State v. Reber, 138A23, ___ N.C. ___ (May. 23, 2024)

In this Ashe County case, the Supreme Court reversed the Court of Appeals decision finding plain error in his convictions for rape of a child and sex offense with a child. The Court held that defendant’s arguments regarding admitted testimony and statements in closing argument did not rise to the level of the plain error standard. 

In 2015, the victim reported that a close friend of her family had been taking her to secluded locations and sexually abusing her. In 2021 defendant was charged with the sexual offenses, and at trial both the victim and defendant testified. During defendant’s testimony, the prosecutor asked him several questions about sexual relationships he had with adult women, including a text exchange with one woman, and defendant’s approach to contraception, which was the “pull-out method.” During closing argument, the prosecutor referred back to these parts of defendant’s testimony, suggesting that defendant engaged in sexual encounters with a woman too intoxicated to recall, and that defendant could have given the victim sexually transmitted infections. Defendant did not object to any of these questions or statements. After defendant was convicted, he argued plain error in admitting the testimony and reversible error in allowing the prosecutor’s closing argument statements. The Court of Appeals majority agreed, ordering a new trial. 

Taking up the State’s appeal based on the dissent, the Supreme Court first explained the purpose of the requirement for an objection at trial to preserve an issue for appeal. The Court noted that this preservation rule helps prevent “gamesmanship” of the appellate process, but “[p]lain error exists for the rare cases where the harshness of this preservation rule vastly outweighs its benefits.” Slip Op. at 7. The Court emphasized the exacting level of the plain error standard, noting:

The question is not whether the challenged evidence made it more likely that the jury would reach the same result. Instead, the analysis is whether, without that evidence, the jury probably would have reached a different result. This is a crucial distinction because something can become more likely to occur yet still be far from probably going to occur. Id. at 11. In the current case the Court found an example of this error, as the Court of Appeals majority focused on the prejudicial nature of the testimony and how it may have made the jury more likely to convict, which was not the different result required by the plain error standard. 

Moving to the closing argument statements, the Court explained that plain error is not applicable, as it is limited to evidentiary or instructional errors. Instead, the “grossly improper” standard applied, which “applies only when the prosecutor’s statements went so far beyond the ‘parameters of propriety’ that the trial court is forced to intervene to ‘protect the rights of the parties and the sanctity of the proceedings.’” Id. at 16, quoting State v. Jones, 355 N.C. 117, 133 (2002). Because the Court of Appeals majority based part of its reasoning about the closing argument on the improperly admitted evidence discussed above, that portion of the conclusion was invalidated when the Court concluded it was not plain error to admit the evidence. A second portion of defendant’s arguments hinged on inflammatory remarks from the prosecutor regarding the possibility of sexually transmitted infections, and the Court agreed that this was an “improper appeal to the jury’s emotions, rather than an appeal to reason.” Id. at 17. However, because defendant did not object, these statements were subject to the stringent “grossly improper” standard, and the Court did not agree that they represented reversible error. The court concluded by noting that defendant could still pursue an ineffective assistance of counsel claim, as the standard was lower than that of plain error review. 

Justice Earls, joined by Justice Riggs, dissented and would have held that the Rule of Evidence 404(b) evidence in the trial was improperly admitted, and represented plain error. Id. at 22.