State v. Lail, COA23-845, ___ N.C. App. ___ (Jun. 4, 2024)

In this Catawba County case, defendant appealed his convictions for statutory rape, indecent liberties with a child, and incest with a child, arguing error in excluding a handwritten note that defendant attempted to introduce to attack the alleged victim’s credibility. The Court of Appeals majority agreed with defendant, ordering a new trial. 

In April of 2020, the alleged victim ran away from home, eventually telling police that she left because she was angry at defendant for cancelling a sleepover with her friends. She alleged several incidents of sexual abuse by defendant, and a forensic examination found evidence of past sexual trauma. At trial, defendant attempted to attack the victim’s credibility by introducing a handwritten note that she snuck out of her bedroom window one night to meet her boyfriend. Defendant argued the note showed (1) lack of credibility and (2) a possible perpetrator of the assaults, the boyfriend. After voir dire about the note and an extended discussion with the parties, the trial court held the note was inadmissible, noting it was more prejudicial than probative. 

Taking up the defendant’s argument, the Court of Appeals majority first established that defendant adequately preserved the objection to the trial court’s ruling, despite a confusing exchange between defense counsel and the trial court regarding the objection. The court then explained the abuse of discretion, holding that “[t]he trial court applied the wrong legal standard because: (1) it failed to engage in the requisite [Rule] 403 balancing; and (2) it failed to find that the Note’s probative value was substantially outweighed by the possibility of unfair prejudice.” Slip Op. at 12 (cleaned up). Because the credibility of the alleged victim was the primary issue at trial, impeachment of her was central to defendant’s case, and “[t]he contradictions within the Note and created by the Note are highly probative of Complainant’s credibility.” Id. at 13. As a result of the trial court’s error, defendant was prejudiced and the court ordered a new trial. 

Judge Tyson dissented, and would have applied the plain error standard to reviewing defendant’s argument as it was not properly preserved; the judge also would have held that the Rule 403 conclusion excluding the note was not an abuse of discretion had it been preserved. The lengthy dissent also discusses Rule 412 and defendant’s objections to certain expert testimony.