{ "id": 2499339, "name": "STATE OF NORTH CAROLINA v. BERRY SCOTT", "name_abbreviation": "State v. Scott", "decision_date": "1992-03-05", "docket_number": "No. 330PA90", "first_page": "39", "last_page": "57", "citations": [ { "type": "official", "cite": "331 N.C. 39" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "392 S.E.2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": -1 }, { "cite": "99 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521241 ], "year": 1990, "opinion_index": -1, "case_paths": [ "/nc-app/99/0113-01" ] }, { "cite": "25 ALR4th 934", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 3, "opinion_index": -1 }, { "cite": "264 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "50" } ], "opinion_index": 0 }, { "cite": "299 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575787 ], "year": 1980, "pin_cites": [ { "page": "700" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0699-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "54" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "764 F.2d 1493", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 378004 ], "year": 1985, "pin_cites": [ { "page": "1499" } ], "opinion_index": 0, "case_paths": [ "/f2d/764/1493-01" ] }, { "cite": "391 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "174" }, { "page": "176" } ], "opinion_index": 0 }, { "cite": "326 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305171 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0542-01" ] }, { "cite": "611 S.W.2d 411", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9936719 ], "year": 1981, "pin_cites": [ { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/sw2d/611/0411-01" ] }, { "cite": "87 Ariz. 295", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 645882 ], "weight": 2, "year": 1960, "pin_cites": [ { "page": "307", "parenthetical": "\"The fact of an acquittal, . . . when added to the tendency of such evidence to prove the defendant's bad character and criminal propensities, lowers the scale to the side of inadmissibility of such evidence.\"" }, { "page": "763", "parenthetical": "\"The fact of an acquittal, . . . when added to the tendency of such evidence to prove the defendant's bad character and criminal propensities, lowers the scale to the side of inadmissibility of such evidence.\"" } ], "opinion_index": 0, "case_paths": [ "/ariz/87/0295-01" ] }, { "cite": "582 F.2d 898", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 858084 ], "year": 1978, "pin_cites": [ { "page": "914" } ], "opinion_index": 0, "case_paths": [ "/f2d/582/0898-01" ] }, { "cite": "425 U.S. 501", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179579 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "503" }, { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/us/425/0501-01" ] }, { "cite": "226 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "366", "parenthetical": "quoting Estelle v. Williams, 425 U.S. 501, 503, 48 L. Ed. 2d 126, 130 (1976)" } ], "opinion_index": 0 }, { "cite": "290 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561482 ], "year": 1976, "pin_cites": [ { "page": "365", "parenthetical": "quoting Estelle v. Williams, 425 U.S. 501, 503, 48 L. Ed. 2d 126, 130 (1976)" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0349-01" ] }, { "cite": "278 N.W.2d 307", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10685586 ], "year": 1979, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/nw2d/278/0307-01" ] }, { "cite": "493 U.S. 342", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11331685 ], "weight": 4, "year": 1990, "pin_cites": [ { "parenthetical": "Brennan, J., dissenting, joined by Marshall, J., and Stevens, J." }, { "parenthetical": "Brennan, J., dissenting, joined by Marshall, J., and Stevens, J." }, { "page": "361-62" }, { "page": "726", "parenthetical": "Brennan, J., dissenting, joined by Marshall, J., and Stevens, J." } ], "opinion_index": 0, "case_paths": [ "/us/493/0342-01" ] }, { "cite": "530 A.2d 775", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1987, "pin_cites": [ { "page": "784" } ], "opinion_index": 0 }, { "cite": "129 N.H. 358", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4413617 ], "year": 1987, "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/nh/129/0358-01" ] }, { "cite": "364 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "138" }, { "page": "138" }, { "page": "138" } ], "opinion_index": 0 }, { "cite": "321 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569902 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "424" }, { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0415-01" ] }, { "cite": "65 N.Y.S. 1062", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 7805424 ], "year": 1900, "pin_cites": [ { "page": "1065", "parenthetical": "quoting 1 Am. & Eng. Enc. Law (2d ed. p. 573)" } ], "opinion_index": 0, "case_paths": [ "/nys/65/1062-01" ] }, { "cite": "53 A.D. 470", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 4754622 ], "year": 1900, "pin_cites": [ { "page": "473", "parenthetical": "quoting 1 Am. & Eng. Enc. Law (2d ed. p. 573)" } ], "opinion_index": 0, "case_paths": [ "/ad/53/0470-01" ] }, { "cite": "360 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "695" } ], "opinion_index": 0 }, { "cite": "320 N.C. 762", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725513 ], "year": 1987, "pin_cites": [ { "page": "769" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0762-01" ] }, { "cite": "369 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "825" } ], "opinion_index": 0 }, { "cite": "322 N.C. 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514083 ], "year": 1988, "pin_cites": [ { "page": "590-91" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0585-01" ] }, { "cite": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "year": 1988, "pin_cites": [ { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "282 U.S. 531", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6932733 ], "weight": 2, "year": 1931, "pin_cites": [ { "page": "541" }, { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/us/282/0531-01" ] }, { "cite": "329 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "352" } ], "opinion_index": 0 }, { "cite": "326 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305505 ], "year": 1990, "pin_cites": [ { "page": "700" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0689-01" ] }, { "cite": "361 U.S. 847", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6223041, 6222244, 6222480, 6223632, 6221745, 6222771, 6223354, 6221981 ], "year": 1959, "opinion_index": 1, "case_paths": [ "/us/361/0847-06", "/us/361/0847-03", "/us/361/0847-04", "/us/361/0847-08", "/us/361/0847-01", "/us/361/0847-05", "/us/361/0847-07", "/us/361/0847-02" ] }, { "cite": "485 U.S. 1036", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13312, 13445, 13287, 13545, 13740, 13965, 13233, 14131, 13397, 13238, 13399, 13750, 13849, 13725 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/us/485/1036-05", "/us/485/1036-12", "/us/485/1036-11", "/us/485/1036-04", "/us/485/1036-06", "/us/485/1036-14", "/us/485/1036-08", "/us/485/1036-10", "/us/485/1036-01", "/us/485/1036-02", "/us/485/1036-13", "/us/485/1036-03", "/us/485/1036-09", "/us/485/1036-07" ] }, { "cite": "250 N.W.2d 443", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1976, "pin_cites": [ { "parenthetical": "evidence of other crimes admissible when the lack of consent is crucial to the prosecution's case" } ], "opinion_index": 1 }, { "cite": "399 Mich. 472", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1928845 ], "year": 1976, "pin_cites": [ { "parenthetical": "evidence of other crimes admissible when the lack of consent is crucial to the prosecution's case" } ], "opinion_index": 1, "case_paths": [ "/mich/399/0472-01" ] }, { "cite": "379 N.E.2d 403", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "whether complainant consented was a question of fact for the jury, and evidence of prior conviction for attempted rape was admissible to show the defendant's mental state" } ], "opinion_index": 1 }, { "cite": "62 Ill. App. 3d 720", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5622586 ], "year": 1978, "pin_cites": [ { "parenthetical": "whether complainant consented was a question of fact for the jury, and evidence of prior conviction for attempted rape was admissible to show the defendant's mental state" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/62/0720-01" ] }, { "cite": "211 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "parenthetical": "evidence of similar sexual offenses relevant to show intent of defendant relative to the issue of whether the victim consented to the sexual acts" } ], "opinion_index": 1 }, { "cite": "233 Ga. 329", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1136596 ], "year": 1974, "pin_cites": [ { "parenthetical": "evidence of similar sexual offenses relevant to show intent of defendant relative to the issue of whether the victim consented to the sexual acts" } ], "opinion_index": 1, "case_paths": [ "/ga/233/0329-01" ] }, { "cite": "4 L. Ed. 2d 86", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1959, "opinion_index": 1 }, { "cite": "110 So. 2d 654", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9891478 ], "opinion_index": 1, "case_paths": [ "/so2d/110/0654-01" ] }, { "cite": "66 Cal. Rptr. 654", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1968, "pin_cites": [ { "parenthetical": "nature of prior attacks probative of consent where issue was that of consent" } ], "opinion_index": 1 }, { "cite": "259 Cal. App. 2d 846", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2201131 ], "year": 1968, "pin_cites": [ { "parenthetical": "nature of prior attacks probative of consent where issue was that of consent" } ], "opinion_index": 1, "case_paths": [ "/cal-app-2d/259/0846-01" ] }, { "cite": "104 Ariz. 238", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 629920 ], "weight": 2, "year": 1969, "pin_cites": [ { "parenthetical": "prior conviction of rape with similar circumstances relevant to prove a forcible rape by defendant, who had fallen asleep in bed of victim whom defendant claimed had consented" }, { "parenthetical": "prior conviction of rape with similar circumstances relevant to prove a forcible rape by defendant, who had fallen asleep in bed of victim whom defendant claimed had consented" } ], "opinion_index": 1, "case_paths": [ "/ariz/104/0238-01" ] }, { "cite": "328 So. 2d 321", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9650385, 2549612, 9650478 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/so2d/328/0321-01", "/ala/295/0401-02", "/so2d/328/0321-02" ] }, { "cite": "295 Ala. 401", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 2549744, 2549612, 2548653 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/ala/295/0401-03", "/ala/295/0401-02", "/ala/295/0401-01" ] }, { "cite": "328 So. 2d 311", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9650326 ], "opinion_index": 1, "case_paths": [ "/so2d/328/0311-01" ] }, { "cite": "57 Ala. App. 310", "category": "reporters:state", "reporter": "Ala. App.", "case_ids": [ 428049 ], "opinion_index": 1, "case_paths": [ "/ala-app/57/0310-01" ] }, { "cite": "199 S.E.2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "parenthetical": "this Court, in a rape case, held that evidence of a prior offense was relevant where consent was an issue" } ], "opinion_index": 1 }, { "cite": "284 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559866 ], "year": 1973, "pin_cites": [ { "parenthetical": "this Court, in a rape case, held that evidence of a prior offense was relevant where consent was an issue" } ], "opinion_index": 1, "case_paths": [ "/nc/284/0041-01" ] }, { "cite": "358 S.E.2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 1 }, { "cite": "320 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728929, 4728867, 4724042, 4728051, 4730142 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/nc/320/0515-05", "/nc/320/0515-04", "/nc/320/0515-03", "/nc/320/0515-01", "/nc/320/0515-02" ] }, { "cite": "355 S.E.2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "85 N.C. App. 447", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170005 ], "opinion_index": 1, "case_paths": [ "/nc-app/85/0447-01" ] }, { "cite": "50 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "pin_cites": [ { "parenthetical": "evidence of improper advances toward another female victim at the orphanage where defendant was superintendent was admissible to show attitude, animus, and purpose" } ], "opinion_index": 1 }, { "cite": "229 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12166179 ], "year": 1948, "pin_cites": [ { "parenthetical": "evidence of improper advances toward another female victim at the orphanage where defendant was superintendent was admissible to show attitude, animus, and purpose" } ], "opinion_index": 1, "case_paths": [ "/nc/229/0386-01" ] }, { "cite": "279 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "at trial upon two counts of first-degree sexual offense, evidence that, after the date of the offense charged, defendant sexually assaulted another victim by rubbing her breasts was admissible to show intent, plan, or design to commit the crimes charged" } ], "opinion_index": 1 }, { "cite": "303 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574100 ], "year": 1981, "pin_cites": [ { "parenthetical": "at trial upon two counts of first-degree sexual offense, evidence that, after the date of the offense charged, defendant sexually assaulted another victim by rubbing her breasts was admissible to show intent, plan, or design to commit the crimes charged" } ], "opinion_index": 1, "case_paths": [ "/nc/303/0507-01" ] }, { "cite": "324 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "subsequent indecent liberties probative as to mens rea for crimes with which defendant was charged" } ], "opinion_index": 1 }, { "cite": "312 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4752281 ], "year": 1985, "pin_cites": [ { "parenthetical": "subsequent indecent liberties probative as to mens rea for crimes with which defendant was charged" } ], "opinion_index": 1, "case_paths": [ "/nc/312/0580-01" ] }, { "cite": "99 L. Ed. 2d 912", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 1 }, { "cite": "362 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "321 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569839 ], "opinion_index": 1, "case_paths": [ "/nc/321/0201-01" ] }, { "cite": "364 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "testimony regarding defendant's conduct with a young relative demonstrated defendant's scheme or intent to take advantage of young relatives left in his custody" } ], "opinion_index": 1 }, { "cite": "321 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569213 ], "year": 1988, "pin_cites": [ { "parenthetical": "testimony regarding defendant's conduct with a young relative demonstrated defendant's scheme or intent to take advantage of young relatives left in his custody" } ], "opinion_index": 1, "case_paths": [ "/nc/321/0574-01" ] }, { "cite": "351 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 1 }, { "cite": "318 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4733270 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/nc/318/0663-01" ] }, { "cite": "389 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "opinion_index": 1 }, { "cite": "326 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308068 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "459-60" }, { "page": "459" } ], "opinion_index": 1, "case_paths": [ "/nc/326/0457-01" ] }, { "cite": "271 Or. 294", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2123492 ], "weight": 2, "year": 1975, "opinion_index": 1, "case_paths": [ "/or/271/0294-01" ] }, { "cite": "68 Mont. 504", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 4798678 ], "weight": 2, "year": 1923, "opinion_index": 1, "case_paths": [ "/mont/68/0504-01" ] }, { "cite": "242 S.W. 923", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1922, "opinion_index": 1 }, { "cite": "258 A.2d 786", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1969, "opinion_index": 1 }, { "cite": "8 Md. App. 119", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 2337874 ], "year": 1969, "opinion_index": 1, "case_paths": [ "/md-app/8/0119-01" ] }, { "cite": "58 Cal. Rptr. 107", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1967, "opinion_index": 1 }, { "cite": "426 P.2d 507", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1967, "opinion_index": 1 }, { "cite": "66 Cal. 2d 459", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 2331196 ], "year": 1967, "opinion_index": 1, "case_paths": [ "/cal-2d/66/0459-01" ] }, { "cite": "375 So. 2d 1239", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9643591 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/so2d/375/1239-01" ] }, { "cite": "25 A.L.R.4th 934", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "year": 1983, "pin_cites": [ { "page": "\u00a7 2" } ], "opinion_index": 1 }, { "cite": "246 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "approving of cross-examination about defendant's prior possession of drugs despite the fact that charges against defendant had been dismissed because the search that disclosed the drugs was declared unlawful" } ], "opinion_index": 1 }, { "cite": "295 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564677 ], "year": 1978, "pin_cites": [ { "parenthetical": "approving of cross-examination about defendant's prior possession of drugs despite the fact that charges against defendant had been dismissed because the search that disclosed the drugs was declared unlawful" } ], "opinion_index": 1, "case_paths": [ "/nc/295/0488-01" ] }, { "cite": "259 S.E.2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "concluding that it is permissible to cross-examine a defendant about a specific act of misconduct even though the defendant has been acquitted of charges arising out of the misconduct" } ], "opinion_index": 1 }, { "cite": "298 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572690 ], "year": 1979, "pin_cites": [ { "parenthetical": "concluding that it is permissible to cross-examine a defendant about a specific act of misconduct even though the defendant has been acquitted of charges arising out of the misconduct" } ], "opinion_index": 1, "case_paths": [ "/nc/298/0441-01" ] }, { "cite": "66 L. Ed. 2d 227", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 1 }, { "cite": "449 U.S. 960", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11803268, 11803117, 11803598, 11803454, 11803378, 11803827, 11803157, 11803669, 11803512, 11803324, 11803196 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/us/449/0960-04", "/us/449/0960-01", "/us/449/0960-09", "/us/449/0960-07", "/us/449/0960-06", "/us/449/0960-11", "/us/449/0960-02", "/us/449/0960-10", "/us/449/0960-08", "/us/449/0960-05", "/us/449/0960-03" ] }, { "cite": "266 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "300 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560989 ], "opinion_index": 1, "case_paths": [ "/nc/300/0223-01" ] }, { "cite": "268 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "527" } ], "opinion_index": 1 }, { "cite": "300 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562782 ], "year": 1980, "pin_cites": [ { "page": "529" } ], "opinion_index": 1, "case_paths": [ "/nc/300/0515-01" ] }, { "cite": "336 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "314 N.C. 618", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696312 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc/314/0618-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 1 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "278-79" }, { "page": "279" }, { "page": "279" } ], "opinion_index": 1, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "391 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 1 }, { "cite": "326 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305171 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/nc/326/0542-01" ] }, { "cite": "226 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "366" } ], "opinion_index": 1 }, { "cite": "290 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561482 ], "year": 1976, "pin_cites": [ { "page": "365" } ], "opinion_index": 1, "case_paths": [ "/nc/290/0349-01" ] }, { "cite": "493 U.S. 342", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11331685 ], "weight": 12, "year": 1990, "pin_cites": [ { "page": "354", "parenthetical": "Brennan, J., dissenting" }, { "page": "721", "parenthetical": "Brennan, J., dissenting" }, { "page": "348" }, { "page": "719", "parenthetical": "emphasis added" }, { "page": "349" }, { "page": "719" }, { "page": "352" }, { "page": "720" } ], "opinion_index": 1, "case_paths": [ "/us/493/0342-01" ] }, { "cite": "364 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 1 }, { "cite": "321 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569902 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/nc/321/0415-01" ] } ], "analysis": { "cardinality": 1427, "char_count": 43626, "ocr_confidence": 0.778, "pagerank": { "raw": 3.521736500785696e-07, "percentile": 0.8838509503835938 }, "sha256": "75bf9940dc3ebd82b30923663c3c35abf779efedcea6213f00866ede54d2be05", "simhash": "1:1703773b6b7485dc", "word_count": 7211 }, "last_updated": "2023-07-14T15:05:46.767853+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice LAKE did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. BERRY SCOTT" ], "opinions": [ { "text": "EXUM, Chief Justice.\nUpon duly returned indictments defendant was tried and convicted of crime against nature, second-degree kidnapping, and three counts of second-degree rape. After being sentenced to ten years\u2019 imprisonment on the crime against nature conviction, thirty years\u2019 imprisonment on the kidnapping conviction, and forty years\u2019 imprisonment on the consolidated rape convictions, defendant appealed. The Court of Appeals found no error in defendant\u2019s trial and the judgments entered against him. We dismissed defendant\u2019s appeal but allowed his petition for discretionary review of the Court of Appeals\u2019 determination of one of the issues raised: whether the State may introduce in a subsequent criminal trial evidence of a prior alleged offense for which defendant had been tried and acquitted in an earlier trial. We hold that where the probative value of such evidence depends upon defendant\u2019s having in fact committed the prior alleged offense, his acquittal of the offense in an earlier trial so divests the evidence of probative value that, as a matter of law, it cannot outweigh the tendency of such evidence unfairly to prejudice the defendant. Such evidence is thus barred by N.C. R. Evid. 403.\nI.\nEvidence presented by the State tended to show defendant approached the prosecuting witness, a woman with whom he was acquainted, some time after 11:30 p.m. on 26 June 1988 at a convenience store where she had come to buy food for a friend. Defendant asked her for a ride home, and she agreed. She first drove with defendant to deliver the food. Around 1:30 a.m., she drove defendant at his request back to the convenience store to buy some cigarettes. As they were leaving the parking lot, defendant threatened her with a pocket knife and ordered her to drive elsewhere, where he forced her to have vaginal intercourse. Defendant subsequently forced her to drive to his house, enter, and engage in vaginal intercourse and fellatio.\nThe State introduced the testimony of Wanda Freeman, also a past acquaintance of defendant, who stated defendant had raped her two years earlier under similar circumstances. Defendant objected on the ground that he had been tried for the rape of Freeman and acquitted by the jury. The trial court ruled the evidence was admissible to show \u201copportunity, intent, preparation and plan\u201d under Evidence Rule 404(b) and that its probative value outweighed any danger of unfair prejudice under Evidence Rule 403. The trial court later instructed the jury that it could consider this evidence on the issue of defendant\u2019s \u201cintent, knowledge, plan, scheme, or design.\u201d\nDefendant testified that he had accompanied the prosecuting witness with her consent from the convenience store, that she agreed to accompany him and that they engaged in consensual sexual relations at his house only. He admitted that they engaged in consensual cunnilingus (but said nothing regarding fellatio).\nThe Court of Appeals found no error in its review of five issues raised by defendant on appeal. Defendant argued before the Court of Appeals that the testimony of Wanda Freeman should not have been admitted. As he had been acquitted of the rape of Freeman, defendant argued that admission of her testimony concerning the rape violated the fundamental fairness component of due process, and any probative value this evidence might have was outweighed by its tendency unfairly to prejudice defendant. It was therefore inadmissible under Evidence Rule 403. The Court of Appeals concluded that defendant had not objected to the testimony on constitutional grounds at trial; therefore he was precluded from arguing constitutional grounds for its inadmissibility on appeal. The Court of Appeals did not address admissibility of this testimony under the Rules of Evidence.\nWe conclude that evidence that defendant committed a prior alleged offense for which he has been tried and acquitted may not be admitted in a subsequent trial for a different offense when its probative value depends, as it did here, upon the proposition that defendant in fact committed the prior crime. To admit such evidence violates, as a matter of law, Evidence Rule 403.\nWe acknowledge that, ordinarily, whether the probative value of evidence is \u201csubstantially outweighed by the danger of unfair prejudice,\u201d as Rule 403 provides, is a determination resting in the trial judge\u2019s discretion. E.g., State v. Meekins, 326 N.C. 689, 700, 329 S.E.2d 346, 352 (1990). The trial court\u2019s discretion, however, is not unlimited. Sound judicial discretion is \u201cthat [which] is . . . exercised . . . with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result.\u201d State v. Tolley, 290 N.C. at 367, 226 S.E.2d at 367-68 (quoting Langnes v. Green, 282 U.S. 531, 541, 75 L. Ed. 520, 526 (1931)). Its exercise is reviewable; and we have on occasion found the exercise of this discretion in favor of admission of the evidence to be error. See, e.g., State v. Hennis, 323 N.C. 279, 287, 372 S.E.2d 523, 527 (1988); State v. Jones, 322 N.C. 585, 590-91, 369 S.E.2d 822, 825 (1988); State v. Kimbrell, 320 N.C. 762, 769, 360 S.E.2d 691, 695 (1987). When the intrinsic nature of the evidence itself is such that its probative value is always necessarily outweighed by the danger of unfair prejudice, the evidence becomes inadmissible under the rule as a matter of law. The evidence at issue here is of that sort.\nTwo principles support this conclusion. First, fundamental to the admissibility of evidence of charges of which the defendant has been acquitted is the judicial presumption of innocence. This Court has recognized:\nAn acquittal is the \u201clegal and formal certification of the innocence of a person who has been charged with a crime.\u201d Black\u2019s Law Dictionary 23 (5th ed. 1979). Once a defendant has been acquitted of a crime he has been \u201cset free or judicially discharged from an accusation; released from ... a charge or suspicion of guilt.\u201d People v. Lyman, 53 A.D. 470, 473, 65 N.Y.S. 1062, 1065 (1900) (quoting 1 Am. & Eng. Enc. Law (2d ed. p. 573)) (emphasis added).\nState v. Marley, 321 N.C. 415, 424, 364 S.E.2d 133, 138 (1988). Although a jury may acquit simply because the State has failed to prove a defendant\u2019s guilt beyond a reasonable doubt, we cannot enter the jury\u2019s \u201cinner sanctum\u201d to divine whether acquittal was based upon the State\u2019s failure to meet its burden of proof or upon the jury\u2019s belief in the defendant\u2019s innocence. Id.\nThe inescapable point is that . . . [the] law requires proof beyond a reasonable doubt in criminal cases as the standard of proof commensurate with the presumption of innocence; a presumption not to be forgotten after the acquitting jury has left and sentencing has begun.\nId. at 424-25, 364 S.E.2d at 138 (quoting State v. Cote, 129 N.H. 358, 374, 530 A.2d 775, 784 (1987)).\nNor is the presumption of innocence to be forgotten in subsequent trials for other offenses. The presumption of innocence enters the courtroom with the accused, and it leaves with the acquitted: neither accusation nor suspicion may again enter the courtroom. \u201cBy definition, when the Government fails to prove a defendant guilty . . . , the defendant is considered legally innocent. . . . \u2018[T]he acquitted defendant is to be treated as innocent and in the interests of fairness and finality made no more to answer for his alleged crime.\u2019 \u201d Dowling v. United States, 493 U.S. 342, 361 n.4, 107 L. Ed. 2d 708, 726 n.4 (1990) (Brennan, J., dissenting, joined by Marshall, J., and Stevens, J.) (quoting State v. Wakefield, 278 N.W.2d 307, 308 (Minn. 1979)).\n\u201cAcquittal\u201d is the judicial recognition of the innocence of a person who has been charged with a crime and whose presumed innocence, tested, is not overcome. One acquitted is \u201cjudicially discharged\u201d from the accusation and released from both the charge and the suspicion of guilt. State v. Marley, 321 N.C. at 424, 364 S.E.2d at 138. A person acquitted of a charge should not be required again to defend himself against that charge in subsequent criminal proceedings in which he may become involved.\nSecond, the overwhelming potential for prejudice when such evidence is introduced, with or without limiting instructions, is a factor \u201cwhich may \u2018undermine the fairness of the fact-finding process\u2019 and thereby dilute \u2018the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.\u2019 \u201d State v. Tolley, 290 N.C. 349, 365, 226 S.E.2d 353, 366 (1976) (quoting Estelle v. Williams, 425 U.S. 501, 503, 48 L. Ed. 2d 126, 130 (1976)). See Dowling v. United States, 493 U.S. at 361-62, 107 L. Ed. 2d at 726 (Brennan, J., dissenting, joined by Marshall, J., and Stevens, J.) (\u201cOne of the dangers inherent in the admission of extrinsic offense evidence is that the jury may convict the defendant not for the offense charged but for the extrinsic offense.\u201d (quoting United States v. Beechum, 582 F.2d 898, 914 (5th Cir. 1978))).\nThe North Carolina Rules of Evidence must be interpreted and applied in light of this proposition: an acquittal and the undefeated presumption of innocence it signifies mean that, in law, defendant did not commit the crime charged. When the probative value of evidence of this other conduct depends upon the proposition that defendant committed the prior crime, his earlier acquittal of that crime so erodes the probative value of the evidence that its potential for prejudice, which is great, must perforce outweigh its probative value under Rule 403. See State v. Little, 87 Ariz. 295, 307, 350 P.2d 756, 763 (1960) (\u201cThe fact of an acquittal, . . . when added to the tendency of such evidence to prove the defendant\u2019s bad character and criminal propensities, lowers the scale to the side of inadmissibility of such evidence.\u201d); State v. Holman, 611 S.W.2d 411, 413 (Tenn. 1981) (\u201c[T]he probative value of such evidence cannot be said to outweigh its prejudicial effect upon the defendant. For such evidence to have any relevance or use in the case on trial, the jury would have to infer that, despite the acquittal, the defendant nevertheless was guilty of the prior crime. No such inference can properly be drawn from an acquittal\u201d).\nThe use of evidence of conduct underlying a prior charge of a crime for which the defendant has been tried and acquitted has been permitted in the exceptional case in which the conduct occurred in the same \u201cchain of circumstances\u201d as the crime for which the defendant is being tried. In State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990), we held testimony that the defendant had possessed marijuana, despite his earlier acquittal of the possession charge, was admissible because that conduct was part of the same chain of circumstances which included the charged offense for which the defendant was on trial. Introduction of testimony about the marijuana possession was, despite the acquittal, necessary for the testifying witness to complete his story about what led to defendant\u2019s arrest and was inextricably entwined with the offense for which the defendant was then being tried. Holding this evidence was thus relevant under Rule 401, we examined its admissibility as a \u201ccrime, wrong or act\u201d under Rule 404(b), and noted its essential identity to the \u201cchain of circumstances\u201d category of evidence when the two acts occurred contemporaneously. Under the particular circumstances of that case, evidence of the marijuana possession \u201cform[ed] an integral and natural part of an account of the crime, or [was] necessary to complete the story of the crime for the jury.\u201d Agee, 326 N.C. at 548, 391 S.E.2d at 174 (quoting United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985)).\nUnder our view of Rule 404(b) as a general rule of inclusion, the evidence presented in Agee did not fit the single exception \u201crequiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.\u201d State v. Coffey, 326 N.C. 268, 279, 389 S.E.2d 48, 54 (1990). This Court thus assumed, despite the defendant\u2019s acquittal, that evidence of his marijuana possession had some probative value by virtue of its inextricable connection to the chain of circumstances. Noting that evidence which is probative is inevitably prejudicial but that its balance is a question of degree within the discretion of the trial court, we held that under the circumstances of that case, the trial court had not abused its discretion. State v. Agee, 326 N.C. at 550, 391 S.E.2d at 176.\nThe logic of Agee does not apply to the case before us. The \u201cchain of circumstances\u201d link that arguably made this evidence probative in Agee by virtue of its temporal relevance to the crime for which the defendant was on trial is absent here. Unlike the evidence that defendant raped Freeman, the probative value of the evidence in Agee did not depend on defendant\u2019s having committed the crime of possession of marijuana.\nThe error in admitting the testimony of Wanda Freeman entitles defendant to a new trial on the charges of kidnapping and rape. The test for prejudicial error is whether there is a reasonable possibility that, had the error not been committed, a different result would have been reached at trial. N.C.G.S. \u00a7 15A-1443(a) (1988). Defendant admitted being with the prosecuting witness and engaging in sexual relations with her. He testified she consented to being with him and to the sexual conduct which ensued. The State\u2019s evidence tended to show the prosecuting witness did not consent. Both the Statens evidence and the defendant\u2019s were corroborated to some extent by the testimony of other witnesses. The principal question for the jury in the kidnapping and rape cases was whether to believe the prosecuting witnesses or the defendant on the element of consent. Given the similarity of the circumstances of the rape for which defendant was on trial and those of the rape about which Ms. Freeman testified, we conclude there is at least a reasonable possibility that had the error in admitting Ms. Freeman\u2019s testimony not been committed and this evidence excluded a different result would have obtained at trial. This determination is underscored by the high potential for prejudice inherent in the introduction of evidence of prior offenses, as we have already recognized.\nConsent, however, is not a defense to crime against nature. E.g., State v. Adams, 299 N.C. 699, 700, 264 S.E.2d 46, 50 (1980). Defendant admitted he had committed cunnilingus upon the prosecuting witness. Given this admission, Ms. Freeman\u2019s testimony could have had no conceivable effect on whether the jury believed defendant had committed the crime against nature. As to this charge, therefore, the error in admitting Ms. Freeman\u2019s testimony is not so prejudicial as to warrant a new trial.\nThe result is: As to the crime against nature conviction (No. 88CRS3806), the decision of the Court of Appeals is affirmed and that conviction will stand. As to the kidnapping conviction (No. 88CRS3807) and the three convictions for rape (Nos. 88CRS3808, 88CRS3809, 88CRS3810), the decision of the Court of Appeals is reversed and defendant is given a new trial; these cases are remanded to the Court of Appeals for further remand to the Superior Court, Columbus County, for further proceedings consistent with this opinion.\nAffirmed in part, reversed in part and remanded.\nJustice LAKE did not participate in the consideration or decision of this case.\n. Rule 403 provides: \u201cAlthough 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, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 403 (1988).\nDefendant also argued the evidence had no tendency to prove any of the matters listed in Rule 404(b) and thus was inadmissible on that ground.", "type": "majority", "author": "EXUM, Chief Justice." }, { "text": "Justice MEYER\ndissenting.\nFirst, I dissent because the majority has departed from our established standard of review for Rule 403 rulings by the trial court and has established a new standard. Heretofore, the standard of review of a trial judge\u2019s ruling, as in this case, that the probative value of a particular piece of evidence outweighed any danger of unfair prejudice under Rule 403 had been an abuse of discretion standard. State v. Thompson, 314 N.C. 618, 336 S.E.2d 78 (1985). The majority\u2019s new rule is, \u201cWhen the intrinsic nature of the evidence itself is such that its probative value is always necessarily outweighed by the danger of unfair prejudice, the evidence becomes inadmissible under the rule \u2018as a matter of law.\u2019 \u201d It should . be noted that the application of the new rule is not limited to evidence of prior crimes of which a defendant has been acquitted. While the facts of the case at bar place under the new standard of review only prior crimes of which a defendant has been acquitted, who is to say what will, in future cases, fall within the category of evidence whose \u201cintrinsic nature ... is such that its probative value is always necessarily outweighed by the danger of unfair prejudice,\u201d causing that evidence to become \u201cinadmissible ... as a matter of law.\u201d\nIt is clear to me that the abuse of discretion standard is the only correct standard to be applied to Rule 403. The statute itself provides that \u201cevidence may be excluded if its probative value is substantially outweighed\u201d by reason of several circumstances, including (1) \u201cunfair prejudice,\u201d (2) \u201cconfusion of the issues,\u201d or (3) misleading the jury; or \u201cby consideration of\u2019 (4) \u201cundue delay,\u201d (5) \u201cwaste of time,\u201d or (6) \u201cneedless presentation of cumulative evidence.\u201d N.C. R. Evid. 403 (emphasis added). The legislature\u2019s use of words that in themselves imply some kind of balancing or weighing, such as \u201cunfair,\u201d \u201cmisleading,\u201d \u201cundue,\u201d \u201cwaste,\u201d and \u201cneedless,\u201d evidences a legislative intent favoring discretionary rulings. The language of the rule itself convinces me that the legislature never intended to require the trial judge to exclude relevant and otherwise admissible evidence \u201cas a matter of law.\u201d Those in the majority should ask themselves whether \u201cconfusion of the issues,\u201d \u201cmisleading the jury,\u201d \u201cundue delay,\u201d \u201cwaste of time,\u201d and \u201cneedless presentation of cumulative evidence\u201d \u2014 like \u201cunfair prejudice\u201d \u2014 are not better determined by discretionary weighing rather than by a ruling \u201cas a matter of law.\u201d\nI also dissent because I do not agree with the majority that evidence of another offense is rendered inadmissible \u201cas a matter of law\u201d by the fact that the defendant was tried and acquitted of that offense. Where evidence of another criminal act committed by the defendant is relevant and otherwise admissible, the trial court, in its discretion, may admit such evidence upon finding that the probative value of the evidence is not substantially outweighed by the prejudicial effect of the evidence. I conclude that the trial court in this case did not abuse its discretion in admitting evidence demonstrating that defendant had previously committed another rape for which he was tried and acquitted.\nI.\nIt is an established principle of the law of evidence that when a criminal defendant elects to testify in his own behalf, he is subject to cross-examination, for the purpose of impeachment, with respect to prior specific criminal acts or degrading conduct for which there has been no conviction.\nState v. Royal, 300 N.C. 515, 529, 268 S.E.2d 517, 527 (1980). Our prior case law establishes that inquiry into prior criminal acts is permissible even where the defendant has been tried and judicially discharged of the criminal activity. See State v. Leonard, 300 N.C. 223, 266 S.E.2d 631 (permitting cross-examination of defendant concerning a prior shooting for which defendant had been found not guilty by reason of temporary insanity), cert. denied, 449 U.S. 960, 66 L. Ed. 2d 227 (1980); State v. Herbin, 298 N.C. 441, 259 S.E.2d 263 (1979) (concluding that it is permissible to cross-examine a defendant about a specific act of misconduct even though the defendant has been acquitted of charges arising out of the misconduct); accord State v. Ross, 295 N.C. 488, 246 S.E.2d 780 (1978) (approving of cross-examination about defendant\u2019s prior possession of drugs despite the fact that charges against defendant had been dismissed because the search that disclosed the drugs was declared unlawful).\nI find no support for the majority\u2019s position in the case law of this state. The authorities relied on by the majority are unusual to say the least. Interestingly, the majority relies heavily on a dissenting opinion, Dowling v. United States, 493 U.S. 342, 354, 107 L. Ed. 2d 708, 721 (1990) (Brennan, J., dissenting), in a case decided by a 6 to 3 vote contrary to its position here. Dowling held that defendant\u2019s prior acquittal did not preclude the state from introducing evidence of those crimes in a subsequent case as is more fully explained herein.\nThe majority also relies on and quotes from our prior case of State v. Marley, 321 N.C. 415, 364 S.E.2d 133 (1988), which is totally inapposite. In Marley, the defendant was tried for first-degree murder on the theory of premeditation and deliberation. The jury found the defendant not guilty of first-degree murder but guilty of second-degree murder. The trial judge then aggravated the defendant\u2019s second-degree conviction upon finding that the defendant had premeditated and deliberated the murder \u2014 the very charge of which the jury had just acquitted the defendant. We properly held that the trial judge erred. Furthermore, in Marley we knew that the jury acquitted the defendant of first-degree murder specifically because it rejected the theory that the defendant premeditated and deliberated the murder.\nFor the proposition that the potential for prejudice (of crimes for which a defendant has been acquitted) undermines the fact-finding process, the majority cites language from State v. Tolley, 290 N.C. 349, 365, 226 S.E.2d 353, 366 (1976), in which this Court discussed the prejudice of trying a defendant while he is shackled. Tolley had nothing whatever to do with the introduction of evidence of other crimes. The only cases cited by the majority that lend legitimacy to its position are one case from Arizona and one from Tennessee. The majority\u2019s holding today is contrary to the majority view in the United States. Christopher Bello, Annotation, Admissibility of Evidence as to Other Offense as Affected by Defendant\u2019s Acquittal of that Offense, 25 A.L.R.4th 934, \u00a7 2, at 939 (1983) (\u201c[A] majority of jurisdictions [follow the rule] . . . that otherwise relevant and admissible evidence of another offense is not rendered inadmissible by the fact of the defendant\u2019s previous acquittal of that other offense, except to the extent that the acquittal may be a factor to be weighed in the discretionary balancing by the trial judge of the probative value of the evidence against its unfairly prejudicial effect, and in determining the threshold question of whether the evidence is sufficiently convincing to warrant its admission.\u201d); see, e.g., Ex parte Bayne, 375 So. 2d 1239 (Ala. 1979); California v. Griffin, 66 Cal. 2d 459, 426 P.2d 507, 58 Cal. Rptr. 107 (1967); Womble v. Maryland, 8 Md. App. 119, 258 A.2d 786 (1969); Missouri v. Millard, 242 S.W. 923 (Mo. 1922); Montana v. Hopkins, 68 Mont. 504, 219 P. 1106 (1923); Oregon v. Smith, 271 Or. 294, 532 P.2d 9 (1975). It is also interesting to note that the majority spends approximately one-fifth of its opinion distinguishing State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990), in which this Court held that a defendant\u2019s acquittal of a prior charge did not prohibit introduction in a subsequent trial of evidence of the crime for which the defendant was acquitted.\nI find no compelling reason why relevant, probative, and otherwise admissible evidence of a defendant\u2019s prior acts must be excluded for all purposes at subsequent criminal proceedings against the defendant simply because the evidence relates to alleged criminal conduct for which the defendant has been acquitted. An acquittal is not a judicial determination that the defendant charged did not commit the acts alleged against him. It merely shows that the State failed to carry its burden of proving beyond a reasonable doubt every element of the crime charged. The admissibility of other crimes evidence is not contingent upon the same standard of proof. Such evidence is relevant and admissible if \u201cthe jury can reasonably conclude that the act occurred and that the defendant was the actor.\u201d Dowling, 493 U.S. at 348, 107 L. Ed. 2d at 719 (emphasis added) (applying federal Rule 404(b), which, with one exception not applicable to this case, is identical to the North Carolina rule). Furthermore, the State\u2019s failure to meet its burden of proof as to one element of a crime charged, although necessarily resulting in an acquittal, does not mean that the jury decided all issues in favor of the person charged. Id. at 349, 107 L. Ed. 2d at 719. A general verdict finding a defendant not guilty of alleged criminal activity may rest upon any one of a number of reasons that have absolutely no bearing on the purpose for which evidence of the criminal behavior is admitted in a subsequent trial against the defendant.\nRecognizing the \u201cnumber of possible explanations for [a] jury\u2019s acquittal verdict,\u201d the United States Supreme Court in Dowling v. United States, 493 U.S. 342, 107 L. Ed. 2d 708, held that the defendant\u2019s acquittal at his first trial of burglary, attempted robbery, assault, and weapons offenses did not preclude the state from introducing evidence of these crimes to prove, in a subsequent trial of the defendant, that the defendant was the perpetrator of a bank robbery. The Dowling Court reasoned that the jury in the first trial might reasonably have found that the defendant was the masked man who entered the victim\u2019s home, even if the jury did not believe beyond a reasonable doubt that the defendant had committed the crimes charged at the first trial. Finding the record devoid of any evidence that the question of identity was determined in the defendant\u2019s favor at the prior trial, the Court, even applying a constitutional standard, concluded that the defendant had \u201cfailed to satisfy his burden of demonstrating that the first jury concluded that he was not one of the intruders in [the victim\u2019s] home.\u201d Dowling, 493 U.S. at 352, 107 L. Ed. 2d at 720.\nApplying the reasoning of the United States Supreme Court in Dowling, it is possible, for instance, that a defendant tried for first-degree murder might be acquitted because premeditation and deliberation was not proved to the jury\u2019s satisfaction beyond a reasonable doubt. Despite the defendant\u2019s acquittal, evidence of the prior murder, if relevant and probative, should be admissible in a subsequent murder trial of the same defendant where the perpetrator\u2019s identity is in question. Similarly, a jury might acquit a defendant of a burglary charge due to a lack of evidence that the prior incident occurred in the nighttime. This evidence might, however, be relevant and probative in the defendant\u2019s subsequent robbery trial to prove a plan or scheme on the part of the defendant to commit a series of robberies.\nII.\nIn the case sub judice, the evidence showing that defendant had previously raped Wanda Freeman was relevant, probative, and admissible in defendant\u2019s subsequent rape trial. Evidence of other crimes, wrongs, or acts is inadmissible if its only relevancy is to show the defendant\u2019s character or his disposition to commit an offense of the nature of the one charged. N.C. R. Evid. 404(b); State v. Jeter, 326 N.C. 457, 389 S.E.2d 805 (1990). Where, however, such evidence tends to prove any other relevant fact, it will not be excluded simply because it shows the defendant to have been guilty of an independent crime. Jeter, 326 N.C. 457, 389 S.E.2d 805; State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990).\nAs recognized by the majority, Rule 404(b) of the North Carolina Rules of Evidence is a \u201cgeneral rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant.\u201d Coffey, 326 N.C. at 278-79, 389 S.E.2d at 54.\nThis rule of inclusion is \u201csubject to but one exception requiring [the] exclusion [of evidence of other crimes, wrongs, or acts] if [the] only probative value [of such evidence] is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.\u201d\nJeter, 326 N.C. at 459-60, 389 S.E.2d at 807 (quoting Coffey, 326 N.C. at 279, 389 S.E.2d at 55).\nHere, we are dealing with a trial of offenses including three counts of second-degree rape and one count of crime against nature, as well as second-degree kidnapping, and the prior acquittal was on second-degree rape and sexual offense charges. As evidenced by many of our previous decisions, this Court has been very liberal in admitting evidence of similar sexual offenses by a defendant for the purposes set out in Rule 404(b). State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987). We have reaffirmed this position in several recent cases:\nAdditionally, our decisions, both before and after the adoption of Rule 404(b), have been \u201cmarkedly liberal\u201d in holding evidence of prior sex offenses \u201cadmissible for one or more of the purposes listed [in the Rule] . . . .\u201d\nCoffey, 326 N.C. at 279, 389 S.E.2d at 54 (quoting 1 Brandis on North Carolina Evidence \u00a7 92 (3d ed. 1988)).\n[N]ot only has this Court employed a \u201cmarkedly liberal\u201d interpretation of Rule 404(b) when the State was seeking to introduce evidence of prior, similar sex offenses by a defendant, but we have stressed repeatedly that the rule is, at bottom, one of relevancy.\nState v. Jeter, 326 N.C. at 459, 389 S.E.2d at 807 (citation omitted).\nThis is particularly the case where the purpose is to show intent, whether the other offense precedes or follows the incident for which defendant is being tried. See, e.g., State v. Boyd, 321 N.C. 574, 364 S.E.2d 118 (1988) (testimony regarding defendant\u2019s conduct with a young relative demonstrated defendant\u2019s scheme or intent to take advantage of young relatives left in his custody); State v. Bagley, 321 N.C. 201, 362 S.E.2d 244 (defendant had attempted to commit a sexual offense upon another victim ten weeks after the alleged forcible cunnilingus on the prosecutrix), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988); State v. Craven, 312 N.C. 580, 324 S.E.2d 599 (1985) (subsequent indecent liberties probative as to mens rea for crimes with which defendant was charged); State v. Williams, 303 N.C. 507, 279 S.E.2d 592 (1981) (at trial upon two counts of first-degree sexual offense, evidence that, after the date of the offense charged, defendant sexually assaulted another victim by rubbing her breasts was admissible to show intent, plan, or design to commit the crimes charged); State v. Davis, 229 N.C. 386, 50 S.E.2d 37 (1948) (evidence of improper advances toward another female victim at the orphanage where defendant was superintendent was admissible to show attitude, animus, and purpose); State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250 (defendant\u2019s intent in a prior conviction of assault with intent to commit rape was probative of his intent to rape another victim he later assaulted and kidnapped), disc. rev. denied, 320 N.C. 515, 358 S.E.2d 525 (1987).\nWanda Freeman\u2019s testimony concerning the earlier rape incident, in many respects, closely paralleled the evidence of the incident in the present case. The defendant, on foot, approached both Ms. Freeman and the victim in this case, who were approximately the same age, around midnight and requested rides home in their automobiles. Defendant previously knew each victim casually, allowing him to predict their amenability to his request. While the two crimes differ in that defendant brandished a knife in the present case but used no weapon against Ms. Freeman, defendant threatened both with serious bodily harm. Once the defendant got his victims to an isolated area, he ordered them out of the car, tried to pull them out of the car, took their keys, and once he got them outside, ordered them to take down their pants. When they refused the latter demand, defendant forcibly loosened their pants. Subsequently, the victims were forced to submit to multiple acts of vaginal intercourse, and both victims were forced to perform one act of fellatio upon the defendant. In both cases, defendant showed a modicum of concern for his victim. After forcing the victim in this case to engage repeatedly in intercourse, defendant inquired if he had hurt her. He walked her to her car, drove with the victim to her apartment, and told her he would see her later. Following intercourse and fellatio with Ms. Freeman, defendant returned her keys and left the scene to obtain assistance in getting her car out of the mud. Given the similarities in the circumstances of the two rape incidents, the evidence of the earlier rape incident was relevant and highly probative of defendant\u2019s intent to commit the kidnapping, rape, and sexual offense charges for which he was being tried.\nFor the purpose of impeaching the victim\u2019s testimony and to suggest that she had fabricated the rape story, defendant introduced evidence tending to show that the victim in this case consented to accompanying him and to the sexual acts performed. Where, as here, a defendant maintains that the sexual acts for which he is being tried were committed with the victim\u2019s consent, evidence of other crimes and acts is also relevant to rebut the defendant\u2019s claim of consent. See State v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973) (this Court, in a rape case, held that evidence of a prior offense was relevant where consent was an issue).\nCourts in a majority of the other jurisdictions have likewise held admissible evidence of other offenses in cases where a defendant claims that the alleged victim consented to the sexual act and his intent, or the victim\u2019s nonconsent, is a material issue. See, e.g., Fisher v. State, 57 Ala. App. 310, 328 So. 2d 311 (prior sexual assault relevant to rebut defendant\u2019s claim that the victim\u2019s participation in the sexual act was voluntary), cert. denied, 295 Ala. 401, 328 So. 2d 321 (1976); State v. Hill, 104 Ariz. 238, 450 P.2d 696 (1969) (prior conviction of rape with similar circumstances relevant to prove a forcible rape by defendant, who had fallen asleep in bed of victim whom defendant claimed had consented); People v. Gray, 259 Cal. App. 2d 846, 66 Cal. Rptr. 654 (1968) (nature of prior attacks probative of consent where issue was that of consent); Williams v. State, 110 So. 2d 654 (Fla.) (evidence of common plan, scheme, and design admissible to meet anticipated defense of consent), cert. denied, 361 U.S. 847, 4 L. Ed. 2d 86 (1959); Hunt v. State, 233 Ga. 329, 211 S.E.2d 288 (1974) (evidence of similar sexual offenses relevant to show intent of defendant relative to the issue of whether the victim consented to the sexual acts); People v. Lighthart, 62 Ill. App. 3d 720, 379 N.E.2d 403 (1978) (whether complainant consented was a question of fact for the jury, and evidence of prior conviction for attempted rape was admissible to show the defendant\u2019s mental state); People v. Oliphant, 399 Mich. 472, 250 N.W.2d 443 (1976) (evidence of other crimes admissible when the lack of consent is crucial to the prosecution\u2019s case).\nAfter ruling that the evidence of the prior rape incident was admissible to show intent, preparation, and plan, the trial court properly weighed the probative value and prejudicial effect of the evidence, as follows:\n[Considering the evidence presented in the trial of this case, . . . the prior acts of the defendant, as above found in 1986, are sufficiently close in time and are of such a nature as to afford proof of opportunity, intent, preparation and plan as to be admissible in the trial of this case.\nThe Court findfs] further that the probative value of the testimony sought to be elicited by the State is \u2014 out \u2014 outweighs any danger of unfair prejudice, or confusion of issues, or of misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\nBased upon the evidence before the trial court, it cannot be shown that the trial judge\u2019s ruling was so arbitrary as to constitute an abuse of his discretion.\nNor did the trial court permit the jury to consider this evidence for any purpose prohibited by our rules of evidence. Defendant was permitted during cross-examination of Wanda Freeman to establish that he was found not guilty following a trial upon charges of second-degree rape and sexual offense arising from the incident. Thereafter, the trial judge instructed the jury that it could consider Wanda Freeman\u2019s testimony only for the purposes of showing intent, knowledge, plan, scheme, or design. His instructions in this regard were as follows:\nNow, evidence has been presented in the trial of this case on behalf of the State tending to show that the witness, Wanda Freeman, knows the defendant, Berry Scott. That he was a boyfriend of her best girlfriend. That on the 6th of July, 1986, she saw him at about 11:30 to 12:00 at a parking lot and at his request agreed to give him a ride to his aunt\u2019s house. That she didn\u2019t know where it was, and he directed her down Highway 74-76 to a road six[] or seven miles out of Whiteville. That they ended up in an open field with the car stuck, and while there the defendant forced himself upon her and engaged in vaginal intercourse with her without her consent and against her will, as well as oral sex. And that although the case was brought to trial, there was a verdict of not guilty in that case.\nNow, that\u2019s what some of that evidence tends to show. The defendant denies that he committed those acts.\nI instruct you that this evidence has been received solely for the purpose of showing, if you find, that the defendant in this case had the intent, which is a necessary element of the crimes charged in this case; or, that the defendant had the knowledge, which is a necessary element of the crime or part of them charged; and that there existed in the mind of the defendant a plan, scheme, system or design involving the crime charged in this case.\nIf you believe this evidence, members of the jury, then you may consider it, but only for the limited purpose for which it was received and none other.\nYou may not convict the defendant in this case based upon something that you may find happened in the past with respect to someone else.\nYou should also weigh and consider the fact, along with the other evidence in this regard, that a jury returned a verdict of not guilty in that particular case on those particular facts.\nIn my view, this was a correct, proper, and adequate limiting instruction.\nThe burden is on the defendant to demonstrate that the issue which he seeks, by his challenge to the evidence, to foreclose was actually decided in the first case. Dowling, 493 U.S. 342, 107 L. Ed. 2d 708. Where, as here, no evidence is introduced as to the reason for the acquittal in the prior case, a trial court may, in its discretion, admit evidence of the defendant\u2019s prior criminal activity, if relevant and probative of some issue before the trial court.\nI believe that the majority has grievously erred in adopting its new rule. Furthermore, I cannot conclude, under our traditional rule, that the trial court\u2019s ruling in admitting evidence establishing that defendant had previously committed another rape for which he was tried and acquitted was so arbitrary that it could not have been the result of a reasoned decision. Therefore, I dissent from the majority\u2019s opinion and vote to affirm the decision of the Court of Appeals finding no error in defendant\u2019s trial.", "type": "dissent", "author": "Justice MEYER" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Mary Jill Ledford, Assistant Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Mark D. Montgomery, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BERRY SCOTT\nNo. 330PA90\n(Filed 5 March 1992)\n1. Evidence and Witnesses \u00a7 293 (NCI4th)\u2014 prior alleged offense \u2014 acquittal\u2014probative value divested\nEvidence that defendant committed a prior alleged offense for which he has been tried and acquitted may not be admitted in a subsequent trial for a different offense when its probative value depends upon the proposition that defendant in fact committed the prior crime. Defendant\u2019s acquittal of the offense so divests the evidence of probative value that, as a matter of law, it cannot outweigh the tendency of such evidence unfairly to prejudice the defendant, and the admission of such evidence violates Rule of Evidence 403.\nAm Jur 2d, Evidence \u00a7 332; Rape \u00a7 71.\nAdmissibility of evidence as to other offense as affected by defendant\u2019s acquittal of that offense. 25 ALR4th 934.\n2. Evidence and Witnesses \u00a7 90 (NCI4th)\u2014 intrinsic nature of evidence \u2014prejudice outweighing probative value \u2014inadmissibility\nWhen the intrinsic nature of evidence itself is such that its probative value is always necessarily outweighed by the danger of unfair prejudice, the evidence becomes inadmissible under Rule of Evidence 403 as a matter of law.\nAm Jur 2d, Evidence \u00a7\u00a7 253, 260.\n3. Evidence and Witnesses \u00a7 726 (NCI4th)\u2014 prior rape for which defendant acquitted \u2014 admission prejudicial on rape and kidnapping charges\nThe trial court\u2019s erroneous admission of testimony that defendant had previously committed another rape for which he was acquitted was prejudicial to defendant on charges of rape and kidnapping and entitled defendant to a new trial on those charges where the principal question for the jury in those cases was whether to believe the prosecuting witnesses or the defendant on the element of consent, and there was a reasonable possibility that a different result would have obtained at trial had this testimony not been admitted given the similarity of the circumstances of the rape for which defendant was on trial and those of the prior alleged rape.\nAm Jur 2d, Evidence \u00a7 332; Rape \u00a7 71.\nAdmissibility of evidence as to other offense as affected by defendant\u2019s acquittal of that offense. 25 ALR4th 934.\n4. Evidence and Witnesses \u00a7 726 (NCI4th)\u2014 prior rape for which defendant acquitted \u2014 admission harmless on crime against nature charge\nThe trial court\u2019s erroneous admission of testimony that defendant had previously committed a rape for which he was acquitted was not so prejudicial as to warrant a new trial on a crime against nature charge because consent is not a defense to crime against nature, defendant admitted that he committed cunnilingus upon the prosecuting witness, and this testimony could have had no conceivable effect on whether the jury believed defendant committed the crime against nature.\nAm Jur 2d, Evidence \u00a7 332; Rape \u00a7 71.\nAdmissibility of evidence as to other offense as affected by defendant\u2019s acquittal of that offense. 25 ALR4th 934.\nJustice MEYER dissenting.\nJustice LAKE did not participate in the consideration or decision of this case.\nON discretionary review pursuant to N.C.G.S. \u00a7 7A-31 from the decision of the Court of Appeals, 99 N.C. App. 113, 392 S.E.2d 621 (1990), finding no error in defendant\u2019s trial and conviction at 16 January 1989 Criminal Session of Superior Court, COLUMBUS County, Herring, J., presiding. Heard in the Supreme Court 12 March 1991.\nLacy H. Thornburg, Attorney General, by Mary Jill Ledford, Assistant Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Mark D. Montgomery, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0039-01", "first_page_order": 81, "last_page_order": 99 }