{ "id": 4034059, "name": "STATE OF NORTH CAROLINA v. LARRY DAVID DAVIS, II, Defendant", "name_abbreviation": "State v. Davis", "decision_date": "2012-08-21", "docket_number": "No. COA11-591", "first_page": "562", "last_page": "575", "citations": [ { "type": "official", "cite": "222 N.C. App. 562" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "419 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "564", "parenthetical": "holding that cumulative evidence of prior sexual assaults allegedly committed by defendant were prejudicial entitling defendant to new trial" } ], "opinion_index": 0 }, { "cite": "331 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497445 ], "year": 1992, "pin_cites": [ { "page": "616", "parenthetical": "holding that cumulative evidence of prior sexual assaults allegedly committed by defendant were prejudicial entitling defendant to new trial" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0604-01" ] }, { "cite": "559 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "764", "parenthetical": "holding that although neither \"of the trial court's errors, when considered in isolation, were necessarily sufficiently prejudicial to require a new trial, the cumulative effect of the errors created sufficient prejudice to deny defendant a fair trial\"" } ], "opinion_index": 0 }, { "cite": "355 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220084 ], "year": 2002, "pin_cites": [ { "page": "246", "parenthetical": "holding that although neither \"of the trial court's errors, when considered in isolation, were necessarily sufficiently prejudicial to require a new trial, the cumulative effect of the errors created sufficient prejudice to deny defendant a fair trial\"" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0242-01" ] }, { "cite": "137 S.E. 528", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1927, "pin_cites": [ { "page": "529" } ], "opinion_index": 0 }, { "cite": "147 Va. 709", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 472368 ], "year": 1927, "pin_cites": [ { "page": "714" } ], "opinion_index": 0, "case_paths": [ "/va/147/0709-01" ] }, { "cite": "570 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 546", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250832 ], "year": 2002, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0546-01" ] }, { "cite": "82 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1954, "pin_cites": [ { "page": "770" }, { "page": "771" }, { "page": "768" } ], "opinion_index": 0 }, { "cite": "240 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603731 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "524" }, { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0516-01" ] }, { "cite": "722 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2012, "opinion_index": 0 }, { "cite": "710 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2011, "pin_cites": [ { "page": "269-70" }, { "page": "269" }, { "page": "271" } ], "opinion_index": 0 }, { "cite": "347 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "419-20" } ], "opinion_index": 0 }, { "cite": "318 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4734405 ], "year": 1986, "pin_cites": [ { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0237-01" ] }, { "cite": "352 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "681", "parenthetical": "\"The youth and vulnerability of children, coupled with the power inherent in a parent's position of authority, creates a unique situation of dominance and control in which explicit threats and displays of force are not necessary to effect the abuser's purpose.\"" } ], "opinion_index": 0 }, { "cite": "319 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741158 ], "year": 1987, "pin_cites": [ { "page": "47", "parenthetical": "\"The youth and vulnerability of children, coupled with the power inherent in a parent's position of authority, creates a unique situation of dominance and control in which explicit threats and displays of force are not necessary to effect the abuser's purpose.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0034-01" ] }, { "cite": "588 S.E.2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2003, "pin_cites": [ { "page": "542" }, { "page": "545" }, { "page": "545" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 468", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8958549 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "469" }, { "page": "473-74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0468-01" ] }, { "cite": "565 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "645", "parenthetical": "\"[The witness'] testimony concerning the choking incidents between herself and defendant were admissible under Rule 404(b) in order to show motive, plan, common scheme, and intent, as the trial court found, since defendant had shown a pattern of choking his victims.\"" } ], "opinion_index": 0 }, { "cite": "355 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219972 ], "year": 2002, "pin_cites": [ { "page": "563", "parenthetical": "\"[The witness'] testimony concerning the choking incidents between herself and defendant were admissible under Rule 404(b" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0501-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-202.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "opinion_index": 0 }, { "cite": "726 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 17, "year": 2012, "pin_cites": [ { "page": "159" }, { "page": "159", "parenthetical": "internal quotation marks omitted" }, { "page": "159", "parenthetical": "internal quotation marks omitted" }, { "page": "159" }, { "page": "159" }, { "page": "160" }, { "page": "160" }, { "page": "160" }, { "page": "160" }, { "page": "160" } ], "opinion_index": 0 }, { "cite": "430 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "918-19" } ], "opinion_index": 0 }, { "cite": "334 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529175 ], "year": 1993, "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0067-01" ] }, { "cite": "526 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "455", "parenthetical": "quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 913, 918-19 (1993)" } ], "opinion_index": 0 }, { "cite": "351 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155599 ], "year": 2000, "pin_cites": [ { "page": "378", "parenthetical": "quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 913, 918-19 (1993)" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0373-01" ] } ], "analysis": { "cardinality": 1221, "char_count": 31997, "ocr_confidence": 0.74, "pagerank": { "raw": 4.791485538846438e-08, "percentile": 0.3013467194419443 }, "sha256": "a33fd9dd3a5acffdb3bd6508cba551f183279c21c04d3e95c0da0601cb3e4686", "simhash": "1:91670224f67e0d78", "word_count": 5203 }, "last_updated": "2023-07-14T20:23:21.020165+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and BEASLEY concur." ], "parties": [ "STATE OF NORTH CAROLINA v. LARRY DAVID DAVIS, II, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Larry David Davis, II appeals from his conviction of two counts of first degree sexual offense with a child and two counts of indecent liberties with a child. On appeal, defendant raises numerous challenges to the trial court\u2019s admission and exclusion of evidence. Based on our review of the record, we hold that the trial court erred under Rule 404(b) of the Rules of Evidence in admitting evidence of defendant\u2019s writings about forcible, non-consensual anal sex with an adult female acquaintance and erred in allowing the State to ask defendant on cross-examination questions that summarized the results of a psychological evaluation not admitted into evidence that described defendant as a psychopathic deviant. Further, we believe that there is a reasonable possibility that in the absence of these errors, the jury would have reached a different verdict. We, therefore, grant defendant a new trial.\nFacts\nThe State\u2019s evidence tended to show the following facts. Defendant and Ms. Rebecca Allen, who were married, had a son, Luke, who'was born on 4 March 2002. Since both parents worked, Luke was cared for during the day by Ms. Allen\u2019s aunt, Sherry Allen.\nIn March 2006, when Luke was four, he told Sherry that \u201cmy daddy stuck his pee-bug in my butt.\u201d Sherry called Ms. Allen at work and told her what Luke had said. Ms. Allen was unsure what to do, but got an appointment for Luke with his pediatrician for the next morning. The pediatrician called the Johnston County Department of Social Services (\u201cDSS\u201d), and, after meeting with DSS, Ms. Allen and Luke stayed the night at Sherry\u2019s house to give defendant time to remove his belongings from the marital home. Luke then went to a medical evaluation in Raleigh. Nothing abnormal was found during his physical examination. Luke also denied, during the exam, any sexual contact or sexual touching.\nAbout a week after the 2006 incident, Ms. Allen filed for divorce and sole custody. Defendant did not have any contact with Luke between March and December 2006. He was then allowed supervised visits. In the middle of 2007, defendant was allowed unsupervised visitation during the day.\nIn June 2008, Luke came home from an unsupervised visit and told his mother that \u201chis father had put his pee-bug in his butt and his mouth again.\u201d Ms. Allen took Luke to the emergency room that night. The medical personnel took Luke\u2019s clothes and obtained a rape kit. The emergency room physician did not see any physical evidence of trauma, and no semen or sperm were found on \u201cthe rectal smears and swabs\u201d taken from Luke. Sperm was found, however, on Luke\u2019s underpants in an area consistent with a sex offense involving penetration of a child\u2019s anus. The DNA profile matched that of defendant.\nDefendant was indicted for two counts of indecent liberties with a child and two counts of first degree sexual offense with a child. He was also indicted for two counts of sexual offense in a parental role and two counts of felony child abuse involving a sexual act, but those charges were dismissed prior to trial.\nLuke testified at trial that defendant put his pee-bug into Luke\u2019s butt and mouth and that it hurt. The State also introduced evidence by Luke\u2019s mother, Luke\u2019s great aunt and great uncle, several nurses and doctors who examined Luke, two DSS employees, and a sheriff\u2019s detective who testified, in corroboration, about what Luke had told them.\nDefendant\u2019s sister and his mother testified that defendant and Luke had a good relationship and would play outside a lot. Defendant\u2019s sister testified that Luke once asked her why she did not \u201cbelieve what [his] mom says.\u201d Luke also told defendant\u2019s sister that his mother told him that the reason he was not allowed to see his father was because he \u201ctells lies all the time and said that he tells lies to the Judge.\u201d\nDefendant\u2019s mother testified that on one visit, Luke had questioned her as to why defendant could not live with him anymore. When told it was because of things Luke was saying about defendant, Luke told her that he \u201csaid that because my mommy told me to.\u201d Defendant\u2019s mother also testified that on another occasion when she was speaking on the phone with Luke, Ms. Allen told Luke to tell \u201cwhat your daddy did, go ahead, you can tell her, tell her, and he said, no. And she said, you can tell her, go ahead and tell her what he did.\u201d\nDefendant also testified in his own defense, denying all allegations that he had sexually assaulted his son or had other inappropriate contact with his son. Defendant testified that Ms. Allen mentioned divorce starting in the summer of 2005 and again mentioned divorce the week before the 2006 allegations that he had sexual contact with his son. According to defendant, the couple\u2019s disagreements during their marriage came from defendant not wanting Ms. Allen\u2019s family drinking and \u201csmoking dope\u201d around Luke. Defendant did not like Sherry, Ms. Allen\u2019s aunt, taking care of Luke because Sherry exposed Luke to inappropriate behaviors.\nDefendant testified that after they separated, Ms. Allen fought every request for additional visitation. He was not able to see his son at all from March to December 2006 and, subsequently, visitation was supervised, one hour every other week. By the time of the allegations in 2008, defendant was having unsupervised visitation with his son every other weekend, Saturday 9:00 a.m. to 5:00 p.m., Sunday from 9:00 a.m. to 5:00 p.m., and every Wednesday evening from 5:00 p.m. to 7:00 p.m. Less than a month before the allegations were made, defendant had a conversation with Luke about staying over on Saturday nights.\nOn cross-examination, the State questioned defendant about writings in a composition book that belonged to defendant but that had an inscription indicating it belonged to \u201cKevin Connolly.\u201d While the State contended that the composition book contained defendant\u2019s journal entries, defendant testified that the writing was fictional and included short stories he had written set in 1868 and 1948. The book included a description of anal intercourse being forced on an adult woman.\nThe jury convicted defendant of all the charges on 28 September 2010. The trial court sentenced defendant (1) to a term of 240 to 297 months imprisonment for one count of first degree sexual offense, (2) to a consecutive sentence of 240 to 297 months imprisonment for the second count of first degree sexual offense, (3) to a consecutive sentence of 16 to 20 months imprisonment for one count of indecent liberties with a child, and (4) to a sentence of 16 to 20 months imprisonment for the second count of indecent liberties with a child that was to run concurrently with the first sexual offense sentence. Defendant timely appealed to this Court.\nI\nWe first address defendant\u2019s contention that the trial court erred in denying his motion to dismiss the indecent liberties charges. The question for the Court is \u201c \u2018whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u2019 \u201d State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 913, 918-19 (1993)).\nDefendant argues that the State\u2019s Bill of Particulars indicated that with respect to those charges, the State was only relying on touching and not anal sex and that Luke did not testify about any touching. The State \u201cis limited to the items set out in the bill of particulars.\u201d N.C. Gen. Stat. \u00a7 15A-925(e) (2011).\nIn this case, the Bill of Particulars states that \u201cthe conduct alleged in 09crs 55971 [sic] and 09crs 5811 [sic] (date of offense June 15, 2008) is anal intercourse. And the conduct alleged in 09crs 55972 [sic] and 09crs 5812 [sic] (date of offense June 14, 2007 through June 14, 2008) is fellatio.\u201d The indecent liberties charges were 09 CRS 5811 and 09 CRS 5812, with one count based on anal intercourse and one on fellatio. Defendant does not dispute that the State presented sufficient evidence of anal intercourse and fellatio. The trial court, therefore, properly denied the motion to dismiss.\nII\nDefendant next contends that the trial court erred, under Rule 404(b), in admitting defendant\u2019s writings regarding forcible anal sex. The entry in the composition book, which was in the form of a letter to a woman defendant had known, read: \u201c[Y]ou thought I was going to kiss your neck until you felt my penis on your back, you said, no, don\u2019t, please, that\u2019s when I put you on the bed, held you down with one hand and used my other to put my penis in your butt.\u201d He continued: \u201cI wanted to say I\u2019m sorry when I raped you . . . .\u201d Defendant was cross-examined and the composition book was admitted over defendant\u2019s objection. The specific pages referenced by the State were published to the jury. While defendant contended the composition book was fiction, the State argued that the described events actually occurred.\nOur Supreme Court recently clarified the standard of review applicable to evidentiary rulings under Rules 403 and 404(b):\n[W]e now explicitly hold that when analyzing rulings applying Rules 404(b) and 403, we conduct distinct inquiries with different standards of review. When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling, . . . we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b). We then review the trial court's Rule 403 determination for abuse of discretion.\nState v. Beckelheimer,_N.C._,_, 726 S.E.2d 156, 159 (2012).\nHere, the trial court admitted the composition book entry on the grounds that \u201cit shows a pattern,\u201d apparently assuming that the entry described an actual event. On appeal, the State argues in addition that the written material was relevant to prove intent and sexual gratification, an element of the indecent liberties offense. See N.C. Gen. Stat. \u00a7 14-202.1 (2011).\nWe assume that by referencing \u201ca pattern,\u201d the trial court meant that the composition book showed a common plan or scheme. We have found no authority \u2014 and the State has cited none \u2014 suggesting that \u201ca pattern,\u201d without more, is a proper purpose. Instead, evidence of a pattern may be relevant to the purpose of showing a common plan or scheme. See, e.g., State v. Williams, 355 N.C. 501, 563, 565 S.E.2d 609, 645 (2002) (\u201c[The witness\u2019] testimony concerning the choking incidents between herself and defendant were admissible under Rule 404(b) in order to show motive, plan, common scheme, and intent, as the trial court found, since defendant had shown a pattern of choking his victims.\u201d).\nThe Supreme Court in Beckelheimer emphasized that although \u201cit is a rule of inclusion, Rule 404(b) is still constrained by the requirements of similarity and temporal proximity.\u201d_N.C. at_, 726 S.E.2d at 159 (internal quotation marks omitted). Although similarities need not be unique and bizarre, \u201c[p]rior acts are sufficiently similar if there are some unusual facts present in both crimes that would indicate that the same person committed them.\u201d Id. at _, 726 S.E.2d at 159 (internal quotation marks omitted).\nHere, the State sought to introduce evidence that defendant wrote about having non-consensual anal intercourse with an adult woman whom he knew. The charges in this case, however, involved anal penetration of defendant\u2019s six-year-old son. The only overlapping fact is anal intercourse.\nIn State v. Dunston, 161 N.C. App. 468, 469, 588 S.E.2d 540, 542 (2003), the defendant was found guilty of first degree sex offense with a child and taking indecent liberties with a child. On appeal, defendant argued that the trial court erred in admitting his wife\u2019s testimony that she and defendant engaged in anal sex. Id. This Court found that \u201cthe fact defendant engaged in and liked consensual anal sex with an adult, whom he married, is 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).\u201d Id. at 473, 588 S.E.2d at 545. Finding the evidence \u201cwas not relevant for any purpose other than to prove defendant\u2019s propensity to engage in anal sex,\u201d this Court rejected the State\u2019s contentions regarding purpose and held the trial court erred in admitting the testimony. Id.\nThe only distinction between Dunston and this case is that the anal sex with an adult reported in the composition book was non-consensual. Yet, the actual force used with the adult in the composition book is not analogous to the constructive force theory that applies with sexual conduct between a parent and a child. See State v. Etheridge, 319 N.C. 34, 47, 352 S.E.2d 673, 681 (1987) (\u201cThe youth and vulnerability of children, coupled with the power inherent in a parent\u2019s position of authority, creates a unique situation of dominance and control in which explicit threats and displays of force are not necessary to effect the abuser\u2019s purpose.\u201d).\nWhile \u201cthe Court has been markedly liberal in admitting evidence of similar sex offenses to show one of the purposes enumerated in Rule 404(b), . . . [nevertheless, the Court has insisted the prior offenses be similar and not too remote in time.\u201d State v. Scott, 318 N.C. 237, 247, 347 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.\nThe State has cited no case, and we have found none, in which our appellate courts have upheld the admission of evidence so lacking in similarities. By way of comparison, in State v. Brown,_N.C. App. _, _, 710 S.E.2d 265, 269-70 (2011), aff\u2019d per curiam, __ N.C. _, 722 S.E.2d 508 (2012), this Court considered the admissibility of pornography showing incestuous sexual acts (\u201cFamily Letters\u201d) in a prosecution for sexual offenses committed by a father on his daughter. While the Court noted that prior decisions had concluded that a defendant\u2019s possession of general pornography was inadmissible, the Court pointed out that the Family Letters material \u201cwas of an uncommon and specific type of pornography; the objects of sexual desire aroused by the pornography in evidence were few; and the victim was the clear object of the sexual desire implied by the possession.\u201d Id. at_, 710 S.E.2d at 269. The Court concluded: \u201cWhere the pornography possessed consists solely of incestuous encounters, there arises a strong inference that the possessor is sexually excited by at least the idea of, if not the act of, incestuous sexual relations. Accordingly, in this case, the fact of [the defendant\u2019s] possession of incestuous pornography reasonably supports the inference that [the defendant] was sexually desirous of an incestuous relationship.\u201d Id. at_, 710 S.E.2d at 271.\nMore recently, in Beckelheimer, the Supreme Court upheld a trial court\u2019s admission of evidence under Rule 404(b) based on \u201ckey similarities\u201d between the sex offense for which the defendant was being tried and a prior sex offense. _N.C. at_, 726 S.E.2d at 159. The Court first pointed to the trial court\u2019s finding that the victim in the charged crime was an 11-year-old cousin of the defendant, while the 404(b) witness was also a cousin and had been around 12 years old at the time of the prior acts. Id. at_, 726 S.E.2d at 159. The Court \u201cconclude[d]... that the similar ages of the victims is more pertinent in this case than the age difference between victim and perpetrator.\u201d Id. at_, 726 S.E.2d at 160. Next, the Court upheld the trial court\u2019s finding that the location of the occurrence was similar in that the crime and the 404(b) offense both occurred after the defendant had played video games with his victims in his bedroom. Id. at _, 726 S.E.2d at 160. Finally, the Court emphasized that the crime and the 404(b) offenses had both been \u201cbrought about\u201d in the same manner with a similar progression of sexual acts. Id. at_, 726 S.E.2d at 160. The Court then concluded that the similarities of the victims (age and relationship to the defendant), the similarities of the locations, and the similarities in how the sexual offenses came to occur were sufficient to render the evidence admissible under Rule 404(b). Id. at_, 726 S.E.2d at 160.\nHere, the charged crime involves defendant\u2019s very young son, while the 404(b) evidence involved a grown woman friend. There was no evidence that the locations of the crimes were similar. Further, there was no similarity in how the crime came to occur other than that it involved anal intercourse. Even though the State argues that both crimes involved force, the State has not shown that defendant\u2019s writings about physically forcible, non-consensual anal sex with an adult woman friend give rise to any inference that defendant would be desirous of or obtain sexual gratification from anal intercourse with his four-year-old or six-year-old son. The 404(b) evidence simply does not \u201cshare \u2018some unusual facts\u2019 that go to a purpose other than propensity ....\u201d Id. at_, 726 S.E.2d at 160.\nThe State has pointed to no decisions in which our courts have upheld the admission under Rule 404(b) of evidence involving such strikingly dissimilar circumstances. In the absence of any such authority, we hold that the composition book entry was not relevant to any proper purpose. It was, therefore, inadmissible under Rule 404(b).\nIll\nDefendant next contends the trial court committed reversible error by allowing the State to ask defendant, during cross-examination, questions that assumed facts not in evidence. The prosecutor cross-examined defendant regarding a report prepared by Milton Kraft who did not testify at trial. The trial transcript does not specifically identify Milton Kraft other than indicating that he was an expert who evaluated defendant in connection with the 2006 investigation and the custody case relating to Luke.\nAfter marking for identification purposes the evaluation conducted by Milton Kraft, the State asked defendant the following questions:\nQ. You saw Milton Kraft?\nA. Yes, sir.\nQ. Isn\u2019t it true that when you were with Milton Kraft, the MMPI results were marginally valid because you attempted to place yourself in an overly positive light by minimizing faults and denying psychological problems?\nMR. PLEASANT: Objection.\nTHE COURT: Overruled.\nQ. Does it indicate that it says, a prominent elevation on the psychopathic deviant scale?\nMR. PLEASANT: Objection.\nTHE COURT: If that\u2019s what it says.\nBY MR. JACKSON:\nQ. Does it say that?\nMR. PLEASANT: Objection to what the document says, Your Honor.\nTHE COURT: Overruled.\nTHE WITNESS: Read that again. I\u2019m sorry. Prominent \u2014 yes, that\u2019s what it says in a third of the sentence, yes.\nQ. The whole sentence says, the clinical scale prototype used in the development of this narrative included a prominent elevation on the psychopathic deviant scale. That\u2019s the whole sentence, is it not?\nA. That is.\nMR. PLEASANT: Objection.\nTHE COURT: Overruled.\nBY MR. JACKSON:\nQ. These individuals may be risk takers who may do things others do not approve of simply for the personal enjoyment of doing so. Does it not say that?\nMR. PLEASANT: Objection.\nTHE COURT: Overruled.\nTHE WITNESS: Yes.\nBY MR. JACKSON:\nQ. He tends to be generally oriented towards thrill seeking and self gratification. Does it not say that?\nMR. PLEASANT: Objection.\nTHE COURT: Overruled.\nTHE WITNESS: Yes, it does.\nBY MR. JACKSON:\nQ. May occasionally show bad judgment and tends to be somewhat self-centered, pleasure oriented, narcicisstic [sic] and manipulative.\nMR. PLEASANT: Objection.\nTHE COURT: Overruled.\nBY MR. JACKSON:\nQ. Does it not say that?\nA. Yes, it does.\nMr. Kraft did not testify, and the report was never admitted into evidence for any purpose.\nNorth Carolina has long adopted \u201cthe rule of law which forbids a prosecuting attorney to inject into the trial of a cause to the prejudice of the accused by argument or by insinuating questions supposed facts of which there is no evidence.\u201d State v. Phillips, 240 N.C. 516, 524, 82 S.E.2d 762,, 767 (1954). In Phillips, our Supreme Court held that \u201cwhere a prosecuting attorney persists in asking witnesses improper questions for the purpose of getting before the jurors prejudicial matters which the law does not permit them to hear, the questions produce a highly prejudicial effect on the minds of the jurors,\u201d id. at 528, 82 S.E.2d at 770, and ordered a new trial. Id. at 529, 82 S.E.2d at 771.\nHere, the State does not argue that the report was admissible on any basis. Rather, it contends that defendant opened the door to the questions when defendant testified that he was ordered to undergo the evaluation with Mr. Kraft as part of the custody battle and that as a result of the evaluation performed by Mr. Kraft and Mr. Kraft\u2019s recommendation, the custody court granted defendant immediate rights to visitation with his son. The State further argues that the questions regarding \u201cthe evaluation were admissible through cross-examination but not through extrinsic evidence as evidence relating to his credibility.\u201d\nThe State cites no authority at all in support of its claim that defendant opened the door. Generally, the rule is that \u201cevidence which is otherwise inadmissible is admissible to explain or rebut evidence introduced by defendant. . . . Therefore, where a defendant examines a witness so as to raise an inference favorable to defendant, which is contrary to the facts, defendant opens the door to the introduction of the State\u2019s rebuttal or explanatory evidence about the matter.\u201d State v. O\u2019Hanlan, 153 N.C. App. 546, 561, 570 S.E.2d 751, 761 (2002).\nIn contending that defendant opened the door by testifying that as a result of Mr. Kraft\u2019s evaluation, the trial court granted him visitation, the State points to defendant\u2019s testimony on redirect \u2014 only after the challenged cross-examination questions. If anything, the State opened the door to the redirect testimony.\nApart from the redirect, the State also points to defendant\u2019s introduction of the district court\u2019s visitation orders during the testimony of an assistant clerk of court, indicating only that defendant was ordered to undergo an evaluation and, subsequently, the district court granted defendant visitation. As the trial court noted, and the State conceded, the order allowing visitation after the evaluation did not include any reference to an opinion by Mr. Kraft. Accordingly, the State has failed to show factually or legally that defendant opened the door to the questions summarizing the contents of Mr. Kraft\u2019s evaluation.\nWith respect to defendant\u2019s credibility, the State cites no authority other than Rule 608 of the Rules of Evidence as justifying the questions. Rule 608(a) allows the credibility of a witness to be attacked by opinion and reputation evidence of character, although \u201cthe evidence may refer only to character for truthfulness or untruthfulness.\u201d Rule 608(b) provides that specific instances of the conduct of a witness may \u201cif probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness,\u201d although the acts may not be proven by extrinsic evidence.\nThe only question that the State attempts to defend on this basis is the one asking defendant to acknowledge that Mr. Kraft wrote that \u201cthe MMPI results were marginally valid because [defendant] attempted to place [himself] in an overly positive light by minimizing faults and denying psychological problems].]\u201d Even assuming without deciding that this question fell within the scope of Rule 608, the State has not explained how Rule 608 authorizes the questions suggesting that the test indicated that defendant was a \u201cpsychopathic deviant,\u201d that he was a \u201crisk takerf] who may do things others do not approve of simply for the personal enjoyment of doing so,\u201d and that he is \u201coriented towards thrill seeking and self gratification.\u201d Since none of these questions relate to defendant\u2019s truthfulness, Rule 608 is inapplicable.\nIn sum, the State, through cross-examination questions, placed before the jury expert evidence that was not otherwise admissible. As our Supreme Court stated in Phillips, 240 N.C. at 524, 82 S.E.2d at 768 (quoting Thurpin v. Commonwealth, 147 Va. 709, 714, 137 S.E. 528, 529 (1927)), \u201c \u2018[t]he form of these questions was highly improper. They were more in the nature of testimony and an argument by the [prosecutor] before the taking of the testimony had been completed and contained statements of facts not supported by the evidence.\u2019 \u201d The trial court erred in overruling defendant\u2019s objections to the State\u2019s reading Mr. Kraft\u2019s evaluation to the jury in the form of cross-examination questions.\nIV\nAlthough we have agreed with defendant that the trial court erred in admitting the evidence of the composition book and in overruling defendant\u2019s objections to the State\u2019s cross-examination questions summarizing a non-testifying expert\u2019s report, the question remains whether the errors were sufficiently prejudicial to warrant a new trial. Under N.C. Gen. Stat. \u00a7 15A-1443(a) (2011), defendant bears the burden of showing \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d\nThis Court in Dunston ordered a new trial after finding it \u201chighly probable,\u201d in light of the State\u2019s \u201cinconsistent and unclear\u201d evidence, that the testimony regarding the defendant\u2019s anal intercourse with his wife was prejudicial to the defendant \u201cgiven the sensitive and potentially inflammatory nature\u201d of the evidence. 161 N.C. App. at 473-74, 588 S.E.2d at 545. The evidence in this case was not, however, as equivocal as that in Dunston.\nHere, the State presented evidence that Luke\u2019s underwear, included in the 2008 rape kit, was stained with sperm that closely matched defendant\u2019s DNA profile. In addition, Luke, who was in the third grade at the time of trial, testified specifically and unequivocally that his father put \u201chis private part in [his] mouth and [his] butt.\u201d The State also put on substantial corroborative evidence.\nOn the other hand, no semen was found on the rectal smears and swabs taken from Luke. Defendant presented evidence that two weeks before the 2008 allegation, his ex-wife had masturbated him with her hand, and he had ejaculated into her hand. The State\u2019s experts acknowledged that someone other than defendant could have placed the sperm on the underwear, and a secondary transfer from one item of clothing to another was possible, particularly if the body fluid was wet. In addition, defendant, through cross-examination of Luke and the testimony of other witnesses, presented evidence that would have allowed the jury to conclude that defendant\u2019s ex-wife had coached Luke regarding the allegations.\nWhile the jury could have reasonably found this evidence self-serving and not entitled to much weight, the improperly admitted evidence of the composition book entry and the expert report essentially guaranteed that the jury would find defendant guilty. The jury had before it, in defendant\u2019s own handwriting, a document that the State credibly argued was a confession that defendant had raped a female friend and had forcible, non-consensual anal intercourse with her. In addition, the jury was told \u2014 through the State\u2019s improper cross-examination questions \u2014 that an expert had determined that defendant had \u201ca prominent elevation on the psychopathic deviant scale,\u201d as well as being a risk taker willing to do things others do not approve of for the personal enjoyment of doing so.\nWe cannot conclude that the combined effect of an admission of rape and non-consensual anal intercourse together with an expert assessment of psychopathic deviancy was non-prejudicial. See State v. Canady, 355 N.C. 242, 246, 559 S.E.2d 762, 764 (2002) (holding that although neither \u201cof the trial court\u2019s errors, when considered in isolation, were necessarily sufficiently prejudicial to require a new trial, the cumulative effect of the errors created sufficient prejudice to deny defendant a fair trial\u201d); State v. White, 331 N.C. 604, 616, 419 S.E.2d 557, 564 (1992) (holding that cumulative evidence of prior sexual assaults allegedly committed by defendant were prejudicial entitling defendant to new trial).\nIn light of defendant\u2019s evidence regarding the presence of the DNA, the ex-wife\u2019s possible coaching of the young son, and the conflict between defendant and his ex-wife, there is a reasonable possibility that in the absence of the composition book and the cross-examination questions, the jury would have reached a different verdict than guilty of both first degree sexual offense with a child and indecent liberties with a child. Although we are mindful of and troubled by the effect on the child, the errors committed at the first trial require that defendant be granted a new trial. Because we believe it unlikely that the other issues raised on appeal will recur, we do not address them.\nNew trial.\nJudges STEELMAN and BEASLEY concur.\n. The pseudonym \u201cLuke\u201d is used throughout this opinion to protect the minor\u2019s privacy and for ease of reading.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State.", "M. Alexander Chams for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LARRY DAVID DAVIS, II, Defendant\nNo. COA11-591\n(Filed 21 August 2012)\n1. Indecent Liberties \u2014 Bill of Particulars \u2014 supported by evidence\nThe trial court did not err by not dismissing indecent liberties charges where defendant contended that the Bill of Particulars indicated that the State was relying only on touching, about which there was no testimony. The Bill of Particulars referred to fellatio and anal intercourse and defendant did not dispute that there was sufficient evidence of those charges.\n2. Evidence \u2014 composition book entry by defendant \u2014 dissimilar from crime\nThe trial court erred in a prosecution for first-degree sexual offense with a child and indecent liberties with a child by admitting evidence of a composition book entry by defendant regarding forcible anal sex. The circumstances described in the writing and in the charged crime were strikingly dissimilar in that they involved different genders, radically different ages, different relationships between the parties, and different types of force.\n3. Evidence \u2014 inadmissible expert evidence \u2014 admitted through cross-examination\nThe trial court erred in a prosecution for first-degree sexual offense and indecent liberties with a child by admitting inadmissible expert evidence concerning an evaluation of defendant from a child custody case through cross-examination. Although the State contended that defendant opened the door, defendant did not do so by testifying on re-direct after the State\u2019s cross-examination on the subject or introducing visitation orders through the testimony of an assistant clerk of court which did not refer to an opinion of the expert in the custody case, and N.C.G.S. \u00a7 8C-1, Rule 608 was not applicable because none of the questions related to defendant\u2019s truthfulness.\n4. Evidence \u2014 erroneous entry of writing and expert assessment of defendant \u2014 prejudicial\nGiven the other evidence, there was prejudice in a prosecution for first-degree sexual offense with a child and indecent liberties with a child in the erroneous admission into evidence of a composition book entry concerning non-consensual anal intercourse and an expert assessment of psychopathic deviancy.\nAppeal by defendant from judgments entered 28 September 2010 by Judge Milton F. Fitch, Jr. in Johnston County Superior Court. Heard in the Court of Appeals 26 October 2011.\nAttorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State.\nM. Alexander Chams for defendant-appellant." }, "file_name": "0562-01", "first_page_order": 572, "last_page_order": 585 }