A couple of weeks ago, the court of appeals decided State v. Davis, __ N.C. App. __ (2012). For prosecutors, defense lawyers, and judges handling sex crime cases, it's a significant opinion concerning Rule 404(b). The defendant in Davis was charged with indecent liberties and first-degree sexual offenses based primarily on his young son’s reports that the defendant had anal and oral sex with him. Medical examinations of the child found nothing abnormal, but the defendant's sperm were found in one pair of the child’s underwear. The case went to trial, and the child testified about his father's actions. The defendant also testified, denying the charges and asserting that the child’s mother had encouraged the child to fabricate the allegations as a way of gaining leverage in the couple’s divorce and custody battle. The state cross-examined the defendant about a composition book in which he wrote short stories and other material. The book included an entry in the form of a letter to a woman the defendant had known; the letter, which was admitted into evidence, described the defendant forcing the woman to have anal intercourse with him. The defendant was convicted of sexually assaulting his son. He appealed, arguing, inter alia, that the cross-examination regarding the letter should have been excluded under Rule 404(b). The state contended that the letter was not fictional, but rather described an assault that had actually occurred, and that it was admissible under Rule 404(b) to show a common plan or scheme to obtain sexual [...]
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