that the trial court erred in denying his motions to dismiss. Specifically, Defendant contends that the trial court erred in (1) failing to dismiss the original indictment after a superseding indictment was returned, (2) denying his motion to dismiss the subsequent indictment because it alleged that Defendant obtained property by false pretense \u201cfrom THE CONGREGATION OF MT. OLIVE BAPTIST CHURCH\u201d which is too vague to sustain a conviction, and (3) denying his motion to dismiss where there was insufficient evidence that he asked for money or made false representations. We disagree with each of these assertions.\nDefendant was indicted on 29 June 2009 for obtaining property by false pretense, and a superseding indictment was returned on 4 January 2010 for the same charge. Defendant filed several pro se motions to dismiss, but none of those requested dismissal of the original indictment or argued that the indictment was flawed. At a 13 April 2010 hearing just before trial began, defense counsel stated that he was \u201cadopting\u201d some of Defendant\u2019s pro se motions, but did not request dismissal of the original indictment.\nOur General Statutes provide, in pertinent part:\nIf at any time before entry of a plea of guilty to an indictment or information, or commencement of a trial thereof, another indictment or information is filed in the same court charging the defendant with an offense charged or attempted to be charged in the first instrument, the first one is, with respect to the offense, superseded by the second and, upon the defendant\u2019s arraignment upon the second indictment or information, the count of the first instrument charging the offense must be dismissed by the superior court judge.\nN.C. Gen. Stat. \u00a7 15A-646 (2009). However,\n[although the better practice and, indeed, the required practice under the statute is for the trial court to dismiss any prior indictments charging an offense upon the arraignment of the defendant on a superseding indictment charging the same offense, the failure of the trial court to do so does not render the superseding indictment void or defective.\nState v. Carson, 320 N.C. 328, 333, 357 S.E.2d 662, 666 (1987). Accordingly, Defendant\u2019s argument on this issue is overruled.\nPrior to trial, Defendant\u2019s counsel moved to dismiss the obtaining property by false pretense charge, stating:\nSpecifically, Your Honor, I\u2019m asserting that the congregation of Mt. Olive Baptist Church is not any proper persons [sic] or group or entity in which the statute defines as individuals who pursuant to statute could be victims of obtaining property by false pretense.\nDefense counsel and the trial court then engaged in discussion, all of which focused on whether the relevant statutory language permitted the offense to be committed against a \u201ccongregation.\u201d Section 14-100 of our General Statutes provides, in pertinent part:\nIf any person shall knowingly and designedly by means of any kind of false pretense whatsoever, whether the false pretense is of a past or subsisting fact or of a future fulfillment or event, obtain or attempt to obtain from any person within this State any money, goods, property, services, chose in action, or other thing of value with intent to cheat or defraud any person of such money, goods, property, services, chose in action or other thing of value, such person shall be guilty of a felony[.]\nN.C. Gen. Stat. \u00a7 14-100(a) (2009). Subsection (c) goes on to offer the following definition: \u201cFor purposes of this section, \u2018person\u2019 means person, association, consortium, corporation, body politic, partnership, or other group, entity, or organization.\u201d N.C. Gen. Stat. \u00a7 14-100(c). The trial court quoted this language from subsection (c) in overruling Defendant\u2019s motion to dismiss. In his brief, Defendants\u2019 argument is based on the possibility of double jeopardy and his assertion that the indictment was \u201cunconstitutionally vague.\u201d However, before the trial court, Defendant did not make any constitutional argument or assert either unconstitutional vagueness or risk of double jeopardy. Because Defendant failed to raise these constitutional arguments at trial, we will not consider them on appeal. See In re Adoption of Searle, 82 N.C. App. at 277, 346 S.E.2d at 515.\nAt the close of the State\u2019s evidence, Defendant moved to dismiss, contending that there was insufficient evidence that Defendant asked for anything besides \u201chelp\u201d or that his representations about his wife having just died in a car accident were false. Defendant renewed this motion at the close of all evidence.\nWe review the denial of a motion to dismiss in a criminal trial to see \u201cwhether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant\u2019s being the perpetrator of such offense.\u201d State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citation omitted). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). \u201cIn reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.\u201d State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (citation omitted). The elements of obtaining property by false pretense are: \u201c(1) a false representation of a subsisting fact or a future fulfillment, or event, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which one person obtains or attempts to obtain value from another.\u201d State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980).\nHere, the testimony tended to show that Defendant visited several churches within a period of less than two months, telling a story that his wife had just died and he lacked the money food, and gas to get home. Pastor Shelby Stevens of Mt. Olive Baptist testified that Defendant told his congregation that his wife had just died, he had collected her belongings in Greensboro, had little gas and only 75 cents in his pocket, and had to get home to Charleston. Joan Snyder and Keith Andrews, members of the congregation, testified that Defendant said his wife had died in a car accident. Andrews also testified:\nWell, I accept the fact that he quoted some scripture. Said he needed money and his wife had been killed and him [sic] and Travis was [sic] on the way back to get her belongings and headed back. And he just give [sic] a heart wrenching story to the fact that he was crying and needed money.\nAs a result of hearing Defendant\u2019s story, Andrews gave him some gasoline.\nA number of witnesses offered evidence under Rule 404(b). Pastor Kenneth Brooks, pastor of the Mitchell Chapel A.M.E. Zion Baptist Church in Pittsboro, testified that on the afternoon of 22 February 2009, Defendant appeared at his church service and told a similar story, asking for help, and that the pastor and others had given him money. Vance Blanton, a member of the Church of Christ of Sanford, testified that Defendant appeared at that church on 1 March 2009, told members that his wife had died in an accident in Pittsboro, and he needed gas money; the members gave him at least $80. Pastor Scott Wilson of Tramway Baptist Church in Sanford testified that on the first or second Sunday in March 2009, Defendant appeared at his church: \u201cHe said that his wife had died and that he and his son, Travis, were driving through Pittsboro to try to get some belongings that she had and that they needed some help.\u201d Wilson gave Defendant money and gas, and a member of the congregation gave him $100. Lydia Craven, a member of Culdee Presbyterian Church in West End, testified that Defendant came to her church in March 2009 and told the congregation that his wife had been killed in Lee County. Craven and others gave him money. Cassius Eugene Horton, Jr., pastor of the Galax First Assembly of God Church in Galax, Virginia, testified that, on 22 March 2009, Defendant appeared at his church and told the congregation his wife had been killed in Roanoke, Virginia, and that he needed gas to get back to his home in North Carolina.\nIn sum, Keith Andrews specifically testified that Defendant asked for gas money. Further, Defendant told various congregations, over a period of two months, that his wife had died in various locations in North Carolina and in Virginia. This evidence, taken in the light most favorable to the State and giving the State the benefit of all reasonable inferences, is substantial evidence which could support a conclusion by a reasonable juror that Defendant was telling a false story about his wife dying in order to elicit sympathy and obtain property. Defendant\u2019s arguments on this issue are overruled.\nMotion for a Speedy Trial\nDefendant also argues that the trial court deprived him of a speedy trial. We disagree.\nDefendant was arrested on 24 March 2009 and tried 13 months later in April 2010. Defendant, pro se, requested a speedy trial by letter filed 20 July 2009 asserting his Sixth Amendment rights under the United States Constitution, and renewed his request by letter filed 9 December 2009. On 18 February 2010, Defendant moved to dismiss for failure to grant him a speedy trial, citing both the Sixth Amendment and N.C. Gen. Stat. \u00a7 15A-711(c). On 4 May 2009, the trial court appointed counsel for Defendant. Defendant\u2019s original counsel later moved to withdraw, and the trial court appointed replacement counsel for Defendant on 1 October 2009. Thus, Defendant was represented by counsel when each of his speedy trial filings was made. At a 13 April 2010 pretrial hearing, defense counsel stated that he was \u201cadopting\u201d some of Defendant\u2019s pro se motions, but did not mention the issue of Defendant\u2019s right to a speedy trial.\n\u201c[A] defendant does not have the right to be represented by counsel and to also appear pro se.\u201d State v. Spivey, 357 N.C. 114, 121, 579 S.E.2d 251, 256 (2003) (citation omitted). \u201cHaving elected for representation by appointed defense counsel, [a] defendant cannot also file motions on his own behalf or attempt to represent himself. [A defendant has no right to appear both by himself and by counsel.\u201d State v. Grooms, 353 N.C. 50, 61, 540 S.E.2d 713, 721 (2000) (citing N.C. Gen. Stat. \u00a7 1-11), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001). A defendant who files pro se motions for a speedy trial while represented has \u201cwaived appellate review of this issue by failing to properly raise the constitutional issue in the trial court.\u201d Id. at 62, 540 S.E.2d at 721.\nEven had Defendant not waived his right of appellate review on this issue, he would not prevail. Under section 15A-711(c), the statute cited in one of Defendant\u2019s filings,\n[a] defendant who is confined in an institution in this State pursuant to a criminal proceeding and who has other criminal charges pending against him may, by written request filed with the clerk of the court where the other charges are pending, require the prosecutor prosecuting such charges to proceed pursuant to this section.\nN.C. Gen. Stat. \u00a7 15A-711(c) (2009). This section does not apply to Defendant, who had no other criminal charges pending against him at the time he was confined and awaiting trial.\nIn reviewing a constitutional claim for denial of the right to a speedy trial, we consider four factors: the length and reason for the delay, the defendant\u2019s assertion of his right, and any prejudice resulting from the delay. Spivey, 357 N.C. at 118, 579 S.E.2d at 254. None of these factors is dispositive, and there is no mandated method of weighing them. Id. at 118, 579 S.E.2d at 255. Rather, an appellate court must engage in a balancing test based on the facts of each case. Id.\nAs to the first factor, the length of delay, no delay is per se determinative of a constitutional violation, but delays approaching one year have been considered significant enough to trigger an inquiry into the remaining factors. Id. at 119, 579 S.E.2d at 255. However, regarding the second factor, the cause of delay, a \u201cdefendant has the burden of showing that the delay was caused by the neglect or willfulness of the prosecution.\u201d Id. (emphasis in original). Here, Defendant made no allegation regarding any cause of the delay in his pretrial filings. In his brief, Defendant states that his first court-appointed lawyer was not authorized to represent defendants charged with class C felonies, such as himself, and that he was not appointed replacement counsel until October 2009, six months after his arrest. However, the prosecution does not control appointment of defense counsel and, thus, Defendant makes no argument that \u201cthe delay was caused by the neglect or willfulness of the prosecution.\u201d Id.\nAs discussed above, Defendant did not properly assert his right to a speedy trial, the third factor under Spivey. Regarding the fourth factor, prejudice, Defendant\u2019s only assertion of prejudice in his brief is that he was experiencing \u201canxiety and concern over his charges.\u201d While minimizing the anxiety and concern of defendants is one of the motivations behind the constitutional right to a speedy trial, a \u201cdefendant must show actual, substantial prejudice.\u201d Id. at 122, 579 S.E.2d at 257. Our Supreme Court has held that \u201cclaims of faded memory and evidentiary difficulties^ being] inherent in any delay],]\u201d do not establish actual, substantial prejudice. State v. Goldman, 311 N.C. 338, 345, 317 S.E.2d 361, 365 (1984). Similarly, we conclude that, because most criminal defendants likely experience \u201canxiety and concern\u201d over their charges, Defendant here has failed to show actual, substantial prejudice in the delay between his arrest and trial. This argument is overruled.\nSentencing\nFinally, Defendant argues that the trial court erred in sentencing him in the aggravated range without finding any aggravating factors. We disagree.\nDefendant was convicted of obtaining property by false pretense, a class C felony, and the trial court sentenced Defendant to 151 to 191 months in prison. A term of 151 months is the top of the presumptive range for a defendant with a prior record level of V convicted of a class C felony, and is also listed as the lowest sentence in the aggravated range. Defendant contends that this creates ambiguity and asserts that he received an aggravated sentence.\nWe rejected this argument in State v. Ramirez, 156 N.C. App. 249, 576 S.E.2d 714, disc. review denied, 357 N.C. 255, 583 S.E.2d 286, cert. denied, 540 U.S. 991, 157 L. Ed. 2d 388 (2003), and subsequent cases, none of which are cited in Defendant\u2019s brief. See State v. Allah, 168 N.C. App. 190, 607 S.E.2d 311, disc. review denied, 359 N.C. 636, 618 S.E.2d 232 (2005); State v. Fowler, 157 N.C. App. 564, 579 S.E.2d 499 (2003). In Ramirez, the defendant asserted that\nthe trial court erred by imposing sentences which fall into the aggravated range without finding aggravate [ing] factors. [The] [defendant admits the trial court sentenced [the] defendant within the presumptive range, but asserts that because the presumptive range and the aggravated range overlap, an offender may not be sentenced within this overlapping range without a finding that aggravating factors outweigh mitigating factors. [The] [defendant asserts this overlap is a quirk in our sentencing laws and creates an ambiguity. This argument was also presented by the defendant in State v. Streeter, 146 N.C. App. 594, 553 S.E.2d 240 (2001), cert. denied, 356 N.C. 312, 571 S.E.2d 211 (2002). In accord with Streeter, we disagree with [the] defendant\u2019s argument. In both Streeter and the case at bar, the defendant was properly sentenced within the presumptive range. The fact that the trial court could have found aggravating factors and sentenced [the] defendant to the same term does not create an error in [the] defendant\u2019s sentence. We hold the statute is not ambiguous, and accordingly find no error.\nId. at 259, 576 S.E.2d at 721. Likewise, here, the fact that Defendant\u2019s sentence straddles the presumptive and aggravated ranges does not create any ambiguity, and the trial court did not err in imposing sentence. This argument borders on the frivolous and is overruled.\nNO ERROR.\nJudge HUNTER, JR., ROBERT N., concurs.\nJudge STEELMAN concurs with a separate opinion.\n. Defendant\u2019s middle name is spelled \u201cO\u2019Neal\u201d in his brief and most other documents in the record on appeal, but spelled without the apostrophe on the judgment form.", "type": "majority", "author": "STEPHENS, Judge." }, { "text": "STEELMAN, Judge\nconcurring.\nI fully concur with the majority opinion in this case. I write separately concerning the appellant\u2019s final argument. It is crystal clear from the judgment entered by the trial court that the sentence imposed was from the presumptive range As noted by the majority opinion, the argument made by counsel has been rejected by this Court on numerous prior occasions. This argument does not border on the frivolous; it is totally and completely frivolous. Defendant\u2019s counsel should be personally sanctioned pursuant to Rule 34(a)(3) of the North Carolina Rules of Appellate Procedure.\n. Judge Gessner\u2019s judgment stated that he made no written findings because the prison term was \u201cwithin the presumptive range of sentences authorized under G.S. 15A-1340.17(c).\u201d Defendant was found to be a prior record level V for felony sentencing. Based upon the version of N.C. Gen. Stat. \u00a7 15A-1340.17 that was in effect on the date defendant committed the offenses for which he was found guilty, a sentence of a minimum of 151 months and a maximum of 191 months imprisonment was a permitted sentence from the presumptive range.", "type": "concurrence", "author": "STEELMAN, Judge" } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Thomas R. Miller, for the State.", "John T. Hall for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID ONEAL TWITTY\nNo. COA10-1320\n(Filed 17 May 2011)\n1. Evidence\u2014 subsequent crimes or bad acts \u2014 failure to show prejudice\nThe trial court did not err in an obtaining property by false pretenses case by admitting evidence of defendant obtaining money from other churches. Defendant failed to show how he was prejudiced by his trial counsel\u2019s failure to object to these subsequent bad acts that were admissible under N.C.G.S. \u00a7 8C-1, Rule 404(b).\n2. Criminal Law\u2014 prosecutor\u2019s argument \u2014 defendant a con man, liar, and parasite \u2014 no contradictory evidence\nThe trial court did not abuse its discretion in an obtaining property by false pretenses case by failing to intervene ex mero motu during the State\u2019s closing argument referring to defendant as a con man and a liar because these terms accurately described the offense. Although calling defendant a parasite was unnecessary and unprofessional, it did not rise to the level of gross impropriety. Further, the prosecutor\u2019s comment that there was no evidence to contradict the State\u2019s evidence was not a reference to defendant\u2019s right to remain silent.\n3. False Pretense \u2014 obtaining property by false pretenses\u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err in an obtaining property by false pretenses case by denying defendant\u2019s motions to dismiss. The evidence taken in the light most favorable to the State supported a conclusion that defendant was telling a false story about his wife dying in order to elicit sympathy and obtain property.\n4. Constitutional Law\u2014 right to speedy trial \u2014 waiver of review \u2014 pro se motion while represented by counsel\nThe trial court did not deprive defendant of his right to a speedy trial. Defendant waived appellate review of this issue by filing pro se motions for a speedy trial while represented by counsel. Further, defendant failed to show actual substantial prejudice in the delay between his arrest and trial.\n5. Sentencing\u2014 aggravated range \u2014 findings not required when also within presumptive range\nThe trial court did not err in an obtaining property by false pretenses case by sentencing defendant in the aggravated range without finding any aggravating factors. Defendant\u2019s sentence straddling both the presumptive and aggravated ranges did not create any ambiguity.\nJudge STEELMAN concurring in separate opinion.\nAppeal by Defendant from judgment entered 15 April 2010 by Judge Paul Gessner in Alamance County Superior Court. Heard in the Court of Appeals 13 April 2011.\nAttorney General Roy Cooper, by Special Deputy Attorney General Thomas R. Miller, for the State.\nJohn T. Hall for Defendant." }, "file_name": "0100-01", "first_page_order": 110, "last_page_order": 122 }