State v. Reed, ___ N.C. ___, 813 S.E.2d 215 (May. 11, 2018)

In a case where the defendant was convicted of misdemeanor child abuse and contributing to the delinquency of a minor, the court reversed the opinion below, ___ N.C. App. ___, 789 S.E.2d 703 (2016), for the reasons stated in the dissent. The case involved the drowning of a child under the defendant’s supervision in 2013. A majority of the Court of Appeals panel determined that evidence of a prior incident involving the drowning of a child under the defendant’s supervision in 2010 was properly admitted under Rule 404(b). The majority went on to conclude, however, that the State used the 404(b) evidence “far beyond the bounds allowed by the trial court's order” based on extensive references to the evidence, and that this constituted reversible error. The dissenting judge agreed that the 404(b) evidence was properly admitted but disagreed that the State’s use of that evidence warranted reversal. According to the dissent, the defendant’s argument regarding the State’s use of the 404(b) evidence should be treated as a challenge to jury argument in the absence of an objection, a claim assessed under the gross impropriety standard, which the defendant could not meet.