This Davidson County case involved the sexual abuse of a girl at ages 10 and 13. The defendant was the child’s grandfather. In addition to assaulting the child, the defendant also abused the child’s mother, his daughter. The child’s mother reportedly traded sex with her daughter for drugs from the defendant. The child’s mother cooperated with the investigation. She pled guilty pursuant to Alford to attempted felony child abuse on the condition that she truthfully testify against the defendant at his trial. Defense counsel thoroughly questioned the child’s mother regarding her plea arrangement, but the trial court sustained an objection to questions relating to the Alford aspect of the plea. It ruled that the evidence that the child’s mother took an Alford plea was not relevant and, if it was relevant, that it “did not survive the [Rule 403] balancing test.” Slip op. at 4. The defendant was convicted of all counts at trial and sentenced to a minimum term of 1200 months. The trial court also ordered lifetime sex offender registration and satellite-based monitoring without objection from the defendant. He appealed, challenging the trial court’s decision to exclude evidence of the Alford nature of the plea. He also sought certiorari review of the SBM order, as he failed to preserve his direct appeal of that issue.

(1) The defendant’s objection to the evidentiary ruling was preserved. While the defendant failed to make an offer of proof by conducting voir dire of the witness, the plea transcript with the agreement between the State and the child’s mother was made a part of the record. Trial counsel’s extensive questioning about the plea deal also made the objection obvious from context, thus preserving the issue for appellate review.

(2) The defendant claimed that the Alford plea was relevant to the credibility of the witness and that the trial court erred in sustaining the objection to that line of questioning, causing prejudicial error. The court assumed that the Alford nature of the plea was relevant evidence, but found no abuse of discretion in the trial court’s exclusion of the evidence under Rule 403 of the North Carolina Rules of Evidence as potentially confusing to the jury:

Under the circumstances of this case, we agree with the trial court that evidence [the] mother entered an Alford plea would serve to confuse the jury regarding the legal details of her plea. In particular, someone would have to explain the meaning of an Alford plea, and [the] mother’s own understanding of the exact meaning of an Alford plea may have been different that the technical legal meaning or the intent Defendant assumes she had. Slip. op. at 14.

(3) The defendant failed to object on any basis to the order imposing SBM at the time of its entry and failed to give written notice of appeal of the order (as required for civil matters such as SBM orders). He sought review via petition for writ of certiorari and asked the court to invoke Rule 2 of the North Carolina Rules of Appellate Procedure to reach the merits of his unpreserved argument. The court declined both requests and dismissed the argument, finding the circumstances did not warrant the “extraordinary steps” of both granting certiorari and invoking Rule 2.  

Judge Murphy wrote separately to concur. According to him, the trial court erred in finding the Alford plea evidence irrelevant. The trial court further erred in conducting a Rule 403 balancing test after it found the evidence irrelevant and excluding the evidence on the basis of Rule 403 was an abuse of discretion. However, these errors were not prejudicial under the circumstances of the case.

In this Rockingham County case, defendant appealed his convictions for statutory rape, indecent liberties with a child, and sex act by a substitute parent or guardian, arguing error in admitting expert testimony that the victim’s testimony was not coached, in granting a motion in limine preventing defendant from cross-examining the victim about her elementary school records, and in admitting a video of defendant’s interrogation showing equipment related to a polygraph examination. The Court of Appeals found no error. 

In 2021, defendant was brought to trial for the statutory rape of his granddaughter in 2017, when she was 11 years old. At trial, a forensic interviewer testified, over defendant’s objection, that he saw no indication that the victim was coached. The trial court also granted a motion in limine to prevent defendant from cross-examining the victim regarding school records from when she was in kindergarten through second grade showing conduct allegedly reflecting her propensity for untruthfulness. The conduct was behavior such as cheating on a test and stealing a pen.  

The Court of Appeals noted “[o]ur Supreme Court has held that ‘an expert may not testify that a prosecuting child-witness in a sexual abuse trial is believable [or] is not lying about the alleged sexual assault.’” Slip Op. at 2, quoting State v. Baymon, 336 N.C. 748, 754 (1994). However, the court could not point to a published case regarding a statement about coaching like the one in question here. Because there was no controlling opinion on the matter, the court engaged in a predictive exercise and held, “[b]ased upon our Supreme Court’s statement in Baymon, we conclude that it was not error for the trial court to allow expert testimony that [the victim] was not coached.” Id. at 3.

The court also found no error with the trial court’s conclusions regarding the admissibility of the victim’s childhood records under Rule of Evidence 403. The court explained that the evidence showed behavior that was too remote in time and only marginally probative regarding truthfulness. Finally, the court found no error with the interrogation video, explaining that while it is well established that polygraph evidence is not admissible, the video in question did not show a polygraph examination. Instead, the video merely showed “miscellaneous items on the table and not the actual polygraph evidence,” and all references to a polygraph examination were redacted before being shown to the jury. Id. at 5-6. 

When a trial court properly determines, pursuant to Evidence Rule 403, that the probative value of evidence about a victim’s sexual history is substantially outweighed by its potential for unfair prejudice, the trial court does not err by excluding the evidence, regardless of whether it falls within the scope of the Rape Shield Rule. The defendant was convicted of second-degree sexual offense. On appeal he argued that the trial court erred by denying his ability to cross-examine the victim regarding the victim’s commission of sexual assault when he was a child. Specifically, the victim had told an officer that he had sexually assaulted his half-sister when he was eight or nine years old and thereafter was placed in a facility until he reached 18 years old. The defendant asserted that the victim’s statement about this assault was admissible for impeachment because it was inconsistent with the victim’s previous statements to law enforcement about how and when he was removed from his home as a child. The trial court found that the victim’s statement about sexually assaulting his sister was evidence of prior sexual behavior protected by the Rape Shield Law and also was inadmissible because any probative value is substantially outweighed by the likelihood of unfair prejudice and confusion to the jury. The court declined to address the defendant’s argument that a prior sexual assault committed by a victim is not protected under the Rape Shield law, concluding instead that the trial court properly excluded the evidence under Rule 403. The sexual behavior at issue occurred more than a decade earlier and involved no factual elements similar to the charges in question. The incident is disturbing and highly prejudicial and the circumstances of the victim’s removal from his family home as a child are of remote relevance to the offense charged. Moreover, other evidence, including testimony that the defendant’s DNA matched a swab taken from the victim shortly after the assault, render the victim’s inconsistent statements about facts less relevant to the contested factual issues at trial, namely the defendant’s denial that any sexual encounter occurred. The court also rejected the defendant’s argument that exclusion of this evidence impermissibly prevented the jury from hearing evidence that the victim was not a virgin of the time of the offense, contrary to his statement to the defendant that he was a virgin. 

The trial court did not abuse its discretion under Rule 403 by admitting the defendant’s recorded interview with a police detective. Noting that the fact that evidence is prejudicial to the defendant does not make it unfairly so, the court concluded that the evidence’s probative value was not substantially outweighed by the danger of unfair prejudice.

In a first-degree murder trial, the trial court did not abuse its discretion by declining to exclude, under Rule 403, evidence of the defendant’s mid-trial escape attempt. The court reasoned: “[T]he jury may have inferred from the fact that defendant attempted to escape that defendant was guilty of the charges against him. That inference is precisely the inference that makes evidence of flight relevant and it is not an unfair inference to draw.”

The trial court did not abuse its discretion under Rule 403 by admitting a recording of phone calls between the defendant and other persons that were entirely in Spanish. The defendant argued that because there was one Spanish-speaking juror, the jurors should have been required to consider only the certified English translation of the recording. 

The trial court did not abuse its discretion under Rule 403 by admitting the defendant’s statement to an arresting officer that if the officer had come later the defendant “would have been gone and you would have never saw me again.”