State v. Reber, COA22-130, ___ N.C. App. ___ (May. 16, 2023)

In this Ashe County case, defendant appealed his convictions for rape and sex offense with a child, arguing plain error in the admission of two text message conversations with a woman that were improper character evidence. The Court of Appeals agreed, reversing and remanding for a new trial.

In August of 2021, defendant came to trial for four counts of rape and six counts of sex offense with a child based upon conduct that allegedly occurred between him and the daughter of a couple he knew well. At trial, defendant was questioned about his prior sexual relationships with adult women and several text message conversations during cross-examination. In particular, the prosecutor asked about a text message exchange where defendant’s adult girlfriend admitted to being too drunk to remember a sexual encounter. Defendant was also questioned about another exchange where defendant and his girlfriend were attempting to find a place to engage in sexual activity as defendant lived with his grandparents and could not have girlfriends spend the night. Defendant texted his girlfriend that he hoped his daughter (who was not the child allegedly abused) would not tell his grandparents, but that she had a big mouth.

On appeal, the Court of Appeals agreed with defendant’s argument that the admission of these text message exchanges was plain error. The court explained that this evidence showing defendant’s past sexual relationship was unrelated to his alleged abuse of the child in question, and inadmissible for any Rule of Evidence 404(b) purpose. The court noted there was no similarly in how the crimes and the Rule 404(b) offenses occurred other than they both involved sexual intercourse. The events took place in dissimilar locations, and the charges did not involve the consumption of alcohol or drugs with the child. The court also noted the exchange regarding defendant’s daughter was not sufficiently similar to defendant allegedly asking the victim not to reveal sexual abuse. The court explained:

Here, the evidence portraying Defendant as manipulative by (1) engaging in sexual intercourse with a woman who had been drinking alcohol, and (2) for contemplating asking his daughter to not share his plans to meet a girlfriend at a motel so they could engage in sexual intercourse is highly prejudicial and impermissibly attacked Defendant’s character.

Slip Op. at 18. Examining the other evidence in the case, the court concluded that due to the disputed nature of the allegations, the outcome depended on the perception of truthfulness for each witness, and the improperly admitted evidence had a probable impact on the jury’s finding of guilty. The court also found that closing argument remarks by the prosecutor regarding defendant’s sexual history were highly prejudicial and “the trial court erred by failing to intervene ex mero motu in response to the grossly improper and prejudicial statements.” Id. at 25.

Judge Dillon dissented by separate opinion, and would have held that defendant failed to show reversible error.