*1 STATE v. RAY (2010)] N.C. 272 [364 STATE OF NORTH CAROLINA v. MICHAEL RAY
No. 307PA09 (Filed 27 August 2010) Appeal preservation and Error— object issues — failure argue plain trial —failure error on Appeals
The Court of statutory erred in a first-degree sexual offense and indecent liberties with a child case granting de- fendant a new trial based on the testimony admission of his assaultive behavior (1) because: preserve failed to this appellate issue for review since he objected to the admission of only this evidence during hearing jury’s out of the presence, plain and he failed argue error on appeal; (2) even if preserved defendant had this issue for by timely review objection, he would not be entitled to a new trial prejudiced by since he was not the evidence when the jury did not obtain new information from defendant’s testi- mony, and there was possibility not a reasonable of a different outcome at trial without the admission of light of the substantial evidence of guilt. The additional issues considered were undisturbed. Justice . HUDSONdissenting.
Chief Justice PARKER and Justice TIMMONS-GOODSON joining in the dissenting opinion. discretionary
On pursuant review to N.C.G.S. 7A-31 of a unani- mous decision of the Appeals,-N.C. Court of App.-, 378 (2009), reversing judgments entered on 11 June 2008 Judge Alma L. Superior Hinton in Court, County, Hoke and remanding the case for a new trial. Supreme Heard in the May Court 11
Roy Cooper, Attorney General, by Robert G. Montgomery, Special Deputy Attorney General, State-appellant. Geoffrey W. defendant-appellee. Hosfordfor NEWBY,Justice. presents question
This case whether defendant is entitled to upon new trial based admission of evidence to which he did not timely objection offer a at trial and which he did not contend THE SUPREME COURT
IN STATE v. RAY *2 has plain appeal. We conclude that defendant amounted to error on to preserve appellate the trial court’s decision failed to review history portion his admit into evidence a Further, behavior. we deter- consumption of alcohol and assaultive preserved if had this issue for mine that even defendant timely trial objection, he not be entitled to a new review would he now prejudiced he was the evidence about which because not part the of the Court complains. Accordingly, we reverse in decision Appeals. charges trial on of first- The State’s evidence at defendant’s statutory liberties with a child degree sexual offense and indecent year following. On old L.G. tended to show the 12 June seven tournament at defendant’s and her mother attended horseshoe Upon arrival, played games young with other children in house. L.G. spent playing games, After time L.G. asked her attendance. some if house to use the bathroom. mother she could enter defendant’s Additionally, L.G. defendant whether he would allow her asked house to Defendant to L.G.’s enter his use bathroom. acceded house, and, previously request had not visited defendant’s L.G. proceeded then to the her of the bathroom’s location. L.G. informed pull up her attempting While was in the bathroom bathroom. L.G. door, clothes, protests, opened and over her the bathroom L.G., entered, grabbed L.G. Defendant then and walked toward mouth, wall, clothes, against her lowered her covered her slammed penetrated vagina her times. digitally and several replaced left After the attack defendant the bathroom and L.G. Immediately following, house clothes. L.G.ran out her L.G. and, crying, while informed her mother of defendant’s conduct. police. mother returned and called the Later that and her then home County evening, Deputy Sergeant Lewis of the Hoke Jones prepared home. an incident Sheriff’s Office visited L.G.’s The officers containing description evening’s report L.G.’s events. Timothy
Subsequently, Sergeant Rugg (“Det. Rugg”) of Detective County defend- investigation Office into the Hoke Sheriff’s led interviewed L.G.on June Rugg ant’s interaction with L.G.Det. first Rugg Det. details of defendant’s conduct 2005. L.G. recounted to explained had evening of 12 June 2005. L.G. that defendant on the while by digitally penetrating vagina “about five times” “hurt her” her spoke with in the of his house. L.G.’smother also she was bathroom that L.G. was Rugg. Among things, L.G.’smother revealed Det. other pain Rugg suggested Det. experiencing using when the bathroom. facility L.G.’smother take the child to a medical for immediate diagnosis treatment, arranged appointment and he a later for L.G. undergo specialty Fayetteville. a child medical exam at a clinic in speaking
After with Rugg Det. on 14 June L.G.’s mother pediatric emergency Cape Valley took her to the room of Fear Health System. complained There experiencing pain L.G. urinating. while Following culture, a urine diagnosed L.G. was with and treated for a urinary tract (“UTI”).According infection Loughlin, M.D., Howard expert pediatrics pediatrics, and child digital manipula- abuse tion vaginal area can cause a diagnosis UTI and such a on 14 June vaginal manipulation 2005 is consistent with area on 12 June physical L.G. also underwent a vaginal examination of her *3 and anal during emergency physical areas this room visit. The examina- “[h]ymen tion revealed appear[ed] open,” that while L.G.’s there were signs “no of trauma” vaginal to her and anal areas. later,
Two August 2005, months on 10 Dr. Loughlin evaluated L.G. In addition speaking with Det. Rugg mother, and L.G.’s Dr. Loughlin interviewed L.G. L.G. recalled Dr. Loughlin that she and her mother visiting were During visit, defendant’s house. the she needed to use the bathroom. While she was in bathroom, the defend- room, ant entered the against wall,” the and “[s]lammed [her] private,” “touched which genital L.G.identified as her area. L.G. [her] explained that digital penetration of her “felt bad when he doing was it and later.” Dr. Loughlin significant found L.G.’s description penetration digital painful, the explaining typi- cally pain a child does not associate with such an act unless the child experienced has it. part evaluation,
Also as of his Loughlin Dr. reviewed L.G.’smed- ical records from her 14 June 2005 examination resulting in a UTI diagnosis, including finding the vaginal L.G.’s and anal areas appeared normal and signs Further, evinced no of trauma. Dr. Loughlin physically similarly examined L.G. and signs found no However, trauma. Loughlin explained Dr. that the absence of visible vaginal trauma to the digital penetration or anal area of a victim is “not Ultimately, opined uncommon.” Dr. Loughlin that, based on sev- factors, eral including description L.G.’s painful of the event as resulting UTI, history the L.G.’s “was being consistent with her sexu- ally abused.”
Following presentation evidence, State’s defendant testi- fied. Defendant denied that However, he had contact with L.G.
STATE v. also recounted that he L.G. into on followed his house 12 June L.G., inwas his house alone with and left the house before L.G. came Further, roughly back outside. defendant admitted that he consumed beyond Moving twelve beers on June 2005. of 12 the events June later for, defendant informed the that he had convictions alia, driving impaired deadly inter weapon, while and assault with a acknowledged “strong possibility” problem and he that he ahas with alcohol. portion
During of the defendant, State’s cross-examination of prosecutor focused on consumption defendant’s alcohol alleged “slamm[ing]” against during of L.G. a wall the encounter. presence jury, prosecutor Outside the informed the trial that, purpose pursuant court for the of proving motive and intent and 404(b), question of Evidence he would like to defendant regarding his assault aof woman after he on sev- consumed alcohol prosecutor explained eral occasions 1990. The court that he prior had learned from the victim of these assaults that defendant did act in an consuming assaultive manner after alcohol. During hearing objected, defendant but the trial court allowed the question State to pur- conduct for the pose of proving motive and intent. The hearing concluded and the jury returned.
Once resumed, the State’s examination of defendant the follow- ing exchange occurred:
Q. you Isn’t problems it true that have had with alcohol and assaultive behavior before? No,
A. sir. Q. any problems You have not had where alcohol was involved you assaulted other individuals? Yes, A. I have had that.
Q. So, again, my is, you question had isn’t true that have your occurrences where assaulting alcohol has affected other individuals?
A. No, sir.
Q. played part your assaulting So alcohol no in other individuals?
A. No, sir. COURT THE SUPREME IN
Q. your Ms. Brenda part assaulting a play in the alcohol Did of 1990? back in December McPhaul No, A. sir.
Q. with a your assaulting Ms. McPhaul part a in play alcohol Did deadly weapon of 1990? in December No, A. sir.
Q. your part assaulting Ms. McPhaul play a Did alcohol of 1990? pointing gun in December No, A. sir.
Q. your assaulting Ms. McPhaul play part did alcohol And February of 1990? No,
A. sir. Q. your her assaulting on The alcohol had no effect times? those No,
A. sir.
Q. you drinking? But been had say “yes” really A. that far back. I can’t Q. “yes”? say You can’t say “yes” that.
A. Yeah. I can’t Q. say “no”? You can’t say
A. Can’t “no.” jury this line of Though objected presence out before attorney object during the did not questioning began, defendant’s evidence, the presentation of all the exchange. After the actual statutory offense guilty first-degree sexual found defendant judg- trial then entered with a child. The court and indecent liberties accordingly. ment July 2009, opinion on the Court In unanimous filed *5 — App. —, Ray, 678 a new trial. State v.
granted defendant
alia, that
trial
determined, inter
the
(2009). That court
S.E.2d 378
testimony regard
admitting
into evidence
court erred
at —,
Generally appellate speaking, the courts of this state will not review a trial court’s decision to admit evidence unless there has timely objection. a Thibodeaux, been 570, 581-82, State 352 N.C. 797, (2000), denied, 1155, 532 S.E.2d 806 1106, cert. 531U.S. 121S. Ct. L. objection Ed. 2d (2001).1 timely, 148 976 To be an to the admission of actually evidence must be made “at the time it is introduced 581, trial.” Id. at 532 (emphasis S.E.2d at 806 omitted). It is insuffi object only to party’s cient to the presenting forecast evidence. such, preserve As appellate Id. in order to for review a trial court’s testimony, “objections testimony decision to admit to be must [that] contemporaneous with the time such is offered into evi only dence” and not during hearing jury’s presence made a out of the prior to testimony. the actual introduction the Thibodeaux, 352 581-82, atN.C. 532 S.E.2d at (citations 806 omitted). judice
In objected the case sub defendant to the admission evidence his 1990 only during hearing assaultive behavior jury’s presence. out of words, objected the In other defendant the to evidence, object State’s forecast subsequently but did not then “actually when the evidence was 581, introduced at trial.” Id. at (emphasis omitted). Thus, S.E.2d at 806 preserve defendant failed to appellate for review the trial court’s decision admit to evidence regarding his 1990 Moreover, assaultive behavior. See id. defendant opportunity remaining lost his for review when he failed argue that trial court’s admission of this Following opinion Thibodeaux, Assembly this Court’s “the General 103(a) provide amended N.C. Rule of Evidence that once the trial ‘a court makes ruling admitting evidence, excluding definitive on the record or either at or before party trial, objection proof preserve need not renew an or offer a claim of error ” appeal.’ Augustine, 731, 709, 515, for (2005) (citing State v. 359 N.C. 616 S.E.2d May 21, 2003, 127, 127), denied, Act of ch. N.C. Sess. Laws cert. 548 U.S. (2006). However, Oglesby 126 S. Ct. 165 Ed. L. 2d 988 in State v. held Court unconstitutional, 103(a) 2003 amendment to Rule “to extent conflicts Appellate 550, 554, 10(b)(1).” with Rule of Procedure (2007). Oglesby explained consistently interpreted” In we this Court “has Appellate provide evidentiary 10(b)(1) ruling pretrial “to that a on trial court’s preserve admissibility motion is not sufficient issue unless a objection during Therefore, (citations omitted). renews trial.” Id. we consider the statements taken from Thibodeaux and referenced herein accurate statement of the current law. *6 SUPREME COURT IN THE RAY
[364 N.C. (2010)] at 806 at 532 S.E.2d plain error. 352 N.C. testimony amounted Accordingly, alia, App. 10(c)(4)). R. N.C. P. (citing, inter arguments on by reaching the merits of defendant’s Appeals erred this issue. Id. objection timely preserved for
However, if defendant had even testimony, portion of his admit this decision to appellate review the based To receive a new trial a new trial. not be entitled to would Evidence, a must show upon defendant a violation of the Rules of possibility” that there a “reasonable the court erred and that trial at have been reached “a result would without the error different that Mason, 317 (2009); see also State v. 15A-1443(a) the trial.” N.C.G.S.§ (1986) (“[B]efore the defendant is prejudiced he was appeal, he show that relief on must entitled to (citing 15A-1443(a))). error.” N.C.G.S. the court’s] [trial by allowing erred Essentially, the trial court árgues defendant that testimony regarding his his 1990 attempt to elicit the State to Initially we 404(b). to Rule Evidence pursuant behavior assaultive may allowing the State to not have erred that the trial court note 404(b) as prior conduct under Rule evidence of defendant’s elicit However, we need not resolve proof and intent. some of motive judice. Accordingly, we dispose case sub question to by admitting this arguendo trial court erred simply that the assume impact evidence on proceed to the of this determine evidence jury’s the verdict. essentially any new from jury to obtain information
The failed During complains. about which he now questioned issue, portion at the State of the State’s examination consuming alcohol and connection between his defendant about the on Ms. behavior, specifically several assaults past assaultive his responded nega- in the Though defendant Brenda McPhaul in jury appears questions, that the most the tive to most of the State’s it past has made exchange from this was defendant learned poor engaged and that he has consuming after alcohol decisions However, prior portion of defendant’s tes- behavior. assaultive jury past his timony issue, told about convictions deadly weapon, impaired with a admissions driving while and assault poor after alcohol judgment using that reflect both exercise essentially Thus, jury learned noth- past behavior. assaultive already learned challenged exchange than had during the ing more testimony. in his earlier
STATE v. prejudiced by portion Defendant was not the admission of this testimony. As nothing exchange learned new *7 regarding prior conduct, possi- defendant’s there is not “reasonable bility” of a different outcome trial without the admission of this testimony. especially light This is- true in following substantial guilt: testimony, evidence of defendant’s the victim’s trial the consis- tency testimony of description her trial and her of the events to Det. Rugg Loughlin, and Dr. L.G.’s of pene- characterization defendant’s painful, testimony Loughlin’s history tration of her as Dr. that L.G.’s sexually abused,” was being “consistent with her and the fact that such, L.G. assuming portion contracted UTI.As even the challenged testimony of defendant’s was error, prejudice admitted in it did not him, and defendant is not entitled to a new trial.
We Appeals reverse the decision of the Court of that defendant is entitled to a new by trial. The additional issues considered the Court Appeals us, of are not before its decisions to those matters therefore remain undisturbed. This case is remanded to the Court of Superior Court, for further County, remand Hoke for proceedings opinion. further not with inconsistent REVERSEDIN PARTAND REMANDED.
Justice HUDSONdissenting. preservation
I would conclude that the State its argument waived by by neglecting below, specifically to raise it failing either cross- assign then-applicable it in as error accordance with the of version Appellate 10(d) North Carolina Rule of or Procedure to make the argument Appeals. in its brief to the Court of I would further con- testimony clude admission the cross-examination 404(b) the 1990 assaults violated Rule in resulted reversible Therefore, warranting respectfully error new trial. I dissent. appeal,
At the time North Carolina Rule of Appellate provided, pertinent part: 10(d) Procedure (d) Cross-assignments appellee. by taking error Without appeal appellee may
an an cross-assign as error action or properly preserved omission of the trial court which was deprived appellee review and which of an alterna- tive basis in law for supporting judgment, order, or other appeal which has determination from been taken. COURT IN THE SUPREME v. RAY Here, undisputed defendant asserted it is App. 10(d).2 R. P. of his cross-examina- error that the admission assignments his In 404(b).3 violated Rule regarding the 1990 assaults
tion of discretion and review as abuse he set forth the standard of his brief prejudicial resulted in error argued erroneous admission that its Despite this, neglected the State 15A-1443(a). under N.C.G.S. to the Court cross-assignment of error or its brief assert, in a either 404(b) argument had waived his Rule Appeals, that defendant plain the record on or assigning arguing error in not or provided alternative basis for the argument would have brief. This fact, relief now the basis for the sought the State—in relief argu- simply responded to the defendant’s Instead, the State seeks. was no of discretion —even maintaining that there abuse ment have been sim- waived the issue would though arguing that defendant the issue of result, Appeals did not address *8 pler. As a the Court of argues. plain error, as the State now waiver or cases, I it is not our role to allow on earlier conclude Based by present, another, apple permitting it of the to State different bite time, not make below. See Pearce argument for the first an did Co., 461, 467, 174, 178 Ins. 316 N.C. 343 S.E.2d Am. Defender Life discre (“Petitioners cases come before this Court on (1986) whose by tionary 16 North Carolina Rules of review are limited Rule of the questions they presented in Appellate to have their Procedure those action were Appeals. to Because these causes of briefs the Court court, they properly us.”); are not before see also argued not to that 1, Gypsum Co., 21-22,418 Cty. v. U.S. 332 N.C. Rowan Bd. Educ. (citing Pearce, 467, 316 at 343 (1992) (same) 661 S.E.2d App. 412, 418, 178); Fuller, 196N.C. 674 S.E.2d S.E.2d at State v. not (concluding because the trial court had denied the (2009) 829 that suppress standing on lack of and the defendant’s motion based basis for cross-assigned standing an “alternative State had not Appellate 10(d), Rule upholding trial court’s order” under (citation preserve argument appellate its review State failed to Appellate Although of North Carolina Rule of Proce- the current version cross-assignments appellee 10(c) error and an to “list dure eliminated allows appellee “prop- proposed appeal,” still must have on the record on issues erly raising preserve[d]” N.C. R. these “for review” them below. issues App. 10(c). P. unsuccessfully attempted incidents under had to offer these 1990 3. The State resulting 609; therefrom were ruled North Carolina Rule of Evidence convictions — N.C. App. —, —, Ray, time to be admissible. State v. too remote in (2009). 381 THE IN SUPREME COURT
STATE v. RAY omitted)). I would raising peti- conclude that not the issue until its discretionary tion for review Court,4 to this the State has waived argument Homer, it makes now. 274, 283, State v. Cf. (1984) party may S.E.2d (stating statutory that waive or “[a] provisions by constitutional purpose ... conduct inconsistent with a upon apply plain to insist it” and declining error review alleged (citations Similarly, instruction omitted)). error I would decline plain error, analyze all, to review this case for if it, but would to see correctly if the Court of prejudice. saw error and Turning substance, I to the would conclude Appeals correctly held that admission the cross-examination testi- mony clearly here violated 404(b). That court addressed argued parties issue under the standard of review both —whether Ray, was an App. at-, there abuse discretion. -N.C. presence jury, S.E.2d at 384. Out of the the State asked the permit court the trial it to cross-examine regard- ing assaults he against girlfriend, had committed his former Brenda (McPhaul), McPhaul argued 1990.The State that the 1990incidents established defendant’s crimes, motive and intent to commit the 2005 specifically asserting past, “he had too much to drink as he has in the woman, child, he . yes, assaulted which is a but. . she still woman, way, way and he her an aggressive assaulted the same ways aggressive drinking.” assaulted other women in after The State indicated5 McPhaul stated that all the 1990 incidents occurred while and'typically she and defendant were dating involved her con- fronting infidelity defendant with upon rumors of his his return home *9 drinking fights, from with friends. The confrontations led to some ini- tiated McPhaul and some initiated defendant. McPhaul further “seriously injured” sexually stated that: defendant never her or her; she had tried of assaulted to hurt him some these alter- cations; her then minor children never indicated that defendant had any way”; in and she and defendant ended their rela- “abuse[d them] tionship pulled in or around gun December 1990after a on her at party seeing Ultimately, “because she was someone else.” the trial Although accepted discretionary review, this Court of casé this area settled; any the law is well it is difficult for me to how see this issue meets of the statu- tory criteria for review. 5. The State informed the trial court that McPhaul was reluctant to communicate regarding subpoena details the 1990 incidents and that it had to her in to order trial, testify interview her and obtain a statement. McPhaul did not at and the details provided purportedly regarding State to the court were incidents derived pretrial from interview. COURT IN THE SUPREME v. cross-examine defendant the State could ruled that
court and intent to establish his motive as-described, assaults probative value year and that the old child sexually assault a seven any prejudicial effect. outweighed pertinent part 404(b)
Rule
reads
of other
crimes, wrongs, or acts.—Evidence
(b) Other
prove
the character
crimes,
or acts is not admissible
wrongs,
conformity there-
person
that he acted
of a
in order
show
purposes, such as
may, however,
admissible for other
It
be
with.
intent, preparation, plan, knowl-
motive, opportunity,
proof of
entrapment
identity,
mistake,
or accident.
or absence of
edge,
poten-
recently
We
described the
8C-1,
404(b) (2009).
Rule
§
N.C.G.S.
Carpenter, 361 N.C.
in State v.
of this kind of evidence
dangers
tial
(2007):
similar quotation omitted). . . . must “Finally, marks the trial court balance prejudice probative the danger against-the the of undue value of evi- 403.” dence, pursuant Rule [North Carolina] Evidence] [of Carpenter, 388-89, at at (citing 646 S.E.2d 110 N.C.G.S. 8C-1, (2005)). 403 § Rule purported most, the the 1990
At
similarities between
incidents
merely generic.
2005 incident
has stated:
the
are
This Court
“When the State’s efforts to show similarities between crimes estab
lish
than
inherent to
crimes of
no more
‘characteristics
most’
that
type, the State has
. . . that
‘failed to show
sufficient similarities
purposes
404(b).”
390,
existed’ for the
of Rule
Id.
STATE v. RAY only purpose determining propensity for the the defendant’s White, charged.” commit the crimes with which he been State v. ha[d] 604, 615-16, (1992) (citation omitted), denied, L. (1996). cert. 519 U.S. 136 Ed. 2d 229 Finally, possibility that, defendant has shown “a reasonable had question committed, the error in not been a different result would have been reached at the trial out of which the arises.” 15A-1443(a)(2009). majority prejudi- N.C.G.S. The brushes off the erroneously evidence, cial effect of this stating admitted character jury exchange “the most the learned from this was that defend- past poor ant has in consuming made decisions after alcohol and engaged jury that he has in assaultive Noting behavior.” that the also learned that defendant had driving convictions for while impaired deadly weapon, majority and assault awith concludes jury essentially that “the nothing challenged learned more already exchange testimony.” than it had learned earlier his In doing so, majority damaging overlooks the most matter the learned from this evidence—that defendant had assaulted a female of unspecified multiple age times, including with a gun was —which eyes damage jury. certain to him in the Close examination of credibility the record reveals that defendant’s was critical defense, given physical only the lack of evidence.6 The State’s wit- officer, nesses were a law enforcement an investigator with the dis- attorney’s office, trict the medical doctor alleged who saw the victim incident, two months after alleged young girl. and the Defendant my took the stand and denied view, assault. In the Court of Appeals correctly “[a]gainst concluded that backdrop of evi- th[e] case, dence” in jury’s this which was not overwhelming, “the assess- credibility ment of the relative of L.G. and the Defendant assumed crucial significance.” Ray,- App. at-, 678 S.E.2d at In light of the well-recognized dangers prejudice easily flow propensity type from here, evidence of the I admitted would affirm Appeals’ decision to award defendant a new trial. respectfully For these reasons I dissent.
Chief Justice PARKER join and Justice TIMMONS-GOODSON in dissenting opinion. fact, during admissibility In6. the bench conference on the of the 1990 assaults 404(b), explicitly only acknowledged: under Rule the State two issues in this “[T]he credibility motive; why case are of witnesses and who to believe and would [defend- have done this.” ant]