State v. Surratt, 216 N.C. App. 404 (Oct. 18, 2011)

In a sex offense case, the defendant received ineffective assistance of counsel when counsel failed to object to the prosecutor’s motion in limine to exclude specific reference to a prior DSS hearing and/or to clarify the evidence regarding that hearing. At the prior hearing the district court considered a DSS petition for abuse, neglect, and dependency of the defendant’s children and concluded that the children were not sexually abused but were neglected. At the criminal trial, the trial court granted the State’s motion in limine to exclude specific references to the outcome of the DSS hearing. Defense counsel did not object to this motion. A DSS social worker then testified to the victim’s allegations of sexual abuse and stated that DSS removed the defendant’s children from the home. Because of this testimony, the jury would have thought that the children were removed due to the sexual abuse allegations when in fact they were removed due to neglect.