State v. Reber, 887 S.E.2d 487

Background

Defendant Joshua Reber was convicted of four counts of rape of a child and six counts of sex offense with a child based principally on the testimony of an alleged victim ("Khloe") who said abuse occurred repeatedly from ages 8–11. Khloe described multiple locations and sexual acts; she later rewatched her initial 2015 interview to refresh her memory.
Khloe’s 2015 medical exam was unremarkable (no physical evidence of sexual abuse, no STD, no pregnancy); the State’s expert explained a normal exam does not rule out abuse. No eyewitnesses corroborated the alleged multiyear abuse; family members testified they never observed inappropriate conduct.
SBI forensic extraction of Defendant’s phone did not show nude-photo exchanges or communications with Khloe; the phone appeared activated in May 2015 (after the alleged abuse ended). Defense produced testimony undermining specific physical details the victim gave.
The State introduced two prior text-message exchanges between Defendant and an adult girlfriend (Danielle) under N.C. R. Evid. 404(b): one referencing a sexual encounter when Danielle was intoxicated, and another discussing arranging sex at a motel and possibly asking the girlfriend’s child not to tell Defendant’s grandparents.
At trial the jury convicted. On appeal Defendant argued (1) admission of the Danielle texts was improper 404(b) character evidence and (2) certain prosecutor closing statements were grossly improper and the court should have intervened ex mero motu. The Court of Appeals majority reversed and remanded for a new trial; one judge dissented.

Issues

Issue	State's Argument	Reber's Argument	Held
Admissibility of text-message evidence under Rule 404(b)	Texts show plan, intent, or absence of mistake and are relevant background to defendant’s sexual behavior	Texts only reveal consensual adult sexual conduct and discussion about concealing consensual conduct from grandparents; not sufficiently similar or probative and unfairly prejudicial	Reversible error: texts were not sufficiently similar to charged child-sex offenses, highly prejudicial, and should not have been admitted under 404(b)
Prosecutor's closing statements (references to condom use, STDs, pregnancy, and sexual promiscuity)	Remarks were fair inferences and rhetorically strong summation of evidence	Remarks introduced matters outside the record, appealed to passion/prejudice, and amplified prejudice from improper 404(b) evidence	Reversible error: certain closing remarks were grossly improper, appealed to passion/prejudice, and trial court should have intervened ex mero motu
Plain-error/prejudice and remedy	Any errors were harmless given totality of evidence	Admission of texts and prosecutorial remarks had a probable impact on the verdict	Majority: combined errors were highly prejudicial and probably impacted the jury → new trial ordered; dissent would find no plain error

Key Cases Cited

State v. Al-Bayyinah, 356 N.C. 150, 567 S.E.2d 120 (describing limits and permissible purposes of Rule 404(b))
State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (similarity requirement for admitting prior bad acts)
State v. Dunston, 161 N.C. App. 468, 588 S.E.2d 540 (inadmissibility of prior consensual adult sexual conduct to prove propensity in child-sex case)
State v. Davis, 222 N.C. App. 562, 731 S.E.2d 236 (prior acts must be substantially similar and not too remote for 404(b) admissibility)
State v. Gray, 210 N.C. App. 493, 709 S.E.2d 477 (prejudicial effect of admitting prior sexual deviance evidence)
State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (limits on closing argument; appeals to passion/prejudice and counsel conduct)
State v. Tart, 372 N.C. 73, 824 S.E.2d 837 (standard for court to intervene ex mero motu for prosecutorial misconduct)
State v. Lawrence, 365 N.C. 506, 723 S.E.2d 326 (plain-error standard for preserved/unpreserved objections)