Criminal Practice – Evidence – Bad Acts – Appeals – Failure to Object

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State v. Ray. (Lawyers Weekly No. 10-06-0844, 20 pp.) (Paul M. Newby, J.) (Robin E. Hudson, J., joined by Sarah Parker, Ch.J. & Patricia Timmons-Goodson, J., dissenting) Appealed from Hoke County Superior Court. (Alma L. Hinton, J.) On discretionary review from the Court of Appeals. N.C. S. Ct.

Holding: Where defendant objected to the admission of evidence regarding his 1990 assaultive behavior only during a hearing out of the jury’s presence and did not then subsequently object when the evidence was actually introduced at trial, defendant failed to preserve for appellate review the trial court’s decision to admit evidence regarding his 1990 assaultive behavior.

Moreover, defendant lost his remaining opportunity for appellate review when he failed to argue in the Court of Appeals that the trial court’s admission of this testimony amounted to plain error. Accordingly, the Court of Appeals erred by reaching the merits of defendant’s arguments on this issue.

We reverse the Court of Appeals’ grant of a new trial.

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.

During the portion of the state’s 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’s 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’s 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.

Defendant was not prejudiced by the admission of this portion of his testimony.

We reverse the Court of Appeals’ award of a new trial. Remanded.

Dissent

(Hudson, J.) I 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 N.C. R. App. P. 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 N.C. R. Evid. 404(b) and resulted in reversible error warranting a new trial.

Defendant asserted in his assignments of error that the admission of his cross-examination testimony regarding the 1990 assaults violated Rule 404(b) and resulted in prejudicial error. Despite this, the state neglect to assert in 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. Instead, the state argued there was no abuse of discretion. As a result, the Court of Appeals did not address the issues of waiver or plain error, as the state now argues.

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.

Turning 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).

The prior bad act must be relevant to the currently alleged crime. Additionally, the prior bad acts’ admission is constrained by the requirements of similarity and temporal proximity.

At most, the purported similarities between the 1990 incidents and the 2005 incident are merely generic. At worst, they relate solely to defendant’s purported bad character, to show that he “acted in conformity” with a propensity to commit bad acts, which is expressly forbidden by Rule 404(b).

Given that defendant denied that alcohol played a role, his testimony undercut the state’s 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 15 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.

In its finding of no prejudice, the majority overlooks the most damaging matter the jury learned from this evidence – that defendant had assaulted a female of an unspecified age multiple times, including with a gun – which was certain to damage him in the eyes of the jury.

Close examination of the record reveals that defendant’s credibility was critical to his defense, given the lack of physical evidence.

The state’s only witnesses were a law enforcement officer, an investigator with the district attorney’s office, a 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 “[a]gainst th[e] backdrop of evidence” in this case, which was not overwhelming, “the jury’s assessment of the relative credibility of [the victim] and the defendant assumed crucial significance.”

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’ decision to award defendant a new trial.