{ "id": 4278139, "name": "STATE OF NORTH CAROLINA v. FLOYD EDWARD MAY, SR.", "name_abbreviation": "State v. May", "decision_date": "2013-11-05", "docket_number": "No. COA13-37", "first_page": "366", "last_page": "382", "citations": [ { "type": "official", "cite": "230 N.C. App. 366" } ], "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": "363 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150543 ], "opinion_index": -1, "case_paths": [ "/nc/363/0478-01" ] }, { "cite": "611 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632628 ], "year": 2005, "pin_cites": [ { "page": "208", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/611/0206-01" ] }, { "cite": "637 S.E.2d 192", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637211, 12637212 ], "year": 2006, "pin_cites": [ { "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0192-01", "/se2d/637/0192-02" ] }, { "cite": "629 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635825 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "906", "parenthetical": "citation and quotation marks omitted" }, { "page": "907", "parenthetical": "citation and quotation marks omitted" }, { "parenthetical": "alteration in original" }, { "page": "906", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/629/0902-01" ] }, { "cite": "612 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632809, 12632810 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/612/0326-01", "/se2d/612/0326-02" ] }, { "cite": "359 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12632806, 3801643, 3799341, 3799472, 3797969, 3798866, 3801046, 3801465, 3794842, 3804923 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/612/0324-01", "/nc/359/0412-08", "/nc/359/0412-02", "/nc/359/0412-07", "/nc/359/0412-05", "/nc/359/0412-01", "/nc/359/0412-03", "/nc/359/0412-06", "/nc/359/0412-04", "/nc/359/0412-09" ] }, { "cite": "729 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "parenthetical": "COA12-197" } ], "opinion_index": 0 }, { "cite": "164 U.S. 492", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3591459 ], "weight": 2, "year": 1896, "opinion_index": 0, "case_paths": [ "/us/164/0492-01" ] }, { "cite": "571 S.E.2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 311", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511395, 1511155, 1511413, 1511356, 1511614 ], "year": 2002, "pin_cites": [ { "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0311-04", "/nc/356/0311-03", "/nc/356/0311-02", "/nc/356/0311-05", "/nc/356/0311-01" ] }, { "cite": "566 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "798", "parenthetical": "citation and quotation marks omitted" }, { "page": "798", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 29", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248583 ], "year": 2002, "pin_cites": [ { "page": "34-35", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0029-01" ] }, { "cite": "554 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "354 N.C. 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138404, 138314, 138383, 138482, 138297 ], "year": 2001, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0222-05", "/nc/354/0222-02", "/nc/354/0222-01", "/nc/354/0222-04", "/nc/354/0222-03" ] }, { "cite": "550 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "202", "parenthetical": "citation omitted" }, { "page": "202", "parenthetical": "citation omitted" }, { "page": "202", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 267", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433790 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "272", "parenthetical": "citation omitted" }, { "page": "272" }, { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0267-01" ] }, { "cite": "169 N.C. App. 797", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8473865 ], "year": 2005, "pin_cites": [ { "page": "798", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0797-01" ] }, { "cite": "360 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3793161, 3797483, 3791532, 3796496, 3787408, 3791676, 3794045, 3795358 ], "year": 2006, "pin_cites": [ { "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0653-03", "/nc/360/0653-01", "/nc/360/0653-06", "/nc/360/0653-07", "/nc/360/0653-04", "/nc/360/0653-02", "/nc/360/0653-08", "/nc/360/0653-05" ] }, { "cite": "177 N.C. App. 691", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8302134 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "696", "parenthetical": "citation and quotation marks omitted" }, { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0691-01" ] }, { "cite": "594 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "163 N.C. App. 727", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920607 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc-app/163/0727-01" ] }, { "cite": "606 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "168 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8468323 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/168/0098-01" ] }, { "cite": "732 S.E.2d 564", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "opinion_index": 0 }, { "cite": "736 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "opinion_index": 0 }, { "cite": "734 S.E.2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "opinion_index": 0 }, { "cite": "553 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "354 N.C. 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138480 ], "year": 2001, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0354-01" ] }, { "cite": "543 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "183", "parenthetical": "citation omitted" }, { "page": "184" }, { "parenthetical": "alterations in original" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 411", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441531 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "419", "parenthetical": "citation omitted" }, { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0411-01" ] }, { "cite": "559 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2002, "pin_cites": [ { "page": "789" }, { "page": "789" }, { "page": "789" }, { "page": "789" } ], "opinion_index": 0 }, { "cite": "355 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219976 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "267" }, { "page": "267" }, { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0266-01" ] }, { "cite": "571 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511280 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0428-01" ] }, { "cite": "563 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "598" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079747 ], "year": 2002, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0046-01" ] }, { "cite": "230 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "575", "parenthetical": "stating that \"the mere fact that a judge prescribes a time limit for the jury's decision does not amount to coercion where the jury does not actually come to a decision within the general limits imposed by the judge\"" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552260 ], "year": 1976, "pin_cites": [ { "page": "702", "parenthetical": "stating that \"the mere fact that a judge prescribes a time limit for the jury's decision does not amount to coercion where the jury does not actually come to a decision within the general limits imposed by the judge\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0697-01" ] }, { "cite": "471 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 436", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798920 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0436-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "36-37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "719 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "167" } ], "opinion_index": 0 }, { "cite": "747 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "140", "parenthetical": "relying on State v. Wilson, supra" } ], "opinion_index": 0 }, { "cite": "331 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "659" } ], "opinion_index": 0 }, { "cite": "314 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689817 ], "year": 1985, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0028-01" ] }, { "cite": "150 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "770-71" } ], "opinion_index": 0 }, { "cite": "268 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562538 ], "year": 1966, "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0411-01" ] }, { "cite": "681 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2009, "pin_cites": [ { "page": "330" }, { "page": "331", "parenthetical": "citations omitted" }, { "page": "330" }, { "page": "331" }, { "page": "331" } ], "opinion_index": 0 }, { "cite": "361 S.E.2d 564", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "567", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "321 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2570078 ], "year": 1987, "pin_cites": [ { "page": "97", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0092-01" ] }, { "cite": "420 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "101" }, { "page": "101" } ], "opinion_index": 0 }, { "cite": "332 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2507321 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "416" }, { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0409-01" ] }, { "cite": "467 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "106", "parenthetical": "emphasis added" }, { "page": "106", "parenthetical": "1996" } ], "opinion_index": 0 }, { "cite": "342 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796099 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "579", "parenthetical": "emphasis added" }, { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0567-01" ] }, { "cite": "243 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "365" }, { "page": "365", "parenthetical": "stating that \"the isolated mention of the expense and inconvenience of retrying a case does not warrant a new trial unless the charge as a whole coerces a verdict\"" } ], "opinion_index": 0 }, { "cite": "294 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574115 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "594" }, { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0577-01" ] }, { "cite": "261 S.E.2d 130", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "opinion_index": 0 }, { "cite": "44 N.C. App. 251", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552065 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/nc-app/44/0251-01" ] }, { "cite": "341 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "80 N.C. App. 311", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523460 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/80/0311-01" ] }, { "cite": "556 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "147 N.C. App. 693", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9381165 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/147/0693-01" ] }, { "cite": "663 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "187 N.C. App. 442", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8374643 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0442-01" ] }, { "cite": "276 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565891 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0391-01" ] }, { "cite": "268 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1980, "pin_cites": [ { "page": "809", "parenthetical": "citation omitted" }, { "page": "808" }, { "page": "809" } ], "opinion_index": 0 }, { "cite": "300 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564130 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "608", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0594-01" ] }, { "cite": "363 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150543 ], "weight": 4, "pin_cites": [ { "page": "484" }, { "page": "486" }, { "page": "484" }, { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0478-01" ] } ], "analysis": { "cardinality": 1377, "char_count": 40288, "ocr_confidence": 0.735, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14358173005453215 }, "sha256": "0bf684cfe29f6197701126461cc667b97bdec6b925f6c69227d3d6501ea6dd0f", "simhash": "1:8379806a173b8c73", "word_count": 6746 }, "last_updated": "2023-07-14T21:27:10.360096+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ELMORE and Judge GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. FLOYD EDWARD MAY, SR." ], "opinions": [ { "text": "DILLON, Judge.\nFloyd Edward May, Sr., (Defendant) appeals from judgment convicting him of one count of first-degree statutory rape. We conclude that Defendant is entitled to a new trial because the State has failed to meet its burden to prove that the trial court\u2019s error in charging a deadlocked jury in violation of N.C. CONST, art. I, \u00a7 24 was harmless beyond a reasonable doubt.\nI. Facts and Procedural History\nDefendant is a divorced adult male in his mid-60\u2019s living on social security disability. Defendant has an adult son, Mike May. Mike May fives with his wife Shannon May and their two daughters, Beth and Tammy, in a mobile home park in Alamance County. This case involves two episodes of Defendant\u2019s alleged sexual abuse of Tammy, his younger granddaughter.\nFor the better part of fourteen years, Defendant lived with his son\u2019s family in their mobile home, sharing a bedroom with his older granddaughter Beth. At some point, Defendant began sleeping in a playhouse/ shed behind the mobile home. By 2011, Defendant moved in with a woman in another mobile home in the same park.\nThe two alleged episodes between Defendant and Tammy forming the basis for the charges against Defendant occurred during the summer of 2011, when Tammy was ten years old. Regarding the first episode, Tammy testified that she went into her older sister\u2019s bedroom where Defendant was lying on a bed watching television. Tammy lay down beside Defendant while the door to the bedroom was closed. She testified that while they were watching television, Defendant \u201cmoved her shorts to the side and put his \u2018wee-wee\u2019 in [her] \u2018moo-moo\u2019,\u201d and that Defendant also \u201cstuck his wee-wee\u201d in her mouth.\nThe second episode occurred on 15 July 2011 in the swimming pool behind the mobile home. Tammy testified that on that day, while she and Defendant were in the pool, Defendant moved her bathing suit to the side and put his \u201cwee-wee\u201d in her \u201cmoo-moo.\u201d That same day, Tammy told her mother what Defendant had done to her. Also, Tammy\u2019s father confronted Defendant regarding Tammy\u2019s allegations, which Defendant denied.\nLater on 15 July 2013, Tammy\u2019s parents took her to Alamance Regional Hospital where she was seen by Dr. Jade Sung. Dr. Sung testified that Tammy told her about Defendant \u201cvaginally penetrat[ing] her in the swimming pool.\u201d Dr. Sung examined Tammy and noted that Tammy had no inner-thigh bruising, no contusions on her external genitalia, no tears, rips, cuts or bleeding and \u201cno signs of physical assault.\u201d Dr. Sung testified that Tammy had some inflammation and irritation around her cervix, which could have been caused by a number of things such as chlorine. Dr. Sung testified, in sum, that her physical examination of Tammy was \u201cunremarkable.\u201d\nThe following day on 16 July 2011, Tammy was examined by nurse Rebecca Wheeler and two physicians at UNC Hospital. Ms. Wheeler testified that Tammy told her that she had discomfort in her mid-abdominal area and that Defendant had \u201cput his thing in her moo-moo.\u201d She testified that their physical examination of Tammy revealed that she had a \u201cnormal\u201d hymen and \u201cno evident signs of physical assault.\u201d\nOn 8 September 2011, Tammy was seen by Dr. Dana Hagele at Crossroads, a child advocacy center in Alamance County. Dr. Hagele testified that Tammy told her about all three episodes. Dr. Hagele also conducted a physical exam of Tammy, an exam which she described as \u201ccompletely unremarkable.\u201d\nDeputy Bobby Baldwin testified that he interviewed Tammy in November 2011. He stated that the account Tammy gave during the interview was consistent with her trial testimony, except in one regard. Specifically, Deputy Baldwin testified that in the November 2011 interview, Tammy had stated that the first episode, which occurred in Beth\u2019s bedroom, only consisted of Defendant putting his \u201cwee wee\u201d in her mouth, whereas during the trial, she testified that Defendant had also put his \u201cwee wee\u201d in her \u201cmoo moo.\u201d\nOn 31 October 2011, Defendant was indicted on two counts of first-degree statutory rape, one count of first-degree sexual offense of a child, and one count of indecent liberties with a child. Defendant was tried on 16 April 2012 in Alamance County Superior Court. At the close of evidence, the trial court dismissed the charge of indecent liberties with a child but submitted the other three charges to the jury.\nThe trial court charged the jury three different times: The first charge was given just before the jury began deliberations; the second charge was given after the jury had deliberated for about two hours, and after it had sent a written note to the trial court indicating that they \u201cwere deadlocked\u201d; and the third charge was given when, after thirty more minutes of deliberation, the jury sent another written note to the trial court indicating that \u201cit is 10-2 and we are hopelessly deadlocked.\u201d In its third charge, the trial court addressed the jury as follows:\n[Foreperson], you don\u2019t need to sit down. I have you all\u2019s note. And I\u2019m going, in my discretion, I\u2019m going to ask you to resume your deliberations for another half an hour. I\u2019m not going to stretch it any farther than that, but I\u2019m going to ask you to give it your best shot. And it\u2019s your choice, not mine, but I\u2019m not going to hot bond you, and we\u2019re not going to make you to stay until 5 o\u2019clock, but I\u2019m going to ask you to go back and try again, remembering the instructions I gave you. And at 3:30 I\u2019m going to ask you to come out, unless you\u2019ve hit, hit the button and reached the decision prior to that. And that\u2019s your choice.\nI mean, I can\u2019t tell you what to do. I appreciate your note letting me know, but I\u2019m going to ask you, since the people have so much invested in this, and we don\u2019t want to have to redo it again, but anyway, if we have to we will. That\u2019s not my call either. That doesn\u2019t belong to me.\nI\u2019ll ask you just to give us another half hour an horn and continue to deliberate with a view towards reaching an agreement if it can be done without violence to your individual judgment. As I said earlier, none of you should change your opinion if you, you know, if you feel like that\u2019s what your conscience dictates, you stick by it.\nSo with that, I\u2019m going to ask you to go back and continue.\nAfter this third charge, the jury deliberated for exactly thirty minutes, upon which it convicted Defendant of one count of first-degree statutory rape based on the episode in Beth\u2019s bedroom. The jury, however, failed to reach a unanimous verdict as to the other two charges; and, accordingly, the trial court declared a mistrial as to those charges. Based on the single conviction, the trial court sentenced Defendant to 230 to 285 months imprisonment. From this judgment, Defendant appeals.\nII. Analysis\nOn appeal, Defendant contends that he is entitled to a new trial because the trial court (A) coerced the jury\u2019s guilty verdict; (B) erroneously admitted inadmissible expert opinion evidence from State\u2019s witnesses Dr. Dana Hagele and Ms. Rebecca Wheeler; and (C) erroneously allowed the State to offer evidence of \u201cother crimes\u201d allegedly committed by Defendant for which he was not indicted. We address each argument in order below.\nA. Jury Instruction\nDefendant contends that he is entitled to a new trial because the trial court\u2019s third charge to the jury was in violation of the standards established by our Legislature in N.C. Gen. Stat. \u00a7 15A-1235, and that these errors \u2014 when viewed in light of the totality of the circumstances \u2014 resulted in an unconstitutional coercion of \u201ca hopelessly deadlocked\u201d jury to return a guilty verdict, in violation of N.C. Const, art. I, \u00a7 24. In our analysis, we must determine (a) whether the trial court committed error in its third charge; (b) if there was error, by what standard this Court is to conduct its review; and (c) whether, after applying this standard, the error warrants a new trial. We conclude Defendant is entitled to a new trial.\n1. Did the Instruction Constitute Error?\nDefendant argues that the trial court erred in that its third charge violated the standards adopted by our Legislature in N.C. Gen. Stat. \u00a7 15A-1235 in a number of respects. N.C. Gen. Stat. \u00a7 15A-1235 was enacted in 1978 to serve as \u201cthe proper reference for standards applicable to charges which may be given a jury that is apparently unable to agree upon a verdict.\u201d State v. Easterling, 300 N.C. 594, 608, 268 S.E.2d 800, 809 (1980) (citation omitted). N.C. Gen. Stat. \u00a7 15A-1235(a) provides that a trial court must instruct a jury that a verdict must be unanimous. Id. N.C. Gen. Stat. \u00a7 15A-1235(b) provides a four-part instruction that a trial court may give regarding a juror\u2019s obligations in reaching his individual verdict. Id. N.C. Gen. Stat. \u00a7 15A-1235(c) provides for the instructions that may be given to a deadlocked jury as follows:\nIf it appears to the judge that the jury has been unable to agree, the judge may require the jury to continue its deliberations and may give or repeat the instructions provided in subsections (a) and (b). The judge may not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.\nId.\nWe agree with Defendant that the trial court\u2019s third charge violated N.C. Gen. Stat. \u00a7 15A-1235. For instance, when the trial judge was informing the jury that he was requiring them to deliberate for an additional thirty minutes, he erred by stating, \u201cI\u2019m going to ask you, since the people have so much invested in this, and we don\u2019t want to have to redo it again, but anyway, if we have to we will.\u201d Our Courts have held that instructing a deadlocked jury regarding the time and expense associated with the trial and a possible retrial constitutes error. See State v. Lipfird, 302 N.C. 391, 276 S.E.2d 161 (1981); State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980); see also State v. Pate, 187 N.C. App. 442, 663 S.E.2d 212 (2007); State v. Burroughs, 147 N.C. App. 693, 556 S.E.2d 344 (2001); State v. Johnson, 80 N.C. App. 311, 341 S.E.2d 776 (1993); State v. Lamb, 44 N.C. App. 251, 260, 261 S.E.2d 130 (1979). In Easterling, our Supreme Court noted that prior to the passage of N.C. Gen. Stat. \u00a7 15A-1235 in 1978, \u201cthe general rule [was] that a trial judge may state to the jury the ills attendant upon disagreement including the resulting expense... and that the case will in all probability have to be tried by another jury in the event that the jury fails to agree.\u201d Id. at 607, 268 S.E.2d at 808 (quoting State v. Alston, 294 N.C. 577, 594, 243 S.E.2d 354, 365 (1977)). The Court then stated that it was the Legislature\u2019s intent, with the passage of N.C. Gen. Stat. \u00a7 15A-1235 in 1978, that \u201ca North Carolina jury may no longer be advised of the potential expense and inconvenience of retrying the case should the jury fail to agree.\u201d Id. at 608, 268 S.E.2d at 809.\nFurther, as argued by Defendant, we believe the trial court erred in referencing only a portion of the four-part instruction contained in N.C. Gen. Stat. \u00a7 15A-1235(b) during its third charge. Though, pursuant to N.C. Gen. Stat. \u00a7 15A-1235(c), a trial court is not required to give a re-instruction under subsection (b) to a deadlocked jury; however, \u201c[w]hen[] a trial judge gives a deadlocked jury any of the instructions authorized by N.C.G.S. \u00a7 15A-1235(b), he must give them all.\u201d State v. Aikens, 342 N.C. 567, 579, 467 S.E.2d 99,106 (1996) (emphasis added) (citation omitted).\n2. What is the Appropriate Standard of Review?\nHaving concluded that the trial court committed errors while giving its third charge to the jury, we must determine the proper standard by which this Court reviews those errors. Both parties agree that the scope of our review is based on a \u201ctotality of circumstances.\u201d State v. Patterson, 332 N.C. 409, 416, 420 S.E.2d 98, 101 (1992). In other words, we do not simply review the allegedly offending statements in the charge in isolation; but rather, we review those statements in the context of the entire charge. Alston, 294 N.C. at 593, 243 S.E.2d at 365 (stating that \u201cthe isolated mention of the expense and inconvenience of retrying a case does not warrant a new trial unless the charge as a whole coerces a verdict\u201d) (internal citation omitted). However, the parties disagree as to the proper standard of appellate review. The State argues that the proper standard of review is plain error because Defendant failed to lodge any objection, or move for mistrial, in response to the trial court\u2019s third charge to the juiy. Defendant argues, however, that, notwithstanding his failure to object at trial, the proper standard of review is harmless error beyond a reasonable doubt because the errors violated his rights under the North Carolina Constitution.\nN.C. Const, art. I, \u00a7 24 provides that \u201c[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.\u201d Id. Our Supreme Court has held that \u201c[i]t is well settled that Article I, Section 24 of the Constitution of North Carolina prohibits a trial court from coercing a jury to return a verdict.\u201d Patterson, 332 N.C. at 415, 420 S.E.2d at 101.\nAs the State argues, our Supreme Court has held that where a defendant has failed to object to an offending charge during the trial, any argument raised on appeal based on a violation of N.C. Const, art. I, \u00a7 24 of our State\u2019s constitution is waived, and any argument based on a violation of N.C. Gen. Stat. \u00a7 15A-1235 is reviewed for plain error. See Aikens, 342 N.C. at 578, 467 S.E.2d at 106 (1996) (stating that the \u201cdefendant[,] having failed to object to the instruction, our review is to determine whether the error, if any, constituted plain error\u201d). In State v. Bussey, our Supreme Court stated as follows:\nDefendant\u2019s sole assignment of error concerns the trial judge\u2019s instructions and remarks to the jury following a report by it that it was deadlocked. Because defendant made no objection to the additional instructions or remarks by the trial judge, the plain error standard is applicable. It is defendant\u2019s contention that the judge coerced a guilty verdict, thereby violating defendant\u2019s right to a fair trial and an impartial jury under both the federal and state constitutions and N.C.G.S. \u00a7\u00a7 15A-1232 and -1235. Because defendant failed to raise the alleged constitutional issues before the trial court, he has waived these arguments, and they may not be raised for the first time in this Court. We turn then to the question of whether the trial court\u2019s instructions and remarks constitute plain error under the applicable statute and decisions of this Court.\n321 N.C. 92, 97, 361 S.E.2d 564, 567 (1987) (citations omitted).\nIn 2007, we reviewed an allegedly coercive charge based on a violation of N.C. Gen. Stat. \u00a7 15A-1235 for plain error in a case where a defendant failed to object when a trial judge charged a deadlocked jury concerning the time and expense of a retrial. Pate, 187 N.C. App. at 449, 653 S.E.2d at 217.\nIn 2009, however, our Supreme Court stated that \u201c[w]hile a failure to raise a constitutional issue at trial generally waives that issue for appeal, where the error violates the right to a unanimous jury verdict under Article I, Section 24, it is preserved for appeal without any action by counsel.\u201d State v. Wilson, 363 N.C. 478, 484, 681 S.E.2d 325, 330 (2009). The N.C. Const, art. I, \u00a7 24 violation in Wilson, though, did not involve a coercive jury charge, but rather a situation where the trial judge instructed a single juror outside the presence of the other jurors.\nDefendant implicitly argues that the language employed by the Supreme Court in Wilson demonstrates that the Court intended that the scope of its ruling extend to all situations involving violations of N.C. Const art. I, \u00a7 24. For instance, the Supreme Court stated that it was basing its holding on the fact that \u201cthe right to a unanimous jury verdict is fundamental to our system of justice.\u201d Wilson, 363 N.C. at 486, 681 S.E.2d at 331 (citations omitted). We note that it has long been the concern that a coerced jury verdict would result in \u201cwhat really is a majority, rather than a unanimous, verdict.\u201d State v. McKissick, 268 N.C. 411, 415, 150 S.E.2d 767, 770-71 (1966). Further, the plain language used by the Supreme Court that \u201cwhere the error violates the right to a unanimous jury verdict under Article I, Section 24, it is preserved for appeal without any action by counsel\u201d suggests that its rationale is to be applied to all Article I, Section 24 violations. Wilson, 363 N.C. at 484, 681 S.E.2d at 330.\nOn the other hand, there is language in Wilson which suggests that the Supreme Court intended the scope of its holding to be that N.C. Const, art. I, \u00a7 24 violations are automatically preserved only in the context of a trial court instructing fewer than all jurors, and not in the context of a coerced jury instruction given to the entire jury. For instance, the following specific holding in Wilson is more limited that other language in the opinion:\n[W]e hold that where the trial court instructed a single juror in violation of defendant\u2019s right to a unanimous jury verdict under Article I, Section 24, the error is deemed preserved for appeal notwithstanding defendant\u2019s failure to object.\nId. at 486, 681 S.E.2d at 331. By arguing for a broad interpretation of Wilson, Defendant is effectively contending that the Supreme Court intended to overrule its prior holdings in Aiken, Bussey and Patterson \u2014 where our Supreme Court held that an argument based on N.C. Const. art. I, \u00a7 24 in the context of a trial court\u2019s allegedly coercive charge to a fully empaneled jury was waived if not preserved by objection - without explicitly stating that this was its intent. However, the Wilson Court cites a ruling, handed down two years prior to Patterson, which held that where a defendant failed to object when the trial court addressed the jury foreman outside the presence of the rest of the jury, \u201cthe error violates defendant\u2019s right to a trial by a jury of twelve,, [and the] defendant\u2019s failure to object is not fatal to his right to raise the question on appeal.\u201d State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985).\nNeither parly cites any Supreme Court opinion subsequent to Wilson in their arguments pertaining to the appropriate standard of review. Further, we have found no case in which the Supreme Court clarified whether it intended for its rationale in Wilson to apply to all situations involving alleged N.C. Const. . art. I, \u00a7 24 violations - thus, effectively overruling Patterson, Bussey and Aiken - or whether it intended Wilson to apply only to N.C. Const. . art. I, \u00a7 24 challenges involving a trial court speaking to fewer than all the members of the jury.\nOur Court, however, has held on at least two occasions that the rationale in Wilson does exlend to situations involving a coercive charge to a fully empaneled jury. Specifically, in State v. Blackwell, we held as follows:\nDefendant first contends that the trial judge coerced the jury into reaching a verdict in violation of his right to a unanimous jury verdict under Article I, Section 24 of the North Carolina Constitution. As an initial matter, we note that although defendant failed to raise this issue at trial, this argument is nonetheless preserved for appellate review.\n_ N.C. App. _, _, 747 S.E.2d 137, 140 (2013) (relying on State v. Wilson, supra). Likewise, in State v. Gillikin, our Court, also relying on Wilson, applied a harmless error analysis to a challenge by the defendant that a \u201cthe trial court\u2019s re-instructions to a deadlocked jury did not contain the substance of N.C. Gen. Stat. \u00a7 15A-1235(b) and unconstitutionally coerced guilty verdicts in violation of Article I, Section 24 of the North Carolina Constitution^\u201d notwithstanding the fact that the defendant did not lodge an objection to the charge at trial._N.C. App._,._, 719 S.E.2d 164,167 (2011). We are bound by these holdings, and, accordingly, will review the errors contained in the third charge for harmless error beyond a reasonable doubt. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989).\n3. Was the Error Harmless Beyond a Reasonable Doubt?\nThe State \u201cbears the burden of showing that the error was harmless beyond a reasonable doubt.\u201d Wilson, 363 N.C. at 487, 681 S.E.2d at 331. In its brief, the State does not put forth any argument to meet its burden of demonstrating how the trial judge\u2019s errors were not harmless beyond a reasonable doubt. Rather, the State contends that it \u201cis not burdened with showing error, if any, was harmless (sic), where the alleged constitutional error is first raised on appeal, because such an argument is not properly raised on appeal.\u201d Accordingly, because the State has failed to meet its burden, we hold that Defendant is entitled to a new trial.\nIn any event, after considering the totality of the circumstances, we do not believe the errors were harmless beyond a reasonable doubt. Unlike many cases in which the courts have found error to be harmless, see, e.g., State v. Francis, 343 N.C. 436, 471 S.E.2d 348 (1996) (holding an error was harmless in light of the \u201cplenary\u201d competent evidence of the defendant\u2019s guilt of two murders, including testimony by defendant\u2019s accomplice that defendant shot both victims and defendant\u2019s own trial testimony admitting that he and the accomplice, with weapons, followed the victims into an alley where both victims were shot), the evidence in this case is not overwhelming. There was no physical evidence suggesting Defendant committed statutory rape on a young girl. Rather, the only direct evidence was the testimony of the alleged victim. Further, not only did the trial court fail to include all the elements of N.C. Gen. Stat. \u00a7 15A-1235(b) in its third charge, it included a statement regarding the expense and inconvenience associated with the trial and possible retrial, see, e.g., State v. Lipfird, 302 N.C. 391, 276 S.E.2d 161 (1981), and it imposed a 30-minute time limit, which the jury was able to meet just in time to reach one guilty verdict, see, e.g., State v. Sutton, 31 N.C. App. 697, 702, 230 S.E.2d 572, 575 (1976) (stating that \u201cthe mere fact that a judge prescribes a time limit for the jury\u2019s decision does not amount to coercion where the jury does not actually come to a decision within the general limits imposed by the judge\u201d).\nB. Expert Witnesses\nHaving ordered a new trial for Defendant, we need not address Defendant\u2019s remaining arguments. However, we address those arguments as they may arise in a re-trial.\nDefendant contends that the trial court committed plain error by allowing the expert testimony of Dr. Dana Hagele and UNC Hospital nurse Ms. Rebecca Wheeler. Specifically, Defendant argues that Dr. Hagele and Ms. Wheeler\u2019s testimony included impermissible opinion evidence that Tammy had, in fact, been sexually abused. We disagree.\nThis Court has well established that \u201c[e]xpert opinion testimony is not admissible to establish the credibility of the victim as a witness.\u201d State v. Dixon, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598, aff'd, 356 N.C. 428, 571 S.E.2d 584 (2002). Furthermore, in prosecutions of a sexual offense involving a child victim, our Supreme Court has found that \u201cthe trial court should not admit expert opinion that sexual abuse has in fact occurred because, absent physical evidence supporting a diagnosis of sexual abuse, such testimony is an impermissible opinion regarding the victim\u2019s credibility.\u201d State v. Stancil, 355 N.C. 266, 559 S.E.2d 788, 789 (2002). Thus, \u201c[t]estimony that a child has been \u2018sexually abused\u2019 based solely on interviews with the child are improper.\u201d State v. Grover, 142 N.C. App. 411, 419, 543 S.E.2d 179, 183, aff\u2019d, 354 N.C. 354, 553 S.E.2d 679 (2001) (citation omitted).\n\u201cHowever, an expert witness may testify, upon a proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith.\u201d Standi, 355 N.C. at 267, 559 S.E.2d at 789. \u201cThe nature of the experts\u2019 jobs and the experience which they possess malee them better qualified than the jury to form an opinion as to the characteristics of abused children.\u201d Grover, 142 N.C. App. at 419, 543 S.E.2d at 184. \u201cThus, while it is impermissible for an expert, in the absence of physical evidence, to testify that a child has been sexually abused, it is permissible for an expert to testify that a child exhibits \u2018characteristics [consistent with] abused children.\u2019 \u201d Id. (alterations in original).\n1. Testimony of Dr. Dana Hagele\nAt trial, Dr. Hagele, a pediatrician that specializes in child abuse pediatrics, testified regarding her medical interview and physical examination of Tammy at Crossroads on 8 September 2011. Defendant contends that Dr. Hagele\u2019s testimony amounted to her expert opinion that sexual abuse had in fact occurred. Defendant relies on a number of decisions including State v. Ryan, _N.C. App. _, 734 S.E.2d 598 (2012), disc. review denied, _ N.C. _, 736 S.E.2d 189 (2013), State v. Towe, _ N.C. _, 732 S.E.2d 564 (2012), State v. Ewell, 168 N.C. App. 98, 606 S.E.2d 914, disc. review denied, 359 N.C. 412, 612 S.E.2d 326 (2005), and State v. Couser, 163 N.C. App. 727, 594 S.E.2d 420 (2004), for this contention. However, we believe these cases are distinguishable because Dr. Hagele never stated that Tammy was, in fact, the victim of sexual abuse or attempted to make conclusions or a diagnosis as to such. Instead, Dr. Hagele testified to her experience and knowledge regarding sexually abused children and her medical interview and physical examination of Tammy, along with an explanation of the procedures she followed for Tammy\u2019s examination and treatment. Accordingly, we conclude that the trial court did not err, much less commit plain error, by admitting her testimony regarding her experience and professional expertise concerning sexually abused children and whether Tammy exhibited \u201csymptoms or characteristics consistent therewith.\u201d Standi, 355 N.C. at 267, 559 S.E.2d at 789.\n2. Testimony of Ms. Rebecca Wheeler\nAt trial, Ms. Wheeler, a registered nurse with a specialty in pediatric sexual assault examination, testified that she physically examined Tammy on 16 July 2011 for possible sexual assault injuries, but the examination showed no signs of assault.\nDefendant contends that Ms. Wheeler\u2019s testimony, like that of Dr. Hagele, amounted to opinion evidence that sexual abuse had in fact occurred. Defendant specifically objects to Ms. Wheeler\u2019s use of the phrases, \u201cit had happened[,]\u201d and, \u201cit occurred[,]\u201d when responding to a question concerning the amount of time that had lapsed between the alleged assault and the medical examination.\nHowever, like Dr. Hagele, at no time during her testimony did Ms. Wheeler state that Tammy was the victim of sexual abuse or attempt to make conclusions or a diagnosis as to such. Ms. Wheeler merely testified as to her examination procedures, her experience and knowledge of \u201cthe profiles of sexually abused children[,]\u201d and whether Tammy \u201cha[d] symptoms or characteristics consistent therewith.\u201d Standi, 355 N.C. at 267, 559 S.E.2d at 789. Therefore, we conclude that the trial court did not err, much less commit plain error, in admitting Ms. Wheeler\u2019s testimony as it did not include impermissible opinion testimony that Tammy had, in fact, been sexually abused.\nC. Admission of \u201cOther Crimes\u201d Evidence\nFinally, Defendant contends that the trial court committed plain error by admitting the State\u2019s \u201cother crimes\u201d evidence regarding Defendant\u2019s uncharged alleged sexual conduct involving Tammy in the playhouse/shed and involving her sister, Beth, in Beth\u2019s bedroom. Specifically, Defendant claims this evidence was irrelevant and inadmissible under N.C. Gen. Stat. \u00a7 8C-1, Rules 401-404. We disagree.\nN.C. Gen. Stat. \u00a7 8C-1, 404(b) (2011) states the following:\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nId. \u201c[0]ur courts have been markedly liberal in admitting evidence of similar sex offenses by a defendant for the purposes now enumerated in Rule 404(b)[.]\u201d State v. Summers, 177 N.C. App. 691, 696, 629 S.E.2d 902, 906, disc. review denied, 360 N.C. 653, 637 S.E.2d 192 (2006) (citation and quotation marks omitted). Moreover, \u201cevidence of prior incidents is admissible to show, inter alia, motive, opportunity, intent, knowledge, and common plan or scheme if the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of Evidence Code Rule 403.\u201d State v. Stevenson, 169 N.C. App. 797, 798, 611 S.E.2d 206, 208 (2005) (citation omitted). In Summers, we stated the following:\n[E]vidence of another crime is admissible to prove a common plan or scheme to commit the offense charged. But, the two acts must be sufficiently similar as to logically establish a common plan or scheme to commit the offense charged, not merely to show the defendant\u2019s character or propensity to commit a like crime.\nId. at 697, 629 S.E.2d at 907 (citation and quotation marks omitted). \u201cRemoteness in time [between the other crimes and the current charges] generally goes to the weight of the evidence not its admissibility.\u201d Id. (alteration in original).\n\u201cOnce the trial court determines evidence is properly admissible under Rule 404(b), it must still determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.\u201d State v. Bidgood, 144 N.C. App. 267, 272, 550 S.E.2d 198, 202, cert. denied, 354 N.C. 222, 554 S.E.2d 647 (2001) (citation omitted). North Carolina Rule of Evidence 403 states, \u201c[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2011). \u201cThat determination is within the sound discretion of the trial court, whose ruling will be reversed on appeal only when it is shown that the ruling was so arbitrary that it could not have resulted from a reasoned decision.\u201d Bidgood, 144 N.C. App. at 272, 550 S.E.2d at 202 (citation omitted).\nThis Court has stated:\nAlthough not enumerated in Rule 404(b) itself, evidence may also be admitted to establish a chain of circumstances leading up to the crime charged:\nEvidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive and setup of the crime, is properly admitted if linked in time and circumstances with the charged crime, or [if it] forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.\nState v. Smith, 152 N.C. App. 29, 34-35, 566 S.E.2d 793, 798, cert. denied, 356 N.C. 311, 571 S.E.2d 208 (2002) (citation and quotation marks omitted).\nWe find no error in the testimony by Tammy\u2019s parents regarding Defendant\u2019s alleged conduct involving Beth in her bedroom. This testimony established the time period during which Defendant lived with the family, and the circumstances surrounding Defendant\u2019s move from Beth\u2019s bedroom to the playhouse/shed. This testimony \u201cpertained to the chain of events explaining the context... and set-up of the crime[]\u201d and it was \u201clinked in time and circumstances with the charged crime[.]\u201d Id. at 35, 566 S.E.2d at 798 (citation omitted).\nFurther, we find no error regarding the admission of the testimony about the alleged episode involving Defendant and Tammy in the playhouse/shed. This incident happened during the same summer as the charged offenses. In both the alleged conduct in the playhouse/shed and the charged conduct, Defendant and Tammy lay down together in his bed to watch television when Defendant allegedly sexually abused her. In both the alleged and charged conduct, Tammy testified that Defendant moved her shorts to the side to penetrate her. In both the alleged and charged conduct, Tammy testified that the penetration hurt and that it made her urine bum.\nBecause the alleged conduct in the playhouse/shed and the charged conduct were not too remote in time and sufficiently similar, and because this Court takes an approach that is \u201c \u2018markedly liberal in admitting evidence of similar sex offenses by a defendant for the purposes now enumerated in Rule 404(b) [,]\u2019 \u201d we believe that the testimony of the three witnesses regarding the alleged conduct in the playhouse/shed was admissible under Rule 404(b). Summers, 177 N.C. App. at 696, 629 S.E.2d at 906 (citation omitted). Moreover, the determination of whether the evidence failed the test in Rule 403 \u201cis within the sound discretion of the trial court[,]\u201d and we do not find a sufficient showing \u201cthat the ruling was so arbitrary that it could not have resulted from a reasoned decision\u201d in order to reverse the trial court. Bidgood, 144 N.C. App. at 272, 550 S.E.2d at 202 (citation omitted). As such, we do not believe the admission of the foregoing evidence constituted error, much less plain error.\nIII. Conclusion\nThe trial court\u2019s third charge to the jury did not follow the guidelines set forth in N.C. Gen. Stat. \u00a7 15A-1235. Defendant argues that these errors coerced the deadlocked jury into returning a guilty verdict against him, in violation of his right to a unanimous jury verdict under N. C. CoNSt. art. I, \u00a7 24. The State has failed to meet its burden of proving that these errors were harmless beyond a reasonable doubt. Accordingly, Defendant is entitled to a new trial.\nNEW TRIAL\nJudge ELMORE and Judge GEER concur.\n. Pursuant to N.C.R. App. 4(e), the minor children will be referenced with the use of pseudonyms, Beth and Tammy.\n. Ms. May testified that she forced Defendant to move out of Beth\u2019s bedroom and into the shed after she walked in on Defendant lying in the same bed with Beth, who was around thirteen years old at the time, with his legs \u201call the way around [Beth] [,]\u201d while they were watching television - an account which Defendant denied during his testimony. In any case, Ms. May testified that she thought the \u201cissue\u201d was resolved and had no problem with her daughters continuing to spend time with Defendant.\n. The evidence showed that Tammy was not allowed to use anatomical terms, but rather was taught to use the term \u201cwee-wee\u201d to describe the male sex organ and \u201cmoo-moo\u201d for the female sex organ.\n. The State offered evidence of a third episode involving improper sexual conduct by Defendant with Tammy which allegedly occurred in the playhouse/shed some time prior to the 15 July 2011 episode.\n. Tammy testified that she felt pain, which included a burning sensation when she attempted to use the bathroom after each of the three episodes.\n. This third charge, was, in essence, an Allen charge, named for the United States Supreme Court case Allen v. United States, 164 U.S. 492, 41 L. Ed. 528 (1896), in which the Court held that it was permissible under the Federal Constitution for a trial court to give certain instructions to a deadlocked jury for the purpose of encouraging the dissenting jurors to reconsider their position. A brief history regarding Allen charges can be found in our opinion, State v. Lamb, 44 N.C. App. 251, 261 S.E.2d 130 (1979).\n. Defendant was found guilty of first degree rape and judgment was entered on 19 April 2012. On 30 April 2012, Defendant entered oral notice of appeal. The trial court entered appellate entries and appointed the Appellate Defender. N.C.R. App. R 4(a)(1) and (a)(2) require that Defendant must appeal by \u201cgiving oral notice of appeal at trial,\" or by \u201cfiling notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within fourteen days after entry of the judgment[.]\u201d Defendant did not comply with N.C.R. App. R 4(a). However, on 10 January 2013, Defendant filed a petition for writ of certiorari. The State does not oppose the granting of the writ, stating, in its response, that \u201cthe State respectfully submits that it is within this Court\u2019s discretion to allow\u201d the writ. In any event, in our discretion, we grant Defendant\u2019s petition for writ of certiorari.\n. Blackwell, from 2013, and Gillikin, from 2011, are both published opinions. We note that in an unpublished 2012 opinion, our Court refused to extend the holding in Wilson and Ashe to an N.C. Const, art. I, \u00a7 24 challenge where a trial judge instructed a jury on alternate theories of a crime. State v. Guy, _ N.C. App. _, 729 S.E.2d 128 (2012) (COA12-197) (reviewing for plain error and explaining that \u201c[t]he holdings of both Ashe and Wilson are narrow[;] [and] [w]e distinguish the facts of the present case and decline to extend the holdings of Ashe and Wilson\u2019\u2019).\n. Defendant advances a number of other arguments as to why the trial court\u2019s errors were not harmless beyond a reasonable doubt. However, we do not address the merit of these arguments since the State failed to meet its burden.\n. Defendant did not lodge an objection at trial to the experts\u2019 testimony as it pertained to the issue now presented on appeal.\n. Defendant did not lodge any objection to the \u201cother crimes\u201d testimony at trial.", "type": "majority", "author": "DILLON, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, by Assistant Attorney General Teresa M. Postell, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FLOYD EDWARD MAY, SR.\nNo. COA13-37\nFiled 5 November 2013\n1. Jury \u2014 deadlocked\u2014instruction\nThe trial court\u2019s third charge to a deadlocked jury in a prosecution for first-degree statutory rape violated N.C.G.S. \u00a7 15A-1235 in several respects, including a reference to the time and expense of the trial and a reference to only a portion of the four-part instruction contained in the statute.\n2. Jury \u2014 deadlocked\u2014instruction\u2014standard of review\nErrors in the third charge to a deadlocked jury in a prosecution for first-degree statutory rape were reviewed for harmless error beyond a reasonable doubt. The North Carolina Supreme Court has not clarified whether it intended for its rationale in State v. Wilson, 363 N.C. 478, to apply to all situations involving alleged N.C. Const, art. I, \u00a7 24 violations or whether it intended Wilson to apply only to N.C. Const, art. I, \u00a7 24 challenges involving a trial court speaking to fewer than all the members of the jury. However, the Court of Appeals has held on at least two occasions that the rationale in Wilson does extend to situations involving a coercive charge to a fully empaneled jury.\n3. Jury \u2014 deadlocked\u2014instruction\u2014harmless error\nThe State did not carry its burden of showing that an error in an instruction to a deadlocked jury was harmless beyond a reasonable doubt.. Moreover, the evidence against defendant was not overwhelming, unlike many cases in which error was found to be harmless.\n4. Evidence \u2014 statutory rape \u2014 testimony of doctor and nurse\nAlthough the appeal was decided on other grounds, the trial court did not commit plain error in a prosecution for first-degree statutory rape by allowing the expert testimony of a doctor and nurse where defendant contended that their testimony included impermissible opinion evidence that the victim had been sexually abused. Neither witness stated that the victim was sexually abused or attempted to draw conclusions or make a diagnosis; instead, they testified to their experience and knowledge, examination procedures and treatment, and the victim\u2019s symptoms and characteristics.\n5. Evidence \u2014 prior crimes or bad acts \u2014 first-degree statutory rape \u2014 temporal proximity \u2014 sufficiently similar\nAlthough the appeal was decided on other grounds, there was no plain error in a prosecution for first-degree statutory rape in admitting evidence of other incidents where the alleged conduct and the charged conduct were not too remote in time and were sufficiently similar.\nAppeal by Defendant from judgment entered 19 April 2012 by Judge Howard E. Manning in Alamance County Superior Court. Heard in the Court of Appeals 23 May 2013.\nAttorney General Roy A. Cooper, by Assistant Attorney General Teresa M. Postell, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for Defendant." }, "file_name": "0366-01", "first_page_order": 376, "last_page_order": 392 }