State v. Reber ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-130
Filed 16 May 2023
Ashe County, Nos. 15 CRS 50792-96
STATE OF NORTH CAROLINA
v.
JOSHUA DAVID REBER
Appeal by Defendant from judgments entered 9 August 2021 by Judge Forrest
D. Bridges in Ashe County Superior Court. Heard in the Court of Appeals 19 October
2022.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Margaret A. Force, for the State.
Daniel M. Blau, for the Defendant.
WOOD, Judge.
Joshua Reber (“Defendant”) appeals from judgments finding him guilty of
several counts of rape of a child and sex offense with a child. For the reasons stated
herein, we reverse the trial court’s judgment and remand for a new trial.
I. Factual and Procedural Background
In 2009, Defendant and his daughter, Beth1, moved to North Carolina to live
with his grandparents in Ashe County so Defendant’s grandparents could help with
1 Pseudonyms are used here to protect the identity of juveniles.
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childcare while Defendant worked. That same year, when Defendant was twenty
years old, he became friends with Sherry and Troy, a married couple he knew because
they worked together at a group home for individuals with mental disabilities.
Defendant became close to the couple and their five children, and he was treated like
a member of their family. Because of his close relationship with the family,
Defendant and his daughter spent a significant amount of time at Troy and Sherry’s
home and often spent the night at their home. During their friendship, he and his
daughter lived with the family for approximately a month. Troy and Defendant
would hunt together, and Troy would bring along his daughter, Khloe, after she
turned four years old. Khloe and her sister visited Defendant’s grandparents’ home
a few times to play with Beth, and, on one occasion, the two sisters stayed the night
in Beth’s room. Khloe also liked to play a video game called Call of Duty with
Defendant when she came to Defendant’s grandparents’ home.
In late September or early October 2015, when Khloe was eleven years old, she
told a boyfriend that Defendant had engaged in sexual activities with her and was
encouraged by him to report these events to her mother. Khloe then told her mother,
Sherry, that Defendant had been “messing with her.” In response to Khloe’s
allegations, Sherry contacted the Ashe County Sheriff Department and filed a report
with Captain Carolyn Gentry (“Captain Gentry”). Captain Gentry arranged for Khloe
to be interviewed and to have a medical exam.
On 15 October 2015, Detective Graybeal of the Wilkes County Sheriff’s
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Department, a forensic interviewer at the Safe Spot Child Advocacy Center,
interviewed Khloe. During the interview, Khloe stated that the abuse first occurred
when she was eight years old while she was alone with Defendant in a deer blind.
She reported that one night, after using a spotlight to hunt, Defendant started
massaging her, penetrated her vagina with his finger, and later rubbed her chest
under her shirt. Khloe also described additional sexual acts that she claimed took
place over the next three years, including multiple incidents of vaginal sex, digital
penetration, and oral sex with such acts occurring in the deer blind, on her family’s
couch, in her bedroom, and in the bathroom at her home. Khloe also stated that
sexual acts occurred at Defendant’s home to include his bedroom, a smoking spot
outside, and the woods. Khloe reported to Detective Graybeal that she and Defendant
sent nude photos to each other on Snapchat and chatted over Facebook messenger.
According to Khloe, the sexual abuse stopped before her eleventh birthday in April
2015. At the child advocacy center, Dr. Suttle conducted a medical exam of Khloe.
The medical exam consisted of a head-to-toe assessment and included a genital exam
and an anal exam.
On 4 November 2015, Defendant was arrested for several counts of sexual
offense with a child and rape of a child. On 19 November 2015, Captain Gentry
obtained a search warrant for Defendant’s phone. Defendant was indicted on 25 April
2016 on four counts of Rape of a Child in 15 CRS 50792-93 and six counts of Sex
Offense with a Child in 15 CRS 50794-96. Defendant was tried before a jury during
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the 2 August 2021 criminal session of Ashe County Superior Court with Superior
Court Judge Forrest D. Bridges presiding.
During trial, several witnesses testified. Khloe, seventeen years old at the time
of trial, testified that she first met Defendant when she was four or five years old and
viewed him as a brother with whom she wrestled, hunted, and played videogames.
However, Khloe testified that when she reached puberty at age eight, Defendant
began to engage in sexual activities with her. She reported that the first incident
occurred one evening when she, Defendant, and her father were watching television
together in the living room at 3 a.m. Khloe testified that after her father went to bed,
Defendant suggested that they move outside to hunt for coyotes, and they entered the
deer blind. In the deer blind, Defendant proceeded to massage her chest and buttocks
and penetrated her vagina with his finger. Khloe described that she “didn’t know
how to feel honestly” as she was “scared, nervous, but I had a crush on him before it
and, you know, I looked at it like, well, maybe he likes me too, and it’s kind of
exciting.”
According to Khloe, their relationship changed, and she began to view
Defendant as a boyfriend, to the point where she did not have “any boyfriends at
school.” Khloe further testified that when she was between the ages of eight and
eleven, the sexual touching occurred at least weekly and took place in the deer blind,
the woods located behind her parents’ home, her parents’ living room, the bathroom,
her bedroom, Defendant’s bedroom, and outside of his grandparents’ home. Khloe
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recounted that when she slept over at Defendant’s grandparent’s home, she would
sneak into Defendant’s bedroom located on the main level of the home, where they
engaged in sexual acts. Khloe testified that she and Defendant played videogames in
his bedroom at his grandparent’s home, and would wait until everyone left the home,
so that “whenever they left, that’s when things escalated.”
Khloe recounted that on a particular occasion, Defendant’s grandmother took
Khloe’s sister and Beth to church, while Khloe stayed behind with Defendant, so that
they “had a little time to [them]selves,” which allowed Defendant to “be a little more
further with it.” Khloe stated that Defendant came over to her parents’ home three
or four times a week, and at least once a week, they would engage in sexual
intercourse in the deer blind. Khloe also alleged that she and Defendant engaged in
sexual acts in her family’s bathroom, the only bathroom in the home, during the
night. She testified Defendant never used a condom during these sexual activities
and there were times when Defendant ejaculated into her mouth, into the toilet, or
into leftover bottles. Defendant told Khloe not to tell her father about their sexual
activities “because he didn’t want their relationship to be ruined between them” and
not tell anyone else, lest “he would go to prison.”
During cross-examination, Khloe testified that, within the two weeks before
trial, she watched the interview conducted on 15 October 2015 and explained, “The
only reason why I watched the videos is because I didn’t remember nothing for six
years. So I had to just really remember everything . . . . because this happened so
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many times, like the littlest details I probably had done forgot about.” When asked
about her truthfulness, Khloe stated that she did not need to make up any lies to get
attention from her parents.
Khloe’s mother, Sherry, also testified that she viewed Defendant as one of her
own kids and treated him as part of her family. She stated that all of her children
viewed Defendant as a big brother. Sherry testified that she thought Defendant and
Khloe had “a brother-sister relationship” before Khloe disclosed the abuse to her.
Sherry testified that after Khloe told her about these alleged events, she observed a
change in her daughter. Khloe was bullied, depressed, and suicidal and started
cutting herself, but Sherry testified that she did not notice any of these behaviors
prior to Khloe telling her what had occurred. Sherry also described Khloe as a
“normal 8- to 11-year-old” child during the period of these alleged acts. Sherry
testified that, in 2010, she quit working and stayed at home “all of the time” to care
for the children.
Defendant’s grandmother, Mrs. Swann, testified that when Defendant and his
daughter moved in with her and her husband, she stopped working to stay home and
take care of Beth. Mrs. Swann stated that during the times Khloe came over to her
home, her sister was always with her, and Mrs. Swann was home during those visits.
During the single time that Khloe and her sister slept over, the three girls slept in
Beth’s room located in the basement. Mrs. Swann’s bedroom was also located in the
basement and next to Beth’s room. Mrs. Swann testified that, during the relevant
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period, their dachshunds, which were normally kept in the basement, barked “if
anybody moved down there.” Mrs. Swann stated that Khloe was never left home
alone with Defendant while the rest of the family went to church, and, in fact, both
she and her sister had attended church with Mrs. Swann on the one occasion they
slept over. When Khloe and Defendant played video games in his bedroom, Mrs.
Swann testified that the door was always open and, from a vantage point in the
kitchen, she could clearly see into it. According to Mrs. Swann, she and her husband
required doors to be kept open when other children were in their home.
Neither Khloe’s mother nor Defendant’s grandmother testified to ever having
seen any questionable behavior from Defendant or any inappropriate interaction
between Defendant and Khloe.
At trial, the State called an expert witness, Ms. Browning of the Safe Spot
Child Advocacy Center, to discuss the results of Khloe’s 22 October 2015 medical
exam, though Ms. Browning was not the medical provider who examined Khloe on 22
October 2015 and had not met her. According to Dr. Suttle’s medical report, she did
not observe anything specific during the physical exam, which, according to Ms.
Brown, would include instances of torn hymenal tissue, evidence of an STD, or
pregnancy.
However, Ms. Browning testified that the lack of significant findings during
the genital exam does not rule out the possibility of sexual abuse because “it’s very
few children who have experienced sexual abuse that have any kind of injuries” since
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injuries can heal very quickly or there was never an injury there in the first place.
Nevertheless, Dr. Suttle’s report listed “no physical evidence of sex[ual] abuse found.”
On cross-examination, Ms. Browning conceded, “In other words, it was an
unremarkable or normal exam for a child [Khloe’s] age when it was done on October
22, 2015.”
Agent Anderson of the SBI testified that he conducted a forensic examination
of Defendant’s cell phone on 15 March 2016. After reviewing the data extraction,
Agent Anderson testified that he did not find evidence of nude photographs having
been exchanged between Khloe and Defendant. He also discovered that the phone
did not appear to have been activated until May 2015, one month after the alleged
abuse had stopped. Agent Anderson found thousands of text messages between
Defendant and his girlfriend at that time, Danielle, but no communications between
Defendant and Khloe. Agent Anderson testified that he attempted to do a data
extraction from Khloe’s tablet but was unsuccessful due to technical issues.
The Defense called as a witness Sgt. Lewis, a retired sergeant from the Ashe
County Sheriff’s Office who assisted Captain Gentry on this case. Sgt. Lewis was
assigned to take photographs of Defendant’s genital area in order to verify Khloe’s
claims regarding the location of alleged moles on Defendant’s body. Sgt. Lewis
testified that he did not observe any evidence of a mole in Defendant’s pubic line or
on his penis.
At trial, Defendant testified on his own behalf. Defendant testified about his
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and his daughter’s close relationship with Sherry and Troy and their children, and
that he spent quite a bit of time over at their home. He explained that Troy and
Sherry’s home only had one bathroom. He further testified he was Facebook friends
with all of Troy’s family who had Facebook accounts, including Khloe and he was first
introduced to Call of Duty, a video game, by Troy’s sons. Defendant recounted that
Troy and Sherry had marital discord, and, consequently, Troy would leave their home
for a couple of weeks at a time. During those times, Defendant would visit him at his
father’s home. Defendant testified he never spent the night at their home during the
periods of time Troy was not living there. If Defendant slept over, he would sleep on
the couch located in the living room, while Beth slept in the room shared by Khloe
and her sisters.
Defendant testified that at the request of her parents, he had taken Khloe
hunting in the family’s backyard, around 2:00 or 3:00 p.m., but would return from
hunting by nightfall. Defendant testified that he and Khloe did not hunt deer in the
evening because it was illegal to hunt deer after dark. Defendant testified he was
never alone with Khloe in Troy’s deer blind at night, but that there were times when
they would go out together to the picnic table and spotlight for coyotes. Defendant
denied ever engaging in any sexual activities with Khloe.
Defendant also recounted that Khloe had visited his grandparents’ home with
her sister two or three times but had never come alone. Defendant testified that he
and Khloe had played video games in a bedroom but that the bedroom door was open
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and that Khloe never came into his room at any other time. Defendant further
reported that Khloe would never have stayed home from church when she spent the
night because his “grandparents don’t allow that.” Defendant testified that his
grandmother stayed at home most of the time in order to watch Beth and other
children who visited and that she had a habit of “peeking in and checking in,” as well
as walking past doors and looking in when visitors came to her home.
Defendant testified that, since moving to North Carolina, he had girlfriends
with whom he had sexual relationships and that none of these sexual interactions
occurred at his grandparents’ home. Defendant also reported that he engaged in
contraceptive practices including using a condom, and, when a condom was not
available, Defendant utilized the pull-out method.
When asked about his cellphone, Defendant testified that it could have been in
May 2015 that he bought the phone upon which the search warrant was executed,
but he did not buy it in order to hide any previous contact with Khloe. Defendant
testified he never used Snapchat during the period between 2012 and 2015. While
Defendant might have downloaded the application to chat with Danielle on one
occasion in 2015, Defendant stated he did not communicate with Khloe over
Snapchat. Defendant and Khloe did exchange messages over Facebook messenger,
but Defendant explained that the messages were not sexual in nature. Defendant
denied exchanging nude photos with Khloe over any method of communication.
On cross-examination, Defendant was asked by the State prosecutor about his
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relationship with Danielle, at which point Defendant testified that they had slept
together once before entering into a relationship. The prosecutor questioned
Defendant about several text message exchanges with Danielle. In an exchange on 5
July 2015, during a discussion about the size of Danielle’s breasts, Defendant
mentioned that he had seen her breasts once before they began dating. The texts
that were read aloud during the trial stated that Danielle did not “remember taking
[her] shirt off,” at which Defendant replied, “You didn’t, but we were messing around
on the couch, and you let me pull them out at the top of the top.” Danielle responded
that she did not remember the incident, and Defendant texted, “You did get drunk
pretty fast.” The prosecutor then asked:
Q: She was so drunk, she couldn’t remember taking her
shirt off, and you had sex with her?
A: No, I mean, we were drinking with her and her cousin.
Q: She was so drunk, she couldn’t remember taking her
shirt off?
Defense counsel objected to the prosecutor’s last question, and the court sustained
the objection. The prosecutor also questioned Defendant about another text message
exchange in which he and Danielle discussed trying to find a place to engage in sexual
activity because Defendant’s grandparents prohibited Defendant’s girlfriends from
staying at their home. In the exchange, Defendant proposed: “We could go get
another motel [room] but I hope [Beth] doesn’t say anything to my grandparents.”
Danielle asked Defendant if he could “ask her not to say anything?”; Defendant
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responded, “Yeah, but she has a big mouth[,] but I can try.”
On 9 August 2021, the jury found Defendant guilty of four counts of rape of a
child and six counts of sex offense with a child. The trial court consolidated the
charges in 15 CRS 50792-93, sentencing Defendant to an active term of 300-420
months, and then consolidated the charges in 15 CRS 50794-96, sentencing
Defendant to a consecutive active term of 300-420 months. Defendant gave oral
notice of appeal in open court and filed a written notice of appeal on 13 August 2021.
II. Analysis
A. Introduction of Defendant’s Text Messages into Evidence.
On appeal, Defendant argues that the trial court committed plain error by
allowing the State to introduce into evidence two text message exchanges between
Defendant and Danielle. Defendant contends that the first text message
conversation, which discussed Defendant’s prior sexual encounter with Danielle
when she was intoxicated, was not relevant “to show that he had any plan or intent
to sexually assault [Khloe].” Additionally, Defendant argues that the text
conversation in which he and Danielle discussed a plan to meet at a motel and in
which he considered asking his daughter not to report this plan to her great-
grandparents does not indicate that he “had a plan or intent to abuse [Khloe].”
According to Defendant, such evidence showcasing his prior sexual relationship was
inadmissible for any valid Rule 404(b) purpose; thus, this improper character
evidence was prejudicial. We agree.
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“[T]o preserve an issue for appellate review, a party must have presented to
the trial court a timely request, objection, or motion, stating the specific grounds for
the ruling the party desired the court to make if the specific grounds were not
apparent from the context.” N.C. R. App. P. 10(a)(1). Where an objection about the
admissibility of evidence is not preserved at trial, the issue may be raised on appeal
based on “plain error” if the defendant shows that the admission was a fundamental
error with a “probable impact on the jury’s finding that the defendant was guilty” and
“absent the error the jury probably would have reached a different verdict.” State v.
Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). “The plain error rule applies
only in truly exceptional cases.” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83
(1986).
Under Rule 404(b), evidence tending to show a defendant committed other
wrongs, crimes, or acts, and his propensity to commit such acts, is admissible,
provided it is relevant for some purpose other than to show the propensity or
disposition of a defendant “to commit an offense of the nature of the crime charged.”
State v. Al-Bayyinah, 356 N.C. 150, 153-54, 567 S.E.2d 120, 122 (2002) (citing State
v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)). “[T]he admissibility of
evidence of a prior crime must be closely scrutinized since this type of evidence may
put before the jury crimes or bad acts allegedly committed by the defendant for which
he has neither been indicted nor convicted.” State v. Jones, 322 N.C. 585, 588, 369
S.E.2d 822, 824 (1988).
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Examples of purposes for which evidence of other crimes, wrongs, or acts is
admissible include: “motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident,” but the enumerated list of
permissible purposes in the rule is not exclusive. State v. Bagley, 321 N.C. 201, 206,
362 S.E.2d 244, 247 (1987); N.C. Gen. Stat. § 8C-1, R. 404(b) (2022). Accordingly,
evidence of “ ‘other crimes, wrongs, or acts’ . . . need only be ‘relevant to any fact or
issue other than the character of the accused’ to be admissible.” State v. Gordon, 228
N.C. App. 335, 338, 745 S.E.2d 361, 364 (2013) (quoting State v. Weaver, 318 N.C.
400, 403, 348 S.E.2d 791, 793 (1986)).
Even if relevant, 404(b) evidence is also “constrained by the requirements of
similarity and temporal proximity.” Al-Bayyinah, 356 N.C. at 154, 567 S.E.2d at 123,
appeal after new trial, 359 N.C. 741, 616 S.E.2d 500 (2005). “Evidence of a prior bad
act generally is admissible under Rule 404(b) if it constitutes ‘substantial evidence
tending to support a reasonable finding by the jury that the defendant committed the
similar act.’ ” Id. at 155, 567 S.E.2d at 123 (citing State v. Stager, 329 N.C. 278, 303,
406 S.E.2d 876, 890 (1991)).
Under Rule 404(b) a prior act or crime is sufficiently similar to warrant
admissibility if there are “some unusual facts present in both crimes or particularly
similar acts which would indicate that the same person committed both.” Stager, 329
N.C. at 304, 406 S.E.2d at 890-91 (citations omitted). The similarities are not
required to “rise to the level of the unique and bizarre.” State v. Green, 321 N.C. 594,
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604, 365 S.E.2d 587, 593 (1988).
In State v. Dunston, appealing his convictions of first-degree sex offense with
a child and taking indecent liberties with a child, the defendant argued that the trial
court erred in admitting his wife’s testimony that she and defendant engaged in anal
sex. 161 N.C. App. 468, 469, 588 S.E.2d 540, 542 (2003). This Court determined that
a defendant who “engaged in and liked consensual anal sex with an adult, whom he
married, [was] not by itself sufficiently similar to engaging in anal sex with an
underage victim beyond the characteristics inherent to both, i.e., they both involve
anal sex, to be admissible under Rule 404(b).” Id. at 473, 588 S.E.2d at 544-45.
Finding the evidence “was not relevant for any purpose other than to prove
defendant’s propensity to engage in anal sex,” this Court held the trial court erred in
admitting this testimony. Id.Additionally, in State v. Davis, this Court held that a defendant who previously
“wrote about having non-consensual anal intercourse with an adult woman whom he
knew” did not constitute a prior action that was substantially similar to his present
charges involving “anal penetration of defendant’s six-year-old son” as the only
overlapping fact between the two actions was anal intercourse. State v. Davis, 222
N.C. App. 562, 567, 731 S.E.2d 236, 240 (2012). We further stated:
While ‘the Court has been markedly liberal in admitting
evidence of similar sex offenses to show one of the purposes
enumerated in Rule 404(b), . . . [n]evertheless, the Court
has insisted the prior offenses be similar and not too
remote in time.’ State v. Scott, 318 N.C. 237, 247, 347
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S.E.2d 414, 419-20 (1986). Here, apart from the fact that
anal intercourse was involved, the acts bore no
resemblance to each other, involving different genders,
radically different ages, different relationships between
the parties, and different types of force.
Id. at 568, 731 S.E2d at 241.
Here, the charged crimes involve a girl between the ages of eight and eleven
years old when the alleged sexual abuse occurred. In contrast, the 404(b) evidence
involved a text message conversation between Defendant and a former girlfriend
discussing an isolated, consensual sexual encounter they shared before formally
dating. Further, there is no similarity in how the charged crimes and these 404(b)
offenses came to occur other than the allegation that both involved sexual intercourse.
While the text message conversation mentioned that Danielle had been
drinking during the time of their sexual encounter, there is no record evidence that
Defendant provided Khloe with alcohol or that she was impaired during the alleged
sexual offenses. Likewise, the locations of the alleged offenses and the 404(b) offense
are dissimilar: there is no evidence that Defendant and Khloe participated in
drinking and afterwards, engaged in sexual activities while others were present. In
contrast, Defendant, Danielle, and her cousin drank together culminating with
Defendant and Danielle “messing around on the couch.” The evidence, presented
through a text message conversation, that Defendant previously engaged in
consensual sexual intercourse with an adult woman who had been drinking is not
sufficiently similar to show that Defendant possessed any plan or intent to engage in
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sexual acts with Khloe.
Additionally, Defendant and Danielle’s text exchanges regarding a plan to
meet at a motel and his possibly asking his daughter not to report this plan to his
grandparents is not sufficiently similar to the charged offenses. The text message
exchange, which was admitted into evidence, involved Defendant considering
whether to ask that his daughter not tell his religious grandparents that he was
having consensual sexual intercourse with an adult woman with whom he was in a
relationship. However, there is no evidence that Defendant actually had this
discussion with his daughter. Even though Defendant’s daughter is similar in age to
Khloe, contemplating asking his child to withhold highly personal information from
relatives is not sufficiently similar where Defendant is alleged to have asked Khloe
not to disclose her own sexual abuse. We hold that Defendant’s text message
exchanges with Danielle do not give rise to any inference that Defendant “would be
desirous of or obtain sexual gratification” from sexual intercourse with an eight-to-
eleven-year-old girl. Davis, 222 N.C. App. at 570, 731 S.E.2d at 241-42.
We further agree that “Rule 404(b) evidence carries an inherent risk of
prejudice; by its very nature, it informs the jury about the defendant’s prior bad acts
and impugns his character.” As this Court has previously recognized, the improper
admission of a prior sexual deviance by a defendant
tends to bolster an alleged victim’s testimony that an
assault occurred and that the defendant was the
perpetrator, since such evidence informs the jury that the
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defendant has committed sexual assault in the past. This
evidence further tends to diminish the defendant’s
credibility, and creates the possibility that the jury will
convict the defendant based upon the prior bad act instead
of solely on properly admitted evidence.
State v. Gray, 210 N.C. App. 493, 521, 709 S.E.2d 477, 496 (2011). 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.
Given the sensitive and potentially inflammatory nature of the Rule 404(b)
evidence, “it is highly probable this testimony was prejudicial to defendant, especially
in light of the inconsistent and unclear nature of the remaining evidence in this case.”
Dunston, 161 N.C. App. at 473-74, 588 S.E.2d at 545. Here, Khloe testified she had
sexual intercourse with Defendant between the ages of eight to eleven, but the State’s
witness, Ms. Browning, testified that Khloe’s 2015 medical exam found no physical
evidence of sexual abuse, sexually transmitted diseases, or pregnancy, and the
physical exam was characterized as “an unremarkable or normal exam for a child [of
Khloe’s] age when it was done.”
Further, there were no eyewitnesses to the several years of alleged abuse,
despite both Khloe’s mother and Defendant’s grandmother continuously being
present at their respective homes to watch the children in their care. Neither Khloe’s
mother nor Defendant’s grandmother testified that they had ever seen any
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questionable behavior or inappropriate interactions between Defendant and Khloe.
Additionally, Agent Anderson testified that after conducting a data extraction on
Defendant’s cell phone, he was unable to find any evidence of nude photograph
exchanges or locate any history of communications between Defendant and Khloe.
Sgt. Lewis also provided testimony that he did not personally observe a mole in
Defendant’s pubic line or on his penis, in contradiction to Khloe’s description of
Defendant’s body.
Finally, Defendant denied the allegations against him and testified to events
which rebutted Khloe’s testimony. Thus, the outcome of the case “depended upon the
jury’s perception of the truthfulness of each witness.” State v. Maxwell, 96 N.C. App.
19, 25, 384 S.E.2d 553, 557 (1989). The improperly admitted evidence bolstered
Khloe’s testimony, diminished Defendant’s credibility, and made it more likely that
the jury would convict Defendant based on his character, rather than the facts
presented. Gray, 210 N.C. App. at 521, 709 S.E.2d at 496.
The trial court therefore erred, under the facts and circumstances of the
instant case, in admitting evidence of Defendant’s text message exchanges with a
previous girlfriend under Rule 404(b) of the North Carolina Rules of Evidence.
Because this error tended to be highly prejudicial to Defendant, such that it had a
probable impact on the jury’s finding that he was guilty, Defendant is entitled to a
new trial. Dunston, 161 N.C. App. at 474, 588 S.E.2d at 545.
B. State Prosecutor’s Closing Argument.
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Next, Defendant argues that the trial court erred by failing to intervene ex
mero motu in response to several statements made by the State prosecutor during his
closing argument. While we disagree with a portion of Defendant’s argument, part
of his argument has merit.
During closing arguments, a lawyer is “to provide the jury with a summation
of the evidence, which in turn serves to sharpen and clarify the issues for resolution
by the trier of fact and should be limited to relevant legal issues.” State v. Jones, 355
N.C. 117, 127, 558 S.E.2d 97, 103 (2002) (cleaned up). In a criminal jury trial, our
General Assembly has enacted specific guidelines for closing arguments:
During a closing argument to the jury an attorney may not
become abusive, inject his personal experiences, express
his personal belief as to the truth or falsity of the evidence
or as to the guilt or innocence of the defendant, or make
arguments on the basis of matters outside the record
except for matters concerning which the court may take
judicial notice. An attorney may, however, on the basis of
his analysis of the evidence, argue any position or
conclusion with respect to a matter in issue.
N.C. Gen. Stat. § 15A-1230 (2022). “[A]rgument of counsel must be left largely to the
control and discretion of the presiding judge and . . . counsel must be allowed wide
latitude in the argument of hotly contested cases.” State v. Monk, 286 N.C. 509, 515,
212 S.E.2d 125, 131 (1975). Nonetheless, this wide latitude is limited: a closing
argument must: “(1) be devoid of counsel’s personal opinion; (2) avoid name-calling
and/or references to matters beyond the record; (3) be premised on logical deductions,
not on appeals to passion or prejudice; and (4) be constructed from fair inferences
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Opinion of the Court
drawn only from evidence properly admitted at trial.” Jones, 355 N.C. at 135, 558
S.E.2d at 108.
Because Defendant’s attorney did not object to the State’s closing argument,
“defendant must establish that the remarks were so grossly improper that the trial
court abused its discretion by failing to intervene ex mero motu. ‘To establish such
an abuse, defendant must show that the prosecutor’s comments so infected the trial
with unfairness that they rendered the conviction fundamentally unfair.’ ” State v.
Tart, 372 N.C. 73, 80-81, 824 S.E.2d 837, 842 (2019) (quoting State v. Davis, 349 N.C.
1, 23, 506 S.E.2d 455, 467 (1998)). “Even when a reviewing court determines that a
trial court erred in failing to intervene ex mero motu, a new trial will be granted only
if ‘the remarks were of such a magnitude that their inclusion prejudiced defendant,
and thus should have been excluded by the trial court.’ ” Id. at 82, 824 S.E.2d at 842(quoting Jones, 355 N.C. at 131, 558 S.E.2d at 106). In order to assess whether this
level of prejudice against Defendant has been shown, the challenged statements are
considered “in context and in light of the overall factual circumstances to which they
refer.” Id. at 82, 824 S.E.2d at 843 (citation omitted).
Defendant identifies several portions in the State’s closing argument which he
asserts is grossly improper. First, in recounting Defendant’s relationship with Khloe
and the time they spent together, the State Prosecutor stated:
[T]he evidence is uncontradicted from his own house, he
played Call of Duty with her, video games. Call of Duty, a
video game with a mature rating, a war game where you
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STATE V. REBER
Opinion of the Court
use a control to shoot and kill people. It’s full of gore,
smoking, profanity, sex scenes. And he is doing this with
a girl who has not even reached the fifth grade yet.
Defendant argues that there was no evidence introduced at trial that “the game had
a mature rating, or that it involved shooting other people, or that it contained gore,
smoking, profanity, or sex scenes.” We disagree. In the above cited instance, the
State prosecutor’s statement represented legitimate inferences from the evidence
that was presented by the testimonies of Defendant, Khloe, and the SBI Agent in
describing the video game. Call of Duty is a well-known video game. To the extent
that the State described details about the game that go beyond common knowledge,
the remarks were not grossly improper or so extreme and of such a magnitude that
their inclusion in the State’s argument prejudiced Defendant by rendering the
proceedings fundamentally unfair.
Next, Defendant contests the State prosecutor’s statement regarding Khloe’s
decision to testify against Defendant and referred to Defendant’s trial attorney:
[Khloe] got up on that stand knowing that [Defendant’s
attorney] has her recorded interview from that October of
2015 date and that she’s going to try to cast her in the worst
light she can, and that she’s going to try to trip her up . . .
[Khloe] got on that stand knowing what she was facing[.]
Defendant argues that these remarks were improper and denigrated the trial
attorney’s role as defense counsel. We disagree. The prosecutor’s remarks did not
denigrate Defendant’s attorney or her duty to confront witnesses, as it described the
process of cross-examination and thus, was not grossly improper.
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Opinion of the Court
Next, Defendant objects to the prosecutor’s remarks concerning Defendant’s
grandmother providing the bond money for Defendant to be released from jail shortly
after his arrest: “[H]e only spent a few days in jail before she posted his bond and he
got out. He got out shortly after that nontestimonial identification order. Free as a
bird.” Defendant argues that this comment “had no connection to the evidence in the
case,” and encouraged the jury to convict him “because he had suffered no
consequences to that point.” Again, we disagree as the remark about Defendant’s
limited time in jail was connected to the evidence where Defendant testified that he
had been out of jail on bond since his arrest, and, thus, this statement cannot be
classified as an extreme or grossly improper comment.
Next, Defendant argues that the prosecutor made two grossly improper
remarks during closing argument which warranted intervention ex mero motu by the
trial court. During closing, the State prosecutor discussed Defendant’s use of birth
control during sexual intercourse and remarked:
An eight- to eleven- year-old child having sex with a man
16 years her senior who by his own testimony is sleeping
with other women in this community with no protection.
You think about that. You think about an eight- or nine-
year old walking around pregnant. You think about an
eight- or nine-year-old poking around with herpes or
gonorrhea or syphilis or Aids [sic].
The State prosecutor also addressed Defendant’s sexual history with Danielle, and
their text message exchange discussing their first sexual engagement:
Who is [Defendant]? . . . Danielle, a woman who when he
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Opinion of the Court
was developing a friendship, his first sexual encounter
with her involved taking her boobs out of her shirt and
having intercourse with her and you’ve seen the text
messages to show that she was too drunk to even remember
it[,] to even remember taking her shirt off.
We agree that the prosecutor’s comments concerning Defendant’s condom usage and
sexually transmitted diseases were unsupported and inflammatory, as it appealed “to
passions or prejudice.” Tart, 372 N.C. at 80, 824 S.E.2d at 842 (quoting Jones, 355
N.C. at 135, 558 S.E.2d at 108). While Defendant testified that he usually wore
condoms with his adult sexual partners, there was no evidence that he or any of his
sexual partners had herpes, gonorrhea, syphilis, or AIDS. The prosecutor’s
statements that Defendant was sleeping around with women in the community with
no protection and possibly spreading sexually transmitted diseases was unsupported
and inflammatory. Additionally, the record evidence does not show that Khloe
became pregnant or contracted any type of sexually transmitted disease from
Defendant. In fact, based on Dr. Suttle’s medical examination there were no
significant findings of lesions, tears, venereal disease, or pregnancy present in Khloe’s
medical exam.
This remark “cannot be construed as anything but a thinly veiled attempt to
appeal to the jury’s emotions” by inferring that Defendant had impregnated Khloe
and given sexually transmitted diseases to her as a result of unprotected sexual
intercourse. The prosecutor’s argument was improper as “it referred to events and
circumstances outside the record” and “attempted to lead jurors away from the
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Opinion of the Court
evidence by appealing instead to their sense of passion and prejudice.” Jones, 355
N.C. at 132, 558 S.E.2d at 107. Additionally, the State’s remarks about Defendant’s
sexual history with Danielle were impermissible character attacks based on
improperly admitted evidence. Such comments are so highly prejudicial and tend to
infect the trial with such unfairness, that the trial court erred by failing to intervene
ex mero motu or otherwise instruct the jury to disregard them.
The impact of the prosecutor’s statements in question, which conjure up
inaccurate images of Defendant as sexually manipulative, promiscuous, and a carrier
of sexually transmitted diseases, is too contaminating to be easily removed from the
jury’s consciousness, thus infecting the entire trial. Consequently, we hold the
disparaging remarks made by the State prosecutor were grossly improper and
prejudicial, and the trial court erred by failing to intervene ex mero motu in response
to the grossly improper and prejudicial statements made by the State prosecutor
during his closing argument. As we have already held Defendant is entitled to a new
trial, it is unnecessary to address Defendant’s remaining arguments. State v.
Dunston, 161 N.C. App. 468, 474, 588 S.E.2d 540, 545 (2003).
III. Conclusion
For the reasons stated above, we conclude that, due to the plain errors made
by the trial court, Defendant is entitled to a new trial. Therefore, we reverse and
remand for a new trial. It is ordered.
REVERSED AND REMANDED.
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Opinion of the Court
Judge COLLINS concurs.
Judge DILLON dissents by separate opinion.
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No. COA22-130 – State v. Reber
DILLON, Judge, dissenting.
Because I believe that Defendant has failed to show reversible error, I
respectfully dissent.
The majority takes issue with the prosecution’s cross examination of
Defendant concerning his sexual encounters with an adult woman friend which
included an encounter when the woman was drunk. However, Defendant’s counsel
did not object to the questioning. Arguably, the questioning was not error, as the
defense opened the door to the questioning by asking Defendant on direct about his
relationship with this adult woman. Even if the questioning about Defendant’s
inappropriate behavior with the adult woman was inadmissible under our Rules of
Evidence, I do not believe the trial court committed error by failing to intervene.
The majority also takes issue with the prosecutor’s statements during closing
regarding Defendant’s sexual relationship with the adult woman that was outside
any evidence presented, notably that Defendant could have transmitted an STD or
impregnated the pre-teen victim. Perhaps these statements were inappropriate.
However, Defendant’s counsel did not object or ask for any instruction concerning
these statements. And, assuming these statements were inappropriate, I do not
believe the trial court erred by failing to intervene when the prosecutor made these
statements during closing.
STATE V. REBER
DILLON, J., dissenting
Even assuming the above-described testimony and prosecutor statements
constituted error, I do not believe the error constituted plain error. It is certainly
possible a juror may have some reasonable doubt that the abuse occurred until
hearing the inappropriate testimony regarding Defendant’s encounter with his
adult friend and the inappropriate statements during prosecutor’s closing. Indeed,
the State’s case relied primarily on the victim’s credibility, as there was no physical
or third-party eyewitness evidence of the abuse. But I do not believe Defendant has
met his burden to show that the jury’s verdict probably would have been different
had the jury not heard this testimony or statements.2
I have reviewed the other arguments raised by Defendant and conclude that
none of them warrant a new trial. Accordingly, my vote is “no error.”
2 See my dissent in State v. Watkins, 277 N.C. App. 386, 857 S.E.2d 36 (2021), discussing
how the burden to show plain error, as established by our Supreme Court, is higher than the burden
set by the United States Supreme Court to show ineffective assistance of counsel: Plain error
requires a showing that a different result probably would have occurred, whereas an IAC error
merely requires a showing a reasonable probability that the result would have been different.
2