{ "id": 12173249, "name": "STATE OF NORTH CAROLINA v. EDDIE DANIEL BERRY", "name_abbreviation": "State v. Berry", "decision_date": "2014-08-05", "docket_number": "No. COA13-953", "first_page": "496", "last_page": "512", "citations": [ { "type": "official", "cite": "235 N.C. App. 496" } ], "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": "626 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635151 ], "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0271-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "694" }, { "page": "698" }, { "page": "689" }, { "page": "694" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "166 L. Ed. 2d 116", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2006, "opinion_index": 0 }, { "cite": "549 U.S. 867", "category": "reporters:federal", "reporter": "U.S.", "year": 2006, "opinion_index": 0 }, { "cite": "360 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787721 ], "pin_cites": [ { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0297-01" ] }, { "cite": "474 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "396" } ], "opinion_index": 0 }, { "cite": "344 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867692 ], "year": 1996, "pin_cites": [ { "page": "235-36" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0198-01" ] }, { "cite": "716 S.E.2d 261", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "266-67", "parenthetical": "citing State v. Wilkinson, 344 N.C. 198, 235-36, 474 S.E.2d 375, 396 (1996)" } ], "opinion_index": 0 }, { "cite": "216 N.C. App. 153", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4342843 ], "year": 2011, "pin_cites": [ { "page": "160", "parenthetical": "citing State v. Wilkinson, 344 N.C. 198, 235-36, 474 S.E.2d 375, 396 (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/216/0153-01" ] }, { "cite": "554 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "416" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9377955 ], "year": 2001, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0069-01" ] }, { "cite": "711 S.E.2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "796", "parenthetical": "quoting State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001)" } ], "opinion_index": 0 }, { "cite": "213 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4233989 ], "year": 2011, "pin_cites": [ { "page": "67", "parenthetical": "quoting State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/213/0059-01" ] }, { "cite": "43 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "227 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626937 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/nc/227/0638-01" ] }, { "cite": "149 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "631", "parenthetical": "citing Austin v. Hopkins, 227 N.C. 638, 43 S.E.2d 849 (1947)" } ], "opinion_index": 0 }, { "cite": "268 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560031 ], "year": 1966, "pin_cites": [ { "page": "31", "parenthetical": "citing Austin v. Hopkins, 227 N.C. 638, 43 S.E.2d 849 (1947)" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0023-01" ] }, { "cite": "548 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 672", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436851 ], "year": 2001, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0672-01" ] }, { "cite": "571 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "648", "parenthetical": "citing State v. Rourke, 143 N.C. App. 672, 675, 548 S.E.2d 188, 190 (2001)" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 148", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249192 ], "year": 2002, "pin_cites": [ { "page": "152", "parenthetical": "citing State v. Rourke, 143 N.C. App. 672, 675, 548 S.E.2d 188, 190 (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0148-01" ] }, { "cite": "752 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "opinion_index": 0 }, { "cite": "747 S.E.2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "745", "parenthetical": "finding that \"while the law is clear on when our courts are permitted to use the plain error analysis, it is not clear whether stipulations fall within the purview of such parameters.\"" } ], "opinion_index": 0 }, { "cite": "505 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "109" } ], "opinion_index": 0 }, { "cite": "349 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571552 ], "year": 1998, "pin_cites": [ { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0062-01" ] }, { "cite": "723 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2012, "pin_cites": [ { "page": "334" }, { "page": "334" } ], "opinion_index": 0 }, { "cite": "365 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4154240 ], "weight": 2, "year": 2012, "pin_cites": [ { "page": "518" }, { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0506-01" ] }, { "cite": "555 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "578" } ], "opinion_index": 0 }, { "cite": "354 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138413 ], "year": 2001, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0372-01" ] }, { "cite": "594 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "415", "parenthetical": "quoting State v. Anthony, 354 N.C. 372, 402, 555 S.E.2d 557, 578 (2001" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 615", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920112 ], "year": 2004, "pin_cites": [ { "page": "620", "parenthetical": "quoting State v. Anthony, 354 N.C. 372, 402, 555 S.E.2d 557, 578 (2001" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0615-01" ] }, { "cite": "456 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "808" } ], "opinion_index": 0 }, { "cite": "340 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790125 ], "year": 1995, "pin_cites": [ { "page": "154-55" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0119-01" ] }, { "cite": "510 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "citing State v. Larrimore, 340 N.C. 119, 154-55, 456 S.E.2d 789, 808 (1995)" } ], "opinion_index": 0 }, { "cite": "350 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132101 ], "year": 1999, "pin_cites": [ { "parenthetical": "citing State v. Larrimore, 340 N.C. 119, 154-55, 456 S.E.2d 789, 808 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0059-01" ] }, { "cite": "500 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "456" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 539", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651480 ], "year": 1998, "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0539-01" ] }, { "cite": "176 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "770" } ], "opinion_index": 0 }, { "cite": "277 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563764 ], "year": 1970, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0205-01" ] }, { "cite": "584 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "838", "parenthetical": "quoting State v. Lee, 277 N.C. 205, 214, 176 S.E.2d 765, 770 (1970)" }, { "page": "839" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954514 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "120", "parenthetical": "quoting State v. Lee, 277 N.C. 205, 214, 176 S.E.2d 765, 770 (1970)" }, { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0107-01" ] }, { "cite": "133 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 619", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575757 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0619-01" ] }, { "cite": "196 S.E.2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "541", "parenthetical": "citing Farmer v. Ferris, 260 N.C. 619, 133 S.E.2d 492 (1963)" } ], "opinion_index": 0 }, { "cite": "18 N.C. App. 194", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548077 ], "year": 1973, "pin_cites": [ { "page": "197", "parenthetical": "citing Farmer v. Ferris, 260 N.C. 619, 133 S.E.2d 492 (1963)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/18/0194-01" ] }, { "cite": "380 S.E.2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "97" } ], "opinion_index": 0 }, { "cite": "324 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486845 ], "year": 1989, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0489-01" ] }, { "cite": "623 S.E.2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634569, 12634570 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "20" } ], "opinion_index": 1, "case_paths": [ "/se2d/623/0011-01", "/se2d/623/0011-02" ] }, { "cite": "284 S.E.2d 526", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "530", "parenthetical": "finding error where the trial court instructed on prior statements of \"a witness\" but failed to specify the limit on admissibility related solely to the specific witness's statements" } ], "opinion_index": 1 }, { "cite": "55 N.C. App. 25", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526634 ], "year": 1981, "pin_cites": [ { "page": "30", "parenthetical": "finding error where the trial court instructed on prior statements of \"a witness\" but failed to specify the limit on admissibility related solely to the specific witness's statements" } ], "opinion_index": 1, "case_paths": [ "/nc-app/55/0025-01" ] }, { "cite": "333 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "248" }, { "page": "248", "parenthetical": "\"[I]n a criminal case it is only when the jury may reasonably infer from the evidence before it that the trial judge's action intimated an opinion as to a factual issue, the defendant's guilt, the weight of the evidence or a witness's credibility that prejudicial error results.\"" }, { "page": "248" } ], "opinion_index": 1 }, { "cite": "314 N.C. 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696763 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "236" }, { "page": "236" }, { "page": "236" } ], "opinion_index": 1, "case_paths": [ "/nc/314/0232-01" ] }, { "cite": "707 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "683" } ], "opinion_index": 1 }, { "cite": "209 N.C. App. 654", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4181228 ], "year": 2011, "pin_cites": [ { "page": "666" } ], "opinion_index": 1, "case_paths": [ "/nc-app/209/0654-01" ] }, { "cite": "360 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788006 ], "year": 2005, "pin_cites": [ { "page": "123" } ], "opinion_index": 1, "case_paths": [ "/nc/360/0110-01" ] }, { "cite": "402 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "814" } ], "opinion_index": 1 }, { "cite": "328 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541401 ], "year": 1991, "pin_cites": [ { "page": "420" } ], "opinion_index": 1, "case_paths": [ "/nc/328/0409-01" ] }, { "cite": "594 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "415", "parenthetical": "alteration in original" }, { "page": "415" }, { "page": "415" } ], "opinion_index": 1 }, { "cite": "163 N.C. App. 615", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920112 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "620", "parenthetical": "alteration in original" }, { "page": "620" }, { "page": "620" } ], "opinion_index": 1, "case_paths": [ "/nc-app/163/0615-01" ] } ], "analysis": { "cardinality": 1166, "char_count": 39120, "ocr_confidence": 0.712, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24706652781687272 }, "sha256": "8d89882061336a01c84bd8d62928482993cceb364e970bb73cc1c051d06d1879", "simhash": "1:0969e4242d3e559c", "word_count": 6425 }, "last_updated": "2023-07-14T16:54:11.341648+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BRYANT concurs." ], "parties": [ "STATE OF NORTH CAROLINA v. EDDIE DANIEL BERRY" ], "opinions": [ { "text": "STEELMAN, Judge.\nIn accepting a stipulation of the parties and giving an instruction to the jury on howto consider the stipulation, the trial court did not express an opinion on a question of fact to be decided by the jury in violation of N.C. Gen. Stat. \u00a7 15A-1222 or express an opinion as to whether a fact had been proved in violation of N.C. Gen. Stat. \u00a7 15A-1232. Plain error review is not applicable to appellate review of a stipulation entered into by defendant at trial. The record does not provide sufficient information for this court to rule on defendant\u2019s ineffective assistance of counsel claim, and that claim is dismissed without prejudice to defendant raising the claim in a motion for appropriate relief filed by the trial court.\nI. Factual and Procedural Background\nEddie D. Berry (defendant) met Annalean Rogers (Annalean) in June of 2000. Shortly thereafter he moved into the apartment she shared with her four children: daughters A.R. and B.R. and sons C.R. and D.R. Defendant married Annalean on 5 July 2004 and assumed the role of stepfather to A.R. and her siblings.\nAt the time of the trial, A.R. was eighteen years old. A.R. testified that defendant sexually assaulted her for the first time a couple of weeks before defendant and Annalean got married. A.R. testified that the sexual assaults continued for several years. The final incident occurred on 4 July 2009. After this incident, A.R. called her uncle, Roy Rogers (Roy), and told him what had happened. A.R. called the police and gave a statement to Officer Robert Lovette (Officer Lovette) of the Graham Police Department. On 15 February 2010, defendant was indicted for taking indecent liberties with a child. A superseding indictment was issued on 26 November 2012 charging defendant with one count of indecent liberties with a child and one count of statutory rape.\nAt trial, by stipulation of the parties, the State entered into evidence a redacted interview report by Janet Hadler (Hadler), a clinical social worker who interviewed A.R. Her report contained some statements that contradicted A.R.\u2019s trial testimony. The report also contained the following:\nTSCC: This report should be used as only one source of information about the individual being evaluated. In this respect, no decisions should be based solely on the information contained in this report. The raw and standardized scores contained in this report should be integrated with other sources of information when making decisions about this individual. [A.R.]\u2019s TSCC is considered to be valid. . . . [A.R.]\u2019s scores were in the clinically significant range for the following TSCC Clinical Scales/Subscales: Anxiety (T-score 67), . . . Fantasy (T-score 68), Sexual Concerns (T-score 120), Sexual Preoccupation (T-score 105), and Sexual Distress (T-score 133.) According to the manual, T-scores at or above 65 axe considered clinically significant. For the SC (sexual concerns) scale and it\u2019s [sic] subscales SC-P and SC-D, T-scores at or above 70 are considered clinically significant. The manual states, \u201cchildren with especially elevated scores on the SC scale may have been prematurely sexualized or sexually traumatized. This can occur as a result of childhood sexual abuse, [sic] exposure to pornography, witnessing sexual acts, or, in the case of adolescents, sexual assault by a peer.\u201d\nHadler was unable to testify at trial due to a family illness. The parties stipulated that redacted portions of Hadler\u2019s report be received as evidence for the purpose of corroborating A.R.\u2019s testimony. The stipulation read as follows:\nJanet Hadler, licensed clinical social worker, performed a child family evaluation of [A.R.] in September and October of 2009. Ms. Hadler is unavailable due to family illness. The parties have stipulated that the portion of her report of her interview with [A.R.] may be entered into evidence without her presence. This evidence may be considered for the purpose of corroboration of the witness, [A.R.],\nDuring a conference with counsel outside of the presence of the jury, the trial judge indicated that he would allow the report to be entered into evidence as State\u2019s Exhibit 6 pursuant to the agreed upon stipulation, which would be marked as State\u2019s Exhibit 7. The trial judge further indicated that:\nI\u2019ll then give a limiting instruction that is consistent with pattern instruction 101.41 out of the civil pattern instructions regarding stipulations which will essentially say that the State of North Carolina and the defendant have agreed or stipulated that certain facts shall be accepted by you [members of the jury] as true without further proof. Those facts have been stated in the record as it relates to stipulation as described in State\u2019s Exhibit 7 since the parties have so agreed. You will take these facts as true for the purpose of this case.\nThe State\u2019s attorney and defendant\u2019s trial counsel assented to this instruction, and made no objection.\nIn the presence of the jury, the State\u2019s attorney read the agreed-upon stipulation to the jury and moved, without objection, to enter State\u2019s Exhibits 6 and 7 into evidence. The State\u2019s attorney then moved to publish copies of Hadler\u2019s redacted report to the jury. The trial judge, before allowing the redacted report to be published to the jury, instructed the jury as follows:\nNow, before we proceed, ladies and gentlemen, I want to make sure that you understand that the State of North Carolina and the defendant have agreed or stipulated that certain facts shall be accepted by you as true without further proof.\nThe agreed facts in this case relate to what is marked as State\u2019s Exhibit 7 and now received as a stipulation and State\u2019s Exhibit 6, portions of an interview conducted by the relevant parties as described.\nSince the parties have so agreed, you are to take these facts as true for the purposes of this case.\nOn 26 February 2013, the jury returned guilty verdicts against defendant for one count of taking indecent liberties with a minor and one count of statutory rape; he was sentenced to 336 to 415 months active imprisonment.\nDefendant appeals.\nII. Stipulation and Limiting Instruction\nIn his first argument, defendant contends that the trial court erred by instructing the jury to accept as true a redacted interview report by a licensed social worker that was entered into evidence by the State. We disagree.\nA. Standard of Review\nA trial judge\u2019s expression of opinion on a question of fact violates the statutory mandates of N.C. Gen. Stat. \u00a7\u00a7 15A-1222 and 1232, and therefore is preserved for de novo appellate review as a matter of law. See State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989).\nB. Analysis\nThe parties advised the trial judge that they had agreed to the following stipulation:\nJanet Hadler, a licensed clinical social worker, performed a child family evaluation of [A.R.] in September and October of 2009. Ms. Hadler is unavailable due to family illness. The parties have stipulated that a portion of her report of her interview with [A.R.] may be entered into evidence without her presence. This evidence may be considered for the purpose of corroboration of the witness, [A.R.]\nThis stipulation was read verbatim to the jury by Mr. Thompson, the Assistant District Attorney prosecuting the case. Mr. Thompson then clarified, \u201cThat stipulation, Your Honor, is State\u2019s Exhibit 7. The actual portion of the evidence we\u2019re introducing is State\u2019s Exhibit 6.\u201d Judge Hardin then gave a limiting instruction to the jury which stated that, \u201cThe agreed facts in this case relate to what is marked as State\u2019s Exhibit 7 and now received as a stipulation and State\u2019s Exhibit 6, portions of an interview conducted by the relevant parties as described. Since the parties have so agreed, you are to take these facts as true for the purpose of this case.\u201d\n\u201cA stipulation is a judicial admission and ordinarily is binding on the parties who make it.\u201d State v. Murchinson, 18 N.C. App. 194, 197, 196 S.E.2d 540, 541 (1973) (citing Farmer v. Ferris, 260 N.C. 619, 133 S.E.2d 492 (1963)).\nOn appeal, defendant argues that the limiting instruction given by the trial judge violated N.C. Gen Stat. \u00a7 15A-1222 because it constituted \u201can opinion in the presence of the jury on any question of fact to be decided by the jury.\u201d Defendant argues that the wording of the instruction and the fact that the jury was handed only Exhibit 6 (the interview report) after the stipulation was read, rather than Exhibit 6 and 7 (the stipulation), that the jury could have reasonably interpreted the instruction to mean they should take the facts of Hadler\u2019s redacted report as true, resulting in a prejudicial error to defendant.\nThe stipulation, as read to the jury, stated that the redacted report \u201cmay be considered for the purpose of corroboration of the witness, [A.R.].\u201d The trial judge then gave his limiting instruction. The redacted report was admitted pursuant to the stipulation that it may be used for purposes of corroboration. There is no indication whatsoever that the trial judge expressed an opinion on any question of fact to be decided by the jury in violation of N.C. Gen. Stat. \u00a7 15A-1222 or as to whether a fact had been proved in violation of N.C. Gen. Stat. \u00a7 15A-1232. The information contained in Exhibit 7, the stipulation, was to be accepted by the jury as true without further proof. The information in Exhibit 6, the redacted report, was to be used for the purposes of corroboration of A.R.\u2019s testimony. There was no question of fact for the trial judge to express \u00e1n opinion, with regard to either the stipulation or the redacted report.\n\u201cIn determining whether the trial judge has expressed an impermissible opinion in its instructions to the jury, \u2018[t]he charge of the court must be read as a whole, in the same connected way that the judge is supposed to have intended it and the jury to have considered it.\u2019 \u201d State v. Smith, 160 N.C. App. 107, 120, 584 S.E.2d 830, 838 (2003) (quoting State v. Lee, 277 N.C. 205, 214, 176 S.E.2d 765, 770 (1970)). As long as the jury instructions, viewed in context, present the law \u201cfairly and clearly to the jury, the fact that some expressions, standing alone, might be considered erroneous will afford no ground for reversal.\u201d 160 N.C. App. at 120, 584 S.E.2d at 839. We hold that these principles apply not only to the final jury charge, but also to limiting instructions given by the court during trial.\nThe parties clearly stated that the stipulation was Exhibit 7 and that the interview referenced therein was Exhibit 6. When reading the stipulation, Mr. Thompson stated, \u201cThat stipulation, Your Honor, is State\u2019s Exhibit 7. The actual portion of the evidence we\u2019re introducing is State\u2019s Exhibit 6.\u201d Judge Hardin then stated, \u201cI want to make sure that you understand that the State of North Carolina and the defendant have agreed or stipulated that certain facts shall be accepted by you as true without further proof(emphasis added) This makes it clear that the facts to be accepted as true were those contained in the stipulation (Exhibit 7).\n. \u201c[U]nless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless.\u201d State v. Green, 129 N.C. App. 539, 545, 500 S.E.2d 452, 456 (1998) aff\u2019d, 350 N.C. 59, 510 S.E.2d 375 (1999) (citing State v. Larrimore, 340 N.C. 119, 154-55, 456 S.E.2d 789, 808 (1995)). There is no reason to believe that the stipulation or limiting instruction had a prejudicial effect on the result of the trial.\nJudge Hardin did not express any opinion to the jury in his instructions concerning the stipulation. Judge Hardin simply instructed the jury as to the parties\u2019 stipulation. Nothing in his instructions to the jury indicated any personal opinion as to the facts of the case.\nThe dissent acknowledges that a \u201ctotality of the circumstances\u201d test should be used to determine whether a trial court has made an improper expression of opinion. State v. Mucci, 163 N.C. App. 615, 620, 594 S.E.2d 411, 415 (2004) (quoting State v. Anthony, 354 N.C. 372, 402, 555 S.E.2d 557, 578 (2001). However, it then proceeds to parse the language used by Judge Hardin to support its conclusions.\nThe trial court did not express opinion in his limiting instruction to the jury, and taken as a whole, the instructions did not prejudice defendant.\nThis argument is without merit.\nIII. Admissibility of Report\nIn his second argument, defendant contends that the trial court committed plain error by admitting Hadler\u2019s redacted report into evidence. We disagree.\nA. Standard of Review\nFor error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. See Odom, 307 N.C. at 660, 300 S.E.2d at 378. To show that an error was fundamental, a defendant must establish prejudice\u2014that, after examination of the entire record, the error \u201chad a probable impact on the jrny\u2019s finding that the defendant was guilty.\u201d See id. (citations and quotation marks omitted); see also Walker, 316 N.C. at 39, 340 S.E.2d at 83 (stating \u201cthat absent the error the jury probably would have reached a different verdict\u201d and concluding that although the evidentiary error affected a fundamental right, viewed in fight of the entire record, the error was not plain error). Moreover, because plain error is to be \u201capplied cautiously and only in the exceptional case,\u201d Odom, 307 N.C. at 660, 300 S.E.2d at 378, the error will often be one that \u201cseriously affect[s] the fairness, integrity or public reputation of judicial proceedings,\u201d Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting McCaskill, 676 F.2d at 1002).\nState v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).\nB. Analysis\nDefendant\u2019s trial counsel made no objection to the information contained in the report at trial and stipulated to the admission of the redacted report into evidence. However, even in the face of his trial stipulation, defendant argues on appeal that the admission of Hadler\u2019s redacted report is still reviewable under plain error.\nGenerally, plain error analysis applies only to jury instructions and evidentiary matters. State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109 (1998). We have been unable to find any case law supporting the proposition that evidence received pursuant to a stipulation may be reviewed under plain error. See State v. Marlow, _ N.C. App. _, 747 S.E.2d 741, 745 (2013) (finding that \u201cwhile the law is clear on when our courts are permitted to use the plain error analysis, it is not clear whether stipulations fall within the purview of such parameters.\u201d), appeal dismissed, _ N.C. _, 752 S.E.2d 493 (2013).\n\u201cPlain error review is appropriate when a defendant fails to preserve the issue for appeal by properly objecting to the admission of evidence at trial.\u201d State v. Perkins, 154 N.C. App. 148, 152, 571 S.E.2d 645, 648 (2002) (citing State v. Rourke, 143 N.C. App. 672, 675, 548 S.E.2d 188, 190 (2001)).\nA stipulation is a judicial admission, voluntarily made by the parties to admit evidence at trial. In the instant case, defendant entered into a written stipulation with the State. It would be indefensible to allow a defendant to enter into a stipulation and then to challenge the evidence admitted pursuant to the stipulation on appeal. The essence of plain error is the failure of a defendant to object, coupled with a \u201cfundamental error\u201d by the trial court in allowing the evidence to be received even in the absence of an objection. See State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). \u201cOnce a stipulation is made, a party is bound by it and he may not thereafter take an inconsistent position.\u201d Rural Plumbing and Heating, Inc. v. H. C. Jones Const. Co., 268 N.C. 23, 31, 149 S.E.2d 625, 631 (1966) (citing Austin v. Hopkins, 227 N.C. 638, 43 S.E.2d 849 (1947)).\nThe conduct of defendant in entering into a stipulation at trial and then seeking to repudiate it on appeal is more akin to invited error than plain error. \u201c[A] defendant who invites error . . . waive[s] his right to all appellate review concerning the invited error, including plain error review.\u201d State v. Jones, 213 N.C. App. 59, 67, 711 S.E.2d 791, 796 (2011) (quoting State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001)). Therefore, \u201c[although defendant labels this [issue on appeal] as \u2018plain error,\u2019 it is actually invited error because, as the transcript reveals, defendant consented to the manner in which the trial court gave the instructions to the jury.\u201d State v. Fox, 216 N.C. App. 153, 160, 716 S.E.2d 261, 266-67 (2011) (citing State v. Wilkinson, 344 N.C. 198, 235-36, 474 S.E.2d 375, 396 (1996)).\nIn the instant case, defendant agreed to the language of the stipulation and limiting instruction at trial. Defendant made no objection at trial to the limiting instruction, stipulation, or to the substance of the redacted report when it was entered into evidence. We hold that the concept of plain error is not applicable to stipulations entered into at trial.\nThis argument is without merit.\nIV. Ineffective Assistance of Counsel\nIn his third argument, defendant contends that he received ineffective assistance of counsel when his trial attorney stipulated to the admission of the report and failed to object to the trial court\u2019s instruction regarding the report. We disagree.\nA. Standard of Review\nTo prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel\u2019s performance was deficient and then that counsel\u2019s deficient performance prejudiced his defense. Deficient performance may be established by showing that counsel\u2019s representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\nState v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citations and quotation marks omitted), cert. denied, 549 U.S. 867, 166 L. Ed. 2d 116 (2006).\nB. Analysis\nGenerally, to establish a claim for ineffective assistance of counsel, \u201c [t]he defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d Strickland v. Washington, 466 U.S. 668, 694, 80 L.Ed.2d 674, 698 (1984). The Supreme Court has noted that, \u201cJudicial scrutiny of counsel\u2019s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel\u2019s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel\u2019s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.\u201d 466 U.S. at 689, 80 L.Ed.2d at 694.\nIn the present case, the record does not provide sufficient information to determine whether trial counsel\u2019s decision to agree to the stipulation of the report was the result of a legitimate trial strategy. The report that was entered into evidence arguably bolstered defendant\u2019s position by demonstrating the victim\u2019s lack of coherence in her story of the events. Defendant\u2019s claim of ineffective assistance of counsel is dismissed without prejudice to filing a motion for appropriate relief in the trial court.\nNO ERROR IN PART, DISMISSED IN PART.\nJudge BRYANT concurs.", "type": "majority", "author": "STEELMAN, Judge." }, { "text": "HUNTER, Robert C., Judge,\nconcurring in part and dissenting in part.\nI concur with the portions of the majority opinion regarding plain error review of stipulations on appeal and defendant\u2019s argument that he was denied effective assistance of counsel. However, because I believe that the trial court\u2019s instruction could have been reasonably interpreted by the jury as a mandate to accept certain disputed facts of this case as true, in violation of N.C. Gen. Stat. \u00a7\u00a7 15A-1222 and 15A-1232 (2013), I respectfully dissent and conclude that defendant should be granted a new trial.\nBackground\nDefendant was indicted for taking indecent liberties with a child on 15 February 2010. A superseding indictment charging defendant with one count of indecent liberties with a child and one count of statutory rape was issued on 26 November 2012.\nAt trial, defendant\u2019s stepdaughter, A.R., testified that defendant sexually abused her repeatedly over a number of years, beginning when she was either ten or eleven years old. By stipulation of the parties, the State entered into evidence a redacted interview report by Janet Hadler (\u201cHadler\u201d), a clinical social worker who interviewed A.R. The report contained numerous accusations of abuse by A.R., specifically that: (1) defendant sexually abused A.R. and her sister beginning when A.R. was eleven years old; (2) defendant had sexual intercourse with A.R. and took her virginity; and (3) defendant continued to have sex with A.R. \u201cevery time he can get away from [A.R.\u2019s] mother.\u201d The report also contained Hadler\u2019s professional opinion as to these accusations, which appeared as follows:\n[A.R.]\u2019s TSCC is considered to be valid.... [A.R.]\u2019s scores were in the clinically significant range for the following TSCC Clinical Scales/Subscales: Anxiety (T-score 67), . . . Fantasy (T-score 68), Sexual Concerns (T-score 120), Sexual Preoccupation (T-score 105), and Sexual Distress (T-score 133.) According to the manual, T-scores at or above 65 are considered clinically significant. For the SC (sexual concerns) scale and it\u2019s [sic] subscales SC-P and SC-D, T-scores at or above 70 are considered clinically significant. The manual states, \u201cchildren with especially elevated scores on the SC scale may have been prematurely sexualized or sexually traumatized. This can occur as a result of childhood sexual abuse exposure to pornography, witnessing sexual acts, or, in the case of adolescents, sexual assault by a peer.\u201d\nHadler was unable to testify at trial due to a family illness. According to the stipulation, the parties agreed to let redacted portions of her report come in for the purpose of corroborating A.R.\u2019s testimony. The stipulation read as follows:\nJanet Hadler, a licensed clinical social worker, performed a child family evaluation of [A.R.] in September and October of 2009. Ms. Hadler is unavailable due to family illness. The parties have stipulated that the portion of her report of her interview with [A.R.] may be entered into evidence without her presence. This evidence may be considered for the purpose of corroboration of the witness, [A.R.],\nWhile the jury was dismissed, the trial judge indicated to counsel that he would allow the report to be entered into evidence as State\u2019s Exhibit 6 pursuant to the agreed-upon stipulation, which would be marked as State\u2019s Exhibit 7.\nFollowing the bench conference, the jury returned to the courtroom. The State\u2019s attorney read the agreed-upon stipulation to the jury and moved, without objection, to enter State\u2019s Exhibits 6 and 7 into evidence. The State\u2019s attorney then moved to publish copies of Hadler\u2019s report to the jury, whereupon the trial judge, before granting the motion to publish, instructed the jury as follows:\nNow, before we proceed, ladies and gentlemen, I want to make sure that you understand that the State of North Carolina and the defendant have agreed or stipulated that certain facts shall be accepted by you as true without further proof.\nThe agreed facts in this case relate to what is marked as State\u2019s Exhibit 7 and now received as a stipulation and State\u2019s Exhibit 6, portions of an interview conducted by the relevant parties as described.\nSince the parties have so agreed, you are to take these facts as true for the purposes of this case.\nOn 26 February 2013, the jury returned guilty verdicts against defendant for one count of taking indecent liberties with a child and one count of statutory rape; he was sentenced to 336 to 415 months active imprisonment.\nDiscussion\nDefendant argues that the trial judge failed to give a promised limiting instruction and violated statutory mandates of sections 15A-1222 and 15A-1232 prohibiting a trial judge from expressing an opinion (1) as to whether or not a fact has been proved and (2) on any question of fact to be decided by the jury, because the judge inadvertently instructed the jury to consider the facts contained in Hadler\u2019s report' as true. After carefully reviewing the record and transcript of the trial, I agree. I would hold that the trial court inadvertently erred in its jury instruction on the stipulation, and because this error prejudiced defendant, I would order a new trial.\nTypically, in order to preserve an argument for appellate review, a defendant must have \u201cpresented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent.\u201d State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see also N.C. R. App. P. 10(a)(1) (2013). Defendant here failed to object to the trial court\u2019s instruction. However, the North Carolina Supreme Court has held that \u201c[w]henever a defendant alleges a trial court made an improper statement by expressing an opinion on the evidence in violation of N.C.G.S. \u00a7\u00a7 15A-1222 and 15A-1232, the error is preserved for review without objection due to the mandatory nature of these statutory provisions.\u201d State v. Duke, 360 N.C. 110, 123, 623 S.E.2d 11, 20 (2005). Defendant has made such allegations in this case, and thus, these arguments are preserved notwithstanding defendant\u2019s failure to object at trial. See id. On appeal, the burden is on the defendant to show that he was prejudiced by the allegedly improper remarks. See State v. McNeil, 209 N.C. App. 654, 666, 707 S.E.2d 674, 683 (2011). That is, he must show that \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached\u201d by the jury. Id.) see also N.C. Gen. Stat. \u00a7 15A-1443(a) (2013).\nN.C. Gen. Stat. \u00a7 15A-1222 provides that a trial judge \u201cmay not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.\u201d N.C. Gen. Stat. \u00a7 15A-1232 further states in relevant part that \u201c[i]n instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved[.]\u201d Prejudicial error results where \u201cthe jury may reasonably infer from the evidence before it that the trial judge\u2019s action intimated an opinion as to a factual issue, the defendant\u2019s guilt, the weight of the evidence or a witness\u2019s credibility[.]\u201d State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985). \u201cWhether a trial court\u2019s comment constitutes an improper expression of opinion is determined by its probable meaning to the jury, not by the judge\u2019s motive. Furthermore, a totality of the circumstances test is utilized under which defendant has the\u2019burden of showing prejudice.\u201d State v. Mucci, 163 N.C. App. 615, 620, 594 S.E.2d 411, 415 (2004) (alteration in original) (citations and internal quotation marks omitted).\nHere, while outside the presence of the jury, counsel for defendant and the State conferred with the trial judge regarding the stipulation. The substance of the stipulation was that: (1) Hadler was unavailable to testify at trial; (2) portions of her report were to be admitted into evidence; and (3) these redacted portions may be considered for the purpose of corroborating A.R.\u2019s testimony. The trial court informed counsel that it would instruct the jury as to this stipulation based on N.C.P.I. Civil 101.41, which provides that juries are to accept stipulated facts as true without further proof. Specifically, the trial court informed counsel that it would instruct the jury as follows: \u201c[F]acts have been stated in the record as it relates to stipulation as described in State\u2019s Exhibit 7 since the parties have so agreed. You will take these facts as true for the purpose of this case.\u201d However, when the jury returned to the courtroom, the following colloquy took place:\nTHE COURT: All right. The jurors are now present with us in the courtroom. Mr. Thompson [counsel for the State], ready to proceed?\nMR. THOMPSON: We are, Your Honor.\nYour Honor, at this time the State would make this following tender of stipulation.\nJanet Hadler, a licensed clinical social worker, performed a child family evaluation of [A.R.] in September and October of 2009. Ms. Hadler is unavailable due to family illness. The parties have stipulated that the portion of her report of her interview with [A.R.] may be entered into evidence without her presence. This evidence may be considered for the purpose of corroboration of the witness, [A.R.]. That stipulation, Your Honor, is State\u2019s Exhibit 7.\nThe actual portion of the evidence we\u2019re introducing is State\u2019s Exhibit 6. We move to enter 6 and 7 at this time.\nTHE COURT: What says the defendant?\nMR. MARTIN [defense counsel]: No objection.\nTHE COURT: All right. Without objection what is marked as State\u2019s Exhibit 6 and State\u2019s Exhibit 7 each is admitted and received.\nMR. THOMPSON: At this time, Your Honor, we ask to publish the copies to the jury.\nTHE COURT: Now, before we proceed, ladies and gentlemen, I want to make sure that you understand that the State of North Carolina and the defendant have agreed or stipulated that certain facts shall be accepted by you as true without further proof.\nThe agreed facts in this case relate to what is marked as State\u2019s Exhibit 7 and now received as a stipulation and State\u2019s Exhibit 6, portions of an interview conducted by the relevant parties as described.\nSince the parties have so agreed, you are to take these facts as true for the purposes of this case. The motion to publish is allowed.\nIt\u2019s my impression, ladies and gentlemen, you all each have a copy of State\u2019s Exhibit 6. If you will read that to yourselves, again, without comment. And once you\u2019ve completed your review of the document, pass that back down to the bailiff so that we know that you\u2019ve completed your examination of that report.\n(Whereas State\u2019s Exhibit No. 6 was published to the jury.)\n(Emphasis added.)\nThe State argues, and the majority agrees, that the trial court did not violate sections 15A-1222 or 15A-1232 because it did not instruct the jury to read Hadler\u2019s report as true. Rather, the statement that \u201cthe agreed facts in this case relate to ... State\u2019s Exhibit 6\u201d merely indicated that the actual stipulation in State\u2019s Exhibit 7 related to the admissibility of State\u2019s Exhibit 6.\nHowever, on appeal, this Court is to consider the instruction\u2019s \u201cprobable meaning to the jury\u201d under the totality of the circumstances. Mucci, 163 N.C. App. at 620, 594 S.E.2d at 415. The attendant circumstances and wording of the instruction leads me to conclude that the jury could have reasonably interpreted the trial court\u2019s statement as requiring the jury members to accept Hadler\u2019s report as true, in clear, but inadvertent, violation of sections 15A-1222 and 15A-1232.\nFirst, the trial court told the jury that \u201c [t]he agreed facts in this case relate to what is marked as State\u2019s Exhibit 7 and now received as a stipulation and State\u2019s Exhibit 6, portions of an interview conducted by the relevant parties as described.\u201d (Emphasis added.) The use of the conjunctive \u201cand\u201d in this instruction unavoidably combined both exhibits under the umbrella of what the \u201cagreed facts ... relate to,\u201d even though the trial judge told counsel during the bench conference that he would only instruct the jury that \u201cfacts have been stated in the record as it relates to stipulation as described in State\u2019s Exhibit 7 since the parties have so agreed. You will take these facts as true for the purpose of this case.\u201d Thus, the trial court\u2019s instruction to the jury differed materially from the instruction it promised counsel it was going to make while the jury was outside the courtroom, indicating that the reference to State\u2019s Exhibit 6 was unplanned and inadvertent.\nFurthermore, the trial court failed to clarify that the redacted portions of Hadler\u2019s report were not to be considered for substantive purposes at all. Despite the agreement made between counsel outside the presence of the jury that the report would only be admitted for corroborative purposes, the trial court never specifically instructed, either before or after publishing the document to the jury, that there were limits on the admissibility of Hadler\u2019s report. The stipulation itself provided only that Hadler\u2019s report \u201cmay be considered for the purpose of corroboration of the witness, [A.R.].\u201d (Emphasis added.) The jury was never instructed at any point of the trial that it may not consider the report as substantive evidence of defendant\u2019s guilt. During the jury charge, the trial court instructed the jury that:\nEvidence has been received tending to show that at an earlier time a witness made a statement which may be consistent or may conflict with the testimony of the witness at this trial.\nYou must not consider such earlier statement as evidence of the truth of what was said at that earlier time because it was not made under oath at this trial.\nIf you believe that the earlier statement was made and that it is consistent or does conflict with the testimony of the witness at this trial, then you may consider this and all other facts and circumstances bearing upon the -witness\u2019 truthfulness in deciding whether you will believe or disbelieve the testimony of the witness.\n(Emphasis added.) Thus, the trial court failed to specify that Hadler\u2019s report, which included not only statements from A.R. but also Hadler\u2019s professional opinion on the clinical significance of those statements, was only admitted to corroborate A.R.\u2019s testimony and was not to be considered for any other purpose. See State v. McMillan, 55 N.C. App. 25, 30, 284 S.E.2d 526, 530 (1981) (finding error where the trial court instructed on prior statements of \u201ca witness\u201d but failed to specify the limit on admissibility related solely to the specific witness\u2019s statements). Accordingly, the trial court\u2019s instruction to \u201ctake these facts as true,\u201d with the facts \u201crelating to\u201d both the stipulation and Hadler\u2019s report, was more amenable to being interpreted as invitation to read Hadler\u2019s report as true given the lack of specific limiting instructions on that exhibit.\nSecond, only Hadler\u2019s report, and not the stipulation itself, was published to the jury immediately following the trial court\u2019s ambiguous instruction. I believe that the jury could have reasonably inferred that what was being published to them was the subject of the instruction; or in other words, that Hadler\u2019s report was the document that the jury members were to read as true. This conclusion is especially availing given that the trial court said \u201cyou are to take these facts as true for the purposes of this case\u201d immediately after saying \u201c[t]he agreed facts in this case relate to... State\u2019s Exhibit 6, portions of an interview conducted by the relevant parties as described,\u201d just before publishing State\u2019s Exhibit 6 to the jury, and without any clarification regarding the stipulation that Hadler\u2019s report \u201cmay be considered for the purpose of corroboration[.]\u201d (Emphasis added.)\nBased on the totality of the circumstances, Mucci, 163 N.C. App. at 620, 594 S.E.2d at 415, I would hold that the challenged instruction could have been reasonably interpreted by the jury as requiring them to read Hadler\u2019s report as true. In giving this instruction, the trial court both bolstered the credibility of the prosecuting witness, A.R., and afforded undue evidentiary weight to Hadler\u2019s conclusions in the report regarding the clinical significance of A.R.\u2019s \u201cT-seores.\u201d Each of which constitutes prejudicial error. See Blackstock, 314 N.C. at 236, 333 S.E.2d at 248 (\u201c[I]n a criminal case it is only when the jury may reasonably infer from the evidence before it that the trial judge\u2019s action intimated an opinion as to a factual issue, the defendant\u2019s guilt, the weight of the evidence or a witness\u2019s credibility that prejudicial error results.\u201d).\nTherefore, while it is clear that this error was inadvertent, the jury may have reasonably believed that they were instructed to read the statements in Hadler\u2019s redacted report as true, in which case the trial court inherently intimated an opinion as to the weight of this evidence, and prejudicial error resulted. See Blackstock, 314 N.C. at 236, 333 S.E.2d at 248.\nConclusion\nBased on the foregoing, I would hold that the trial judge inadvertently erred by giving an instruction constituting an impermissible expression of judicial opinion in violation of sections 15A-1222 and 15A-1232. Because this error bolstered the credibility of the prosecuting witness and afforded undue weight to a report admitted solely for corroborative purposes, I would conclude that defendant was prejudiced by this error, requiring a new trial.\n. It is unclear from the record what \u201cTSCC\u201d stands for.", "type": "concurring-in-part-and-dissenting-in-part", "author": "HUNTER, Robert C., Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Sarah Y Meacham, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EDDIE DANIEL BERRY\nNo. COA13-953\nFiled 5 August 2014\n1. Evidence\u2014redacted report\u2014stipulation\u2014jury instruction\u2014 not an expression of opinion\u2014not prejudicial\nThe trial court did not err in a sexual offenses case by instructing the jury to accept as true a redacted interview report by a licensed social worker that was entered into evidence by the State. The trial court did not express an opinion in its limiting instruction to the jury, and taken as a whole, the instructions did not prejudice defendant.\n2. Evidence\u2014stipulation\u2014plain error not applicable\nThe trial court did not commit plain error in a sexual offenses case by admitting a licensed clinical social worker\u2019s redacted report into evidence. Defendant stipulated to the admission of the report at trial and agreed to the language of the stipulation and limiting instruction. The concept of plain error is not applicable to stipulations entered into at trial.\n3. Constitutional Law\u2014effective assistance of counsel\u2014stipulation to report\u2014trial strategy\nDefendant did not receive ineffective assistance of counsel in a sexual offenses case when his trial attorney stipulated to the admission of a licensed clinical social worker\u2019s redacted report and failed to object to the trial court\u2019s instruction regarding the report. The record did not provide sufficient information to determine whether trial counsel's decision to agree to the stipulation of the report was the result of a legitimate trial strategy.\nJudge HUNTER, Robert C. concurs in part and dissents in part.\nAppeal by defendant from judgment entered 28 February 2013 by Judge James E. Hardin Jr. in Alamance County Superior Court. Heard in the Court of Appeals 8 April 2014.\nAttorney General Roy Cooper, by Assistant Attorney General Sarah Y Meacham, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for defendant-appellant." }, "file_name": "0496-01", "first_page_order": 506, "last_page_order": 522 }