{ "id": 4152715, "name": "STATE OF NORTH CAROLINA v. MICHAEL RAY", "name_abbreviation": "State v. Ray", "decision_date": "2010-08-27", "docket_number": "No. 307PA09", "first_page": "272", "last_page": "284", "citations": [ { "type": "official", "cite": "364 N.C. 272" } ], "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": "678 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": -1 }, { "cite": "648 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639124 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "821" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0819-01" ] }, { "cite": "616 S.E.2d 515", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633574 ], "year": 2005, "pin_cites": [ { "page": "531", "parenthetical": "citing Act of May 21, 2003, ch. 101, 2003 N.C. Sess. Laws 127, 127" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0515-01" ] }, { "cite": "361 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738504 ], "year": 2007, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0550-01" ] }, { "cite": "165 L. Ed. 2d 988", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2006, "opinion_index": 0 }, { "cite": "126 S. Ct. 2980", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2006, "opinion_index": 0 }, { "cite": "548 U.S. 925", "category": "reporters:federal", "reporter": "U.S.", "year": 2006, "opinion_index": 0 }, { "cite": "2003 N.C. Sess. Laws 127", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "359 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3802205 ], "year": 2005, "pin_cites": [ { "page": "731", "parenthetical": "citing Act of May 21, 2003, ch. 101, 2003 N.C. Sess. Laws 127, 127" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0709-01" ] }, { "cite": "345 S.E.2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "200", "parenthetical": "\"[B]efore the defendant is entitled to any relief on appeal, he must show that he was prejudiced by the [trial court's] error.\" (citing N.C.G.S. \u00a7 15A-1443(a))" } ], "opinion_index": 0 }, { "cite": "317 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777865 ], "year": 1986, "pin_cites": [ { "page": "291", "parenthetical": "\"[B]efore the defendant is entitled to any relief on appeal, he must show that he was prejudiced by the [trial court's] error.\" (citing N.C.G.S. \u00a7 15A-1443(a))" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0283-01" ] }, { "cite": "148 L. Ed. 2d 976", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "121 S. Ct. 1106", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1155", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9763844, 9763685, 9764166, 9765737, 9764938, 9764011, 9765420, 9763374, 9764624, 9763543, 9765562, 9764315, 9764797, 9765278, 9764479 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1155-04", "/us/531/1155-03", "/us/531/1155-06", "/us/531/1155-15", "/us/531/1155-11", "/us/531/1155-05", "/us/531/1155-13", "/us/531/1155-01", "/us/531/1155-09", "/us/531/1155-02", "/us/531/1155-14", "/us/531/1155-07", "/us/531/1155-10", "/us/531/1155-12", "/us/531/1155-08" ] }, { "cite": "532 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2000, "pin_cites": [ { "page": "806" }, { "page": "806", "parenthetical": "emphasis omitted" }, { "page": "806", "parenthetical": "citations omitted" }, { "page": "806", "parenthetical": "emphasis omitted" } ], "opinion_index": 0 }, { "cite": "352 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685071 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "581-82" }, { "page": "581-82" }, { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0570-01" ] }, { "cite": "678 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2009, "pin_cites": [ { "page": "381-82" }, { "page": "384" } ], "opinion_index": 0 }, { "cite": "646 S.E.2d 105", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638717, 12638718, 12638719 ], "weight": 7, "year": 2007, "pin_cites": [ { "page": "109-10", "parenthetical": "third and fourth alteratiohs in original" }, { "page": "110" }, { "page": "111" }, { "page": "112" } ], "opinion_index": 1, "case_paths": [ "/se2d/646/0105-01", "/se2d/646/0105-02", "/se2d/646/0105-03" ] }, { "cite": "136 L. Ed. 2d 229", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 1 }, { "cite": "519 U.S. 936", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11665251, 11664996, 11665284, 11665223, 11665420, 11665485, 11665326, 11665102, 11665133, 11665169, 11665454, 11665365, 11665046, 11665079 ], "year": 1996, "opinion_index": 1, "case_paths": [ "/us/519/0936-08", "/us/519/0936-01", "/us/519/0936-09", "/us/519/0936-07", "/us/519/0936-12", "/us/519/0936-14", "/us/519/0936-10", "/us/519/0936-04", "/us/519/0936-05", "/us/519/0936-06", "/us/519/0936-13", "/us/519/0936-11", "/us/519/0936-02", "/us/519/0936-03" ] }, { "cite": "419 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "564", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "331 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497445 ], "year": 1992, "pin_cites": [ { "page": "615-16", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/331/0604-01" ] }, { "cite": "108 L. Ed. 2d 604", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 1 }, { "cite": "494 U.S. 1023", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4836, 5158, 4882, 5207, 5176 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/us/494/1023-04", "/us/494/1023-03", "/us/494/1023-05", "/us/494/1023-02", "/us/494/1023-01" ] }, { "cite": "384 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "482" } ], "opinion_index": 1 }, { "cite": "325 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492599 ], "year": 1989, "pin_cites": [ { "page": "300" } ], "opinion_index": 1, "case_paths": [ "/nc/325/0278-01" ] }, { "cite": "567 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2002, "pin_cites": [ { "page": "123", "parenthetical": "citations omitted" }, { "page": "155" }, { "page": "123", "parenthetical": "citations and internal quotation marks omitted" }, { "page": "123", "parenthetical": "alteration in original" }, { "page": "123", "parenthetical": "alteration in original" } ], "opinion_index": 1 }, { "cite": "356 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511282 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "154", "parenthetical": "citations omitted" }, { "page": "155" }, { "page": "155" } ], "opinion_index": 1, "case_paths": [ "/nc/356/0150-01" ] }, { "cite": "432 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "354-55", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "334 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532283 ], "year": 1993, "pin_cites": [ { "page": "412-13", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/334/0402-01" ] }, { "cite": "361 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3744653 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "388" }, { "page": "388-89" } ], "opinion_index": 1, "case_paths": [ "/nc/361/0382-01" ] }, { "cite": "311 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "287", "parenthetical": "stating that \"[a] party may waive statutory or constitutional provisions by ... conduct inconsistent with a purpose to insist upon it\" and declining to apply plain error review to alleged jury instruction error (citations omitted)" } ], "opinion_index": 1 }, { "cite": "310 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403051 ], "year": 1984, "pin_cites": [ { "page": "283", "parenthetical": "stating that \"[a] party may waive statutory or constitutional provisions by ... conduct inconsistent with a purpose to insist upon it\" and declining to apply plain error review to alleged jury instruction error (citations omitted)" } ], "opinion_index": 1, "case_paths": [ "/nc/310/0274-01" ] }, { "cite": "674 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "829", "parenthetical": "concluding that because the trial court had not denied the defendant's motion to suppress based on lack of standing and the State had not cross-assigned standing as an \"alternative basis for upholding the trial court's order\" under Appellate Rule 10(d" } ], "opinion_index": 1 }, { "cite": "196 N.C. App. 412", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166507 ], "year": 2009, "pin_cites": [ { "page": "418", "parenthetical": "concluding that because the trial court had not denied the defendant's motion to suppress based on lack of standing and the State had not cross-assigned standing as an \"alternative basis for upholding the trial court's order\" under Appellate Rule 10(d" } ], "opinion_index": 1, "case_paths": [ "/nc-app/196/0412-01" ] }, { "cite": "418 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "661", "parenthetical": "same" } ], "opinion_index": 1 }, { "cite": "332 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2507867 ], "year": 1992, "pin_cites": [ { "page": "21-22", "parenthetical": "same" } ], "opinion_index": 1, "case_paths": [ "/nc/332/0001-01" ] }, { "cite": "343 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "178" }, { "page": "178" } ], "opinion_index": 1 }, { "cite": "316 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694338 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "467" }, { "page": "467" } ], "opinion_index": 1, "case_paths": [ "/nc/316/0461-01" ] }, { "cite": "678 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "384" }, { "page": "384" }, { "page": "381" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1223, "char_count": 32220, "ocr_confidence": 0.727, "pagerank": { "raw": 4.1833253990707473e-07, "percentile": 0.9126404666835789 }, "sha256": "22fa7098eb45eceae982029337f0a8b5e6d68a005296b2518b30e82081e39a9b", "simhash": "1:0d594a2866e1d8fa", "word_count": 5297 }, "last_updated": "2023-07-14T15:08:37.384656+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Justice PARKER and Justice TIMMONS-GOODSON join in this dissenting opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL RAY" ], "opinions": [ { "text": "NEWBY, Justice.\nThis case presents the question whether defendant is entitled to a new trial based upon admission of evidence to which he did not offer a timely objection at trial and which he did not contend amounted to plain error on appeal. We conclude that defendant has failed to preserve for appellate review the trial court\u2019s decision to admit into evidence a portion of his testimony regarding his history of alcohol consumption and assaultive behavior. Further, we determine that even if defendant had preserved this issue for appellate review by timely objection, he would not be entitled to a new trial because he was not prejudiced by the evidence about which he now complains. Accordingly, we reverse in part the decision of the Court of Appeals.\nThe State\u2019s evidence at defendant\u2019s trial on charges of first-degree statutory sexual offense and indecent liberties with a child tended to show the following. On 12 June 2005, seven year old L.G. and her mother attended a horseshoe tournament at defendant\u2019s house. Upon arrival, L.G. played games with other young children in attendance. After some time spent playing games, L.G. asked her mother if she could enter defendant\u2019s house to use the bathroom. Additionally, L.G. asked defendant whether he would allow her to enter his house to use the bathroom. Defendant acceded to L.G.\u2019s request and, as L.G. had not previously visited defendant\u2019s house, informed her of the bathroom\u2019s location. L.G. then proceeded to the bathroom. While L.G. was in the bathroom attempting to pull up her clothes, and over her protests, defendant opened the bathroom door, entered, and walked toward L.G. Defendant then grabbed L.G., slammed her against a wall, lowered her clothes, covered her mouth, and digitally penetrated her vagina several times.\nAfter the attack defendant left the bathroom and L.G. replaced her clothes. Immediately following, L.G. ran out of defendant\u2019s house and, while crying, informed her mother of defendant\u2019s conduct. L.G. and her mother then returned home and called the police. Later that evening, Deputy Jones and Sergeant Lewis of the Hoke County Sheriff\u2019s Office visited L.G.\u2019s home. The officers prepared an incident report containing L.G.\u2019s description of the evening\u2019s events.\nSubsequently, Detective Sergeant Timothy Rugg (\u201cDet. Rugg\u201d) of the Hoke County Sheriff\u2019s Office led the investigation into defendant\u2019s interaction with L.G. Det. Rugg first interviewed L.G. on 14 June 2005. L.G. recounted to Det. Rugg the details of defendant\u2019s conduct on the evening of 12 June 2005. L.G. explained that defendant had \u201churt her\u201d by digitally penetrating her vagina \u201cabout five times\u201d while she was in the bathroom of his house. L.G.\u2019s mother also spoke with Det. Rugg. Among other things, L.G.\u2019s mother revealed that L.G. was experiencing pain when using the bathroom. Det. Rugg suggested that L.G.\u2019s mother take the child to a medical facility for immediate diagnosis and treatment, and he arranged a later appointment for L.G. to undergo a child medical exam at a specialty clinic in Fayetteville.\nAfter speaking with Det. Rugg on 14 June 2005, L.G.\u2019s mother took her to the pediatric emergency room of Cape Fear Valley Health System. There L.G. complained of experiencing pain while urinating. Following a urine culture, L.G. was diagnosed with and treated for a urinary tract infection (\u201cUTI\u201d). According to Howard Loughlin, M.D., an expert in pediatrics and child abuse pediatrics, digital manipulation of the vaginal area can cause a UTI and such a diagnosis on 14 June 2005 is consistent with vaginal area manipulation on 12 June 2005. L.G. also underwent a physical examination of her vaginal and anal areas during this emergency room visit. The physical examination revealed that while L.G.\u2019s \u201c[h]ymen appear[ed] open,\u201d there were \u201cno signs of trauma\u201d to her vaginal and anal areas.\nTwo months later, on 10 August 2005, Dr. Loughlin evaluated L.G. In addition to speaking with Det. Rugg and L.G.\u2019s mother, Dr. Loughlin interviewed L.G. L.G. recalled to Dr. Loughlin that she and her mother were visiting defendant\u2019s house. During the visit, she needed to use the bathroom. While she was in the bathroom, defendant entered the room, \u201c[s]lammed [her] against the wall,\u201d and \u201ctouched [her] private,\u201d which L.G. identified as her genital area. L.G. explained that defendant\u2019s digital penetration of her \u201cfelt bad when he was doing it and later.\u201d Dr. Loughlin found significant L.G.\u2019s description of the digital penetration as painful, explaining that typically a child does not associate pain with such an act unless the child has experienced it.\nAlso as part of his evaluation, Dr. Loughlin reviewed L.G.\u2019s medical records from her 14 June 2005 examination resulting in a UTI diagnosis, including the finding that L.G.\u2019s vaginal and anal areas appeared normal and evinced no signs of trauma. Further, Dr. Loughlin physically examined L.G. and similarly found no signs of trauma. However, Dr. Loughlin explained that the absence of visible trauma to the vaginal or anal area of a digital penetration victim is \u201cnot uncommon.\u201d Ultimately, Dr. Loughlin opined that, based on several factors, including L.G.\u2019s description of the event as painful and the resulting UTI, L.G.\u2019s history \u201cwas consistent with her being sexually abused.\u201d\nFollowing the State\u2019s presentation of evidence, defendant testified. Defendant denied that he had any contact with L.G. However, he also recounted that he followed L.G. into his house on 12 June 2005, was in his house alone with L.G., and left the house before L.G. came back outside. Further, defendant admitted that he consumed roughly twelve beers on 12 June 2005. Moving beyond the events of 12 June 2005, defendant later informed the jury that he had convictions for, inter alia, driving while impaired and assault with a deadly weapon, and he acknowledged the \u201cstrong possibility\u201d that he has a problem with alcohol.\nDuring a portion of the State\u2019s cross-examination of defendant, the prosecutor focused on defendant\u2019s alcohol consumption and his alleged \u201cslamm[ing]\u201d of L.G. against a wall during the encounter. Outside the presence of the jury, the prosecutor informed the trial court that, for the purpose of proving motive and intent and pursuant to Rule of Evidence 404(b), he would like to question defendant regarding his assault of a woman after he consumed alcohol on several occasions during 1990. The prosecutor explained to the court that he had learned from the victim of these prior assaults that defendant did act in an assaultive manner after consuming alcohol. During the hearing defendant objected, but the trial court allowed the State to question defendant regarding this prior conduct for the purpose of proving motive and intent. The hearing concluded and the jury returned.\nOnce the State\u2019s examination of defendant resumed, the following exchange occurred:\nQ. Isn\u2019t it true that you have had problems with alcohol and assaultive behavior before?\nA. No, sir.\nQ. You have not had any problems where alcohol was involved and you assaulted other individuals?\nA. Yes, I have had that.\nQ. So, again, my question is, isn\u2019t it true that you have had prior occurrences where alcohol has affected your assaulting other individuals?\nA. No, sir.\nQ. So the alcohol played no part in your assaulting other individuals?\nA. No, sir.\nQ. Did the alcohol play a part in your assaulting Ms. Brenda McPhaul back in December of 1990?\nA. No, sir.\nQ. Did alcohol play a part in your assaulting Ms. McPhaul with a deadly weapon in December of 1990?\nA. No, sir.\nQ. Did alcohol play a part in your assaulting Ms. McPhaul by pointing a gun in December of 1990?\nA. No, sir.\nQ. And did alcohol play a part in your assaulting Ms. McPhaul in February of 1990?\nA. No, sir.\nQ. The alcohol had no effect on your assaulting her during those times?\nA. No, sir.\nQ. But you had been drinking?\nA. I can\u2019t really say \u201cyes\u201d that far back.\nQ. You can\u2019t say \u201cyes\u201d?\nA. Yeah. I can\u2019t say \u201cyes\u201d to that.\nQ. You can\u2019t say \u201cno\u201d?\nA. Can\u2019t say \u201cno.\u201d\nThough he objected out of the presence of the jury before this line of questioning began, defendant\u2019s attorney did not object during the actual exchange. After the presentation of all the evidence, the jury found defendant guilty of first-degree statutory sexual offense and indecent liberties with a child. The trial court then entered judgment accordingly.\nIn a unanimous opinion filed on 7 July 2009, the Court of Appeals granted defendant a new trial. State v. Ray, \u2014 N.C. App. \u2014, 678 S.E.2d 378 (2009). That court determined, inter alia, that the trial court erred by admitting into evidence defendant\u2019s testimony regarding his assaultive behavior in 1990. Id. at \u2014, 678 S.E.2d at 381-82. Further, the Court of Appeals concluded that defendant had demonstrated prejudice under N.C.G.S. \u00a7 15A-1443(a), entitling him to a new trial. Id. at-, 678 S.E.2d at 384. We allowed the State\u2019s petition for discretionary review on the issue whether the Court of Appeals erred by granting defendant a new trial based on the admission of his testimony regarding his prior assaultive behavior.\nGenerally speaking, the appellate courts of this state will not review a trial court\u2019s decision to admit evidence unless there has been a timely objection. State v. Thibodeaux, 352 N.C. 570, 581-82, 532 S.E.2d 797, 806 (2000), cert. denied, 531 U.S. 1155, 121 S. Ct. 1106, 148 L. Ed. 2d 976 (2001). To be timely, an objection to the admission of evidence must be made \u201cat the time it is actually introduced at trial.\u201d Id. at 581, 532 S.E.2d at 806 (emphasis omitted). It is insufficient to object only to the presenting party\u2019s forecast of the evidence. Id. As such, in order to preserve for appellate review a trial court\u2019s decision to admit testimony, \u201cobjections to [that] testimony must be contemporaneous with the time such testimony is offered into evidence\u201d and not made only during a hearing out of the jury\u2019s presence prior to the actual introduction of the testimony. Thibodeaux, 352 N.C. at 581-82, 532 S.E.2d at 806 (citations omitted).\nIn the case sub judice defendant objected to the admission of evidence regarding his 1990 assaultive behavior only during a hearing out of the jury\u2019s presence. In other words, defendant objected to the State\u2019s forecast of the evidence, but did not then subsequently object when the evidence was \u201cactually introduced at trial.\u201d Id. at 581, 532 S.E.2d at 806 (emphasis omitted). Thus, defendant failed to preserve for appellate review the trial court\u2019s decision to admit evidence regarding his 1990 assaultive behavior. See id. Moreover, defendant lost his remaining opportunity for appellate review when he failed to argue in the Court of Appeals that the trial court\u2019s admission of this testimony amounted to plain error. 352 N.C. at 582, 532 S.E.2d at 806 (citing, inter alia, N.C. R. App. P. 10(c)(4)). Accordingly, the Court of Appeals erred by reaching the merits of defendant\u2019s arguments on this issue. Id.\nHowever, even if defendant had by timely objection preserved for appellate review the decision to admit this portion of his testimony, he would not be entitled to a new trial. To receive a new trial based upon a violation of the Rules of Evidence, a defendant must show that the trial court erred and that there is a \u201creasonable possibility\u201d that without the error \u201ca different result would have been reached at the trial.\u201d N.C.G.S. \u00a7 15A-1443(a) (2009); see also State v. Mason, 317 N.C. 283, 291, 345 S.E.2d 195, 200 (1986) (\u201c[B]efore the defendant is entitled to any relief on appeal, he must show that he was prejudiced by the [trial court\u2019s] error.\u201d (citing N.C.G.S. \u00a7 15A-1443(a))). Essentially, defendant \u00e1rgues that the trial court erred by allowing the State to attempt to elicit his testimony regarding his 1990 assaultive behavior pursuant to Rule of Evidence 404(b). Initially we note that the trial court may not have erred in allowing the State to elicit evidence of defendant\u2019s prior conduct under Rule 404(b) as some proof of motive and intent. However, we need not resolve that question to dispose of the case sub judice. Accordingly, we simply assume arguendo that the trial court erred by admitting this evidence and proceed to determine the impact of this evidence on the jury\u2019s verdict.\nThe jury essentially failed to obtain any new information from defendant\u2019s testimony about which he now complains. During the portion of the State\u2019s examination at issue, the State questioned defendant about the connection between his consuming alcohol and his past assaultive behavior, specifically several assaults on Ms. Brenda McPhaul in 1990. Though defendant responded in the negative to most of the State\u2019s questions, it appears that the most the jury learned from this exchange was that defendant has in the past made poor decisions after consuming alcohol and that he has engaged in assaultive behavior. However, prior to the portion of defendant\u2019s testimony at issue, defendant told the jury about his past convictions for driving while impaired and assault with a deadly weapon, admissions that reflect both a prior exercise of poor judgment after using alcohol and past assaultive behavior. Thus, the jury essentially learned nothing more during the challenged exchange than it had already learned earlier in his testimony.\nDefendant was not prejudiced by the admission of this portion of his testimony. As the jury learned nothing new during this exchange regarding defendant\u2019s prior conduct, there is not a \u201creasonable possibility\u201d of a different outcome at trial without the admission of this testimony. This is- especially true in light of the following substantial evidence of defendant\u2019s guilt: the victim\u2019s trial testimony, the consistency of her trial testimony and her description of the events to Det. Rugg and Dr. Loughlin, L.G.\u2019s characterization of defendant\u2019s penetration of her as painful, Dr. Loughlin\u2019s testimony that L.G.\u2019s history was \u201cconsistent with her being sexually abused,\u201d and the fact that L.G. contracted a UTI. As such, even assuming the challenged portion of defendant\u2019s testimony was admitted in error, it did not prejudice him, and defendant is not entitled to a new trial.\nWe reverse the decision of the Court of Appeals that defendant is entitled to a new trial. The additional issues considered by the Court of Appeals are not before us, and its decisions as to those matters therefore remain undisturbed. This case is remanded to the Court of Appeals for further remand to the Superior Court, Hoke County, for further proceedings not inconsistent with this opinion.\nREVERSED IN PART AND REMANDED.\n. Following this Court\u2019s opinion in Thibodeaux, \u201cthe General Assembly amended N.C. Rule of Evidence 103(a) to provide that once the trial court makes \u2018a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.\u2019 \u201d State v. Augustine, 359 N.C. 709, 731, 616 S.E.2d 515, 531 (2005) (citing Act of May 21, 2003, ch. 101, 2003 N.C. Sess. Laws 127, 127), cert. denied, 548 U.S. 925, 126 S. Ct. 2980, 165 L. Ed. 2d 988 (2006). However, in State v. Oglesby this Court held that the 2003 amendment to Rule 103(a) is unconstitutional, \u201cto the extent it conflicts with Rule of Appellate Procedure 10(b)(1).\u201d 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007). In Oglesby we explained that this Court \u201chas consistently interpreted\u201d Appellate Rule 10(b)(1) \u201cto provide that a trial court\u2019s evidentiary ruling on a pretrial motion is not sufficient to preserve the issue of admissibility for appeal unless a defendant renews the objection during trial.\u201d Id. (citations omitted). Therefore, we consider the statements taken from Thibodeaux and referenced herein an accurate statement of the current law.", "type": "majority", "author": "NEWBY, Justice." }, { "text": "Justice HUDSON\ndissenting.\nI would conclude that the State waived its preservation argument by neglecting to raise it below, specifically by failing to either cross-assign it as error in accordance with the then-applicable version of North Carolina Rule of Appellate Procedure 10(d) or to make the argument in its brief to the Court of Appeals. I would further conclude that admission of the cross-examination testimony regarding the 1990 assaults violated Rule 404(b) and resulted in reversible error warranting a new trial. Therefore, I respectfully dissent.\nAt the time of defendant\u2019s appeal, North Carolina Rule of Appellate Procedure 10(d) provided, in pertinent part:\n(d) Cross-assignments of error by appellee. Without taking an appeal an appellee may cross-assign as error any action or omission of the trial court which was properly preserved for appellate review and which deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken.\nN.C. R. App. P. 10(d). Here, it is undisputed that defendant asserted in his assignments of error that the admission of his cross-examination testimony regarding the 1990 assaults violated Rule 404(b). In his brief he set forth the standard of review as abuse of discretion and argued that its erroneous admission resulted in prejudicial error under N.C.G.S. \u00a7 15A-1443(a). Despite this, the State neglected to assert, either in a cross-assignment of error or in its brief to the Court of Appeals, that defendant had waived his Rule 404(b) argument by not assigning or arguing plain error in the record on appeal or his brief. This argument would have provided an alternative basis for the relief sought by the State \u2014 in fact, the basis for the relief it now seeks. Instead, the State simply responded to the defendant\u2019s argument by maintaining that there was no abuse of discretion \u2014 even though arguing that defendant waived the issue would have been simpler. As a result, the Court of Appeals did not address the issue of waiver or plain error, as the State now argues.\nBased on earlier cases, I conclude it is not our role to allow the State another, different bite of the apple by permitting it to present, for the first time, an argument it did not make below. See Pearce v. Am. Defender Life Ins. Co., 316 N.C. 461, 467, 343 S.E.2d 174, 178 (1986) (\u201cPetitioners whose cases come before this Court on discretionary review are limited by Rule 16 of the North Carolina Rules of Appellate Procedure to those questions they have presented in their briefs to the Court of Appeals. Because these causes of action were not argued to that court, they are not properly before us.\u201d); see also Rowan Cty. Bd. of Educ. v. U.S. Gypsum Co., 332 N.C. 1, 21-22, 418 S.E.2d 648, 661 (1992) (same) (citing Pearce, 316 N.C. at 467, 343 S.E.2d at 178); State v. Fuller, 196 N.C. App. 412, 418, 674 S.E.2d 824, 829 (2009) (concluding that because the trial court had not denied the defendant\u2019s motion to suppress based on lack of standing and the State had not cross-assigned standing as an \u201calternative basis for upholding the trial court\u2019s order\u201d under Appellate Rule 10(d), the State failed to preserve its argument for appellate review (citation omitted)). I would conclude that by not raising the issue until its petition for discretionary review to this Court, the State has waived the argument it makes now. Cf. State v. Homer, 310 N.C. 274, 283, 311 S.E.2d 281, 287 (1984) (stating that \u201c[a] party may waive statutory or constitutional provisions by ... conduct inconsistent with a purpose to insist upon it\u201d and declining to apply plain error review to alleged jury instruction error (citations omitted)). Similarly, I would decline to review this case for plain error, but would analyze it, if at all, to see if the Court of Appeals correctly saw error and prejudice.\nTurning to the substance, I would conclude that the Court of Appeals correctly held that admission of the cross-examination testimony here clearly violated Rule 404(b). That court addressed the issue under the standard of review argued by both parties \u2014 whether there was an abuse of discretion. Ray, -N.C. App. at-, 678 S.E.2d at 384. Out of the presence of the jury, the State asked the court during the trial to permit it to cross-examine defendant regarding assaults he had committed against his former girlfriend, Brenda McPhaul (McPhaul), in 1990. The State argued that the 1990 incidents established defendant\u2019s motive and intent to commit the 2005 crimes, specifically asserting \u201che had too much to drink as he has in the past, and he assaulted a woman, which is a child, yes, but. . . she is still a woman, and he assaulted her in an aggressive way, the same way he assaulted other women in aggressive ways after drinking.\u201d The State indicated that McPhaul stated that all the 1990 incidents occurred while she and defendant were dating and'typically involved her confronting defendant with rumors of his infidelity upon his return home from drinking with friends. The confrontations led to fights, some initiated by McPhaul and some initiated by defendant. McPhaul further stated that: defendant never \u201cseriously injured\u201d her or sexually assaulted her; she had tried to hurt him during some of these altercations; her then minor children never indicated that defendant had \u201cabuse[d them] in any way\u201d; and she and defendant ended their relationship in or around December 1990 after he pulled a gun on her at a party \u201cbecause she was seeing someone else.\u201d Ultimately, the trial court ruled that the State could cross-examine defendant regarding the as-described, 1990 assaults to establish his motive and intent to sexually assault a seven year old child and that the probative value outweighed any prejudicial effect.\nRule 404(b) reads in pertinent part\n(b) Other crimes, wrongs, or acts. \u2014 Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nN.C.G.S. \u00a7 8C-1, Rule 404(b) (2009). We recently described the potential dangers of this kind of evidence in State v. Carpenter, 361 N.C. 382, 646 S.E.2d 105 (2007):\nWhen evidence of a prior [bad act] is introduced, the natural and inevitable tendency for a judge or jury is to give excessive weight to the vicious record . . . thus exhibited and either to allow it to bear too strongly on the present charge or to take the proof of it as justifying a condemnation, irrespective of the accused\u2019s guilt of the present charge. Indeed, [t]he dangerous tendency of [Rule 404(b)] evidence to mislead and raise a legally spurious presumption of guilt requires that its admissibility should be subjected to strict scrutiny by the courts.\nId. at 387-88, 646 S.E.2d at 109-10 (third and fourth alteratiohs in original) (citations and internal quotation marks omitted).\nEven though Rule 404(b) is often described as a \u201cgeneral rule of inclusion,\u201d several limitations have been placed on the admission of such evidence because \u201cof the perils inherent in introducing prior [bad acts] under Rule 404(b).\u201d Id. at 388, 646 S.E.2d at 110; State v. Lynch, 334 N.C. 402, 412-13, 432 S.E.2d 349, 354-55 (1993) (citations omitted). The prior bad act \u201cmust be relevant to the currently alleged crime.\u201d Carpenter, 361 N.C. at 388, 646 S.E.2d at 110 (citing N.C.G.S. \u00a7 8C-1, Rules 401 and 402 (2005)). Additionally, the prior bad acts\u2019 admission \u201cis constrained by the requirements of similarity and temporal proximity.\u201d State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002) (citations omitted). Regarding the \u201csimilarity\u201d require-. ment, \u201c[e]vidence of a prior bad act generally is admissible under Rule 404(b) if it constitutes substantial evidence tending to support a reasonable finding by the jury that the defendant committed the similar act.\u201d Id. at 155, 567 S.E.2d at 123 (citations and internal quotation marks omitted). \u201cFinally, . . . the trial court must balance the danger of undue prejudice against-the probative value of the evidence, pursuant to [North Carolina] Rule [of Evidence] 403.\u201d Carpenter, 361 N.C. at 388-89, 646 S.E.2d at 110 (citing N.C.G.S. \u00a7 8C-1, Rule 403 (2005)).\nAt most, the purported similarities between the 1990 incidents and the 2005 incident are merely generic. This Court has stated: \u201cWhen the State\u2019s efforts to show similarities between crimes establish no more than \u2018characteristics inherent to most\u2019 crimes of that type, the State has \u2018failed to show . . . that sufficient similarities existed\u2019 for the purposes of Rule 404(b).\u201d Id. at 390, 646 S.E.2d at 111 (quoting Al-Bayyinah, 356 N.C. at 155, 567 S.E.2d at 123 (alteration in original)). At worst, they relate solely to defendant\u2019s purported bad character, to show that he \u201cacted in conformity\u201d with a propensity to commit bad acts, which is expressly forbidden by Rule 404(b). N.C.G.S. \u00a7 8C-1, Rule 404(b). Given that defendant denied that alcohol played a role, his testimony undercut the State\u2019s proffered theory that alcohol was the triggering factor (motive) in the 1990 incidents. Thus, admissibility of the evidence at issue even for that purpose falters. Further, as described by the State during the bench conference, the 1990 incidents are not similar at all to the 2005 incident for which defendant was on trial, except to show a propensity for assaultive behavior. The 1990 assaults involved violent incidents between two adults involved in a relationship, occurring fifteen years before the alleged 2005 crimes. They do not involve any assault, sexual or otherwise, on a seven year old child or share any additional factual similarities with the 2005 incident. As such, \u201c \u2018substantial evidence of similarity among the prior bad acts and the crimes charged is . . . lacking.\u2019 \u201d Carpenter, 361 N.C. at 391, 646 S.E.2d at 112 (quoting AlBayyinah, 356 N.C. at 155, 567 S.E.2d at 123 (alteration in original)). Given the lack of similarity, the temporal distance between the incidents assumes even greater importance. See, e.g., State v. Artis, 325 N.C. 278, 300, 384 S.E.2d 470, 482 (1989) (\u201cAttenuated by time, the pertinence of evidence of prior offenses attaches to the defendant\u2019s character rather than to the offense for which he is on trial. In other words, remoteness in time tends to diminish the probative value of the evidence .and enhance its tendency to prejudice.\u201d), judgment vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). Further, any arguably \u201cslight\u201d probative value of this evidence is substantially outweighed by the danger of unfair prejudice, namely the \u201csubstantial likelihood that the jury w[ould] consider the evidence only for the purpose of determining the defendant\u2019s propensity to commit the crimes with which he ha[d] been charged.\u201d State v. White, 331 N.C. 604, 615-16, 419 S.E.2d 557, 564 (1992) (citation omitted), cert. denied, 519 U.S. 936, 136 L. Ed. 2d 229 (1996).\nFinally, defendant has shown \u201ca reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d N.C.G.S. \u00a7 15A-1443(a) (2009). The majority brushes off the prejudicial effect of this erroneously admitted character evidence, stating that \u201cthe most the jury learned from this exchange was that defendant has in the past made poor decisions after consuming alcohol and that he has engaged in assaultive behavior.\u201d Noting that the jury also learned that defendant had prior convictions for driving while impaired and assault with a deadly weapon, the majority concludes that \u201cthe jury essentially learned nothing more during the challenged exchange than it had already learned earlier in his testimony.\u201d In doing so, the majority overlooks the most damaging matter the jury learned from this evidence \u2014 that defendant had assaulted a female of an unspecified age multiple times, including with a gun \u2014 which was certain to damage him in the eyes of the jury. Close examination of the record reveals that defendant\u2019s credibility was critical to his defense, given the lack of physical evidence. The State\u2019s only witnesses were a law enforcement officer, an investigator with the district attorney\u2019s office, the medical doctor who saw the alleged victim two months after the alleged incident, and the young girl. Defendant took the stand and denied any assault. In my view, the Court of Appeals correctly concluded that \u201c[a]gainst th[e] backdrop of evidence\u201d in this case, which was not overwhelming, \u201cthe jury\u2019s assessment of the relative credibility of L.G. and the Defendant assumed crucial significance.\u201d Ray,- N.C. App. at-, 678 S.E.2d at 384. In light of the well-recognized dangers and prejudice that easily flow from propensity evidence of the type admitted here, I would affirm the Court of Appeals\u2019 decision to award defendant a new trial.\nFor these reasons I respectfully dissent.\nChief Justice PARKER and Justice TIMMONS-GOODSON join in this dissenting opinion.\n. Although the current version of North Carolina Rule of Appellate Procedure 10(c) eliminated cross-assignments of error and allows an appellee to \u201clist proposed issues on appeal in the record on appeal,\u201d an appellee still must have \u201cproperly preserve[d]\u201d these issues \u201cfor appellate review\u201d by raising them below. N.C. R. App. P. 10(c).\n. The State had attempted unsuccessfully to offer these 1990 incidents under North Carolina Rule of Evidence 609; any convictions resulting therefrom were ruled too remote in time to be admissible. State v. Ray, \u2014 N.C. App. \u2014, \u2014, 678 S.E.2d 378, 381 (2009).\n. Although this Court accepted this cas\u00e9 for discretionary review, this area of the law is well settled; it is difficult for me to see how this issue meets any of the statutory criteria for review.\n. The State informed the trial court that McPhaul was reluctant to communicate any details regarding the 1990 incidents and that it had to subpoena her in order to interview her and obtain a statement. McPhaul did not testify at trial, and the details that the State provided to the court regarding the incidents were purportedly derived from the pretrial interview.\n. In fact, during the bench conference on the admissibility of the 1990 assaults under Rule 404(b), the State explicitly acknowledged: \u201c[T]he only two issues in this case are credibility of witnesses and motive; who to believe and why would [defendant] have done this.\u201d", "type": "dissent", "author": "Justice HUDSON" } ], "attorneys": [ "Roy Cooper, Attorney General, by Robert G. Montgomery, Special Deputy Attorney General, for the State-appellant.", "Geoffrey W. Hosfordfor defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL RAY\nNo. 307PA09\n(Filed 27 August 2010)\nAppeal and Error\u2014 preservation of issues \u2014 failure to object at trial \u2014 failure to argue plain error on appeal\nThe Court of Appeals erred in a first-degree statutory sexual offense and indecent liberties with a child case by granting defendant a new trial based on the admission of his testimony regarding his prior assaultive behavior because: (1) defendant failed to preserve this issue for appellate review since he objected to the admission of this evidence only during a hearing out of the jury\u2019s presence, and he failed to argue plain error on appeal; and (2) even if defendant had preserved this issue for appellate review by timely objection, he would not be entitled to a new trial since he was not prejudiced by the evidence when the jury did not obtain any new information from defendant\u2019s testimony, and there was not a reasonable possibility of a different outcome at trial without the admission of this testimony in light of the substantial evidence of defendant\u2019s guilt. The additional issues considered by the Court of Appeals were undisturbed.\nJustice HUDSON dissenting. .\nChief Justice PARKER and Justice TIMMONS-GOODSON joining in the dissenting opinion.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals,-N.C. App.-, 678 S.E.2d 378 (2009), reversing judgments entered on 11 June 2008 by Judge Alma L. Hinton in Superior Court, Hoke County, and remanding the case for a new trial. Heard in the Supreme Court 11 May 2010.\nRoy Cooper, Attorney General, by Robert G. Montgomery, Special Deputy Attorney General, for the State-appellant.\nGeoffrey W. Hosfordfor defendant-appellee." }, "file_name": "0272-01", "first_page_order": 366, "last_page_order": 378 }