§ 8C-1. Rules of Evidence.

The North Carolina Rules of Evidence are as follows:

Editor's Note. - The Official Comments appearing under individual rules in this Chapter have been printed by the publisher as received, without editorial change, and relate to the Chapter as originally enacted. However, not all rules in this Chapter may carry Official Comments. Furthermore, Official Comments may or may not have been received or updated in conjunction with subsequent amendments to this Chapter and, therefore, may not reflect all changes to the rules under which they appear.

Where they appear in this Chapter, "Amended Comment" usually means that an error in the original comment has been corrected by a subsequent amendment, and "Supplemental Comment" pertains to a later development, such as an amendment to the rule text. North Carolina Comments explain where the General Assembly has enacted variations to the text of the Uniform Act.

Legal Periodicals. - For survey of North Carolina construction law, with particular reference to civil procedure and evidence, see 21 Wake Forest L. Rev. 633 (1986).

For legislative survey, see 22 Campbell L. Rev. 253 (2000).

For comment, "To Speak or Not to Speak, That Is the Question: The Impact of Attorney-Client Privilege in Prosecuting the Death of Dr. Eric Miller," 25 Campbell L. Rev. 235 (2003).

For article, "Senate Bill 33 Grants Protection to Emergency Room Providers ... and Just About Everyone Else, Too," see 91 N.C.L. Rev. 720 (2013).

For note, "Competency, Counsel, and Criminal Defendants' Inability to Participate,” see 67 Duke L.J. 1219 (2018).

For note, "Competency, Counsel, and Criminal Defendants' Inability to Participate,” see 67 Duke L.J. 1219 (2018).

CASE NOTES

Applicability. - This Chapter was applicable to a processioning proceeding pursuant to Chapter 38 to establish a boundary, where even though the proceeding was commenced in 1980, it did not go to trial until 1985. Green Hi-Win Farm Inc. v. Neal, 83 N.C. App. 201, 349 S.E.2d 614 (1986), cert. denied, 319 N.C. 104, 353 S.E.2d 109 (1987).

Effect of Commentaries. - The commentaries printed with the North Carolina Rules of Evidence in the General Statutes will not be treated as binding authority, but instead will be given substantial weight in attempting to comprehend legislative intent. State v. Hosey, 318 N.C. 330, 348 S.E.2d 805 (1986); State v. Chul Yun Kim, 318 N.C. 614, 350 S.E.2d 347 (1986).

Applied in State v. Belfield, 144 N.C. App. 320, 548 S.E.2d 549 (2001); State v. Alexander, 152 N.C. App. 701, 568 S.E.2d 317 (2002); State v. Wiley, 182 N.C. App. 437, 642 S.E.2d 717 (2007), review dismissed, 795 S.E.2d 220, 2017 N.C. LEXIS 36 (2017); habeas corpus dismissed, Certificate of appealability denied, 2017 U.S. Dist. LEXIS 55269 (2017); cert. dismissed, 792 S.E.2d 783, 2016 N.C. LEXIS 763 (2016); review dismissed, 2017 N.C. LEXIS 36 (2017).

Cited in State v. Riddick, 316 N.C. 127, 340 S.E.2d 422 (1986); State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986); State v. Jordan, 319 N.C. 98, 352 S.E.2d 672 (1987); State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375 (1987); State v. Belfield, 144 N.C. App. 320, 548 S.E.2d 549 (2001); Robinson v. Polk, 438 F.3d 350 (Feb. 14, 2006).


ARTICLE 1. General Provisions.

Rule

Rule 101. Scope.

These rules govern proceedings in the courts of this State to the extent and with the exceptions stated in Rule 1101.

History

(1983, ch. 701, s. 1.)

COMMENTARY

This rule differs from Fed. R. Evid. 101 only in that "courts of this State" has been substituted for "courts of the United States and before United States magistrates." Rule 1101 provides greater details regarding the applicability of these rules in various proceedings.

Legal Periodicals. - For survey of 1983 law of evidence, see 62 N.C.L. Rev. 1290 (1984).

For article, "An Analysis of the New North Carolina Evidence Code," see 20 Wake Forest L. Rev. 1 (1984).

For note on the future of character impeachment in North Carolina, in light of State v. Jean, 310 N.C. 157, 311 S.E.2d 266 (1984), see 63 N.C.L. Rev. 535 (1985).

For article, "Silence, Confessions, and the New Accuracy Imperative," see 65 Duke L.J. 697 (2016).

CASE NOTES

Applicability. - The court would not consider this Chapter on the 1985 appeal of a murder conviction, where the trial of the case was completed prior to the effective date of the Chapter, July 1, 1984. State v. Freeman, 313 N.C. 539, 330 S.E.2d 465 (1985).

The Rules of Evidence do not apply to a sentencing hearing where the judge must determine whether or not defendant provided substantial assistance pursuant to G.S. 90-95(h)(5). State v. Willis, 92 N.C. App. 494, 374 S.E.2d 613, cert. denied, 324 N.C. 341, 378 S.E.2d 808 (1988).

Res Gestae Rationale Survives. - Admission of evidence of a criminal defendant's prior bad acts, received to establish the circumstances of the crime on trial by describing its immediate context, is known variously as the "same transaction" rule, the "complete story" exception, and the "course of conduct" exception; such evidence is admissible if it " 'forms part of the history of the event or serves to enhance the natural development of the facts' " and this rationale, established in pre-Rules cases, survives the adoption of the Rules of Evidence. State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990).

Teacher Dismissal Hearings. - The Rules of Evidence, G.S. 8C-1, are not applicable to teacher dismissal hearings before a board of education. Evers v. Pender County Bd. of Educ., 104 N.C. App. 1, 407 S.E.2d 879 (1991), aff'd, 331 N.C. 380, 416 S.E.2d 3 (1992).

As to the admissibility of out-of-court statements by agent to the effect that he was working for defendant insurance company while investigating plaintiff, see Daily v. Integon Gen. Ins. Corp., 75 N.C. App. 387, 331 S.E.2d 148 (1985).

G.S. 1A-1, N.C. R. Civ. P. 7, 26, and G.S. 8C-1, N.C. R. Civ. P. 101 et seq., permitted a husband who had not yet been declared a child's father to file pleadings and motions, obtain discovery, and present evidence; accordingly, the husband could have introduced evidence of his paternity and/or rebutted or discredited evidence of paternity presented by a putative father. Although the husband could have accomplished neither, his presence was not obviously, utterly immaterial, as it afforded him an opportunity to defend the presumption that he was the child's father and discredit the putative father's evidence to the contrary. In re Papathanassiou, 195 N.C. App. 278, 671 S.E.2d 572 (2009), review denied, 363 N.C. 374, 678 S.E.2d 667 (2009).

Motions for Post-Conviction DNA Testing. - North Carolina Rules of Evidence applied to motions for post-conviction DNA testing because (1) the motion was a procedural means for obtaining relief, and a trial court conducted a hearing on the motion, so the motion resulted in a proceeding, and (2) the motion was not listed among the exceptions in G.S. 8C-1, N.C. R. Evid. 1101(b) to the applicability of the Rules of Evidence. State v. Foster, 222 N.C. App. 199, 729 S.E.2d 116 (2012).

Cited in State v. Atkins, 349 N.C. 62, 505 S.E.2d 97 (1998), cert. denied, 526 U.S. 1147, 119 S. Ct. 2025, 143 L. Ed. 2d 1036 (1999); State v. Murchison, 367 N.C. 461, 758 S.E.2d 356 (2014).


Rule 102. Purpose and construction.

  1. In general. - These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
  2. Subordinate divisions. - For the purpose of these rules only, the subordinate division of any rule which is labeled with a lower case letter shall be a subdivision.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule differs from Fed. R. Evid. 102 by the addition of subdivision (b) which is explained below. The commentary to each rule indicates whether the rule is identical to or different from its counterpart in the federal rules. The intent is to make applicable, as an aid in construction, the federal decisional law construing identical or similar provisions of the Federal Rules of Evidence.

Of course, federal precedents are not binding on the courts of this State in construing these rules. Nonetheless, these rules are not adopted in a vacuum. A substantial body of law construing these rules exists and should be looked to by the courts for enlightenment and guidance in ascertaining the intent of the General Assembly in adopting these rules. Uniformity of evidence rulings in the courts of this State and federal courts is one motivating factor in adopting these rules and should be a goal of our courts in construing those rules that are identical.

Problems of construction may arise that have not been settled by federal precedents. In these instances, our courts should examine North Carolina cases as well as federal cases for enlightenment.

Although these rules answer the vast majority of evidence questions that arise in our courts, there are some evidentiary questions that are not within the coverage of these rules. In these instances, North Carolina precedents will continue to control unless changed by our courts.

The commentary to each rule indicates whether the rule is consistent with current North Carolina practice. The discussion of North Carolina law is included to highlight the changes made by these rules.

Wherever the commentary refers to "the Advisory Committee's Note", the reference is to the Advisory Committee on Rules of Evidence appointed by United States Chief Justice Warren on March 8, 1965. See Saltzburg and Redden, Federal Rules of Evidence Manual, p. 2-4 (3d ed. 1982).

Rule 102 provides that these rules shall be construed to promote growth and development of the law of evidence. Of course, this provision is not intended to give discretion to construe the rules unfettered by the language of the rules. Rather, the language of Rule 102 permits a flexible approach to problems not explicitly covered by the rules.

Subdivision (b) was added to this rule to make it clear that the scheme of subordinate divisions being followed is that of the federal rules. The North Carolina statutory scheme would term the subordinate divisions referred to as "subsections." It was felt by the drafters of the North Carolina rules and commentary that following the federal scheme would avoid confusion in comparing the federal rules to the North Carolina rules and in applying authorities which refer to the federal rules.

Legal Periodicals. - For note, "Making Waves in a Sea of Uncertainty: Howerton Muddies the Waters of Expert Testimony Admissibility Standards in North Carolina," see 83 N.C. L. Rev. 1613 (2005).

For article, "The Emotional Woman,” see 99 N.C.L. Rev. 1027 (2021).

CASE NOTES

Interests of Justice. - Admission of a victim's statements to his friends that he had a confrontation with defendant and was afraid of him, under residual exceptions to the hearsay rule, was proper under G.S. 8C-1, N.C. R. Evid. 102(a) because the admission served the interest of justice by providing jurors with the necessary tools to ascertain the truth. State v. Valentine, 357 N.C. 512, 591 S.E.2d 846 (2003).

Court Has Inherent Authority to Order Sua Sponte Preliminary Hearing on Evidence. - Under G.S. 8C-1, N.C. R. Evid. 102(a), 104(a), a trial court has the inherent authority to conduct an evidentiary hearing outside the presence of a jury sua sponte to clarify questions of admissibility and to prevent undue delay in the proceedings. State v. Brewington, 170 N.C. App. 264, 612 S.E.2d 648 (2005), cert. denied, 360 N.C. 67, 621 S.E.2d 881 (2005).

Jury Arguments Should Be Accurate. - Jury arguments, like the evidence the jury hears, should be similarly accurate. State v. Lopez, 363 N.C. 535, 681 S.E.2d 271 (Aug. 28, 2009).

Cited in State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985); State v. Williams, 322 N.C. 452, 368 S.E.2d 624 (1988); Chandler v. U-Line Corp., 91 N.C. App. 315, 371 S.E.2d 717 (1988); State v. Bogle, 324 N.C. 190, 376 S.E.2d 745 (1989); State v. Outlaw, 94 N.C. App. 491, 380 S.E.2d 531 (1989); State v. Quesinberry, 325 N.C. 125, 381 S.E.2d 681 (1989).


Rule 103. Rulings on evidence.

  1. Effect of erroneous ruling. - Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
    1. Objection. - In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record. No particular form is required in order to preserve the right to assert the alleged error upon appeal if the motion or objection clearly presented the alleged error to the trial court;
    2. Offer of proof. - In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
  2. Record of offer and ruling. - The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
  3. Hearing of jury. - In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
  4. Review of errors where justice requires. - Notwithstanding the requirements of subdivision (a) of this rule, an appellate court may review errors affecting substantial rights if it determines, in the interest of justice, it is appropriate to do so.

Once the court makes a 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.

History

(1983, c. 701, s. 1; 2003-101, s. 1; 2006-264, s. 30.5.)

COMMENTARY

This rule is identical to Fed. R. Evid. 103, except for subsection (1) of subdivision (a), and subdivision (d).

Subdivision (a) adopts the "substantial rights" language used in the majority of states in testing for harmless error. North Carolina Civ. Pro. Rule 61 provides that no error is grounds for reversal unless the error amounts to the denial of a substantial right. Subdivision (a) is not intended to affect the additional requirement in criminal cases that a reasonable possibility exist that a different result would have been reached if the error had not been committed. See G.S. 15A-1443.

Subdivision (a) also provides that rulings on evidence cannot be assigned as error unless the nature of the error was called to the attention of the judge, so as to alert him to the proper course of action and enable opposing counsel to take proper corrective measures. This is in accord with North Carolina practice. See Brandis on North Carolina Evidence § 27, at 107 (1982); G.S. 15A-1446. The wording of subsection (1) differs from the federal rule by borrowing the language of G.S. 15A-1446(a) to describe the minimum requirements of an objection or motion to strike.

The provisions of subdivision (b) are substantially the same as current North Carolina practice. North Carolina Civ. Pro. Rule 43(c) and G.S. 15A-1446(a) should be amended where necessary to conform to Rule 103.

Subdivision (c) is in accord with North Carolina practice.

Subdivision (d) differs from Fed. R. Evid. 103(d). The federal rule provides that, although an error was not brought to the court's attention (as required by subdivision (a)), the court may nevertheless review "plain error affecting substantial rights." Subdivision (d) of this rule borrows its language from G.S. 15A-1446(b), which applies in criminal proceedings, and makes that the standard for both criminal and civil proceedings, but with the addition that "substantial rights" must be affected. This represents an expansion of the areas in civil cases in which North Carolina appellate courts may review error where no proper objection or motion was previously made. See Brandis on North Carolina Evidence § 27 (1982).

It is anticipated that in civil cases appellate courts will rarely exercise the authority to take notice of errors that were not brought to the attention of the trial court. G.S. 15A-1446(b) should be amended to reflect the adoption of Rule 103(d).

Effect of Amendments. - Session Laws 2006-264, s. 30.5, effective August 27, 2006, transferred the last sentence in subdivision (a)(2) to the last paragraph of subsection (a).

Legal Periodicals. - For article, "Recent Developments: State v. Hinnant: Limiting the Medical Treatment Hearsay Exception in Child Sexual Abuse Cases," see 79 N.C.L. Rev. 1089 (2001).

For recent development, "The Supreme Court of North Carolina's Rulemaking Authority and the Struggle for Power: State v. Tutt," see 84 N.C. L. Rev. 2100 (2006).

CASE NOTES

The 2003 amendment to G.S. 8C-1, Rule 103(a)(2) applies only to rulings made on or after October 1, 2003; since the pre-existing rule applied to defendant's robbery case, defendant failed to fully preserve the issue of the admissibility of the confession of a non-joined co-defendant where, although defendant's motion to suppress was denied, defendant failed to repeat his objection when the confession was admitted into evidence at trial. State v. Pullen, 163 N.C. App. 696, 594 S.E.2d 248 (2004).

Applicability of Amendment. - Although an amendment to G.S. 8C-1-103(a)(2), which provided that due to defendant's lack of objection to the admission of evidence at trial he failed to preserve for appellate review all issues related to the evidence found, was found unconstitutional by a judicial precedent, the appellate court reviewed defendant's assignments of error on the merits regarding a search of his vehicle and with respect to the denial of his suppression motion, as the amendment to G.S. 8C-1-103 went into effect before the trial in the matter, at which time the amendment was under a presumption of constitutionality. State v. Baublitz, 172 N.C. App. 801, 616 S.E.2d 615 (2005).

Because under G.S. 8C-1-103(a)(2), which was later held unconstitutional but had been presumed constitutional at the time of trial, the trial court had assured defendant that he did not need to renew his objections to the evidence when it was offered at trial, the appellate court would review defendant's arguments as to the affected evidence. State v. Grant, 178 N.C. App. 565, 632 S.E.2d 258 (2006), cert. denied, appeal dismissed, 361 N.C. 223, 642 S.E.2d 712 (2007).

Conflict Between G.S. 8C-1-103(a)(2) and N.C. R. App. P. 10(b)(1). - Constitution of North Carolina expressly vested in the Supreme Court of North Carolina the exclusive authority to make rules of procedure and practice for the Appellate Division; although G.S. 8C-1-103(a)(2) was contained in the Rules of Evidence, it was manifestly an attempt to govern the procedure and practice of the Appellate Division as it purported to determine which issues were preserved for appellate review, and to the extent it conflicts with N.C. R. App. P. 10(b)(1), G.S. 8C-1-103(a)(2) failed. State v. Oglesby, 361 N.C. 550, 648 S.E.2d 819 (2007).

Timely Objection Required. - Absent some exceptional situation, error may not be predicated upon the admission of evidence unless a timely objection or motion to strike appears of record. Forsyth County Hosp. Auth. v. Sales, 82 N.C. App. 265, 346 S.E.2d 212, cert. denied, 318 N.C. 415, 349 S.E.2d 594 (1986).

An assignment of error ordinarily will not be considered on appellate review unless the error has been brought to the attention of the trial court by appropriate and timely objection. State v. Short, 322 N.C. 783, 370 S.E.2d 351 (1988).

Where, at the time of defendant's objection to the admission of the envelope's contents, plaintiff had previously been permitted to testify about them without objection, defendant's objection was not raised in a timely manner. Main St. Shops, Inc. v. Esquire Collections, Ltd., 115 N.C. App. 510, 445 S.E.2d 420 (1994).

Party believing the methodology used by an expert witness in valuing property at issue is not valid or, if valid, is not properly applied to the facts at issue has an obligation to object to its admission; if a timely objection is not lodged at trial, it cannot be argued on appeal that the trial court erred in relying on this evidence in determining the value of the asset at issue. Walter v. Walter, 149 N.C. App. 723, 561 S.E.2d 571 (2002).

In a husband's action against his separated wife's boyfriend for criminal conversation and for alienation of his wife's affections, at trial the boyfriend had not properly presented some of his objections to the trial court pursuant to G.S. 8C-1, N.C. R. Civ. P. 103(a)(1), (2), so the alleged errors were not preserved for appellate review, and, because a witness had not testified as an expert, G.S. 8C-1, N.C. R. Evid. 702 did not apply. Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35 (2002), cert. denied, 356 N.C. 675, 577 S.E.2d 630 (2003).

Defendant's objection to testimony concerning defendant's location when a witness heard a shotgun blast was untimely as it was not made until after the witness had left the witness stand, the witness used a diagram to indicate where he believed defendant was when he heard the blast, and the next question was asked; further, the objection lacked the requisite precision as defendant did not state the grounds for his objection and the transcript indicated potential confusion as to what defendant was objecting. State v. Sistler, 218 N.C. App. 60, 720 S.E.2d 809 (2012), dismissed and review denied 365 N.C. 564, 724 S.E.2d 920, 2012 N.C. LEXIS 337 (N.C. 2012).

Late Objection at Trial. - Defendants' motion to strike witness' testimony was untimely, where it occurred at least 100 questions and answers after plaintiff adduced testimony and where defendants neither offered nor argued a "specific reason" for postponing their objection until well past time in which court or plaintiff could have remedied effect of alleged error. Stimpson Hosiery Mills, Inc. v. Pam Trading Corp., 98 N.C. App. 543, 392 S.E.2d 128 (1990).

Where defendant's motion to strike witness' in-court identification came well after the witness' response to the prosecutor's question, defendant's motion was not made in a timely manner and the defendant therefore waived any objection to the in-court identification. State v. McCray, 342 N.C. 123, 463 S.E.2d 176 (1995).

The function of an objection is not only to signify that there is an issue of law, but also to give notice of the terms of its issue. State v. West, 317 N.C. 219, 345 S.E.2d 186 (1986).

Alleged Error Must Be "Clearly Presented". - Although this rule requires no particular form for objections in order to preserve the alleged error on appeal, it does require that the alleged error be "clearly presented" to the trial court. State v. West, 317 N.C. 219, 345 S.E.2d 186 (1986).

Although under this rule no particular form is required to preserve the right to assert an alleged error on appeal, the motion or objection must be timely and must clearly present the alleged error to the trial court. State v. Reid, 322 N.C. 309, 367 S.E.2d 672 (1988).

In termination of parental rights proceeding, a father failed to comply with G.S. 8C-1-103(a) to preserve any alleged error based on the trial court's refusal to allow his attorney to cross-examine a key witness because the trial court instructed the attorney to "just go to the testimony," and she responded "okay" proceeding with her substantive cross-examination so that there was no way of determining what the attorney was precluded from asking in that she failed to make an offer of proof. In re L.C., 181 N.C. App. 278, 638 S.E.2d 638 (2007), review denied, 361 N.C. 354, 646 S.E.2d 114 (2007).

Where a relevant response was not apparent from the context of the examination defendant was precluded from predicating error upon the trial court's ruling on the State's objection to the question. State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994), cert. denied, 115 S. Ct. 750, 130 L. Ed. 2d 650 (1995).

A general objection, if overruled, is ordinarily not effective on appeal. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506 (1985), cert. denied, 315 N.C. 593, 341 S.E.2d 33 (1986).

Error may not be argued on appeal where the underlying objection fails to present the nature of the alleged error to the trial court. This rule serves to facilitate proper rulings and to enable opposing counsel to take proper corrective measures to avoid retrial. State v. Catoe, 78 N.C. App. 167, 336 S.E.2d 691 (1985), cert. denied, 316 N.C. 380, 344 S.E.2d 1 (1986).

Objection to Opinion Testimony. - In the absence of a special request to qualify a witness as an expert, a general objection to specific opinion testimony will not suffice to preserve the question of the expert's qualifications, even on ultimate issues. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506 (1985), cert. denied, 315 N.C. 593, 341 S.E.2d 33 (1966).

If a witness' evidence indicates that he is in fact qualified to give a challenged opinion, even a timely specific objection will not likely be sustained on appeal. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506 (1985), cert. denied, 315 N.C. 593, 341 S.E.2d 33 (1966).

Burden on Alleging Improper Admission of Evidence. - An appellant alleging improper admission of evidence has the burden of showing that he was unfairly prejudiced or that the jury verdict was probably influenced thereby, that appellant has been denied some substantial right and that the result of the trial would have been materially more favorable to appellant. McNabb v. Town of Bryson City, 82 N.C. App. 385, 346 S.E.2d 285, appeal dismissed, 319 N.C. 397, 354 S.E.2d 239 (1987).

The burden is on the appellant to not only show error, but also to show that he was prejudiced and a different result would have likely ensued had the error not occurred; furthermore, the erroneous admission of testimony will not be held prejudicial when its import is abundantly established by other competent testimony, or the testimony is merely cumulative or corroborative. Suarez v. Wotring, 155 N.C. App. 20, 573 S.E.2d 746 (2002), cert. denied, 357 N.C. 66, 579 S.E.2d 107, cert. dismissed, 357 N.C. 66, 579 S.E.2d 107 (2003).

Defendant Failed to Carry Burden of Showing Prejudice. - Although trial court did not allow defense counsel to impeach defendant with evidence of his prior convictions, where defendant made no offer of proof as to the matter excluded, nor was the answer apparent from the context in which the question was asked of defendant, the defendant failed to carry his burden of showing prejudice and the court had no basis for concluding that a substantial right of defendant was affected. State v. Locklear, 322 N.C. 349, 368 S.E.2d 377 (1988).

Where plaintiff entered a timely objection to question eliciting witness' opinion as to the speed of motorcycle, a further motion to strike his answer was not required. Coley v. Garris, 87 N.C. App. 493, 361 S.E.2d 427 (1987).

Waiver of Objection. - Except in certain circumstances, failure to object to the admission of evidence at the time it is offered waives the objection. Spencer v. Spencer, 70 N.C. App. 159, 319 S.E.2d 636 (1984).

Failure to move to strike an answer, when its admissibility is not indicated by the question but becomes apparent by some aspect of the answer, waives any objection to the inadmissible information. State v. Teeter, 85 N.C. App. 624, 355 S.E.2d 804, appeal dismissed and cert. denied, 320 N.C. 175, 358 S.E.2d 67 (1987).

Defendant waived any objection as to use of a witnesses' prior statements by using them extensively himself on cross-examination, and by failing to object to the use of the statements to refresh the witnesses' memory. State v. Demery, 113 N.C. App. 58, 437 S.E.2d 704 (1993).

Defendant's attempt to "shock" the victim with a stun gun constituted the use of a dangerous weapon during a robbery; defendant failed to preserve his argument that the trial court improperly excluded testimony. State v. Gay, 151 N.C. App. 530, 566 S.E.2d 121 (2002), cert. denied, 356 N.C. 685, 578 S.E.2d 315 (2003).

By failing to preserve evidence for review, defendant deprived the Supreme Court of the necessary record from which to ascertain if the alleged error was prejudicial. Proper consideration of defendant's argument was therefore precluded. State v. Miller, 321 N.C. 455, 364 S.E.2d 387 (1988).

Where the relevance of the proffered evidence was not obvious from the record, and defendant did not make an offer of proof showing the substance of what the witness would have testified, defendant's question regarding the admissibility of the evidence would not be reviewed on appeal. State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990) in light of State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).

Where trial judge excluded testimony of an expert regarding the standard of care, defendant attempted to elicit his testimony from its expert at trial and judge sustained plaintiff 's objection, and thereafter defendant made no offer of proof and the record failed to disclose what the substance of the expert's evidence might have been, defendant waived its right to assert issue on appeal since the essential substance of the witness' testimony was not discernible from the record. River Hills Country Club, Inc. v. Queen City Automatic Sprinkler Corp., 95 N.C. App. 442, 382 S.E.2d 849 (1989).

Where the defendant made no offer of proof regarding his proffered testimony and the significance of the excluded testimony was not obvious from the record, the defendant failed to preserve any issue concerning the exclusion of the testimony for appellate review. State v. Barton, 335 N.C. 741, 441 S.E.2d 306 (1994).

Several assignments of error relating to rulings by the trial court excluding evidence the plaintiffs attempted to offer were not addressed by the court because in each instance the plaintiffs failed to make an offer of proof. Tolbert v. County of Caldwell, 121 N.C. App. 653, 468 S.E.2d 504 (1996).

Although defendant failed to preserve an evidentiary issue for appellate review, pursuant to G.S. 8C-1-103(a)(2), a review under G.S. 8C-1-403 indicated that the probative value of a letter that he wrote to his daughter, who was the victim of his unlawful sexual conduct, was not outweighed by the potential prejudice, as the meaning and intent of the letter were for the jury to decide. State v. Dorton, 172 N.C. App. 759, 617 S.E.2d 97, cert. denied, 360 N.C. 69, 623 S.E.2d 775 (2005).

In order to preserve an argument on appeal which relates to the exclusion of evidence, including evidence solicited on cross-examination, the defendant must make an offer of proof so that the substance and significance of the excluded evidence is in the record. State v. Ginyard, 122 N.C. App. 25, 468 S.E.2d 525 (1996).

Type of Offer of Proof Required. - Statutes do not require that an offer of proof be made in any particular form, as one rule merely requires that the record be made to show how the witnesses would have testified, and another rule does not mandate that offers of proof be made in any particular manner; though a formal offer is the preferred method, there are reasons where a trial court may deem an informal offer to be appropriate, and the informal offer should be made with particularity, and it remains in the trial court's discretion whether to allow the offer to be made informally. State v. Martin, 241 N.C. App. 602, 774 S.E.2d 330 (2015).

Court disagrees that an informal offer of proof is per se insufficient in the context of a rape shield law in camera hearing; there is nothing in the rule to suggest that an offer of proof made thereunder must be made formally, there may be situations where a trial court may not want to require a witness to recount an episode, and to the extent that certain cases could be read to provide a per se rule prohibiting an informal offer of proof, they conflict with North Carolina Supreme Court's decisions disavowing a per se rule. State v. Martin, 241 N.C. App. 602, 774 S.E.2d 330 (2015).

Informal Offer of Proof. - Where a trial court allows an informal offer of proof to be made, a reviewing court may still deem the offer insufficient to preserve an appeal. State v. Martin, 241 N.C. App. 602, 774 S.E.2d 330 (2015).

Mother's testimony at the subpoena hearing provided a sufficient informal offer of proof the trial court could rely upon in excluding a formal offer of proof because the prior testimony established the essential content or substance of the excluded testimony; the trial court, after having heard and considered the mother's proffered information at a prior hearing, did not abuse its discretion in rejecting the mother's proffer at the disposition hearing. In re A.H., 250 N.C. App. 546, 794 S.E.2d 866 (2016), review denied, 2017 N.C. LEXIS 294 (2017).

This rule does not contemplate an extensive offer of proof; thus, the trial court, while allowing expert's two-page report, properly refused to allow "a lengthy testimony" about the records she relied upon in reaching her conclusions and opinions. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001).

Offer of Proof Sufficient. - Offer of proof made by defendant's counsel was sufficient for the court to conduct appellate review, as it was clear that counsel had interviewed each witness and knew first hand the content of their testimonies, and he was unambiguous about how they would testify, and the trial court clearly understood the nature of the testimonies and decided the issue based on the offer of proof. State v. Martin, 241 N.C. App. 602, 774 S.E.2d 330 (2015).

Substance of Evidence Apparent From Context. - Substance of the testimony was apparent from the context within which the questions were asked under G.S. 8C-1-103(a)(2), the grounds for admitting the testimony as evidence of the victim's violent character pertinent to defendant's assertion of self-defense under G.S. 8C-1-404(a)(2) were apparent from the context under N.C. R. App. P. 10(b)(1), and the issue of the testimony's admissibility was properly preserved for appellate review. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703 (2006).

Failure to Offer Proof Precludes Appellate Review. - Defendant, who did not make an offer of proof to show that witness's response to defense's question would have revealed that victim was put on lock-up for profane language and disrespect, failed to preserve this issue for appellate review under the standard set forth in this rule, where the answer was not otherwise apparent from the context. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001).

Because the will beneficiaries made no offer of proof to a witness's possible answers, and the substance of the evidence was not apparent from the context within which the questions were asked (because no questions were asked), the will beneficiaries failed to preserve the issue of the trial court's exclusion of the witness's testimony for appellate review. In re Will of Barnes, 157 N.C. App. 144, 579 S.E.2d 585, cert. denied., appeal dismissed, 357 N.C. 460, 586 S.E.2d 95 (2003).

Defendant who did not produce witnesses or submit affidavits which supported his theory that a child who died in an automobile accident would not have died if he had been restrained in a different manner did not preserve his claim that the trial court erred by excluding evidence that the child was improperly restrained, and the appellate court dismissed defendant's assignment of error. State v. Locklear, 159 N.C. App. 588, 583 S.E.2d 726 (2003), cert. denied, 358 N.C. 157, 593 S.E.2d 394 (2004), aff'd, 359 N.C. 63, 602 S.E.2d 359 (2004).

In a medical malpractice case, objection to evidence excluded by motion in limine was not preserved for appellate review where there was no attempt to introduce the evidence during the trial. Miller v. Forsyth Mem'l Hosp., Inc., 173 N.C. App. 385, 618 S.E.2d 838 (2005).

Codefendant's answer to a question was not readily apparent from the context within which the question was asked, pursuant to G.S. 8C-1, N.C. R. Evid. 103(a)(2), the appellate court would not speculate as to what codefendant's answer might have been. State v. Cousar, 190 N.C. App. 750, 660 S.E.2d 902 (2008), review denied, 362 N.C. 684, 670 S.E.2d 568 (2008).

Defendant failed to preserve for review his claim that the trial court erred in sustaining the State's objections to his cross-examination of the victim because defendant did not assert any constitutional claims in the trial court and failed to make a specific offer of proof when the trial court sustained the State's objections. State v. Reid, 204 N.C. App. 122, 693 S.E.2d 227 (2010), appeal dismissed, 2017 N.C. LEXIS 350 (2017).

Although the defendant argued that the trial court abused the court's discretion by precluding the defendant from cross-examining the medical examiner regarding her preliminary report of death, defendant made no offer of proof as to the questions defense counsel would have asked of the medical examiner, nor did defendant make an offer of proof as to what the medical examiner's response to the questions would have been; therefore, defendant failed to preserve this issue for appellate review. State v. Posey, 233 N.C. App. 723, 757 S.E.2d 369 (2014).

Failure to Object to Admission of Evidence Precludes Appellate Review. - Department of Transportation's contention on appeal that a tractor-trailer driver's own testimony was insufficient to support a finding of damages as to his lost income and additional costs could not be asserted because the Department had failed to object to the receipt of such evidence pursuant to G.S. 8C-1, N.C. R. Evid. 103(a). Smith v. N.C. DOT, 156 N.C. App. 92, 576 S.E.2d 345 (2003).

Challenge to the admission of an interrogation video was not preserved for appellate review because defendant did not make any objection when the video was entered into evidence, and actually agreed that it should be so admitted. State v. Boyd, 209 N.C. App. 418, 705 S.E.2d 774 (2011), review denied 365 N.C. 188, 707 S.E.2d 239, 2011 N.C. LEXIS 249 (2011).

Constitution of North Carolina vests the Supreme Court of North Carolina with exclusive authority to make rules of practice and procedure for the appellate division of the courts; while G.S. 8C-1-103(a)(2) permitted appellate review of an evidentiary ruling even though the party failed to object at trial, since G.S. 8C-1-103(a)(2) was inconsistent with N.C. R. App. P. 10(b)(1), G.S. 8C-1-103(a)(2) failed. State v. Tutt, 171 N.C. App. 518, 615 S.E.2d 688 (2005).

Defendant waived an appellate claim of an unconstitutional warrantless blood draw because defendant did not make the same argument in the trial court. State v. Perry, 254 N.C. App. 202, 802 S.E.2d 566, review denied, 807 S.E.2d 568, 2017 N.C. LEXIS 970 (2017); review denied, 849 S.E.2d 46, 2020 N.C. LEXIS 946 (N.C. 2020).

Motion to Suppress Evidence Preserved for Review. - Defendant preserved an argument for appeal where defendant filed a written pre-trial motion to suppress evidence in which he moved to suppress any and all evidence of statements made by defendant, defendant renewed that motion at the start of trial, but agreed at the request of the trial court to defer hearing on the matter until the issue arose, and defendant renewed his objection to the evidence when the trial court convened a voir dire of Investigator at trial, and once again stated the basis for his objection. State v. Randolph, 224 N.C. App. 521, 735 S.E.2d 845 (2012).

Failure to Object to Parol Evidence. - Where the record did not show that plaintiff objected to parol evidence in the form of affidavits submitted by the defendants, the facts set out in these affidavits were competent evidence to be considered by the trial court in ruling upon the motions for summary judgment. Lindsey v. North Carolina Farm Bureau Mut. Ins. Co., 103 N.C. App. 432, 405 S.E.2d 803 (1991).

Admission of Twelve Video Clips was not Unfairly Prejudicial. - In a trial charging defendant with twelve counts of third degree sexual exploitation of a minor in violation of G.S. 14-190.17A, the admission into evidence of 12 video clips from defendant's computer depicting children engaged in sexual activity was not unfairly prejudicial where the State showed only a few seconds from each clip, each clip was presented for one of the charges levied against defendant, the images were not duplicative, and the images were not shown on an unusually large screen. State v. Riffe, 191 N.C. App. 86, 661 S.E.2d 899 (2008).

Applied in State v. Slone, 76 N.C. App. 628, 334 S.E.2d 78 (1985); State v. Fearing, 315 N.C. 167, 337 S.E.2d 551 (1985); State v. Bunn, 79 N.C. App. 480, 339 S.E.2d 673 (1986); Mobley v. Hill, 80 N.C. App. 79, 341 S.E.2d 46 (1986); State v. Freeman, 319 N.C. 609, 356 S.E.2d 765 (1987); Smith v. Starnes, 88 N.C. App. 609, 364 S.E.2d 442 (1988); In re Parker, 90 N.C. App. 423, 368 S.E.2d 879 (1988); State v. Alston, 91 N.C. App. 707, 373 S.E.2d 306 (1988); State v. Marshall, 92 N.C. App. 398, 374 S.E.2d 874 (1988); Crump v. Board of Educ., 93 N.C. 168, 378 S.E.2d 32 (1989); Hamilton v. Hamilton, 93 N.C. App. 639, 379 S.E.2d 93 (1989); State v. Smith, 99 N.C. App. 67, 392 S.E.2d 642 (1990); State v. Hyder, 100 N.C. App. 270, 396 S.E.2d 86 (1990); State v. Phillips, 328 N.C. 1, 399 S.E.2d 293; State v. Baker, 106 N.C. App. 687, 418 S.E.2d 288 (1992); State v. Long, 113 N.C. App. 765, 440 S.E.2d 576 (1994); State v. Lovin, 339 N.C. 695, 454 S.E.2d 229 (1995); State v. Lawrence, 352 N.C. 1, 530 S.E.2d 807 (2000); State v. Hardy, 353 N.C. 122, 540 S.E.2d 334 (2000), cert. denied, 534 U.S. 840, 122 S. Ct. 96, 151 L. Ed. 2d 56 (2001); State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808 (2003); State v. Anthony, 354 N.C. 372, 555 S.E.2d 557 (2001); State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808 (2003); State v. Rose, 170 N.C. App. 284, 612 S.E.2d 336 (2005); State v. Patterson, 194 N.C. App. 608, 671 S.E.2d 357 (2009), review denied, 363 N.C. 587, 683 S.E.2d 383 (2009); State v. Jacobs, 363 N.C. 815, 689 S.E.2d 859 (2010).

Cited in Broyhill v. Coppage, 79 N.C. App. 221, 339 S.E.2d 32 (1986); State v. Childers, 80 N.C. App. 236, 341 S.E.2d 760 (1986); Georgia-Pacific Corp. v. Bondurant, 81 N.C. App. 362, 344 S.E.2d 302 (1986); State v. Brooks, 83 N.C. App. 179, 349 S.E.2d 630 (1986); State v. Rose, 323 N.C. 455, 373 S.E.2d 426 (1988); State v. Faircloth, 99 N.C. App. 685, 394 S.E.2d 198 (1990); State v. Sherrill, 99 N.C. App. 540, 393 S.E.2d 352 (1990); Turner v. Duke Univ., 101 N.C. App. 276, 399 S.E.2d 402 (1991); State v. White, 104 N.C. App. 165, 408 S.E.2d 871 (1991); State v. Robinson, 330 N.C. 1, 409 S.E.2d 288 (1991); State v. Najewicz, 112 N.C. App. 280, 436 S.E.2d 132 (1993); Powell v. Omli, 110 N.C. App. 336, 429 S.E.2d 774 (1993); State v. Baker, 338 N.C. 526, 451 S.E.2d 574 (1994); State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994), cert. denied, 115 S. Ct. 750, 130 L. Ed. 2d 650 (1995); State v. Dial, 122 N.C. App. 298, 470 S.E.2d 84 (1996); State v. Hairston, 123 N.C. App. 753, 475 S.E.2d 242 (1996); State v. Atkins, 349 N.C. 62, 505 S.E.2d 97 (1998), cert. denied, 526 U.S. 1147, 119 S. Ct. 2025, 143 L. Ed. 2d 1036 (1999); State v. Anthony, 354 N.C. 372, 555 S.E.2d 557 (2001); Garrett v. Smith, 163 N.C. App. 760, 594 S.E.2d 232 (2004); State v. Leach, 166 N.C. App. 711, 603 S.E.2d 831 (2004); State v. Fisher, 171 N.C. App. 201, 614 S.E.2d 428 (2005), cert. denied, 361 N.C. 223, 642 S.E.2d 711 (2007); State v. Tuck, 173 N.C. App. 61, 618 S.E.2d 265 (2005); State v. Highsmith, 173 N.C. App. 600, 619 S.E.2d 586 (2005); State v. Brown, 178 N.C. App. 189, 631 S.E.2d 49 (2006); State v. Ryals, 1 79 N.C. App. 733, 635 S.E.2d 470 (2006), review denied, 362 N.C. 91, 657 S.E.2d 27 (2007); State v. Hammett, 361 N.C. 92, 637 S.E.2d 518 (2006); State v. Ellis, 205 N.C. App. 650, 696 S.E.2d 536 (2010); State v. Ray, 364 N.C. 272, 697 S.E.2d 319 (Aug. 27, 2010); State v. Johnson, 209 N.C. App. 682, 706 S.E.2d 790 (2011); State v. Hargett, 241 N.C. App. 121, 772 S.E.2d 115 (2015).

State v. Ledbetter, 243 N.C. App. 746, 779 S.E.2d 164 (2015); N.C. DOT v. Mission Battleground Park, DST, 249 N.C. App. 333, 791 S.E.2d 478 (2016), aff'd in part and rev'd in part, 2018 N.C. LEXIS 61 (N.C. 2018).


Rule 104. Preliminary questions.

  1. Questions of admissibility generally. - Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
  2. Relevancy conditioned on fact. - When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
  3. Hearing of jury. - Hearings on the admissibility of confessions or other motions to suppress evidence in criminal trials in Superior Court shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if he so requests.
  4. Testimony by accused. - The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.
  5. Weight and credibility. - This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

History

(1983, ch. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 104 with the exception of subdivision (c) which is discussed below.

Subdivision (a) states as a general rule that preliminary questions shall be determined by the judge. This is in accord with North Carolina practice. See H. Brandis, Brandis on North Carolina Evidence § 8 (1982). The Advisory Committee's Note to the federal rule states:

"The applicability of a particular rule of evidence often depends upon the existence of a condition. Is the alleged expert a qualified physician? Is a witness whose former testimony is offered unavailable? Was a stranger present during a conversation between attorney and client? In each instance the admissibility of evidence will turn upon the answer to the question of the existence of the condition. Accepted practice, incorporated in the rule, places on the judge the responsibility for these determinations. McCormick § 53; Morgan, Basic Problems of Evidence 45-50 (1962).

To the extent that these inquiries are factual, the judge acts as a trier of fact. Often, however, rulings on evidence call for an evaluation in terms of a legally set standard. Thus when a hearsay statement is offered as a declaration against interest, a decision must be made whether it possesses the required against-interest characteristics. These decisions, too, are made by the judge.

In view of these considerations, this subdivision refers to preliminary requirements generally by the broad term 'question,' without attempt at specification.

This subdivision is of general application. It must, however, be read as subject to the special provisions for 'conditional relevancy' in subdivision (b) and those for confessions in subdivision (d)."

The second sentence of subdivision (a) provides that in making its determination on preliminary questions, the court is not bound by the rules of evidence except those with respect to privileges. The Advisory Committee's Note states:

"If the question is factual in nature, the judge will of necessity receive evidence pro and con on the issue. The rule provides that the rules of evidence in general do not apply to this process. McCormick § 53, p. 123, n. 8, points out that the authorities are 'scattered and inconclusive,' and observes:

'Should the exclusionary law of evidence, "the child of the jury system" in Thayer's phrase, be applied to this hearing before the judge? Sound sense backs the view that it should not, and that the judge should be empowered to hear any relevant evidence, such as affidavits or other reliable hearsay.'

This view is reinforced by practical necessity in certain situations. An item, offered and objected to, may itself be considered in ruling on admissibility, though not yet admitted in evidence. Thus the content of an asserted declaration against interest must be considered in ruling whether it is against interest. * * * Another example is the requirement of Rule 602 dealing with personal knowledge. In the case of hearsay, it is enough, if the declarant 'so far as appears [has] had an opportunity to observe the fact declared'. McCormick § 10, p. 19.

If concern is felt over the use of affidavits by the judge in preliminary hearings on admissibility, attention is directed to the many important judicial determinations made on the basis of affidavits. * * *

The rules of Civil Procedure are more detailed. Rule 43(e), dealing with motions generally, provides:

' When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.'

. . . Rule 56 provides in detail for the entry of summary judgment based on affidavits. Affidavits may supply the foundation for temporary restraining orders under Rule 65(b)."

Subdivision (b) concerns relevancy conditioned on fact. The Advisory Committee's Note states:

"In some situations, the relevancy of an item of evidence, in the large sense, depends upon the existence of a particular preliminary fact. Thus when a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it. Or if a letter purporting to be from Y is relied upon to establish an admission by him, it has no probative value unless Y wrote or authorized it. Relevance in this sense has been labelled 'conditional relevancy'. Morgan, Basic Problems of Evidence 45-46 (1962). Problems arising in connection with it are to be distinguished from problems of logical relevancy, e.g., evidence in a murder case that accused on the day before purchased a weapon of the kind used in the killing, treated in Rule 401.

If preliminary questions of conditional relevancy were determined solely by the judge, as provided in subdivision (1), the functioning of the jury as a trier of fact would be greatly restricted and in some cases virtually destroyed. These are appropriate questions for juries. Accepted treatment, as provided in the rule, is consistent with that given fact questions generally. The judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted. If after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is not established, the issue is for them. If the evidence is not such as to allow a finding, the judge withdraws the matter from their consideration. * * *

The order of proof here, as generally, is subject to the control of the judge."

Subdivision (b) is in accord with North Carolina practice in making an exception to the general rule that preliminary questions are for the court. When the relevancy of evidence depends upon the existence of some other fact which also requires proof, the determination of the preliminary fact question is for the jury. Brandis on North Carolina Evidence § 8, p. 27-28 (1982).

Subdivision (c) concerns when hearings on preliminary questions will be out of the hearing of the jury. The Advisory Committee's Note states:

"Preliminary hearings on the admissibility of confessions must be conducted outside the hearing of the jury. See Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d. 908 (1964). Otherwise, detailed treatment of when preliminary matters should be heard outside the hearing of the jury is not feasible. The procedure is time consuming. Not infrequently the same evidence which is relevant to the issue of establishment of fulfillment of a condition precedent to admissibility is also relevant to weight or credibility, and time is saved by taking foundation proof in the presence of the jury. Much evidence on preliminary questions, though not relevant to jury issues, may be heard by the jury with no adverse effect. A great deal must be left to the discretion of the judge who will act as the interests of justice require."

Subdivision (c) has been changed from the federal rule by the addition of language requiring other motions to suppress evidence in criminal cases in superior court to be conducted out of the hearing of the jury. This is in accord with G.S. 15A-977(e) which should be amended to reflect the adoption of this rule.

Subdivision (d) provides that the accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case. As the Advisory Committee's Note states:

"The limitation upon cross-examination is designed to encourage participation by the accused in the determination of preliminary matters. He may testify concerning them without exposing himself to cross-examination generally. The provision is necessary because of the breadth of cross-examination under Rule 611(b).

The rule does not address itself to questions of the subsequent use of testimony given by an accused at a hearing on a preliminary matter. See Walder v. United States, 347 U.S. 62 (1954); Simmons v. United States, 390 U.S. 377 (1968); Harris v. New York, 401 U.S. 222 (1971)."

There are no North Carolina cases on this point.

Subdivision (e) makes it clear that after the court makes its determination on a preliminary question of fact, the party opposing the ruling is entitled to introduce before the jury evidence that relates to the weight or credibility of certain evidence. For example, even if the court determines that a confession was not coerced, the defendant may introduce evidence of coercion, since this is relevant to the weight of the evidence.

Subdivision (e) is in accord with North Carolina practice.

Legal Periodicals. - For article, "The Admissibility of Expert Testimony in North Carolina After Howerton: Reconciling the Ruling with the Rules of Evidence," see 28 Campbell L. Rev. 1 (2005).

CASE NOTES

The decision to admit evidence rests in the discretion of the court upon consideration of the facts supporting relevancy. State v. Wortham, 80 N.C. App. 54, 341 S.E.2d 76 (1986), modified on other grounds, 318 N.C. 669, 351 S.E.2d 294 (1987).

When making preliminary determinations under G.S. 8C-1, N.C. R. Evid. 104(a) concerning the qualifications of experts to testify or to the admissibility of expert testimony under G.S. 8C-1, N.C. R. Evid. 702, trial courts are not bound by the rules of evidence; in this capacity, trial courts are afforded wide latitude of discretion when making a determination about the admissibility of expert testimony. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004).

Court Has Inherent Authority to Order Sua Sponte Preliminary Hearing on Evidence. - Under G.S. 8C-1, N.C. R. Evid. 102(a), 104(a), a trial court has the inherent authority to conduct an evidentiary hearing outside the presence of a jury sua sponte to clarify questions of admissibility and to prevent undue delay in the proceedings. State v. Brewington, 170 N.C. App. 264, 612 S.E.2d 648 (2005), cert. denied, 360 N.C. 67, 621 S.E.2d 881 (2005).

Applicability of Rules of Evidence to Suppression Hearing. - Defendant's argument that the trial court was required in defendant's suppression hearing to apply the North Carolina Rules of Evidence and erroneously permitted a state trooper's testimony under those rules was without merit because the Rules of Evidence did not apply in suppression hearings. State v. Ezzell, - N.C. App. - , - S.E.2d - (May 4, 2021).

The exclusion of evidence concerning defendant's understanding of the Miranda warnings was error. As a matter of law, there was a reasonable possibility that, had the error not been committed, a different result would have been reached at the trial. State v. Sanchez, 328 N.C. 247, 400 S.E.2d 421 (1991).

Testimony prohibited by trial court relating to the defendant's mental ability to understand Miranda warnings was clearly admissible as evidence of the surrounding circumstances under which the statements were made. State v. Sanchez, 328 N.C. 247, 400 S.E.2d 421 (1991).

Credibility and Weight of Confessions. - In order for a jury to adequately evaluate the credibility and weight of confessions, they must hear all the competent evidence of the surrounding circumstances. State v. Sanchez, 328 N.C. 247, 400 S.E.2d 421 (1991).

Testimony involving an expert opinion as to defendant's mental ability to understand the questions to him during his interrogation was competent as going to the weight and credit the jury should give to his confession. State v. Sanchez, 328 N.C. 247, 400 S.E.2d 421 (1991).

Declarant's Conflicting Statements. - Where the hearsay statements of a declarant are conflicting the conflict creates a question of credibility and not one of reliability. Questions of credibility are to be determined by the jury. State v. Jolly, 332 N.C. 351, 420 S.E.2d 661 (1992).

Habitual Conduct of Victim. - The trial court did not abuse its discretion in denying admissibility of evidence of a victim's prior assault which the defendant claimed the victim fabricated so as to obtain a pregnancy test and which he wanted to introduce to demonstrate "habit" where it noted that the two incidents occurring two years apart were not sufficient to constitute a habit within G.S. 8C-1, Rule 406. State v. Chavis, 141 N.C. App. 553, 540 S.E.2d 404 (2000).

In deciding preliminary matters, the trial court may consider any relevant and reliable information that comes to its attention, whether or not that information is technically admissible under the rules of evidence. In re Will of Leonard, 82 N.C. App. 646, 347 S.E.2d 478 (1986).

Treatment of Motion Raising Qualification of Witnesses. - The trial judge correctly treated motion filed by the State, entitled "Motion in Limine to Allow Witnesses to Testify," seeking to admit the testimony of a social worker, two detectives, a licensed practical nurse, and a medical doctor, pursuant to this rule, as one concerning the qualification of witnesses to testify. State v. Fearing, 315 N.C. 167, 337 S.E.2d 551 (1985).

Where competency is questioned, the trial judge is not required to conduct a formal hearing at which all of the rules of evidence are applicable. The trial court must make only sufficient inquiry to satisfy itself that the witness is or is not competent to testify. In re Will of Leonard, 82 N.C. App. 646, 347 S.E.2d 478 (1986).

The competency of a witness is determined at the time the witness is called upon to testify. In re Will of Leonard, 82 N.C. App. 646, 347 S.E.2d 478 (1986).

Discretion in Determining Competency. - While the trial court's power to determine the competency of a witness is not an arbitrary one, there is no abuse of its discretion where there is evidence to support its ruling. In re Will of Leonard, 82 N.C. App. 646, 347 S.E.2d 478 (1986).

Trial court did not abuse its discretion in finding competent a witness who suffered from viral encephalitis, a motor disease that affected his speech, because the witness was sufficiently audible and understandable when he repeated his testimony. State v. Hyatt, 355 N.C. 642, 566 S.E.2d 61 (2002).

Competency of Child Witness. - The competency of a child witness to testify at trial is not a proper subject for stipulation of counsel, absent the trial judge's independent finding pursuant to personally examining or observing the child on voir dire. State v. Fearing, 315 N.C. 167, 337 S.E.2d 551 (1985).

In a prosecution charging defendant with first-degree rape, incest, and taking indecent liberties with his three-year-old daughter, the trial judge's adoption of counsels' stipulation in concluding that the child victim was incompetent to testify, where he never personally examined or observed the child's demeanor in responding to questions during a voir dire examination, was reversible error, where highly prejudicial testimony was erroneously admitted pursuant to G.S. 8C-1, Rules 803 (24) and 804 (b)(5) on the basis of this improperly based conclusion. State v. Fearing, 315 N.C. 167, 337 S.E.2d 551 (1985).

Hearing on Child's Competence to Testify. - Subsection (c) of this rule requires that a hearing to determine the competency of a young victim be held out of the presence of the jury only when the ends of justice require it. State v. Baker, 320 N.C. 104, 357 S.E.2d 340 (1987).

Defendant's Right to Introduce Evidence as to Statement's Weight or Credibility. - Although the court ruled that defendant's statement confessing to certain crimes was admissible, defendant, who claimed that due to his mental retardation he confessed to crimes he did not commit, retained the right to introduce before the jury evidence relevant to his statement's weight or credibility. State v. Moore, 321 N.C. 327, 364 S.E.2d 648 (1988).

Finding That Witness Was Not Competent Upheld. - Trial judge did not abuse her discretion by finding that witness was incapable of remembering, understanding, and relating to the jury matters of detail concerning the holographic will in question, where the events and conversations which witness would have testified about occurred during the period of 1979-1982, and where the witness could not remember having twice been involuntarily committed during that same period of time. In re Will of Leonard, 82 N.C. App. 646, 347 S.E.2d 478 (1986).

Where trial judge conducted a competency hearing at which he was able to observe for himself a five-year-old's competence to be a witness, and the record showed that the child could not respond to simple questions about basic facts in her life, and was contradictory, uncommunicative, and frightened, there was no error in the court's finding the child incompetent to testify. State v. Deanes, 323 N.C. 508, 374 S.E.2d 249 (1988), cert. denied, 490 U.S. 1101, 109 S. Ct. 2455, 104 L. Ed. 2d 1009 (1989).

Expert Testimony. - Trial court did not err in allowing expert testimony that defendant's blood alcohol content at the time of the crash was 0.08 based on an average alcohol elimination rate of 0.0165 because the State was not required to establish that level to prove that defendant was driving while impaired, and the evidence was sufficient for a DWI conviction regardless of the expert's testimony; the evidence established (1) that a trooper smelled an odor of alcohol on defendant's person at the accident scene, (2) that defendant needed assistance with walking to the patrol car, (3) that defendant had difficulty writing defendant's statement on the appropriate lines, (4) that defendant had a "blank face," and (5) that defendant did not perform satisfactorily on field sobriety tests administered by the trooper. State v. Taylor, 165 N.C. App. 750, 600 S.E.2d 483 (2004).

Defendant was not prejudiced by the refusal to allow defendant to obviate defendant's intent through testimony under the guise of an expert under G.S. 8C-1-702(a) and G.S. 8C-1-104(a) as: (1) defendant's intent to kill was irrelevant to a consideration of felony murder under G.S. 14-17; and (2) the state's evidence set forth defendant's intent to commit the felony, attempted robbery with a dangerous weapon, during which the killing occurred. State v. Oakes, 209 N.C. App. 18, 703 S.E.2d 476, review denied and dismissed 365 N.C. 197, 709 S.E.2d 918, 2011 N.C. LEXIS 541 (2011).

Trial court properly excluded a medical malpractice plaintiff's expert's testimony that the defendant obstetrician was negligent in failing to use the Zavanelli maneuver in response to an infant with shoulder dystocia because the doctor came from a much larger medical community and failed to demonstrate that this rarely-employed maneuver was the standard of care in Goldsboro, North Carolina, as required by G.S. 90-21.12 (2009). Crocker v. Roethling, 217 N.C. App. 160, 719 S.E.2d 83 (2011).

Applied in Phelps v. Duke Power Co., 86 N.C. App. 455, 358 S.E.2d 89 (1987); State v. Suggs, 86 N.C. App. 588, 359 S.E.2d 24 (1987); In re Faircloth, 137 N.C. App. 311, 527 S.E.2d 679 (2000); State v. Noffsinger, 137 N.C. App. 418, 528 S.E.2d 605 (2000).

Cited in Donavant v. Hudspeth, 318 N.C. 1, 347 S.E.2d 797 (1986); State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368 (1988); Hamilton v. Hamilton, 93 N.C. App. 639, 379 S.E.2d 93 (1989); State v. Haskins, 104 N.C. App. 675, 411 S.E.2d 376 (1991); State v. Hester, 330 N.C. 547, 411 S.E.2d 610 (1992); State v. Wilson, 108 N.C. App. 117, 423 S.E.2d 473 (1992); State v. Wiggins, 334 N.C. 18, 431 S.E.2d 755 (1993); State v. Shuford, 337 N.C. 641, 447 S.E.2d 742 (1994); State v. Brown, 335 N.C. 477, 439 S.E.2d 589 (1994); State v. Hensley, 120 N.C. App. 313, 462 S.E.2d 550 (1995); State v. Rice, 129 N.C. App. 715, 501 S.E.2d 665 (1998), cert. denied, 349 N.C. 374, 525 S.E.2d 189 (1998); State v. Liggons, 194 N.C. App. 734, 670 S.E.2d 333 (2009); Crocker v. Roethling, 363 N.C. 140, 675 S.E.2d 625 (2009); Rabon v. Hopkins, 208 N.C. App. 351, 703 S.E.2d 181 (2010), review denied 365 N.C. 195, 710 S.E.2d 22, 2011 N.C. LEXIS 470 (N.C. 2011); State v. Green, 209 N.C. App. 669, 707 S.E.2d 715 (2011); State v. Sweat, 366 N.C. 79, 727 S.E.2d 691 (2012); State v. King, 366 N.C. 68, 733 S.E.2d 535 (2012); State v. Hyman, 252 N.C. App. 46, 797 S.E.2d 308 (2017), review dismissed, 798 S.E.2d 523, 2017 N.C. LEXIS 292 (2017).


Rule 105. Limited admissibility.

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 105. The Advisory Committee's Note states:

"A close relationship exists between this rule and Rule 403 which requires exclusion when 'probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.' The present rule recognizes the practice of admitting evidence for a limited purpose and instructing the jury accordingly. The availability and effectiveness of this practice must be taken into consideration in reaching a decision whether to exclude for unfair prejudice under Rule 403. In Bruton v. United States, 389 U.S. 818, 88 S. Ct. 126, 19 L. Ed. 2d. 70 (1968), the Court ruled that a limiting instruction did not effectively protect the accused against the prejudicial effect of admitting in evidence the confession of a codefendant which implicated him. The decision does not, however, bar the use of limited admissibility with an instruction where the risk of prejudice is less serious."

Rule 105 is in accord with the general rule in North Carolina that evidence that is inadmissible for one purpose may be admitted for other and proper purposes. See Brandis on North Carolina Evidence § 79 (1982).

Legal Periodicals. - For articles, "A Six Step Analysis of 'Other Purposes' Evidence Pursuant to Rule 404(b) of the North Carolina Rules of Evidence," see 21 N.C. Cent. L.J. 1 (1995).

CASE NOTES

The admission of evidence which is competent for a restricted purpose will not be held error in the absence of a request by the defendant for limiting instructions. State v. Jones, 322 N.C. 406, 368 S.E.2d 844 (1988).

When evidence is competent for one purpose, but not for all purposes, the objecting party cannot rely on a general objection; he or she must state the grounds and ask for any desired limiting instructions. State v. Short, 322 N.C. 783, 370 S.E.2d 351 (1988).

Admission of Evidence Proper Where Limiting Instruction Given. - There was no error in the admission of a witness's prior consistent statement, as it was not hearsay under G.S. 8C-1, N.C. R. Evid. 801(c) where it was not offered for substantive purposes but instead, it was used by the State for corroborative purposes; moreover, the trial court properly gave a limiting instruction to the jury regarding use of the statement under G.S. 8C-1, N.C. R. Evid. 105. State v. Damenon Ropmele Early, 194 N.C. App. 594, 670 S.E.2d 594 (2009).

Failure to Request Instruction - In a sexual abuse prosecution, where defendant failed to request a limiting instruction, under G.S. 8C-1, N.C. R. Evid. 105, as to evidence admitted under G.S. 8C-1, N.C. R. Evid. 404(b), he could not complain that the trial court should have intervened ex mero motu to give such an instruction. State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643 (2002).

In a prosecution for bank robbery in New Bern, the court did not err in permitting a teller at another New Bern bank to testify that one of the defendants came into that bank on the day of the robbery and got change for a one hundred dollar bill, where this testimony was offered and received for the limited but proper purpose of showing that the defendants were in New Bern on the day of the robbery and to corroborate the testimony of a confessed participant in the robbery. State v. Alston, 80 N.C. App. 540, 342 S.E.2d 573, cert. denied, 317 N.C. 707, 347 S.E.2d 441 (1986).

Applied in State v. Autry, 101 N.C. App. 245, 399 S.E.2d 357 (1991); State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991).

Cited in State v. Haskins, 104 N.C. App. 675, 411 S.E.2d 376 (1991); State v. Jones, 105 N.C. App. 576, 414 S.E.2d 360 (1992); State v. Wilson, 108 N.C. App. 117, 423 S.E.2d 473 (1992); State v. Bostic, 121 N.C. App. 90, 465 S.E.2d 20 (1995), cert. dismissed, 599 S.E.2d 560 (2004); State v. Ginyard, 122 N.C. App. 25, 468 S.E.2d 525 (1996); State v. Allen, 141 N.C. App. 610, 541 S.E.2d 490 (2000), cert. denied, 353 N.C. 382, 547 S.E.2d 816 (2001).


Rule 106. Remainder of or related writings or recorded statements.

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 106. The Advisory Committee's Note states:

"The rule is an expression of the rule of completeness. McCormick § 56. It is manifested as to depositions in Rule 32(a) (4) of the Federal Rules of Civil Procedure, of which the proposed rule is substantially a restatement.

The rule is based on two considerations. The first is the misleading impression created by taking matters out of context. The second is the inadequacy of repair work when delayed to a point later in the trial. * * * The rule does not in any way circumscribe the right of the adversary to develop the matter on cross-examination or as part of his own case.

For practical reasons, the rule is limited to writings and recorded statements and does not apply to conversations."

N.C. Civ. Pro. Rule 32(a) (5), which applies to depositions, is similar to Rule 106.

CASE NOTES

The Supreme Court frequently looks to federal decisions for guidance with regard to the Rules of Evidence, and the lessons of the federal decisions discussing Rule 106 are well settled. Rule 106 codifies the standard common law rule that when a writing or recorded statement or a part thereof is introduced by any party, an adverse party can obtain admission of the entire statement or anything so closely related that in fairness it too should be admitted. State v. Thompson, 332 N.C. 204, 420 S.E.2d 395 (1992).

Requirements. - Federal decisions make clear that Rule 106 does not require introduction of additional portions of the statement or another statement that are neither explanatory of nor relevant to the passages that have been admitted. State v. Thompson, 332 N.C. 204, 420 S.E.2d 395 (1992).

Defendant's argument that the trial court erred in denying his introduction of excluded portion of a statement he gave to the police failed because he did not seek to introduce the excluded portion of the statement contemporaneously as required, but instead sought to introduce the excluded portion on rebuttal. State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001).

No Abuse of Discretion. - Trial court did not abuse its discretion by excluding defendant's two prior interview statements from evidence at trial as the court's review of the two prior interview transcripts revealed no statement that should have been considered contemporaneous with the third under this rule. State v. Broyhill, 254 N.C. App. 478, 803 S.E.2d 832 (2017), review denied, 2018 N.C. LEXIS 241 (2018).

Trial court did not abuse its discretion allowing the State to offer portions of defendant's telephone call with his grandmother into evidence but refusing to allow defendant to offer other portions from the same call because in excluding the portion of the call in which defendant denied any involvement in the crime, the trial court correctly expressed concerns that admission of this not agreed-upon portion of the call could open the door to other portions of the call that the parties had previously agreed were inadmissible. State v. Vann, 261 N.C. App. 724, 821 S.E.2d 282 (2018).

Admission of Entire Report Concerning Child Sex Abuse. - Assuming error in admitting that portion of a licensed psychological associate's report which stated her opinion that a child sexual abuse victim was "not telling everything," the error was harmless in view of the weight of the substantive evidence against the defendant. State v. Waddell, 130 N.C. App. 488, 504 S.E.2d 84 (1998), aff'd in part and modified in part, 351 N.C. 413, 527 S.E.2d 644 (2000).

Prior Inconsistent Statements. - Co-conspirator was allowed to use her attorney-client privilege with regard to a prior inconsistent statement made in conference with her attorney; that privilege was not waived when the information was published and defendant had the opportunity to cross-examine and discredit the witness as to that portion of her statement and never asserted, and was never denied, the right to pursue any other aspect of the statement. State v. Gell, 351 N.C. 192, 524 S.E.2d 332 (2000), cert. denied, 531 U.S. 878, 121 S. Ct. 163, 148 L. Ed. 2d 110 (2000).

Defendant Opened the Door to Evidence. - Trial court did not violate the rule by admitting a detective's handwritten notes because defense counsel opened the door to the detective's notes during cross-examination and then objected to the admission of the full statement being read to the jury; it was only after defense counsel "opened the door" by taking a portion of defendant's statement out of context so as to be misleading that the notes were allowed by the trial court to correct the misleading impression defendant created. State v. Hensley, 254 N.C. App. 173, 802 S.E.2d 744 (2017), appeal dismissed, 807 S.E.2d 571, 2017 N.C. LEXIS 993 (N.C. 2017).

Error Not Prejudicial. - Even if, assuming arguendo, defendant was correct that a portion of his statement was admissible under the rule in his trial for attempted first-degree rape, he failed to show that, had the statement been admitted, a different result would have been reached. State v. Owen, 159 N.C. App. 204, 582 S.E.2d 689 (2003).

Cited in State v. McCrimmon, 89 N.C. App. 525, 366 S.E.2d 572 (1988); State v. Castrejon, 179 N.C. App. 685, 635 S.E.2d 520 (2006), cert. denied, appeal dismissed, 361 N.C. 222, 642 S.E.2d 709 (2007), review denied sub nom. State v. Gonzalez, 755 S.E.2d 619, 2014 N.C. LEXIS 219 (2014).


ARTICLE 2. Judicial Notice.

Rule

Rule 201. Judicial notice of adjudicative facts.

  1. Scope of rule. - This rule governs only judicial notice of adjudicative facts.
  2. Kinds of facts. - A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
  3. When discretionary. - A court may take judicial notice, whether requested or not.
  4. When mandatory. - A court shall take judicial notice if requested by a party and supplied with the necessary information.
  5. Opportunity to be heard. - In a trial court, a party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
  6. Time of taking notice. - Judicial notice may be taken at any stage of the proceeding.
  7. Instructing jury. - In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 201, except subdivision (e) which is discussed below. The Advisory Committee's Note states:

"This is the only evidence rule on the subject of judicial notice. It deals only with judicial notice of 'adjudicative' facts. No rule deals with judicial notice of 'legislative' facts. * * *

The omission of any treatment of legislative facts results from fundamental differences between adjudicative facts and legislative facts. Adjudicative facts are simply the facts of the particular case. Legislative facts, on the other hand, are those which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body. * * *

What, then, are 'adjudicative' facts? Davis refers to them as those 'which relate to the parties,' or more fully:

' When a court or an agency finds facts concerning the immediate parties - who did what, where, when, how, and with what motive or intent - the court or agency is performing an adjudicative function, and the facts are conveniently called adjudicative facts. . . .

'Stated in other terms, the adjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case. They relate to the parties, their activities, their properties, their businesses.' 2 Administrative Law Treatise 353."

Current North Carolina law does not deal with procedure for taking judicial notice of facts. Judicial notice of domestic and foreign law is dealt with in § Chapter 8, Article 1, which remains in force.

Subdivision (b) concerns the kinds of facts that may be judicially noticed. The Advisory Committee's Note states:

"With respect to judicial notice of adjudicative facts, the tradition has been one of caution in requiring that the matter be beyond reasonable controversy. This tradition of circumspection appears to be soundly based, and no reason to depart from it is apparent."

Subdivision (b) is consistent with current North Carolina practice. See Brandis on North Carolina Evidence § 11 (1982).

Subdivisions (c) and (d) govern when judicial notice is discretionary and when it is mandatory. The Advisory Committee's Note states:

"Under subdivision (c) the judge has a discretionary authority to take judicial notice, regardless of whether he is so requested by a party. The taking of judicial notice is mandatory, under subdivision (d), only when a party requests it and the necessary information is supplied. This scheme is believed to reflect existing practice. It is simple and workable. It avoids troublesome distinctions in the many situations in which the process of taking judicial notice is not recognized as such."

Subdivisions (c) and (d) are in accord with North Carolina practice. See Brandis on North Carolina Evidence § 11 (1982).

Subdivision (e) entitles a party, upon timely request, to an opportunity to be heard as to the propriety of taking judicial notice. It differs from the federal rule by its limitation to a trial court. The Advisory Committee's Note states:

"Basic considerations of procedural fairness demand an opportunity to be heard on the propriety of taking judicial notice and the tenor of the matter noticed. The rule requires the granting of that opportunity upon request. No formal scheme of giving notice is provided. An adversely affected party may learn in advance that judicial notice is in contemplation, either by virtue of being served with a copy of a request by another party under subdivision (d) that judicial notice be taken, or through an advance indication by the judge. Or he may have no advance notice at all. The likelihood of the latter is enhanced by the frequent failure to recognize judicial notice as such. And in the absence of advance notice, a request made after the fact could not in fairness be considered untimely."

Subdivision (e) departs from current North Carolina practice which generally does not require an opportunity to be heard prior to the court taking judicial notice on its own initiative. See Brandis on North Carolina Evidence § 11 (1982).

With respect to notice at administrative hearings, see G.S. 150A-30 [150B-30].

Subdivision (f) is in accord with North Carolina practice in allowing judicial notice to be taken at any stage of the proceedings, whether in the trial court or on appeal.

Subdivision (g) concerns instructing the jury with respect to judicially noticed facts. The Advisory Committee's Note states:

"Within its relatively narrow area of adjudicative facts, the rule contemplates there is to be no evidence before the jury in disproof. The judge instructs the jury to take judicially noticed facts as established. This position is justified by the undesirable effects of the opposite rule in limiting the rebutting party, though not his opponent, to admissible evidence, in defeating the reasons for judicial notice, and in affecting the substantive law to an extent and in ways largely unforeseeable. Ample protection and flexibility are afforded by the broad provision for opportunity to be heard on request, set forth in subdivision (e)."

Subdivision (g) is in accord with North Carolina practice in civil cases by not allowing evidence to be introduced to dispute a fact that has been judicially noticed. See Brandis on North Carolina Evidence § 11, at 34 (1982).

However, subdivision (g) differs from North Carolina practice by permitting evidence to be introduced in a criminal trial to rebut a fact that has been judicially noticed. In adopting subdivision (g), Congress was of the view that a mandatory instruction to a jury in a criminal case to accept as conclusive any fact judicially noticed is contrary to the spirit of the right to a jury trial.

Legal Periodicals. - For article, "A New Paradigm for Understanding Judicial Notice and its Implications in the Modern Digital Age," see 9 Elon L. Rev. 267 (2017).

CASE NOTES

Prior Proceedings. - A court may take judicial notice of its own prior proceedings, and if requested to take notice of its prior proceedings it must do so. In that case, the court simply instructs a civil jury to accept the fact(s) noticed. Georgia-Pacific Corp. v. Bondurant, 81 N.C. App. 362, 344 S.E.2d 302 (1986).

Trial court did not err by taking judicial notice of findings from a prior custody action between biological parents, in which the mother had been found unfit, to support an award of custody to a non-parent in a second custody action. Davis v. McMillian, 152 N.C. App. 53, 567 S.E.2d 159 (2002), cert. denied, 356 N.C. 669, 577 S.E.2d 114 (2003).

In a termination of parental rights hearing, it was not error for a trial court to take judicial notice of previous orders of adjudication, review orders, and permanency planning orders, under G.S. 8C-1, N.C. R. Evid. 201(b), because the trial court, acting as fact-finder, was presumed to disregard any incompetent evidence, and nothing showed that the trial court did not conduct the required independent determination, as the trial court specifically found it considered the testimony offered by both sides in making its determination that a mother neglected her children, for purposes of termination. In re J.W., 173 N.C. App. 450, 619 S.E.2d 534 (2005), aff'd, 360 N.C. 176, 625 S.E.2d 780 (2006).

Trial court erred in entering a domestic violence order of protection (DVPO) because there was no competent evidence to support the trial court's findings of fact when a wife presented absolutely no evidence before the trial court at the DVPO hearing, and since the trial judge presided over the criminal case in which charges stemming from the incident were brought against the husband, the trial judge concluded that he did not have to hear any evidence regarding the civil matter; judicial notice is entirely inappropriate for factual issues. Hensey v. Hennessy, 201 N.C. App. 56, 685 S.E.2d 541 (2009).

Judicial Notice Not Mandatory Without Request and Production of Necessary Information. - Appellate court held that district court did not abuse its discretion by failing to take judicial notice of the fact that judgments were public records and that constructive notice existed of the status of any judgment, because company did not argue on appeal that it requested that the district court take such judicial notice, and the company did not allege that it supplied the district court with the necessary information to take such judicial notice. Jones v. Ratley, 168 N.C. App. 126, 607 S.E.2d 38 (2005).

Notice of Consent Order Held Improper. - Consent order was not entered into to dispose of any facts critical to disposition of the issues which were to be tried; therefore, the trial judge erred in taking judicial notice of the order. American Aluminum Prods., Inc. v. Pollard, 97 N.C. App. 541, 389 S.E.2d 589 (1990).

Judicially Noticed Findings in Neglect Case. - Notwithstanding the trial court's authority to take notice of the court's own orders, it was problematic to allow the trial court's findings in the first order on nonsecure custody to serve as the sole support for most findings in the neglect adjudication; the trial court was not bound by the rules of evidence at the custody hearing and respondents had no right to appeal, and to allow the trial court to find adjudicatory facts by taking judicial notice of the court's prior findings undermined the procedural safeguards for adjudications. In re J.C.M.J.C., - N.C. App. - , 834 S.E.2d 670 (2019).

Legal Conclusions, Municipal Ordinances, or Police Department Regulations. - North Carolina courts may not take judicial notice of legal conclusions, municipal ordinances, or police department regulations. Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E.2d 601 (2000).

Board of Election Decision. - Court properly refused to take judicial notice of the Board of Elections' decision dismissing a law firm's complaint against a political campaign committee regarding an ad the committee published which defamed the firm and one of its members, because the board's decision that the ad did not constitute criminal election activity under G.S. 163-274(8), was a legislative fact not properly subject to judicial notice. Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 568 S.E.2d 893 (2002), cert. denied, - U.S. - , 124 S. Ct. 431, 157 L. Ed. 2d 310 (2003).

Experience of Foreign Attorneys. - A judge properly took judicial notice of (1) the number of highly skilled plaintiffs' attorneys engaged in the trial of medical negligence actions in the state, and (2) the number of times plaintiff/law firm participated in litigation in North Carolina by relying on information supplied by the North Carolina State Bar Association. Smith v. Beaufort County Hosp. Ass'n, 141 N.C. App. 203, 540 S.E.2d 775 (2000), cert denied, 353 N.C. 381, 547 S.E.2d 435 (2001), aff'd, 354 N.C. 212, 552 S.E.2d 139 (2001).

Sunset and Moon Phase. - The trial court was not required to take judicial notice of the time of the sunset and the phase of the moon as reported in a local newspaper. State v. Canady, 110 N.C. App. 763, 431 S.E.2d 500 (1993).

Nighttime element of burglary was satisfied as: (1) judicial notice under N.C. R. Evid. 201 was taken of the end of twilight, (2) by the end of twilight, the victim had returned home, and the perpetrators were only in the victim's home a short time, (3) a call to a police officer shortly after the incident was placed during the nighttime, and (4) defendant's testimony that the men returned to their car when it was "just turning dark," alone, was insufficient to negate the nighttime element. State v. Jordan, 186 N.C. App. 576, 651 S.E.2d 917 (2007), review denied, 362 N.C. 241, 660 S.E.2d 492 (2008).

Trial court committed no error in taking judicial notice of the time of sunset in a burglary case because judicial notice was procedurally taken; the State filed a written motion with the trial court to take judicial notice of the time of the sunset and the time of civil sunset as established by the Naval Observatory, the trial court, out of the presence of the jury, gave defendant the opportunity to be heard as to the propriety of taking judicial notice, and it subsequently instructed the jury that it could, but was not required to, accept as conclusive any fact judicially noticed. State v. McCormick, 204 N.C. App. 105, 693 S.E.2d 195 (2010).

There was sufficient evidence that a break-in occurred during the nighttime to support the denial of a motion to dismiss a burglary charge under G.S. 14-51 where: (1) judicial notice under G.S. 8C-1, N.C. R. Evid. 201(b) was taken of the time of twilight and the distance between defendant's girlfriend's apartment and the victim's home; (2) defendant left his girlfriend's apartment after 10:00 p.m. and returned by 6 a.m.; and (3) if defendant had committed the break-in after 5:47 a.m., he would not have been able to steal the items and return to the apartment by 6:00 a.m. State v. Brown, 221 N.C. App. 383, 732 S.E.2d 584 (2012).

Distances Between Cities. - Where an attorney sought to have a deposition admitted pursuant to Rule 32(a)(4) of the Rules of Civil Procedure by asserting that the witness was more than 100 miles from the place of trial, the trial court did not abuse its discretion by declining to take judicial notice of the distance between two cities. Vandervoort v. McKenzie, 117 N.C. App. 152, 450 S.E.2d 491 (1994).

Testimony Needed Regarding Safety of Motel. - In a child custody proceeding, the trial court should not have taken judicial notice sua sponte of criminal activity around the motel where the father lived where the prevalence of crime in the area was disputed; the court should have had a member of the community testify on the matter. Hinkle v. Hartsell, 131 N.C. App. 833, 509 S.E.2d 455 (1998).

Judicial Notice Did Not Constitute Improper Consolidation. - It was proper for trial court to consider discovery orders from a caveat proceeding in its consideration of sanctions for failure to comply in a discovery proceeding, where both proceedings involved plaintiff and defendant, plaintiff referred to the caveat action in his first set of interrogatories to defendant, and discovery of evidence with respect to the possession and content of the disputed sexually explicit videotapes was relevant to both proceedings. Sugg v. Field, 139 N.C. App. 160, 532 S.E.2d 843 (2000).

Judicial Notice of Racial Slurs. - No fact is more generally known than that a white man who calls a black man a "nigger" within his hearing will hurt and anger the black man and often provoke him to confront the white man and retaliate; thus, the trial court was free to judicially note this fact. In re Spivey, 345 N.C. 404, 480 S.E.2d 693 (1997).

Judicial Notice of Criminal Offenses. - Trial court did not err in concluding that the minor child was a neglected juvenile, as the allegation in the petition that the minor child was neglected because the minor child lived in an environment injurious to the minor child's welfare was proven by clear and convincing evidence; indeed, the evidence showed that the minor child's older sibling was adjudicated abused and neglected because the mother's boyfriend, who was cohabitating with the mother at the time of the abuse, pled guilty to several felony sex offenses, and the trial court was entitled to take judicial notice of that criminal record. In re D.S.A., 181 N.C. App. 715, 641 S.E.2d 18 (2007).

Judicial Notice of Co-Defendant's Guilty Plea. - Co-defendant's guilty plea was properly excluded under G.S. 8C-1, N.C. R. Evid. 201(d), because it was not an adjudicative fact; the co-defendant did not testify at defendant's trial for breaking or entering a motor vehicle with intent to commit larceny and the plea was irrelevant. It was improper to place irrelevant facts before a jury, by judicial notice or otherwise under G.S. 8C-1, N.C. R. Evid. 402. State v. Baskin, 190 N.C. App. 102, 660 S.E.2d 566 (2008).

Judicial Notice of Defendant's Actual Date of Release from Incarceration. - Defendant was properly convicted of not registering as a sex offender because (1) defendant's actual release date from consecutive incarceration sentences, of which judicial notice was taken, controlled, under G.S. 15A-1354(b), defendant's requirement to register as a sex offender, and (2) an amendment to N.C. G.S. 14-208.7 requiring defendant to register for 30 years applied retroactively. State v. Surratt, 241 N.C. App. 380, 773 S.E.2d 327 (2015).

Judicial Notice of Rates of Local Attorneys. - Denial of a mother's motion for attorney fees was error because, contrary to the trial court's finding, it was not barred from taking judicial notice of customary rates of local attorneys under G.S. 8C-1-201(b); trial court's belief that it lacked authority to apply judicial notice was instrumental in its decision. Simpson v. Simpson, 209 N.C. App. 320, 703 S.E.2d 890 (2011).

Judicial Notice of Trustee's Deed. - Fact that a foreclosure sale did occur and the property was conveyed by the trustee was capable of accurate and ready determination by resort to sources whose accuracy could not reasonably be questioned, pursuant to G.S. 8C-1, N.C. R. Evid. 201(b), specifically the trustee's deed. The trustee's deed provided evidence of the completed foreclosure sale of the subject real property. In re Foreclosure of the Deed of Trust of Hackley, 212 N.C. App. 596, 713 S.E.2d 119 (2011).

Judicial Notice Of Bank Merger. - Court of appeals would not take judicial notice of an alleged bank merger because the alleged merger of the banks did not fall within the realm of common and general knowledge within the territorial jurisdiction of the trial court; the banks were not well-known. TD Bank, N.A. v. Mirabella, 219 N.C. App. 505, 725 S.E.2d 29 (2012).

Court of appeals would not take judicial notice of an alleged bank merger on the ground that it was a fact capable of accurate and ready determination because defendant reasonably questioned plaintiff's merger documents in its reply brief; there was a reasonable question as to whether plaintiff did merge with another bank. TD Bank, N.A. v. Mirabella, 219 N.C. App. 505, 725 S.E.2d 29 (2012).

Court of appeals would not take judicial notice of an alleged bank merger on the ground that it was a fact capable of accurate and ready determination because judicial notice was not mandatory; plaintiff's provision of the alleged merger documents as an appendix to its brief did not supplying the necessary information under G.S. 8C-1, N.C. R. Evid. 201; because plaintiff failed to present the merger documents before the trial court, defendant did not have the opportunity to respond fully to the documents included in the appendix to plaintiff's brief, and to the extent defendant had responded it questioned the authenticity of plaintiff's documents. TD Bank, N.A. v. Mirabella, 219 N.C. App. 505, 725 S.E.2d 29 (2012).

Judicial Notice of Payment to Court. - Court could take judicial notice of a copy of defendant's payment to the court that was marked "True Copy" and signed by an assistant clerk, because it was a public document. State v. King, 218 N.C. App. 385, 721 S.E.2d 327 (2012).

Trend in Electric Utility Industry. - The Utilities Commission did not act arbitrarily in taking judicial notice of the current restructuring trend in the electric utility industry, where the reality of this trend was not subject to reasonable dispute because it was generally known within the industry. State ex rel. Utils. Comm'n v. Carolina Indus. Group For Fair Util. Rates, 130 N.C. App. 636, 503 S.E.2d 697 (1998), cert. denied, 349 N.C. 377 (1998).

Statistics of Bureau of Labor Statistics. - Alimony order was reversed because, inter alia, the court wrongly took judicial notice of salaries in the wife's profession in order to find the wife's earning capacity, as this was a contested issue. Khaja v. Husna, 243 N.C. App. 330, 777 S.E.2d 781 (2015), dismissed, 780 S.E.2d 757, 2015 N.C. LEXIS 1310 (2015), dismissed, 781 S.E.2d 293, 2015 N.C. LEXIS 1291 (2015).

Newspaper Articles. - Court properly refused to take judicial notice of newspaper articles, in rendering its decision on a political campaign committee's motion to dismiss a law firm's defamation and unfair practices complaint against it, because the articles had no relevance to the complaint's legal sufficiency or to any absolute defense to the firm's claims. Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 568 S.E.2d 893 (2002), cert. denied, - U.S. - , 124 S. Ct. 431, 157 L. Ed. 2d 310 (2003).

Judicial Notice of Assumptions Underlying Abolished Tender Years Doctrine Held Improper. - Trial court erred in entering a custody order concerning the parties' child; the trial court improperly relied on the tender years presumption in granting custody to the mother, as that presumption had been abolished, and G.S. 50-13.2(a) required that the custody decision be based solely on the best interests of the child, and G.S. 8C-1, Rule 201(b) did not allow the trial court to take judicial notice of the assumptions underlying an abolished doctrine in order to resurrect the doctrine. Greer v. Greer, 175 N.C. App. 464, 624 S.E.2d 423 (2006).

Judicial Notice of Lawsuit. - Because an estate filed a new lawsuit after the trial court entered its order granting summary judgment, and because the existence of the new action was a determinative fact in the analysis as to whether the court of appeals had jurisdiction over the administratrix's appeal, the court of appeals took judicial notice of the administratrix's current suit. Parmley v. Barrow, 253 N.C. App. 741, 801 S.E.2d 386 (2017).

Judicial Notice That Arrest Order Was Served. - Trial court did not abuse its discretion in taking judicial notice of the fact that defendant was served with an order of arrest prior to the 150-day deadline of G.S. 15A-544.5(d) where it was undisputed that defendant had been so served. State v. Isaacs, 261 N.C. App. 696, 821 S.E.2d 300 (2018).

Judicial Notice of Memorandum of Agreement Under Indian Child Welfare Act. - Insufficient findings showed a trial court had jurisdiction under the Indian Child Welfare Act, 25 U.S.C.S. § 1901 et seq., because judicial notice could not be taken of a proffered 25 U.S.C.S. § 1919 memorandum of agreement (MOA) between a tribe and the State, since the MOA was not authenticated, and the MOA was a legislative fact of which judicial notice could not be taken. In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857 (2013).

Judicial Notice of Will of Widow Claiming Elective Share. - When a widow sought an elective share of her deceased spouse's estate, it was not shown to be error to take judicial notice of the widow's will because the trial court expressly did not rely on the widow's will to make the court's decision but merely looked to that will as corroboration of the court's decision, so no prejudice was shown. In re Estate of Sharpe, 258 N.C. App. 601, 814 S.E.2d 595 (2018).

Judicial Notice of Sheriff's Agreement With Immigration and Customs Enforcement. - It was appropriate for an appellate court to take judicial notice of a sheriff's agreement with Immigration and Customs Enforcement that was not presented in a trial court because the agreement was relevant to subject matter jurisdiction. Chavez v. Carmichael, 262 N.C. App. 196, 822 S.E.2d 131 (2018), rev'd, vacated, aff'd, and modified, in part, remanded, 374 N.C. 458, 843 S.E.2d 139, 2020 N.C. LEXIS 500 (2020).

Trial court did not err in failing to consider on remand documents citizens submitted for judicial notice because it was unclear that the citizens were prejudiced by the exclusion of the materials sought to be included at the trial court level since the parties stipulated to the facts, and the issues under review were jointly recognized to be matters of law. Goldston v. State, 199 N.C. App. 618, 683 S.E.2d 237 (2009), review denied, 363 N.C. 802, 690 S.E.2d 536 (2010).

Finding Not Based on Judicial Notice. - Finding that a program had helped a father to maintain a calm demeanor during direct examination and cross examination was supported by the record and was not based upon judicial notice because the record included evidence about the father's participation in the program, and the trial court observed the father's demeanor at the hearing; the finding was the effect of the program on the father, not its general success rate or reputation. In re L.G.A., - N.C. App. - , 857 S.E.2d 761 (Apr. 20, 2021).

Judicial Notice Improper. - Because the benefits of a program a father completed were not "well established" or "authoritatively settled" in the manner appropriate for judicial notice, the portion of the trial court's finding regarding the widely-known benefits of the program was not supported by the evidence. In re L.G.A., - N.C. App. - , 857 S.E.2d 761 (Apr. 20, 2021).

Appellate Review. - Court of appeals addressed a mother's argument as to whether the trial court took improper judicial notice of the benefits of a program the father completed because the mother's counsel did not object, and should not have objected, to the trial court's order directing the father's counsel to prepare the written order and announcing a general summary of the findings of fact, as there was no legal basis for an objection; judicial notice was not mentioned during the presentation of evidence. In re L.G.A., - N.C. App. - , 857 S.E.2d 761 (Apr. 20, 2021).

Applied in In re J.B., 172 N.C. App. 1, 616 S.E.2d 264 (2005); State v. Weaver, 231 N.C. App. 473, 752 S.E.2d 240 (2013).

Cited in Ballenger v. ITT Grinnell Indus. Piping, Inc., 80 N.C. App. 393, 342 S.E.2d 582 (1986); Albritton v. Albritton, 109 N.C. App. 36, 426 S.E.2d 80 (1993); State v. Bacon, 337 N.C. 66, 446 S.E.2d 542 (1994); State v. Helms, 127 N.C. App. 375, 490 S.E.2d 565 (1997); Southeastern Jurisdictional Admin. Council v. Emerson, 363 N.C. 590, 683 S.E.2d 366 (2009); ITS Leasing, Inc. v. Ram Dog Enters., LLC, 206 N.C. App. 572, 696 S.E.2d 880 (2010); State v. Harwood, 243 N.C. App. 425, 777 S.E.2d 116 (2015); In re Foreclosure of a Deed of Trust Executed by Lucks, 369 N.C. 222, 794 S.E.2d 501 (2016); State v. Cannon, 254 N.C. App. 794, 804 S.E.2d 199 (2017), aff'd, 2018 N.C. LEXIS 51 (N.C. 2018) aff'd, 809 S.E.2d 567, 2018 N.C. LEXIS 51 (2018).


ARTICLE 3. Presumptions in Civil Actions and Proceedings.

Rule

Rule 301. Presumptions in general in civil actions and proceedings.

In all civil actions and proceedings when not otherwise provided for by statute, by judicial decision, or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. The burden of going forward is satisfied by the introduction of evidence sufficient to permit reasonable minds to conclude that the presumed fact does not exist. If the party against whom a presumption operates fails to meet the burden of producing evidence, the presumed fact shall be deemed proved, and the court shall instruct the jury accordingly. When the burden of producing evidence to meet a presumption is satisfied, the court must instruct the jury that it may, but is not required to, infer the existence of the presumed fact from the proved fact.

History

(1983, c. 701, s. 1.)

COMMENTARY

The first sentence of this rule is identical to Fed. R. Evid. 301, except that the phrase "by statute, by judicial decision" is used in lieu of the phrase "by Act of Congress." The last three sentences of the rule, which were modeled upon Alaska Rule of Evidence 301 (1979), clarify the effect of the rule.

A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed or inferred from another fact established in the action. The term "basic fact" is used to designate the fact from which the assumption or inference is made and the term "presumed fact" is used to indicate the fact assumed or inferred.

The rule does not apply to "conclusive presumptions", which are merely statements of substantive law and have nothing to do with the law of evidence. See Brandis on North Carolina Evidence § 215, at 170 (1982).

In some situations, when the basic fact has been established, the presumed fact may (but need not) be found to exist. The existence of the presumed fact is for the trier of fact to determine from all the evidence pro and con. The term "permissive presumption" is used to describe this situation. Id. at 171. Or it is said that the basic fact is prima facie evidence of the fact to be inferred. Rule 301 does not apply in situations where a statute or judicial decision creates a "permissive presumption" or merely provides that one fact shall be "prima facie" evidence of another.

The term "mandatory presumption" is used when the presumed fact must be found when the basic fact has been established, unless sufficient evidence of the nonexistence of the presumed fact is forthcoming. Id. at 171. Rule 301 is intended to govern mandatory presumptions.

Care should be taken to determine whether the presumption in question is within the scope of this rule since the term presumption is often misused. The first sentence of the rule makes it clear that the General Assembly and the courts retain power to create presumptions having an effect different from that provided for in this rule. Nonetheless, a presumption created by a prior statute or judicial decision should be construed to come within the scope of this rule unless it is clear that the presumption was not intended to be a "mandatory presumption".

Under Rule 301, the presumption satisfies the burden of producing evidence of the presumed fact. Evidence sufficient to prove the basic fact is sufficient proof of the presumed fact to survive a directed verdict at the end of the proponent's case-in-chief. This is in accord with North Carolina practice.

The general rule in North Carolina is in accord with Rule 301 in that a presumption does not shift the burden of proof. Id. § 218, at 179. However, with respect to some presumptions in North Carolina, the opponent has the burden of persuading the jury, by a preponderance of the evidence or otherwise, that the presumed fact does not exist. Id. If by statute or judicial decision a particular presumption shifts the burden of proof, Rule 301 does not apply.

Proof of the basic fact not only discharges the proponent's burden of producing evidence of the presumed fact but also places upon the opponent the burden of producing evidence that the presumed fact does not exist. If the opponent does not introduce any evidence, or the evidence is not sufficient to permit reasonable minds to conclude that the presumed fact does not exist, the proponent is entitled to a peremptory instruction that the presumed fact shall be deemed proved. This is in accord with North Carolina practice. Id. § 222, at 189.

If the opponent introduces evidence sufficient to permit reasonable minds to conclude that the presumed fact does not exist, no peremptory instruction should be given. Rather, the court must instruct the jury that it may, but is not required to, infer the existence of the presumed fact from proof of the basic fact.

Of course, the opponent may avoid the effect of a presumption by proving that the basic fact does not exist.

CASE NOTES

Total Charges Must Be Reasonable. - When plaintiff proffers the evidence required by G.S. 8-58.1, the fact-finder must find that the total amount of the alleged medical charges is reasonable, unless defendant carries its burden of going forward by rebutting the presumed fact of reasonableness. Jacobsen v. McMillan, 124 N.C. App. 128, 476 S.E.2d 368 (1996).

Burden of Persuasion in Summary Ejectment Actions. - Dismissal of a summary ejectment action was error because a trial court held the landlord to a clear, cogent, and convincing evidence standard, and in a summary ejectment action, the landlord's burden of persuasion was by the preponderance of the evidence as set forth in G.S. 42-30; this standard also applied to appeals of summary ejectment actions in the district court. Durham Hosiery Mill Ltd. P'ship v. Morris, 217 N.C. App. 590, 720 S.E.2d 426 (2011).

Failure to Rebut Statutory Presumption Resulted in Summary Judgment. - Summary judgment for the defendant on the issue of slander per se was appropriate where the plaintiff's description of retaliatory motives for defendant's report failed to rebut the statutory presumption created in favor of the defendant by the child abuse reporting provisions of this section and G.S. 7B-309 which together provide immunity not merely conditional upon proof of good faith, but a "good faith" immunity which endows the reporter with the mandatory presumption that he or she acted in good faith. Dobson v. Harris, 352 N.C. 77, 530 S.E.2d 829 (2000).

Trial Court Must Instruct Jury As to Presumption. - Under G.S. 8C-1, N.C. R. Evid. 301, the trial court must instruct the jury when a statutory or judicial presumption exists. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918 (2003), cert. denied, 358 N.C. 375, 598 S.E.2d 135 (2004).

Trial Court Did Not Err in Refusing to Instruct the Jury As to Statutory Presumption. - Trial court did not err by failing to instruct the jury that the amount of a passenger's medical expenses was presumed reasonable under G.S. 8-58.1, even though G.S. 8C-1, N.C. R. Evid. 301, required the trial court to instruct the jury of a statutory presumption; all parties stipulated to the amount of the passenger's medical charges and to the reasonableness of the charges, and any instruction regarding the medial expenses would have been redundant and confusing to the jury. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918 (2003), cert. denied, 358 N.C. 375, 598 S.E.2d 135 (2004).

Applied in Poore v. Swan Quarter Farms, Inc., 95 N.C. App. 449, 382 S.E.2d 835 (1989).

Cited in Kisiah v. W.R. Kisiah Plumbing, Inc., 124 N.C. App. 72, 476 S.E.2d 434 (1996).


Rule 302. Applicability of federal law in civil actions and proceedings.

In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which federal law supplies the rule of decision is determined in accordance with federal law.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule differs from Fed. R. Evid. 302 in that "federal law" has been substituted for "state law." The Comment to Rule 302 of the Uniform Rules of Evidence (1974) explains the purpose of the change:

"Parallel jurisdiction in state and federal courts exists in many instances. The rule prescribes that when a federally created right is litigated in a state court, any prescribed federal presumption shall be applied."

ARTICLE 4. Relevancy and Its Limits.

Rule

Rule 401. Definition of "relevant evidence."

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 401. The Advisory Committee's Note states:

"Problems of relevancy call for an answer to the question whether an item of evidence, when tested by the processes of legal reasoning, possesses sufficient probative value to justify receiving it in evidence. Thus, assessment of the probative value of evidence that a person purchased a revolver shortly prior to a fatal shooting with which he is charged is a matter of analysis and reasoning.

The variety of relevancy problems is coextensive with the ingenuity of counsel in using circumstantial evidence as a means of proof. An enormous number of cases fall in no set pattern, and this rule is designed as a guide for handling them. On the other hand, some situations recur with sufficient frequency to create patterns susceptible of treatment by specific rules. Rule 404 and those following it are of that variety; they also serve as illustrations of the application of the present rule as limited by the exclusionary principles of Rule 403.

Passing mention should be made of so-called 'conditional' relevancy. Morgan, Basic Problems of Evidence 45-46 (1962). In this situation, probative value depends not only upon satisfying the basic requirement of relevancy as described above but also upon the existence of some matter of fact. For example, if evidence of a spoken statement is relied upon to prove notice, probative value is lacking unless the person sought to be charged heard the statement. The problem is one of fact, and the only rules needed are for the purpose of determining the respective functions of judge and jury. See Rules 104(b) and 901. The discussion which follows in the present note is concerned with relevancy generally, not with any particular problem of conditional relevancy.

Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case. Does the item of evidence tend to prove the matter sought to be proved? Whether the relationship exists depends upon principles evolved by experience or science, applies logically to the situation at hand. James, Relevancy, Probability and the Law, 29 Calif.L.Rev. 689, 696, n. 15 (1941), in Selected Writings on Evidence and Trial 610, 615, n. 15 (Fryer ed. 1957). The rule summarizes this relationship as a 'tendency to make the existence' of the fact to be proved 'more probable or less probable.' Compare Uniform Rule 1(2) which states the crux of relevancy as 'a tendency in reason,' thus perhaps emphasizing unduly the logical process and ignoring the need to draw upon experience or science to validate the general principle upon which relevancy in a particular situation depends.

The standard of probability under the rule is 'more . . . probable than it would be without the evidence.' Any more stringent requirement is unworkable and unrealistic. As McCormick § 152, p. 317, says, 'A brick is not a wall,' or, as Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L. Rev. 574, 576 (1956), quotes Professor McBaine, '. . . [I]t is not to be supposed that every witness can make a home run.' Dealing with probability in the language of the rule has the added virtue of avoiding confusion between questions of admissibility and questions of the sufficiency of the evidence.

The rule uses the phrase 'fact that is of consequence to the determination of the action' to describe the kind of fact to which proof may properly be directed. The language is that of California Evidence Code § 210; it has the advantage of avoiding the loosely used and ambiguous word 'material'. * * * The fact to be proved may be ultimate, intermediate, or evidentiary; it matters not, so long as it is of consequence in the determination of the action. Cf. Uniform Rule 1(2) which requires that the evidence relate to a 'material' fact.

The fact to which the evidence is directed need not be in dispute. While situations will arise which call for the exclusion of evidence offered to prove a point conceded by the opponent, the ruling should be made on the basis of such considerations as waste of time and undue prejudice (see Rule 403), rather than under any general requirement that evidence is admissible only if directed to matters in dispute. Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding. Charts, photographs, views of real estate, murder weapons, and many other items of evidence fall in this category. A rule limiting admissibility to evidence directed to a controversial point would invite the exclusion of this helpful evidence, or at least the raising of endless questions over its admission."

While North Carolina courts have used slightly different definitions of relevant evidence, the rule is unlikely to alter significantly North Carolina practice. See Brandis on North Carolina Evidence § 78 (1982). Although the rule speaks in terms of relevancy, the definition includes what is often referred to in our courts as materiality. Id. § 77.

Legal Periodicals. - For comment, "The Use of Rape Trauma Syndrome as Evidence in a Rape Trial: Valid or Invalid?," see 21 Wake Forest L. Rev. 93 (1985).

For note, "State v. Stafford: Rape Trauma Syndrome and the Admissibility of Statements Made by Rape Victims," see 64 N.C.L. Rev. 1364 (1986).

For comment, "Admissibility of DNA Evidence: Perfecting the 'Search for Truth'," see 25 Wake Forest L. Rev. 591 (1990).

For note, "Evidence - Rape Shield Statute - Witnesses - State v. Guthrie, 110 N.C. App. 91, 428 S.E.2d 853 (1993)," see 72 N.C.L. Rev. 1777 (1994).

For article, "Issues Once Moot: The Other Evidentiary Objections to the Admission of Exculpatory Polygraph Examinations," see 32 Wake Forest L. Rev. 1045 (1997).

For article, "The Admissibility of Expert Testimony in North Carolina After Howerton: Reconciling the Ruling with the Rules of Evidence," see 28 Campbell L. Rev. 1 (2005).

For casenote, "Howerton v. Arai Helmet, Ltd.: Last Dance with the Daubert-Kumho Decisions: One Step Forward from Two Steps Back," see 28 N.C. Cent. L.J. 109 (2005).

CASE NOTES

I. GENERAL CONSIDERATION.

This rule sets a standard to which trial judges must adhere in determining whether proffered evidence is relevant; at the same time, this standard gives the judge great freedom to admit evidence because the rule makes evidence relevant if it has any logical tendency to prove any fact that is of consequence. State v. Wallace, 104 N.C. App. 498, 410 S.E.2d 226 (1991), cert. denied, 331 N.C. 290, 416 S.E.2d 398, 506 U.S. 915, 113 S. Ct. 321, 121 L. Ed. 2d 241 (1992).

Rulings on Relevance Given Great Deference. - Even though a trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal. State v. Wallace, 104 N.C. App. 498, 410 S.E.2d 226 (1991), cert. denied, 331 N.C. 290, 416 S.E.2d 398, 506 U.S. 915, 113 S. Ct. 321, 121 L. Ed. 2d 241 (1992).

Compliance with the facial requirements of Rule 901(a), regarding authentication and identification, does not mean (i) that an exhibit automatically qualifies as relevant under Rule 401 or (ii) if relevant, that it is admissible under Rule 802, the hearsay rule. State v. Patterson, 103 N.C. App. 195, 405 S.E.2d 200, aff'd, 332 N.C. 409, 420 S.E.2d 98 (1992).

While G.S. 8C-1, N.C. R. Evid. 411 does not prohibit the admission of evidence of liability insurance to establish agency, the evidence must still meet the relevancy requirements of G.S. 8C-1, N.C. R. Evid. 401 to be admissible. Williams v. Bell, 167 N.C. App. 674, 606 S.E.2d 436 (2005).

Evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case. State v. Sloan, 316 N.C. 714, 343 S.E.2d 527 (1986); State v. Wingard, 317 N.C. 590, 346 S.E.2d 638 (1986); State v. Whiteside, 325 N.C. 389, 383 S.E.2d 911 (1989); State v. Murillo, 349 N.C. 573, 509 S.E.2d 752 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 103, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5310, 68 U.S.L.W. 3225 (1999).

Evidence is relevant if it can assist the jury in understanding the evidence. State v. Huang, 99 N.C. App. 658, 394 S.E.2d 279 (1990), vacated in part, 107 N.C. App. 710, 421 S.E.2d 812 (1992).

Every circumstance that is calculated to throw any light upon the supposed crime is admissible; the weight of such evidence is for the jury. State v. Whiteside, 325 N.C. 389, 383 S.E.2d 911 (1989).

The court has interpreted this rule broadly and has explained on a number of occasions that in a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible. State v. Collins, 335 N.C. 729, 440 S.E.2d 559 (1994).

Even though evidence may tend to show other crimes, wrongs or acts by the defendant, and his propensity to commit them, it is admissible under G.S. 8C-1, Rule 404(b) so long as it is also relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried. State v. Bagley, 321 N.C. 201, 362 S.E.2d 244 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 312 (1988).

An individual piece of evidence need not conclusively establish a fact to be of some probative value. It need only support a logical inference of the fact's existence. State v. Payne, 328 N.C. 377, 402 S.E.2d 582 (1991).

When Relevant Hearsay Is Admissible. - Hearsay evidence, even if relevant, is inadmissible unless it is covered by statutory exception, or unless its exclusion deprives a defendant of a trial in accord with fundamental standards of due process. State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990) in light of State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651 (1988).

When Evidence Is Irrelevant. - If proffered evidence has no tendency to prove a fact in issue in the case, the evidence is irrelevant and must be excluded. State v. Coen, 78 N.C. App. 778, 338 S.E.2d 784 (1986).

Admission of irrelevant evidence is generally considered harmless error. State v. Melvin, 86 N.C. App. 291, 357 S.E.2d 379 (1987).

Admission of irrelevant evidence will be treated as harmless unless the defendant shows that he was so prejudiced by the erroneous admission that a different result would have ensued if the evidence had been excluded. State v. Harper, 96 N.C. App. 36, 384 S.E.2d 297 (1989).

Defendant has the burden of showing that he was prejudiced by the admission of evidence. In order to show prejudice, defendant must meet the statutory requirements of G.S. 15A-1443(a). State v. Melvin, 86 N.C. App. 291, 357 S.E.2d 379 (1987).

When relevant evidence not involving a right arising under the Constitution of the United States is erroneously excluded, a defendant has the burden of showing that the error was prejudicial. This burden may be met by showing that there is a reasonable possibility that a different result would have been reached had the error not been committed. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988).

Admission of Evidence Held Prejudicial Error. - Where the challenged evidence that defendant was in custody for assault with a deadly weapon with intent to kill his girlfriend was especially prejudicial because of its similarity to the charge at issue, which was murder and assault with a deadly weapon with intent to kill, and the similarity of the charges was compounded by the additional "verification" evidence of a detective, such admissions constituted prejudicial error and defendant was entitled to a new trial. State v. Cashwell, 322 N.C. 574, 369 S.E.2d 566 (1988).

Cumulative Effect of Admitted Evidence Held Prejudicial. - Where, in a murder prosecution, the State spent a great deal of time focusing on the details of defendant's alleged prior offenses of selling marijuana to high school students, citation for possession of marijuana, and breaking and entering, the cumulative effect of the admission of the evidence was prejudicial error entitling the defendant to a new trial. State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456, cert. denied, 323 N.C. 627, 374 S.E.2d 594 (1988).

Admission of Evidence Held Not Prejudicial Error. - In prosecution for rape, first-degree kidnapping, sexual offense, and common law robbery, the admission of the officer's testimony that the defendant had a rifle in his car when he was arrested, if error, was not prejudicial, where there was no intimation by the officer that the defendant attempted to use the rifle when he was arrested, that it was used in the commission of any crime or that possession of the rifle was otherwise unlawful. State v. Herring, 322 N.C. 733, 370 S.E.2d 363 (1988).

Defendant failed to show that any error in overruling the defendant's objection and motion to strike testimony was prejudicial because a special agent had not begun testifying about the defendant's case in particular but was speaking generally about the nature of the agent's work; the special agent explained that when no DNA match was found, the person in question could not have committed the crime and did not affirmatively state that when a match was found, the subject definitely committed the crime. State v. Hurt, 235 N.C. App. 174, 760 S.E.2d 341 (2014).

Even if the trial court erred by admitting a forensic psychologist's report and testimony, any error was non-prejudicial because the State presented other abundant evidence of defendant's guilt; defendant failed to carry his burden of showing that had the psychologist's report and corresponding testimony not been admitted at trial, a reasonable possibility existed that the jury would have reached a different result; State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636 (2015).

Even if the trial court erred in admitting song lyrics defendant wrote, the error was not prejudicial due to the other abundant evidence of defendant's guilt. State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636 (2015).

Evidence of Defendant's Behavior. - Trial court did not abuse its discretion by admitting evidence of the defendant's anti-social and disruptive behavior while in custody awaiting trial for the purpose of impeaching the defendant's credibility. State v. Myers, 123 N.C. App. 189, 472 S.E.2d 598 (1996).

Evidence of Credentials. - Evidence of the physical locations of the universities listed on the resume and diplomas of defendant, a naturopath, was relevant since it showed that he held himself out as a medical doctor. State v. Perry, 159 N.C. App. 30, 582 S.E.2d 708 (2003), cert. denied, 357 N.C. 510, 588 S.E.2d 469 (2003).

In deciding whether evidence of insurance should be received under G.S. 8C-1, N.C. R. Evid. 411, a trial court should engage in the following analysis: (1) Is the insurance coverage offered for a purpose other than to show that a person acted negligently or otherwise wrongfully; (2) If so, is the evidence relevant to show that other purpose; and (3) If so, is the probative value of the relevant evidence substantially outweighed by the factors set forth in G.S. 8C-1, N.C. R. Evid. 403. Williams v. Bell, 167 N.C. App. 674, 606 S.E.2d 436 (2005).

Error Alleged on Appeal Not Preserved. - Defendant's claim that certain testimony was erroneously admitted was not preserved for purposes of appeal because defendant claimed, on appeal, that the testimony was irrelevant, under G.S. 8C-1, N.C. R. Evid. 401 and 402, and that the testimony was unduly prejudicial, under G.S. 8C-1, N.C. R. Evid. 403, but defendant did not make these specific objections at trial, nor were such objections apparent from the context, under N.C. R. App. P. 10(b)(1), from which it appeared that defendant made a hearsay objection. State v. Hueto, 195 N.C. App. 67, 671 S.E.2d 62 (2009).

Invited Error. - With regard to witness testimony about defendant's alleged molestation of another girl, defendant elicited that testimony on cross-examination of the State's witnesses, and made no motion to strike the testimony; thus, any error was invited error and defendant could not be prejudiced as a matter of law. State v. Randolph, 224 N.C. App. 521, 735 S.E.2d 845 (2012).

Applied in Buie v. Johnston, 69 N.C. App. 463, 317 S.E.2d 91 (1984); State v. Pridgen, 313 N.C. 80, 326 S.E.2d 618 (1985); State v. Suggs, 86 N.C. App. 588, 359 S.E.2d 24 (1987); State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987); State v. Welch, 89 N.C. App. 135, 365 S.E.2d 190 (1988); State v. Speckman, 92 N.C. App. 265, 374 S.E.2d 419 (1988); State v. Barber, 93 N.C. App. 42, 376 S.E.2d 497 (1989); Crump v. Board of Educ., 93 N.C. 168, 378 S.E.2d 32 (1989); State v. Givens, 95 N.C. App. 72, 381 S.E.2d 869 (1989); Mosley & Mosley Bldrs., Inc. v. Landin Ltd., 97 N.C. App. 511, 389 S.E.2d 576 (1990); State v. Hall, 98 N.C. App. 1, 390 S.E.2d 169 (1990); State v. Leroux, 326 N.C. 368, 390 S.E.2d 314 (1990); State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990); State v. Davis, 101 N.C. App. 409, 399 S.E.2d 371 (1991); State v. Richardson, 328 N.C. 505, 402 S.E.2d 401 (1991); State v. Ferguson, 105 N.C. App. 692, 414 S.E.2d 769 (1992); State v. Hightower, 331 N.C. 636, 417 S.E.2d 237 (1992); Workman v. Workman, 106 N.C. App. 562, 418 S.E.2d 269 (1992); In re Beck, 109 N.C. App. 539, 428 S.E.2d 232 (1993); State v. Withers, 111 N.C. App. 340, 432 S.E.2d 692 (1993); State v. Moore, 335 N.C. 567, 440 S.E.2d 797, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994); State v. Ingle, 336 N.C. 617, 445 S.E.2d 880 (1994); State v. Jones, 337 N.C. 198, 446 S.E.2d 32 (1994); State v. Johnson, 340 N.C. 32, 455 S.E.2d 644 (1995); State v. Serzan, 119 N.C. App. 557, 459 S.E.2d 297 (1995); State v. Hightower, 340 N.C. 735, 459 S.E.2d 739 (1995); State v. Johnston, 344 N.C. 596, 476 S.E.2d 289 (1996); State v. McAllister, 132 N.C. App. 300, 511 S.E.2d 660 (1999), aff'd, 351 N.C. 44, 519 S.E.2d 524 (1999); State v. Underwood, 134 N.C. App. 533, 518 S.E.2d 231 (1999), cert. dismissed, 352 N.C. 669, 535 S.E.2d 33 (2000); In re Hayes, 139 N.C. App. 114, 532 S.E.2d 553 (2000); State v. Stephenson, 144 N.C. App. 465, 551 S.E.2d 858 (2001); State v. Ward, 354 N.C. 231, 555 S.E.2d 251 (2001); State v. Mann, 355 N.C. 294, 560 S.E.2d 776 (2002); State v. Robertson, 149 N.C. App. 563, 562 S.E.2d 551 (2002); State v. Hannah, 149 N.C. App. 713, 563 S.E.2d 1 (2002); N.C. State Bar v. Gilbert, 151 N.C. App. 299, 566 S.E.2d 685 (2002), aff'd, 357 N.C. 502, 586 S.E.2d 89 (2003); State v. Bullock, - N.C. App. - , 566 S.E.2d 768 (2002); State v. Prevatte, 356 N.C. 178, 570 S.E.2d 440 (2002); State v. Hyman, 153 N.C. App. 396, 570 S.E.2d 745 (2002), cert. denied, 357 N.C. 253, 583 S.E.2d 41 (2003); State v. Bethea, 167 N.C. App. 215, 605 S.E.2d 173 (2004); Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004); State v. Bruton, 165 N.C. App. 801, 600 S.E.2d 49 (2004); State v. Carmon, 169 N.C. App. 750, 611 S.E.2d 211 (2005); State v. Augustine, 359 N.C. 709, 616 S.E.2d 515 (2005); State v. King, 178 N.C. App. 122, 630 S.E.2d 719 (2006); State v. Theer, 181 N.C. App. 349, 639 S.E.2d 655 (2007), cert. denied, - U.S. - , 128 S. Ct. 2473,
171 L. Ed. 2d 769 (2008); State v. Carpenter, 361 N.C. 382, 646 S.E.2d 105 (2007); State v. Graham, 186 N.C. App. 182, 650 S.E.2d 639 (2007), review denied, appeal dismissed, 362 N.C. 477, 666 S.E.2d 765 (2008); State v. Jones, 188 N.C. App. 562, 655 S.E.2d 915 (2008); State v. Garris, 191 N.C. App. 276, 663 S.E.2d 340 (2008), review denied, 362 N.C. 684, 670 S.E.2d 907 (2008); State v. Little, 191 N.C. App. 655, 664 S.E.2d 432 (2008), review denied, 362 N.C. 685, 671 S.E.2d 326 (2008); Yorke v. Novant Health, Inc., 192 N.C. App. 340, 666 S.E.2d 127 (2008); State v. Jacobs, 363 N.C. 815, 689 S.E.2d 859 (2010); State v. Ross, 207 N.C. App. 379, 700 S.E.2d 412 (2010), review denied 717 S.E.2d 377, 2011 N.C. LEXIS 666 (N.C. 2011); State v. Conley, 220 N.C. App. 50, 724 S.E.2d 163 (2012); State v. Houseright, 220 N.C. App. 495, 725 S.E.2d 445 (2012); State v. King, 366 N.C. 68, 733 S.E.2d 535 (2012); State v. Walston, 229 N.C. App. 141, 747 S.E.2d 720 (2013), review denied 753 S.E.2d 666, 2014 N.C. LEXIS 28 (2014), rev'd 367 N.C. 721, 766 S.E.2d 312, 2014 N.C. LEXIS 953 (2014); Schmidt v. Petty, 231 N.C. App. 406, 752 S.E.2d 690 (2013); State v. McKnight, 239 N.C. App. 108, 767 S.E.2d 689 (2015); State v. Jones, 241 N.C. App. 132, 772 S.E.2d 470 (2015); DOT v. Adams Outdoor Adver. of Charlotte Ltd. P'ship, 247 N.C. App. 39, 785 S.E.2d 151 (2016), aff'd in part and rev'd in part, 370 N.C. 101, 804 S.E.2d 486, 2017 N.C. LEXIS 687 (2017); State v. Rios, 251 N.C. App. 318, 795 S.E.2d 234 (2016).

Cited in Kapp v. Kapp, 336 N.C. 295, 442 S.E.2d 499, rehearing denied, 336 N.C. 786, 447 S.E.2d 424 (1994); State v. Perry, 69 N.C. App. 477, 317 S.E.2d 428 (1984); State v. Slone, 76 N.C. App. 628, 334 S.E.2d 78 (1985); State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506 (1985); State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985); State v. Morgan, 315 N.C. 616, 340 S.E.2d 84 (1986); State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986); Broyhill v. Coppage, 79 N.C. App. 221, 339 S.E.2d 32 (1986); State v. Mason, 315 N.C. 539, 340 S.E.2d 430 (1986); State v. Hillard, 81 N.C. App. 104, 344 S.E.2d 54 (1986); State v. West, 317 N.C. 219, 345 S.E.2d 186 (1986); McNabb v. Town of Bryson City, 82 N.C. App. 385, 346 S.E.2d 285 (1986); State v. Brooks, 83 N.C. App. 179, 349 S.E.2d 630 (1986); Stonewall Ins. Co. v. Fortress Reinsurers Managers, Inc., 83 N.C. App. 263, 350 S.E.2d 131 (1986); Drian v. United Servs. Life Ins. Co., 85 N.C. App. 174, 354 S.E.2d 269 (1987); State v. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987); Mosley & Mosley Bldrs., Inc. v. Landin Ltd., 87 N.C. App. 438, 361 S.E.2d 608 (1987); State v. Baker, 320 N.C. 104, 357 S.E.2d 340 (1987); State v. Bell, 87 N.C. App. 626, 362 S.E.2d 288 (1987); Matthews v. James, 88 N.C. App. 32, 362 S.E.2d 594 (1987); State v. Rowland, 89 N.C. App. 372, 366 S.E.2d 550 (1988); State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988); State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275 (1988); Smith v. Starnes, 88 N.C. App. 609, 364 S.E.2d 442 (1988); Federal Land Bank v. Lieben, 89 N.C. App. 395, 366 S.E.2d 592 (1988); State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988); Screaming Eagle Air, Ltd. v. Airport Comm'n, 97 N.C. App. 30, 387 S.E.2d 197 (1990); State v. Levan, 326 N.C. 155, 388 S.E.2d 429 (1990); State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990); State v. Smith, 99 N.C. App. 67, 392 S.E.2d 642 (1990); State v. Jones, 97 N.C. App. 189, 388 S.E.2d 213 (1990); State v. Richardson, 100 N.C. App. 240, 395 S.E.2d 143 (1990); State v. Faucette, 326 N.C. 676, 392 S.E.2d 71 (1990); State v. Odom, 99 N.C. App. 265, 393 S.E.2d 146 (1990); State v. Franklin, 327 N.C. 162, 393 S.E.2d 781 (1990); State v. Norris, 101 N.C. App. 144, 398 S.E.2d 652 (1990); State v. Smith, 328 N.C. 99, 400 S.E.2d 712 (1991); State v. Bunch, 104 N.C. App. 106, 408 S.E.2d 191 (1991); State v. Annadale, 329 N.C. 557, 406 S.E.2d 837 (1991); State v. Haskins, 104 N.C. App. 675, 411 S.E.2d 376 (1991); State v. Suddreth, 105 N.C. App. 122, 412 S.E.2d 126 (1992); State v. Hightower, 331 N.C. 636, 417 S.E.2d 237 (1992); State v. Mebane, 106 N.C. App. 516, 418 S.E.2d 245 (1992); Adams v. Lovette, 105 N.C. App. 23, 411 S.E.2d 620 (1992); State v. Dodd, 330 N.C. 747, 412 S.E.2d 46 (1992); State v. Hart, 105 N.C. App. 542, 414 S.E.2d 364 (1992); State v. Hucks, 332 N.C. 650, 422 S.E.2d 711 (1992); State v. Quick, 106 N.C. App. 548, 418 S.E.2d 291 (1992); State v. Taylor, 332 N.C. 372, 420 S.E.2d 414 (1992); State v. Moore, 107 N.C. App. 388, 420 S.E.2d 691 (1992); State v. Wilson,
108 N.C. App. 117, 423 S.E.2d 473 (1992); State v. Baker, 333 N.C. 325, 426 S.E.2d 73 (1993); State v. Beach, 333 N.C. 733, 430 S.E.2d 248 (1993); State v. Wilson, 335 N.C. 220, 436 S.E.2d 831 (1993); State v. Holmes, 109 N.C. App. 615, 428 S.E.2d 277 (1993); State v. Roddey, 110 N.C. App. 810, 431 S.E.2d 245 (1993); State v. Bynum, 111 N.C. App. 845, 433 S.E.2d 778 (1993); Abels v. Renfro Corp., 335 N.C. 209, 436 S.E.2d 822 (1993); State v. Brooks, 113 N.C. App. 451, 439 S.E.2d 234 (1994); State v. Corbett, 339 N.C. 313, 451 S.E.2d 252 (1994); State v. Sierra, 335 N.C. 753, 440 S.E.2d 791 (1994); State v. Reeves, 337 N.C. 700, 448 S.E.2d 802 (1994), cert. denied, 514 U.S. 1114, 115 S. Ct. 1971, 131 L. Ed. 2d 860 (1995); State v. Ward, 338 N.C. 64, 449 S.E.2d 709 (1994), cert. denied, 514 U.S. 1134, 115 S. Ct. 2014, 131 L. Ed. 2d 1012 (1995), cert. denied, 343 N.C. 757, 473 S.E.2d 626 (1996), cert. denied, 354 N.C. 74, 571 S.E.2d 835 (2001); State v. Larrimore, 340 N.C. 119, 456 S.E.2d 789 (1995); State v. Holmes, 120 N.C. App. 54, 460 S.E.2d 915 (1995); State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995); State v. Alston, 341 N.C. 198, 461 S.E.2d 687 (1995), cert. denied, 516 U.S. 1148, 116 S. Ct. 1021, 134 L. Ed. 2d 100 (1996); State v. Bruton, 344 N.C. 381, 474 S.E.2d 336 (1996); State v. Cunningham, 344 N.C. 341, 474 S.E.2d 772 (1996); State v. Jackson, 126 N.C. App. 129, 484 S.E.2d 405 (1997), rev'd on other grounds, 348 N.C. 644, 503 S.E.2d 101 (1998); Estate of Smith ex rel. Smith v. Underwood, 127 N.C. App. 1, 487 S.E.2d 807, cert. denied, 347 N.C. 398, 494 S.E.2d 410 (1997); State v. Pickens, 346 N.C. 628, 488 S.E.2d 162 (1997); State v. Robinson, 346 N.C. 586, 488 S.E.2d 174 (1997), cert. denied, - N.C. - , 502 S.E.2d 611 (1998); State v. Cagle, 346 N.C. 497, 488 S.E.2d 535 (1997), cert. denied, 522 U.S. 1032, 118 S. Ct. 635, 139 L. Ed. 2d 614 (1998); State v. Bishop, 346 N.C. 365, 488 S.E.2d 769 (1997); State v. Gray, 347 N.C. 143, 491 S.E.2d 538 (1997), cert. denied, 523 U.S. 1031, 118 S. Ct. 1323, 140 L. Ed. 2d 486 (1998); Reis v. Hoots, 131 N.C. App. 721, 509 S.E.2d 198 (1998); State v. Mickey, 347 N.C. App. 508, 495 S.E.2d 669 (1998); State v. Gary, 348 N.C. 510, 501 S.E.2d 57 (1998); State v. Atkins, 349 N.C. 62, 505 S.E.2d 97 (1998), cert. denied, 526 U.S. 1147, 119 S. Ct. 2025, 143 L. Ed. 2d 1036 (1999); State v. Dennis, 129 N.C. App. 686, 500 S.E.2d 765 (1998); State v. Brown, 350 N.C. 193, 513 S.E.2d 57 (1999); State v. Teague, 134 N.C. App. 702, 518 S.E.2d 573 (1999); State v. Leggett, 135 N.C. App. 168, 519 S.E.2d 328 (1999); State v. Shuler, 135 N.C. App. 449, 520 S.E.2d 585 (1999); State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001); State v. Parker, (N.C. App. Oct. 3, 2000); State v. Allen, 141 N.C. App. 610, 541 S.E.2d 490 (2000), cert. denied, 353 N.C. 382, 547 S.E.2d 816 (2001); State v. Lawrence,
352 N.C. 1, 530 S.E.2d 807 (2000); Evans v. United Servs. Auto. Ass'n, 142 N.C. App. 18, 541 S.E.2d 782 (2001), cert. denied, 353 N.C. 371, 547 S.E.2d 810 (2001); State v. Anthony, 354 N.C. 372, 555 S.E.2d 557 (2001); State v. Parker, 354 N.C. 268, 553 S.E.2d 885 (2001), cert. denied, 535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162 (2002); State v. Stokes, 150 N.C. App. 211, 565 S.E.2d 196 (2002), cert. denied, 356 N.C. 175, 569 S.E.2d 277 (2002); State v. Stokes, - N.C. App. - , 561 S.E.2d 547 (2002); State v. Wilson, 151 N.C. App. 219, 565 S.E.2d 223 (2002), cert. denied, 356 N.C. 313, 571 S.E.2d 215 (2002); State v. Marecek, 152 N.C. App. 479, 568 S.E.2d 237 (2002); State v. Bartlett, 153 N.C. App. 680, 571 S.E.2d 28 (2002), appeal dismissed, cert. denied, 356 N.C. 679, 577 S.E.2d 892 (2003); State v. Trull, 153 N.C. App. 630, 571 S.E.2d 592 (2002), cert. denied, 356 N.C. 691, 578 S.E.2d 597 (2003); cert. dismissed, 794 S.E.2d 333, 2016 N.C. LEXIS 1059 (2016); Hummer v. Pulley, Watson, King & Lischer, P.A., 157 N.C. App. 60, 577 S.E.2d 918 (2003), cert. denied, 357 N.C. 459, 585 S.E.2d 758 (2003); State v. Wiggins, 161 N.C. App. 583, 589 S.E.2d 402 (2003); State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004); State v. Oakley, 167 N.C. App. 318, 605 S.E.2d 215 (2004), cert. denied, - N.C. - , 610 S.E.2d 386 (2005); State v. Simmons, 167 N.C. App. 512, 606 S.E.2d 133 (2004); State v. Wells, 171 N.C. App. 136, 613 S.E.2d 705 (2005); State v. Blizzard, 169 N.C. App. 285, 610 S.E.2d 245 (2005); State v. Locklear, 172 N.C. App. 249, 616 S.E.2d 334 (2005); State v. Smith, 180 N.C. App. 86, 636 S.E.2d 267 (2006); State v. McDougald, 181 N.C. App. 41, 638 S.E.2d 546 (2007); State v. Brockett, 185 N.C. App. 18, 647 S.E.2d 628 (2007); State v. Peterson, 361 N.C. 587, 652 S.E.2d 216 (2007), cert. denied, 552 U.S. 1271, 128 S. Ct. 1682, 170 L. Ed. 2d. 377 (2008); State v. Beatty, 189 N.C. App. 464, 658 S.E.2d 508 (2008); Moseley v. Branker, 545 F.3d 265 (4th Cir. 2008); Kor Xiong v. Marks, 193 N.C. App. 644, 668 S.E.2d 594 (2008); State v. Jacobs, 195 N.C. App. 599, 673 S.E.2d 724 (2009), aff'd, 363 N.C. 815, 689 S.E.2d 859, 2010 N.C. LEXIS 195 (2010); State v. Dean, 196 N.C. App. 180, 674 S.E.2d 453 (2009), appeal dismissed, review denied, 363 N.C. 376, 679 S.E.2d 139 (N.C. 2009); Crocker v. Roethling, 363 N.C. 140, 675 S.E.2d 625 (2009); State v. Ward, 199 N.C. App. 1, 681 S.E.2d 354 (2009), aff'd 2010 N.C. LEXIS 424 (2010); State v. Curry, 203 N.C. App. 375, 692 S.E.2d 129 (2010); State v. Blymyer, 205 N.C. App. 240, 695 S.E.2d 525 (2010); Lowd v. Reynolds, 205 N.C. App. 208, 695 S.E.2d 479 (2010); State v. Peterson, 205 N.C. App. 668, 695 S.E.2d 835 (2010); State v. Kirby, 206 N.C. App. 446, 697 S.E.2d 496 (2010); State v. Gabriel, 207 N.C. App. 440, 700 S.E.2d 127 (2010); State v. Wilson, 207 N.C. App. 492, 700 S.E.2d 148 (2010); Rabon v. Hopkins, 208 N.C. App. 351, 703 S.E.2d 181 (2010), review denied 365 N.C. 195, 710 S.E.2d 22,
2011 N.C. LEXIS 470 (N.C. 2011); State v. Capers, 208 N.C. App. 605, 704 S.E.2d 39 (2010), dismissed 365 N.C. 187, 707 S.E.2d 236, 2011 N.C. LEXIS 227 (2011); State v. Banks, 210 N.C. App. 30, 706 S.E.2d 807 (2011); State v. Oliver, 210 N.C. App. 609, 709 S.E.2d 503 (2011), review denied 365 N.C. 206, 710 S.E.2d 37, 2011 N.C. LEXIS 495 (N.C. 2011); State v. Towe, 210 N.C. App. 430, 707 S.E.2d 770 (2011), aff'd and modified 366 N.C. 56, 732 S.E.2d 564, 2012 N.C. LEXIS 420 (N.C. 2012); State v. Beckelheimer, 211 N.C. App. 362, 712 S.E.2d 216 (2011), rev'd 366 N.C. 127, 726 S.E.2d 156, 2012 N.C. LEXIS 409 (2012); rev'd 722 S.E.2d 484, 2012 N.C. LEXIS 125 (2012); State v. Brown, 211 N.C. App. 427, 710 S.E.2d 265 (2011), aff'd, review improvidently allowed, 365 N.C. 465, 722 S.E.2d 508, 2012 N.C. LEXIS 123 (2012); State v. De La Sancha Cobos, 211 N.C. App. 536, 711 S.E.2d 464 (2011); State v. Edmonds, 212 N.C. App. 575, 713 S.E.2d 111 (2011); State v. Norman, 213 N.C. App. 114, 711 S.E.2d 849 (2011), review denied, 718 S.E.2d 401, 2011 N.C. LEXIS 940 (2011); State v. Ellison, 213 N.C. App. 300, 713 S.E.2d 228 (2011); State v. Britt, 217 N.C. App. 309, 718 S.E.2d 725 (2011); State v. Privette, 218 N.C. App. 459, 721 S.E.2d 299 (2012), review denied, 365 N.C. 566, 724 S.E.2d 532, 2012 N.C. LEXIS 290 (N.C. 2012); State v. Lewis, 365 N.C. 488, 724 S.E.2d 492 (2012); State v. Gettys, 219 N.C. App. 93, 724 S.E.2d 579 (2012); State v. Flood, 221 N.C. App. 247, 726 S.E.2d 908 (2012), review denied 366 N.C. 427, 736 S.E.2d 488, 2013 N.C. LEXIS 60 (2013); State v. Miles, 222 N.C. App. 593, 730 S.E.2d 816 (2012); State v. Jones, 223 N.C. App. 487, 734 S.E.2d 617 (2012), aff'd, 758 S.E.2d 345, 2014 N.C. LEXIS 173 (2014); State v. Tatum-Wade, 229 N.C. App. 83, 747 S.E.2d 382 (2013); State v. May, 230 N.C. App. 366, 749 S.E.2d 483 (2013); State v. Lewis, 231 N.C. App. 438, 752 S.E.2d 216 (2013), review denied, 755 S.E.2d 617, 2014 N.C. LEXIS 206 (2014); State v. Council, 232 N.C. App. 68, 753 S.E.2d 223 (2014); State v. McGrady, 232 N.C. App. 95, 753 S.E.2d 361 (2014); State v. Blakney, 233 N.C. App. 516, 756 S.E.2d 844 (2014);.

State v. Royster, 237 N.C. App. 64, 763 S.E.2d 577 (2014); State v. Crockett, 238 N.C. App. 96, 767 S.E.2d 78 (2014); State v. Gettys, 243 N.C. App. 590, 777 S.E.2d 351 (2015), dismissed and review denied, 781 S.E.2d 798, 2016 N.C. LEXIS 118 (2016); State v. Mbaya, 249 N.C. App. 529, 791 S.E.2d 266 (2016), review denied, 794 S.E.2d 343, 2016 N.C. LEXIS 1054 (2016); State v. Peralta, - N.C. App. - , 836 S.E.2d 254 (2019), review denied, mot. granted, 374 N.C. 269, 839 S.E.2d 348, 2020 N.C. LEXIS 319 (2020), cert. denied, 2020 U.S. LEXIS 4053, 208 L. Ed. 2d 100 (U.S. 2020); State v. Roberts, - N.C. App. - , 836 S.E.2d 287 (2019), review denied, 374 N.C. 269, 839 S.E.2d 350, 2020 N.C. LEXIS 293 (N.C. 2020).

II. RELEVANT EVIDENCE.

Background Evidence. - Evidence which is essentially background in nature is universally offered and admitted as an aid to understanding. Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585, 339 S.E.2d 799 (1986).

Amount of Damages in Personal Injury Action. - Where the determination to be made in a personal injuries action was the amount of damages, any fact bearing on the degree or severity of injury sustained by plaintiff was properly admitted. Ferrell v. Frye, 108 N.C. App. 521, 424 S.E.2d 197 (1993).

Evidence concerning the speed the defendant's vehicle was traveling when it struck the rear of the plaintiffs' vehicle was relevant to the extent of the plaintiffs' injuries, and thus was relevant to the issue of damages. Albrecht v. Dorsett, 131 N.C. App. 502, 508 S.E.2d 319 (1998).

Passenger's testimony regarding the force of the impact was relevant to determining damages for the injured party and thus, the trial court did not abuse its discretion in admitting said testimony. Dunn v. Custer, 162 N.C. App. 259, 591 S.E.2d 11 (2004).

Evidence that another person committed the crime for which defendant is charged generally is relevant and admissible, as long as it does more than create an inference or conjecture in this regard; under this rule, such evidence must tend both to implicate another and be inconsistent with the guilt of the defendant. State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987), overruling prior decisions to the extent that they tend to indicate that a defendant may not present evidence to show that the crime charged was committed by another unless the crime was one that only could have been committed by one person acting alone. See also, State v. Brewer, 325 N.C. 550, 386 S.E.2d 569 (1989), cert. denied, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211 (1976).

Excluded evidence which showed that within a few hours during the same night three homes in close proximity were broken into, the female occupants were sexually assaulted, and the modus operandi in each case was very similar, which tended to show that the same person committed all of the similar crimes in the neighborhood in question on that night and that the person was someone other than the defendant, was both relevant and admissible under this rule, and the trial court erred in ruling to the contrary. State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987).

The defendant was entitled to a new trial because a different result might have been reached had the trial court not excluded relevant and admissible evidence which cast doubt upon the State's evidence that defendant was the perpetrator of the murder of an elderly victim and which further implicated another person as that perpetrator beyond conjecture or mere implication. State v. Israel, 353 N.C. 211, 539 S.E.2d 633 (2000).

Trial court did not err in not permitting defendant to introduce evidence that three other people may have been responsible for the crimes for which he was tried because the evidence did not tend both to implicate the others and to be inconsistent with the guilt of defendant. State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808 (2003).

Out-of-Court Statements Relevant. - Defendant's out-of-court statements were not hearsay; the sergeant testified that defendant was not in custody or under arrest at the time of the conversation, and after being advised that she could leave at any time, defendant willingly spoke to him. The statements were relevant and admissible. State v. Abbitt, - N.C. App. - , - S.E.2d - (Aug. 3, 2021).

Witness' testimony in which he stated he was "pretty sure" that defendant had admitted to killing victim was relevant to the issue of the identification of defendant and not unfairly prejudicial. State v. Moses, 350 N.C. 741, 517 S.E.2d 853 (1999), cert. denied, 528 U.S. 1124, 120 S. Ct. 951, 145 L. Ed. 2d 826 (2000), cert. denied 706 S.E.2d 246, 2011 N.C. LEXIS 121 (N.C. 2011.

Testimony Defendant Attempted to Procure False Alibi. - Evidence that defendant attempted to procure a false alibi from a former girlfriend was relevant and, thus, admissible. State v. Rankin, 191 N.C. App. 332, 663 S.E.2d 438 (2008), review denied, 363 N.C. 136, 674 S.E.2d 143 (2009), review denied, 363 N.C. 136, 674 S.E.2d 143 (2009).

Videotaped interview, initiated by defendant herself and containing the story as told to her family, police, doctors and the news reporter, was relevant to show how she lied consistently concerning the cause of the injuries leading to her child's death and, even if wrongly admitted into evidence, was not prejudicial. State v. Burgess, 134 N.C. App. 632, 518 S.E.2d 209 (1999).

Defendant's videotaped statement made in the back of a patrol car during a conversation with an officer was admissible; the defendant was not being interrogated by the officer at the time and Miranda warnings therefor were not required, the statement was relevant to the crime, and the danger of unfair prejudice did not substantially outweigh the probative value of the evidence. State v. Gantt, 161 N.C. App. 265, 588 S.E.2d 893 (2003).

Although defendant pled guilty, videotape showing murder was admissible as it showed that the murder was committed for pecuniary gain and that the murder was part of a course of conduct which included a crime of violence against another person. State v. Jones, 336 N.C. 229, 443 S.E.2d 48, cert. denied, 513 U.S. 1003, 115 S. Ct. 518, 130 L. Ed 2d 423 (1994), 339 N.C. 619, 454 S.E.2d 263 (1995).

The witness's plea agreement with the State, in which she agreed to testify against the defendant, was relevant to her credibility and therefore properly admitted. State v. McCord, 140 N.C. App. 634, 538 S.E.2d 633 (2000), review denied, 353 N.C. 392 (2001).

Evidence to Indicate Defendant Was Racist. - In trial for murder, evidence which indicated that defendant was a racist was relevant where no evidence other than race as to why victim was singled out for abuse appeared from the record. State v. Wynne, 329 N.C. 507, 406 S.E.2d 812 (1991).

Testimony Regarding Victim's Behavior. - Testimony of a lay witness as to a child sexual abuse victim's behavior before and after the alleged sexual abuse was relevant as to whether the abuse occurred. State v. Stancil, 146 N.C. App. 234, 552 S.E.2d 212 (2001), cert. dismissed, 705 S.E.2d 343, 2010 N.C. LEXIS 946 (2010), review dismissed, 705 S.E.2d 393 (2011).

Under a plain error analysis, because of the defendant's failure to object at trial, testimony explaining the murder victim's various employment duties, responsibilities, and performance was admissible as it showed why the victim worked late nights; additionally, the testimony was relevant to describe the victim's payday routine as well as where and how he kept his money. State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002).

Testimony Regarding Mental State. - Where doctor was allowed to testify about defendant's mental state at the time of the murders and gave his opinion that defendant did not form the specific intent to kill, but was not allowed to give his opinion that the defendant "snapped", defendant received a fair trial, free of prejudicial error. State v. Burgess, 345 N.C. 372, 480 S.E.2d 638 (1997).

Murder defendant was not prejudiced by the testimony of defendant's case manager as to defendant's frustration and desire to leave a homeless shelter and that defendant was irritated and argumentative. State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808 (2003).

Testimony of a victim of armed robbery as to how she felt when the gun was placed to her head was relevant, pursuant to G.S. 8C-1, Rule 401, in that her testimony as to her fear for her life and her intimidation proved the main element of the offense of robbery with a dangerous weapon in violation of G.S. 14-87. State v. Jackson, 161 N.C. App. 118, 588 S.E.2d 11 (2003).

Testimony by two of the adult armed robbery victims as to the children's state of mind was relevant to suggest that their lives were endangered and threatened by defendant's actions. State v. Anderson, 181 N.C. App. 655, 640 S.E.2d 797 (2007), review denied, 361 N.C. 430, 648 S.E.2d 846 (2007).

In defendant's criminal trial on a variety of charges, arising from a vehicular incident that resulted in deaths, a trial court properly allowed admission of testimony regarding defendant's prior failure to take a breath test and defendant's conviction for driving while intoxicated, as such was relevant under N.C. R. Evid. 401 and 402 to show defendant's knowledge that the driver's license was suspended and to show malice, which was an element of one of the charged offenses; further, the evidence was properly admitted for the purpose of showing defendant's intent and it was not unfairly prejudicial under N.C. R. Evid. 404(b) and 403. State v. Lloyd, 187 N.C. App. 174, 652 S.E.2d 299 (2007), cert. denied, 363 N.C. 586, 683 S.E.2d 214 (2009).

Testimony of detention officers was relevant to whether defendant suffered from a mental illness, as defendant claimed for purposes of insanity and diminished capacity defenses; this testimony would have allowed the jury to infer that the mental health condition was due to mental illness rather than substance abuse and supported defendant's contention that defendant's behavior was the result of not being medicated for mental illness. State v. Shareef, 221 N.C. App. 285, 727 S.E.2d 387 (2012).

When a terminated state law enforcement agent alleged discrimination on the basis of political affiliation, the testimony by a former deputy secretary of the North Carolina Department of Public Safety (DPS) that a state senator told the deputy secretary that the agent's reassignment shouldn't have occurred and that they were going to fix it and that the incoming Secretary of the DPS had agreed that the reassignment shouldn't have happened was admissible in an administrative hearing to show the declarants' existing mental states and motives. N.C. Dep't of Pub. Safety v. Ledford, 247 N.C. App. 266, 786 S.E.2d 50 (2016).

Expert Testimony Regarding Post Traumatic Stress Disorder. - If believed, expert testimony regarding post traumatic stress disorder could be helpful to jury in understanding behavioral patterns of sexual assault victims. North Carolina Court of Appeals and courts of other jurisdictions have recognized reliability of post traumatic stress disorder testimony in sexual assault cases. State v. Huang, 99 N.C. App. 658, 394 S.E.2d 279 (1990), vacated in part, 107 N.C. App. 710, 421 S.E.2d 812 (1992).

Evidence Pertaining to Parental Relations of Decedent in Wrongful Death Action. - Evidence pertaining to disease of plaintiff's decedent and the effect it had on his relationship with his parents had a tendency to prove the extent of damages, which were in controversy in wrongful death action. The evidence was therefore relevant and should have been admitted on that ground. Hales v. Thompson, 111 N.C. App. 350, 432 S.E.2d 388 (1993).

Evidence of Sexually-Transmitted Disease in Sexual Abuse Case - In a sexual abuse prosecution, testimony from a public health department that defendant and the victim were both diagnosed with and treated for gonorrhea at approximately the same time, according to the department's records, was relevant, under G.S. 8C-1, N.C. R. Evid. 401, to show that the victim had sexual contact with an infected person and defendant was an infected person. State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643 (2002).

Evidence of Sexual Activity in Paternity Case. - Character evidence is generally not admitted in civil cases unless it is character which is in issue because this evidence is often more prejudicial than probative. Where, however, evidence of sexual activity and promiscuity goes to a central element of the case, i.e., the opportunity to impregnate plaintiff, whether or not other men had the opportunity to father child born out of wedlock is of ultimate relevance to the issue of paternity. In addition, this nongenetic outside information, as a factor in the probability of paternity calculation, must be received in order for the jury to weigh any expert's assumptions underlying the calculation of numerical probability of paternity. State ex rel. Williams v. Coppedge, 105 N.C. App. 470, 414 S.E.2d 81, rev'd on other grounds, 332 N.C. 654, 422 S.E.2d 691 (1992).

Evidence from a Void Statutory Rape Charge. - The court rejected the defendant's claim that the admission of evidence on a void statutory rape charge was irrelevant and unfairly prejudicial and found that the evidence of defendant's sexual activity with the fourteen-year-old was relevant to establish intent, motive, knowledge, as well as defendant's scheme of involving himself with vulnerable, disturbed teenage girls at the home. State v. Crockett, 138 N.C. App. 109, 530 S.E.2d 359 (2000).

Evidence of Previous Traffic Violations. - The defendant's previous traffic violations were relevant and admissible in his second-degree murder prosecution arising from a traffic accident to show malice based on defendant's "depraved heart" on the night that he struck the two victims' vehicle while intoxicated and while rounding a sharp curve at a speed at least 40 mph over the speed limit. State v. Rich, 132 N.C. App. 440, 512 S.E.2d 441 (1999), aff'd, 351 N.C. 386, 527 S.E.2d 299 (2000).

Trial court properly allowed plaintiff's attorney to ask defendant motorist about traffic citations he received that resulted in a conviction, because the evidence was relevant to the issue of whether defendant company was liable for negligent entrustment because it employed the motorist and allowed him to drive a company van. Campbell v. McIlwain, 163 N.C. App. 553, 593 S.E.2d 799 (2004).

Police Officer's Opinion Relevant - Where a defendant made a general objection to a police officer's testimony and not a specific objection to the officer's qualification as an expert, the admissibility of the officer's testimony was not preserved for review, and because the testimony was in the form of an opinion based on the officer's expertise and was likely to assist the jury, the testimony was not patently inadmissible or prejudicial. State v. White, 154 N.C. App. 598, 572 S.E.2d 825 (2002).

Deputy's testimony that defendant fell over when the deputy asked defendant to stand on one leg and hop was relevant to the deputy's lay opinion that defendant was impaired. State v. Streckfuss, 171 N.C. App. 81, 614 S.E.2d 323 (2005).

Medical Opinion Relevant. - Court did not err in admitting doctor's opinion that victims wound was consistent with the victim leaning over a chair when he was shot. State v. Cummings, 346 N.C. 291, 488 S.E.2d 550 (1997), cert. denied, 522 U.S. 1092, 118 S. Ct. 886, 139 L. Ed. 2d 873 (1998).

Medical Records Relevant. - The court properly allowed evidence of the plaintiff's medical records indicating the possibility of a history of alcohol abuse to explain the reason defendants considered the possibility that alcohol withdrawal was a potential cause of the plaintiff's post-operative confusion or hallucinations. Marley v. Graper, 135 N.C. App. 423, 521 S.E.2d 129 (1999).

Medical records and North Carolina Department of Social Services records of the decedent and the decedent's child were admissible in a wrongful death and medical malpractice action because the personal representative failed to carry the burden to show that the records were unfairly prejudicial, or that the trial court abused its discretion in admitting the prior records into evidence. The prior records illustrated a complete picture of the decedent's mental health and were relevant concerning causation and damages. Clarke v. Mikhail, 243 N.C. App. 677, 779 S.E.2d 150 (2015).

Dreams and Diary Relevant. - Testimony from witness about her dreams and diary entry when first incarcerated was relevant under this rule and admissible under Rule 403; however, references to later bad dreams were properly excluded. State v. Jones, 347 N.C. 193, 491 S.E.2d 641 (1997).

Song Lyrics Written by Defendant. - Trial court did not err in admitting song lyrics defendant wrote because in light of the similarities between the lyrics and the facts surrounding the charged offense, the lyrics were relevant to establish identity, motive, and intent, and their probative value substantially outweighed their prejudicial effect to defendant. State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636 (2015).

Victim's Character. - Evidence that defendant had murdered a blood relative who had opened her home to him, had been especially caring, and had offered him a stable environment was admissible as it tended to support the aggravating circumstance that the murder was especially heinous, atrocious or cruel. State v. Davis, 353 N.C. 1, 539 S.E.2d 243 (2000), cert. denied, 534 U.S. 839, 122 S. Ct. 95, 151 L. Ed. 2d 55 (2001).

Evidence that the murder victim's last words were "I'm not scared of you. I'm a Christian," was admissible because it was offered not to show the good character of the victim, but instead it was offered as circumstantial evidence of defendant's state of mind when he was approaching the victim before he shot and killed the victim. State v. Kaher Maruf Muhammad, 186 N.C. App. 355, 651 S.E.2d 569 (2007), appeal dismissed, 362 N.C. 242, 660 S.E.2d 537 (2008).

Trial court did not err in admitting the testimony of the victim's mother about the victim's involvement with drugs or a photo showing the victim before the victim started using drugs. Pursuant to G.S. 8C-1, N.C. R. Evid. 401, the evidence was relevant to support the State's theory that the murder of the victim by defendant and another man was drug-related and to show the victim's health before the victim became involved with drugs. State v. Hope, 189 N.C. App. 309, 657 S.E.2d 909 (2008), review denied, 362 N.C. 367, 664 S.E.2d 315 (2008).

Report in Defamation Case. - Report did not demonstrate the substantial truth of the statements in question or the articles generally, did not address whether plaintiff's work was deficient, and did not address the accuracy of the actual work; thus, the report was not relevant; even if the report had some relevance, it was substantially outweighed by the danger of unfair prejudice, as the report was an interim report and recommended further investigation, and that investigation confirmed that plaintiff's analysis was accurate. Desmond v. News & Observer Publ'g Co., 263 N.C. App. 26, 823 S.E.2d 412 (2018), aff'd, and rev'd, in part, remanded, 375 N.C. 21, 846 S.E.2d 647, 2020 N.C. LEXIS 698 (2020).

Evidence of Decedent's Drinking Habits Held Relevant. - Although evidence of decedent's drinking habits did not by itself show that decedent knew defendant was under the influence, all of the evidence of decedent's drinking habits, along with the evidence of defendant's drinking on the day of the accident, established that decedent's prior use of alcohol and his knowledge of its effect was relevant on the issue of contributory negligence for riding with intoxicated driver. McFarland v. Cromer, 117 N.C. App. 678, 453 S.E.2d 527 (1995), cert. denied, 340 N.C. 114, 458 S.E.2d 183 (1995), cert. denied, 340 N.C. 114, 456 S.E.2d 317 (1995).

Evidence of the Method Used by the Defendant in Loading Merchandise After the Accident. - Since plaintiff allegedly had been injured by merchandise falling from the defendant's trailer, defendant's employee was properly permitted to testify that he had observed the method by which defendant loaded and packed its trailers and that he had observed merchandise fall out of the trailers when the rear doors were opened. The observations were not too remote in time (within 18 months) and allowed a reasonable inference that the same methods had been used to load the trailer involved in plaintiff's injury. Kilgo v. Wal-Mart Stores, Inc., 138 N.C. App. 644, 531 S.E.2d 883 (2000).

Surveillance Video of Personal Injury Plaintiffs Admissible. - A surveillance videotape was relevant and admissible in a personal injury trial on damages, where the occupants of a van were shown engaging in various physical activities, and this evidence was relevant to whether and to what extent the occupants were disabled by the injuries they sustained in a rear end collision. Albrecht v. Dorsett, 131 N.C. App. 502, 508 S.E.2d 319 (1998).

A jury view of the police vehicle that defendant shot during incident was well within the court's discretion and the evidence was relevant as defendant's intent when he fired shots into the vehicle was at issue. State v. Tucker, 347 N.C. 235, 490 S.E.2d 559 (1997), cert. denied, 523 U.S. 1061, 118 S. Ct. 1389, 140 L. Ed. 2d 649 (1998).

Weapons Evidence Admissible. - The drawing of and testimony about a knife that the defendant habitually carried was admissible where the witnesses' descriptions of the approximate size of defendant's pocketknife overlapped with the medical examiner's testimony regarding the approximate depth and width of the victim's wounds; any variance in size between the knife described by the witnesses and the medical examiner's description of the victim's wounds merely affected the weight or probative value of the evidence, not its admissibility. State v. Grooms, 353 N.C. 50, 540 S.E.2d 713 (2000), cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54 (2001).

Presence of a gun was relevant to the charges of possession of cocaine with intent to manufacture, sell, or deliver, and trafficking in cocaine. State v. Boyd, 177 N.C. App. 165, 628 S.E.2d 796 (2006).

Evidence that defendant who shot a police officer with a shotgun possessed an assault rifle was relevant and was not more prejudicial than probative; evidence showed why defendant was in a field and why he used the shotgun rather than the rifle, and it was also highly probative of defendant's motive for the shooting: not wanting the victim to discover that defendant was violating his probation by possessing firearms. State v. Grant, 178 N.C. App. 565, 632 S.E.2d 258 (2006), cert. denied, appeal dismissed, 361 N.C. 223, 642 S.E.2d 712 (2007).

Admission of photos of guns found in defendant's home in a case charging defendant with drug trafficking and possession was proper because such evidence was relevant, and because guns were often used for protection in illegal drug trade, probative value was not substantially outweighed by danger of unfair prejudice. State v. Lakey, 183 N.C. App. 652, 645 S.E.2d 159 (2007).

Victim's testimony regarding the shiny object in defendant's hand, which the victim thought to be a knife, was relevant to the first-degree rape charge. State v. Lawrence, 191 N.C. App. 422, 663 S.E.2d 898 (2008), aff'd, 363 N.C. 118, 678 S.E.2d 658 (2009).

Knife found four years after the victim's murder was determined to be relevant and admissible, where the trial court found that the description defendant provided to his wife of the knife used matched that of the knife found, defendant was in close proximity to the area where the knife was found at a time very recently after the death of the victim, and the knife matched the description of the type of knife that would have caused the victim's wounds. State v. Rollins, 226 N.C. App. 129, 738 S.E.2d 440 (2013).

Three loose nine-millimeter cartridges turned over to investigators by the manager of the trailer park where defendant lived and where bodies were discovered were properly included as relevant evidence and an adequate foundation was laid for their inclusion. State v. Lytch, 142 N.C. App. 576, 544 S.E.2d 570 (2001), aff'd, 355 N.C. 270, 559 S.E.2d 547 (2002).

Demonstration of Effects of Pepper Spray. - Trial court properly allowed the State, during its presentation of rebuttal evidence, to demonstrate the effects of pepper spray in an experiment under circumstances dissimilar to those that actually occurred and with the use of law enforcement officers trained in the use of pepper spray; defendant was given, but chose not to take, the opportunity to present his own demonstration on lay witnesses. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 1380, 149 L. Ed. 2d 305 (2001), cert. dismissed, without prejudice, 805 S.E.2d 698, 2017 N.C. LEXIS 900 (2017), cert. granted, 370 N.C. 587, 809 S.E.2d 594, 2018 N.C. LEXIS 93 (2018), cert. dismissed, as moot, 847 S.E.2d 415, 2020 N.C. LEXIS 891 (N.C. 2020).

Testimony of Coast Guard officer as to ocean currents was relevant to show a connection between defendant and the crime where an inference could be drawn therefrom that a body had drifted from an area with which defendant was familiar. State v. Dial, 122 N.C. App. 298, 470 S.E.2d 84 (1996).

Cross-Examination Held Proper. - Where State did not cross-examine defendant in murder case about an unrelated rape accusation to show defendant was unworthy of belief because of this alleged bad act, but for purpose of establishing defendant's motive for crime for which he was on trial, cross-examination was proper. State v. Meekins, 326 N.C. 689, 392 S.E.2d 346 (1990).

Photographs of Crime Scene and Victim's Clothes. - Photographs of the crime scene and victim's bloody clothes were admissible since they were only used so that the witnesses could explain and illustrate their testimony and the trial court instructed the jury as to their limited purpose; further, the photographs were not unnecessarily gory. State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001).

Autopsy photographs, photographs of the victim's car after she was shot, testimony regarding the amount of blood at the scene, and blood stained material were all properly admitted at defendant's murder trial in accordance with G.S. 8C-1, N.C. R. Evid. 401, 402, and were not overly prejudicial in violation of G.S. 8C-1, N.C. R. Evid. 403. State v. Chapman, 359 N.C. 328, 611 S.E.2d 794 (2005).

Evidence of Defendant's Character. - Trial court did not err by admitting a forensic psychologist's report and testimony because the probative value of the report and testimony substantially outweighed the potential prejudicial effect to defendant; the psychologist's reflections of defendant's character, which comprised a small portion of the report, were not admitted for the truth of the matters asserted but were offered to demonstrate how the resulting recommendations were relevant to defendant's state of mind; State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636 (2015).

Evidence of Threat in Abuse Case - Finding of fact by the North Carolina Department of Health and Human Services, Division of Facility Services, stating that the nurse aide had told an elderly nursing home patient that, if the patient kicked the nurse aide again, then the nurse aide would "knock the f - king hell out of" the patient, was relevant to the determination of whether the nurse aide abused the patient within the meaning of 42 C.F.R. § 488.301 and the nurse aide failed to show prejudice. Allen v. N.C. HHS, 155 N.C. App. 77, 573 S.E.2d 565 (2002), cert. denied, 357 N.C. 163, 580 S.E.2d 358 (2003).

Evidence of Prior Assaults on Same Victim - In defendant's trial on a charge of murder in the first degree, the trial court properly admitted testimony which showed that defendant assaulted the victim, his girlfriend, on prior occasions and that defendant's girlfriend had asked defendant to leave her residence on the day he shot her, because the testimony was relevant to defendant's claim that he discharged his gun accidentally and the prejudicial effect of the evidence did not outweigh its probative value. State v. Latham, 157 N.C. App. 480, 579 S.E.2d 443 (2003), cert. denied, 357 N.C. 509, 588 S.E.2d 376 (2003).

Evidence of Similar Crime Was Relevant - Evidence presented at a suppression hearing was sufficient to link defendant to a later break-in, including DNA evidence collected at the scene of the second break-in. The crimes were substantially similar in that a window at a convenience store in Charlotte was broken, cigarettes were taken, the crimes occurred a short time apart and at the same time of day, and defendant's blood was found at both scenes; they were therefore admissible under G.S. 8C-1, N.C. R. Evid. 404(b). Also, the evidence was relevant on the issue of whether defendant committed the charged crime, pursuant to G.S. 8C-1, N.C. R. Evid. 401. State v. Matthews, 218 N.C. App. 277, 720 S.E.2d 829 (2012).

Trial court did not err by admitting evidence at defendant's trial for arson that defendant had four years earlier committed arson because the evidence was probative of defendant's intent and was sufficiently similar, logically relevant, and not too remote in time. Both the arson for which defendant was tried and the prior arson were set during the nighttime on the exterior of a building at an entrance when defendant was intoxicated, knew the buildings to be occupied, and was angry about a perceived harm against defendant by the occupant. State v. Wilson-Angeles, 251 N.C. App. 886, 795 S.E.2d 657 (2017).

Trial court did not err in admitting evidence about a prior, violent incident in order to prove defendant's identity because there were common elements of the prior incident with the incidents defendant was being charged with, including that the perpetrator wore a white hockey mask similar to the one seized from defendant, the targets were all suspected drug dealers or living with suspected drug dealers, the attacks all took place at night at the victims' homes, defendant had an accomplice, and the incidents took place within a month or two of each other and within the same city. State v. Thomas, - N.C. App. - , 834 S.E.2d 654 (2019).

Evidence Detailing Conduct as Basis of Plaintiffs' Claims. - Although memorandum orders containing the conclusions of the Virginia State Bar proceedings might have been irrelevant and immaterial in the present case because the standards in ethical proceedings differed from those in legal proceedings, the attorney's testimony in the State Bar proceedings was relevant and material because it detailed the conduct that forms the basis of plaintiffs' claims. Brissett v. First Mt. Vernon Indus. Loan Ass'n, 233 N.C. App. 241, 756 S.E.2d 798 (2014).

Relevancy Not Renewable Under Abuse of Discretion Standard. - A trial court's ruling on whether evidence is relevant is technically not discretionary and therefore is not reviewed under the abuse of discretion standard. Sherrod v. Nash Gen. Hosp., 126 N.C. App. 755, 487 S.E.2d 151 (1997), rev'd on other grounds, 348 N.C. 526, 500 S.E.2d 708 (1998).

Evidence Improperly Excluded. - In a murder trial, where guilt was based on circumstantial evidence, the trial court committed reversible error in refusing to admit into evidence defendant's proposed exhibit, a drawing found by law enforcement officers among the victim's personal effects, which included a rough map of the area surrounding defendant's North Carolina home and numerous written notations indicating a possible larceny scheme. The exhibit was clearly relevant to a crucial issue in the case, namely, whether this defendant, and not some other person, was in fact the perpetrator of the crime, and it therefore should have been admitted into evidence at trial. State v. McElrath, 322 N.C. 1, 366 S.E.2d 442 (1988).

Trial court erred by its exclusion of evidence, during the trial on the issue of damages, regarding whether a businessman was financially ready, willing, and able to exercise a stock purchase option and restriction agreement during the period specified in the option contract, because the evidence was relevant to the issue of damages; for if, the businessman was not ready, willing, and able to exercise his rights under the option, he would be entitled to no more than nominal damages for its breach. Lee v. Scarborough, 162 N.C. App. 674, 592 S.E.2d 43 (2004).

While a corporation and its principal were properly held liable for breaching an option agreement with a consultant, it was error to exclude evidence as to whether the consultant ever intended to exercise the option; the corporation and the principal were entitled to a new trial so that a jury could determine whether the consultant was ready, willing, and able to exercise the option and, if not, the consultant was entitled to only nominal damages. Lee v. Scarborough, 164 N.C. App. 357, 595 S.E.2d 729 (2004).

Even though the trial court erred by refusing to allow defense counsel to cross-examine a victim about statements he allegedly made to his wife and the police that he was addicted to porn, had an affair, and that he could not control his behavior because of defendant's abuse of him, because the evidence was relevant and was not barred by the Rape Shield Act, defendant was not prejudiced because the evidence of defendant's guilt was overwhelming. State v. Goins, 244 N.C. App. 499, 781 S.E.2d 45 (2015).

Exclusion of relevant impeachment evidence that a victim's mother had accused defendant of domestic violence was harmless because, on the entire record, it was not reasonably possible the evidence would have changed the jury's verdict. State v. Martinez, 253 N.C. App. 574, 801 S.E.2d 356 (2017).

Evidence of "Look" Held Relevant. - Witness's testimony that the look on defendant juvenile's face was defiant related to the witness's perception of the juvenile shortly after the incident, and because the witness's testimony stemmed from the witness's personal experience combined with the witness's observation of the defendant, it was admissible to shed light on the circumstances surrounding the incident, and thus was relevant and admissible. In re M.J.G., 234 N.C. App. 350, 759 S.E.2d 361 (2014).

Evidence Held Relevant. - In a murder trial involving a 60 year old victim who was beaten and kicked about the head in June, 1983 and died in December, 1983 of complications resulting from injury to the brain received in the incident, admission of evidence regarding victim's physical appearance at the scene and in the hospital was relevant under this rule on the issue of excessive force, was not prejudicial under G.S. 8C-1, Rule 403, and was not inflammatory under the old rules. State v. Moxley, 78 N.C. App. 551, 338 S.E.2d 122 (1985), cert. denied, 316 N.C. 384, 342 S.E.2d 904 (1986).

Challenged testimony which addressed the substance of a New York lawsuit from which the action at issue, an action for attorneys' fees, arose provided needed background information pertaining to the dispute at issue, was not prejudicial, and was properly admitted. Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585, 339 S.E.2d 799 (1986).

Although motive was not an element of any of the crimes for which the defendant was convicted (murder, arson, and assault with a deadly weapon inflicting serious injury), his motives and state of mind at the time of the fire certainly were facts "of consequence to the determination of the action . . .", and the trial court did not err by admitting evidence thereof. State v. Riddick, 315 N.C. 749, 340 S.E.2d 55 (1986).

In prosecution for first degree rape and intercourse by a substitute parent, the trial court did not commit prejudicial error in admitting into evidence, over objection, a letter which the defendant wrote to the victim's mother, in which defendant promised not to "bother" victim again, despite defendant's contention that what he had meant was that he would not discipline the victim anymore. State v. Moses, 316 N.C. 356, 341 S.E.2d 551 (1986).

The alcohol level of defendant's blood approximately one hour after the accident is relevant to the issue of defendant's intoxication. State v. Miller, 80 N.C. App. 425, 342 S.E.2d 553 (1986), cert. denied, 317 N.C. 711, 347 S.E.2d 448 (1986).

In prosecution for rape and other offenses, where the State produced evidence that one of the defendants had threatened victim with a knife when they abducted her and that one of the three assailants had told her that he would be back for her and that she would be shot if she reported the crimes, trial court did not err in admitting knives and razor found in defendants' car five nights later when defendants came to victim's apartment around 1:00 a.m., beat on the door and attempted to open it, before leaving when a neighbor stepped outside his apartment, as by entering pleas of not guilty and denying that they were the assailants, defendants made identity an issue in the case, and this evidence clearly bore on the issue of identity. State v. Gilliam, 317 N.C. 293, 344 S.E.2d 783 (1986).

Watch and ring taken from victim of rape and kidnapping were "relevant" in defendant's trial for those offenses, because they tended to make the existence of a fact of consequence - defendant's connection to the offenses with which he was charged - more probable than it would be without the evidence, and their admission was not unduly prejudicial. State v. Mercer, 317 N.C. 87, 343 S.E.2d 885 (1986).

State's exhibits, which included $5,900 in United States currency, rolling papers and pipe, electric digital scales, a triple beam balance scale, a water bong, a plastic bag containing white powder, an airline bag in which the white powder was found and a briefcase with documents, with the exception of the briefcase, were relevant to the crime of trafficking in cocaine, in that they intended to show that defendant knowingly possessed cocaine and was trafficking in it, and the briefcase, which was in defendant's possession at the time of arrest, tended to explain or illustrate the circumstances surrounding his arrest. State v. Teasley, 82 N.C. App. 150, 346 S.E.2d 227 (1986), cert. denied and appeal dismissed, 318 N.C. 701, 351 S.E.2d 759 (1987).

Because defendant's statement that he had "unfinished business" in the area to take care of upon his release from prison had some probative value on the issue of defendant's intent to kill the victim, the evidence was relevant and properly admitted. State v. Prevette, 317 N.C. 148, 345 S.E.2d 159 (1986).

Evidence merely disclosing subsequent pregnancy of the rape victim was admissible as tending to prove penetration, an essential element of the crime of forcible rape; moreover, victim's simple statement that she had an abortion served the purpose of corroborating both the fact of penetration and the fact of her pregnancy, and the mere fact that an abortion took place was not so inflammatory as to render it inadmissible. State v. Stanton, 319 N.C. 180, 353 S.E.2d 385 (1987).

In a first degree sexual offense case, evidence that defendant attempted a remarkably odd and strikingly similar modus operandi some 10 weeks after his attack on victim was relevant and admissible as tending to prove the defendant's modus operandi, motive, intent, preparation and plan. State v. Bagley, 321 N.C. 201, 362 S.E.2d 244 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 912 (1988).

Videotape and magazines and detective's testimony concerning them were relevant to corroborate child victim's testimony that defendant had shown him such materials at the time defendant committed the crimes for which he was on trial, and since the exhibits and testimony were relevant to a fact or issue other than the character of the accused, G.S. 8C-1, Rule 404(b) did not require that they be excluded from the evidence at trial. State v. Rael, 321 N.C. 528, 364 S.E.2d 125 (1988).

In prosecution for second-degree murder, evidence concerning defendant's sale of marijuana to the victim was relevant in showing the relationship between the victim and defendant, and given the evidence defendant once questioned the witness about whether the victim was a "nark," the evidence that defendant sold marijuana was admissible since it had some probative value concerning defendant's possible motive in the shooting. However, the testimony that the defendant was in the business of selling marijuana to high school age persons had no tendency to make any fact of consequence more or less probable, nor was the evidence about how defendant procured his automobile and the evidence concerning the details of how the marijuana was packaged and sold relevant to any material fact in issue. Equally irrelevant was evidence concerning the victim's citation for possession of marijuana. State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456, cert. denied, 323 N.C. 627, 374 S.E.2d 594 (1988).

In a rape case hair comparison testimony was clearly relevant on the issue of whether the victim was sexually assaulted even though the evidence of hair comparison analysis was not used to establish the identity of perpetrator, since a hair belonging to someone other than the victim was found in her pubic area tended to show that the person from whom the hair came could have engaged in sexual contact with the victim. State v. McNicholas, 322 N.C. 548, 369 S.E.2d 569 (1988).

Testimony by a rape victim that the defendant was on "house arrest" at the time of the rape was part of the chain of circumstances and relevant to the victim's account of the crime, where the victim further explained that she ran to the corner after the attack because she knew that the defendant could not follow her as he was wearing a control device on his ankle. State v. Monk, 132 N.C. App. 248, 511 S.E.2d 332 (1999).

In a first-degree murder case evidence that insulation particles in defendant's clothing had apparently come from the attic used to gain access to the victim's apartment did not prove that he killed her, but was relevant to the State's case since evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue, and certainly a fact of consequence was the presence of fiber on the defendant's clothing consistent with that found in the victim's apartment. State v. Crandell, 322 N.C. 487, 369 S.E.2d 579 (1988).

Evidence that approximately two weeks before he killed victim the defendant threatened to kill him, or to kill a group of which he was a member, was relevant and admissible as evidence tending to show premeditation and deliberation and to negate self-defense. State v. Groves, 324 N.C. 360, 378 S.E.2d 763 (1989).

Evidence that shortly after his arrest defendant gave as his address 6619 Somersworth Drive, Charlotte, was relevant since evidence tended to show that defendant lived at the house at the time of the search and his arrest. State v. Marshall, 94 N.C. App. 20, 380 S.E.2d 360, appeal dismissed and cert. denied, 325 N.C. 275, 384 S.E.2d 526 (1989).

In a negligence action where defendant employee parked garbage truck on the shoulder of the road facing oncoming traffic and van collided with the truck, evidence of the alternative method for collecting customer's garbage prior to the accident as well as testimony revealing defendant employee's rationale for stopping as he did was relevant not only to the issue of whether defendant employer and defendant employee violated G.S. 20-161(a) and (b) but also to the issue of defendant employee's alleged negligent conduct. Smith v. Pass, 95 N.C. App. 243, 382 S.E.2d 781 (1989).

In trial for charges of trafficking in marijuana, trial court did not err in overruling defendant's objection to the State's evidence which tended to show defendant's driving activities around the Virginia Beach area, the type of boat which was present several months earlier in a campground in which defendant was living and which was later present outside a beach cottage, and the accessibility of the beach cottage to a nearby inlet; the evidence was relevant to show defendant was arrested while she was on a trip which followed the same general route as trips which she had previously taken, the accessibility of the beach cottage to the inlet partially explained why surveillance of the beach cottage was instituted and the evidence about the boat being at the campground showed that the boat had some connection to the person who paid the cottage's electric bill. State v. Drewyore, 95 N.C. App. 283, 382 S.E.2d 825 (1989).

Evidence of footprints or shoe prints at the scene of the crime corresponding to those of the accused is admissible as relevant circumstantial evidence tending to connect an accused with the crime. State v. Whiteside, 325 N.C. 389, 383 S.E.2d 911 (1989).

In trial for robbery with a dangerous weapon, evidence of victim's scholastic achievements presented by the assistant district attorney during preliminary questioning was relevant; it was offered as a means of introducing the victim to the court and jury and to assist in explaining the victim's background, and considering the fact that defendant later portrayed victim as the aggressor, the challenged testimony was not prejudicial. State v. Summerlin, 98 N.C. App. 167, 390 S.E.2d 358, cert. denied, 327 N.C. 143, 394 S.E.2d 183 (1990).

A witness' statement that his wife heard a rape victim say "Are you going to shoot me, too?" was relevant for the limited purpose of explaining why the witness called the sheriff a second time after he heard a commotion outside his house, and the statement was not inadmissible hearsay. State v. Roper, 328 N.C. 337, 402 S.E.2d 600, cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991).

Testimony by a captain of a county sheriff's department that, to his knowledge, wife of murder victim was beneficiary of the victim's life insurance policy did not point directly to the guilt of another; at most, it cast suspicion upon another or raised a mere conjectural inference that the crime may have been committed by another. Therefore, it did not meet the relevancy test of this rule. State v. Eason, 328 N.C. 409, 402 S.E.2d 809 (1991).

Testimony that the defendant was calm and was not crying which described her emotional state shortly after her husband was killed, based upon the witnesses' observations of her demeanor at that time, and evidence that the defendant disposed of her husband's personal effects the day after his funeral, amounted to evidence tending to shed light upon the circumstances surrounding husband's killing and, thus, were relevant and admissible. State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991).

Photographs which showed numerous gunshot wounds were relevant to show not only the cause of death, but were also relevant as a means of proving the premeditation and deliberation elements of first-degree murder. State v. Brown, 335 N.C. 477, 439 S.E.2d 589 (1994).

Where defense counsel attacked the professionalism of the conduct of the law enforcement officers who investigated the case, the evidence that defendant was read his Miranda rights according to law and that he indicated his understanding of them tended to refute the characterization of the officers' conduct as unprofessional and was therefore relevant. State v. Carter, 335 N.C. 422, 440 S.E.2d 268 (1994).

Evidence which tended to show that the defendant did not support his children and did not send them gifts following his wife's death tended to shed light upon the circumstances surrounding the shooting and tended to rebut the defendant's characterization of his relationship with his wife and children as a caring, supportive one and was thus relevant and admissible. State v. Collins, 335 N.C. 729, 440 S.E.2d 559 (1994).

Evidence that the defendant had escaped from jail was relevant and probative in that it tended to show the defendant's consciousness of his guilt. Furthermore, the threats made by defendant during the course of his escape were relevant to show the strength of his desire to escape. State v. McDougald, 336 N.C. 451, 444 S.E.2d 211 (1994).

Evidence regarding the issuance of a warrant for defendant's arrest for beating murder victim in the hour immediately preceding the murder tended to shed light on defendant's emotional state at or around the time of the killing and the circumstances surrounding that killing; thus, it was relevant and admissible. The testimony established intent and motive of returning to continue the assault and tended to prove premeditation, deliberation, and malice. State v. Fisher, 336 N.C. 684, 445 S.E.2d 866 (1994), cert. denied, 513 U.S. 1098, 115 S. Ct. 768, 130 L. Ed. 2d 665 (1995).

Condensed videotape which included footage of a body being turned over, placed in a body bag and on a stretcher, then transported to elevator for removal was relevant to illustrate the crime scene prior to the arrival of medical personnel and was neither excessive nor cumulative evidence. State v. Leazer, 337 N.C. 454, 446 S.E.2d 54 (1994).

The evidentiary fact that defendant was armed and hesitant to submit to arrest was not inconsequential and was relevant to the determination of his guilt in the murder. State v. Mason, 337 N.C. 165, 446 S.E.2d 58 (1994).

Where the state's theory of case was that defendant had moved to county to act as the leader of a drug ring, and as such had ordered a "hit" on the victim, evidence demonstrating that defendant may have had alternative motivations in moving to the county was relevant. The testimony may have had the tendency to make the State's theory less plausible than it would have been without the testimony. State v. Wilson, 338 N.C. 244, 449 S.E.2d 391 (1994).

Testimony of police officers, which stemmed from their personal experience combined with their observation of defendant, was helpful to a clear understanding of a relevant issue - defendant's demeanor shortly after the crime - was admissible under Rule 701 and relevant under this rule. State v. Lambert, 341 N.C. 36, 460 S.E.2d 123 (1995).

Bloody clothing of a victim that is corroborative of the state's case, is illustrative of the testimony of a witness, or throws any light on the circumstances of the crime is relevant and admissible evidence at trial. State v. Knight, 340 N.C. 531, 459 S.E.2d 481 (1995).

Plaintiff's possession of a Taurus .357 pistol was relevant where the victim died from gunshot wounds, a spent .38/.357 bullet was found in close proximity to the victim's body, and this bullet had markings consistent with those of a Taurus pistol. State v. Soles, 119 N.C. App. 375, 459 S.E.2d 4, appeal dismissed, cert. denied, 341 N.C. 655, 462 S.E.2d 523 (1995).

Photographs received with limiting instructions that they were being admitted for the purpose of illustrating and explaining the testimony of victim's mother and were not to be considered for any other purpose were appropriately admitted. State v. Alston, 341 N.C. 198, 461 S.E.2d 687 (1995), cert. denied, 516 U.S. 1148, 116 S. Ct. 1021, 134 L. Ed. 2d 100 (1996).

Handgun and bullets introduced as evidence were relevant because they tended to link defendant to the crime where the handgun and bullets found in dumpster were linked to defendant through both his fingerprints and his own testimony, and the bullets found in the dumpster were consistent with the type of bullets recovered from the victim's body; the evidence was probative on the question of defendant's guilt. State v. Burke, 342 N.C. 113, 463 S.E.2d 212 (1995).

Admission of consent to search form bearing defendant's signatures was not prejudicial error; the form was relevant evidence on the issue of defendant's control of the premises. State v. Shine, 121 N.C. App. 78, 464 S.E.2d 475 (1995).

Evidence of a car chase was properly received as evidence of flight and was sufficient to support the trial court's instruction on flight. State v. King, 343 N.C. 29, 468 S.E.2d 232 (1996).

Evidence of flight, i.e. that the defendant did not appear at his first scheduled trial, is a relevant circumstance to be considered by the jury, together with other circumstances, in determining the issue of the defendant's guilt. State v. Williamson, 122 N.C. App. 229, 468 S.E.2d 840 (1996).

Where blood spatter experiments demonstrated that it was probable that defendant was in close proximity to victim at the time the gun was fired, the results cast doubt on the credibility of defendant's statements to police chief that she did not remember being close to her husband at the time of the shooting and that she did not see the shooting; thus, the trial court properly admitted the results of the experiments. State v. Clifton, 125 N.C. App. 471, 481 S.E.2d 393, cert. granted, 346 N.C. 182, 486 S.E.2d 200, discretionary review improvidently allowed, 347 N.C. 391, 493 S.E.2d 56 (1997).

Evidence that decedent was a police officer was not unfairly prejudicial and was relevant. State v. Larry, 345 N.C. 497, 481 S.E.2d 907 (1997), cert. denied, 522 U.S. 917, 118 S. Ct. 304, 139 L. Ed. 2d 234 (1997).

Photographs of male models and men in underwear were properly admitted into evidence in defendant's trial for taking indecent liberties with a child and crime against nature. State v. Creech, 128 N.C. App. 592, 495 S.E.2d 752 (1998), cert. denied, 348 N.C. 285, 501 S.E.2d 921 (1998).

Testimony by the wife of an eyewitness to a murder that he was restless and unable to sleep prior to his identification of the defendant but that he slept much better after doing so was admissible in the defendant's prosecution for second degree murder, where the eyewitness' credibility was in issue, and the wife's testimony was relevant to the reliability of his identification. State v. Smith, 130 N.C. App. 71, 502 S.E.2d 390 (1998).

Where witness remembered that defendant had a gun similar to the one used in the two murders at issue because defendant had playfully held it to his head, the trial court properly allowed the prosecution to present evidence of the defendant's prior misconduct with a handgun. State v. Moses, 350 N.C. 741, 517 S.E.2d 853 (1999), cert. denied, 528 U.S. 1124, 120 S. Ct. 951, 145 L. Ed. 2d 826 (2000), cert. denied 706 S.E.2d 246, 2011 N.C. LEXIS 121 (N.C. 2011.

Officer's testimony that he had training in the investigation of drug offenses, had dealt with occupants of the subject house when investigating drug offenses, and had arrested "folks" that resided in the house for drug offenses was relevant to show motive, i.e., that defendant committed robbery with a dangerous weapon in order to get money to buy drugs. State v. Stevenson, 136 N.C. App. 235, 523 S.E.2d 734 (1999), cert. denied, 351 N.C. 368, 543 S.E.2d 144 (2000).

Murder defendant's statement that he would like to see his former girlfriend get the electric chair was admissible in order to show defendant's bias against her, as he had accused her of participating in the murder. State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808 (2003).

Evidence of defendant's possession of pornographic materials, without any evidence that defendant had viewed the pornographic materials with the victim, or any evidence that defendant had asked the victim to look at pornographic materials other than the victim's mere speculation, was not relevant to proving defendant committed the offenses of indecent liberties with a child and first degree sex offense with a female child under the age of 13 and should not have been admitted by the trial court; however, the error was not prejudicial under G.S. 15A-1443. State v. Smith, 152 N.C. App. 514, 568 S.E.2d 289 (2002), cert. denied, 356 N.C. 623, 575 S.E.2d 757 (2002).

Evidence that a defendant used drugs shortly before a fire he was accused of starting was relevant because it was part of the chain of events or circumstances leading to the time of the fire. State v. Sexton, 153 N.C. App. 641, 571 S.E.2d 41 (2002), cert. granted, 356 N.C. 622, 575 S.E.2d 756 (2002).

Testimony as to the existence of a bullet hole in the wall of the defendant's house trailer, which an expert testified was made by a bullet that was not found and which exited the defendant's house trailer and which other parties testified did not exist before the victim's disappearance, was relevant and admissible in a case in which the defendant was found guilty of voluntary manslaughter in the death of a woman whose recovered skeletal remains showed was beaten to death. State v. Lassiter, 160 N.C. App. 443, 586 S.E.2d 488 (2003), cert. denied, 357 N.C. 660, 590 S.E.2d 853 (2003).

Testimony from a police officer that defendant was arrested while driving a vehicle that had been reported stolen was properly admitted and was relevant because it offered an explanation for why defendant was detained and how defendant's picture came to be included in a photographic lineup after he was stopped driving a vehicle similar to that described by prosecuting witnesses as being driven by an armed robber in an armed robbery two weeks earlier. State v. McCree, 160 N.C. App. 19, 584 S.E.2d 348 (2003), notice of appeal dismissed, cert. denied, 357 N.C. 661, 590 S.E.2d 855 (2003).

Testimony from an inmate that shared a jail cell with one of two defendants accused of robbery, burglary, and kidnapping that one defendant told him that defendants were going to claim that they were forced to commit the crimes was properly admitted because the evidence tended to prove that defendant and his co-defendant concocted a scheme to avoid liability for their criminal actions. State v. Escoto, 162 N.C. App. 419, 590 S.E.2d 898 (2004).

Court properly admitted evidence of lessors' violation of a preliminary injunction and a temporary restraining order to be presented to the jury in a trial for breach of lease agreement and conversion; the evidence was relevant under G.S. 8C-1, N.C. R. Evid. 401 because it supported the lessees' claims of breach of a lease agreement, conversion, and punitive damages. Zubaidi v. Earl L. Pickett Enters., 164 N.C. App. 107, 595 S.E.2d 190 (2004).

Trial court did not abuse its discretion during defendant's trial on two counts of first-degree murder by allowing the State to introduce the testimony of nurses who treated defendant while he was in the hospital, even though the testimony duplicated other evidence the State offered. State v. Jones, 358 N.C. 330, 595 S.E.2d 124 (2004).

Defendant's threats to a holding cell officer that he "already killed one" and "I got one up under my belt" could have been interpreted as statements of guilt and used as direct evidence to prove that defendant acknowledged guilt in the death of his victim, as what was "up under his belt" was a human life, that he had already "killed one" was a woman like the officer, and "belt" was meant to imply that defendant had a black belt; accordingly, the statements were relevant in defendant's felony murder trial. State v. Garcia, 358 N.C. 382, 597 S.E.2d 724 (2004), cert. denied, - U.S. - , 125 S. Ct. 1301, 161 L. Ed. 2d 122 (2005).

In a cardiologist's action for breach of employment contract, the employer's testimony about reservations prior to hiring the cardiologist was relevant to rebut the cardiologist's offered evidence of a high collection rate at a previous hospital and a generally successful cardiology practice; also, testimony that the employer offered to allow the cardiologist to continue employment under certain conditions was relevant to both the issues of the employer's attempt to mitigate any damages if the jury found a breach, and to the issue of the employer's good faith and fair dealing in attempting to adhere to the employment contract terms. Maglione v. Aegis Family Health Ctrs., 168 N.C. App. 49, 607 S.E.2d 286 (2005).

Testimony regarding conversation between officer and witness regarding a statement by the victim was relevant because it concerned one of the circumstances surrounding the parties, and was necessary to be known, to property understand their conduct or motives. State v. McMillian, 169 N.C. App. 160, 609 S.E.2d 265 (2005).

Trial court did not err by admitting without editing or redacting letters that defendant and his accomplice wrote into evidence, as the letters were relevant under G.S. 8C-1-401 and G.S. 8C-1-402, and the probative value of the letters was not outweighed by prejudice under G.S. 8C-1-403. State v. Curry, 171 N.C. App. 568, 615 S.E.2d 327 (2005).

No plain error existed in the trial court admitting evidence of defendant's empty prescription pill bottle, testimony by an officer identifying the pills from the label, and testimony by a pharmacist about the interaction between the pills and alcohol in defendant's trial for driving while impaired, hit and run, and second degree murder, following an auto accident, as the evidence was relevant to the charges against defendant. State v. Edwards, 170 N.C. App. 381, 612 S.E.2d 394 (2005).

Defendant's statement to officers that he was expected to make a living outside prison showed a motive for the robbery and his statement that he wanted to go back to prison showed a possible motive to commit a crime in order to accomplish that objective; the statements were made by defendant himself shortly after the crime and were distinguishable from other evidence, and as such, the statements were probative of motive and intent, so there was no error in admission of the statements. State v. al-Bayyinah, 359 N.C. 741, 616 S.E.2d 500 (2005), cert. denied, 547 U.S. 1076, 126 S. Ct. 1784, 164 L. Ed. 2d 528 (2006), cert. denied, 700 S.E.2d 925, 2010 N.C. LEXIS 588 (2010), cert. denied 2010 N.C. LEXIS 588 (N.C. 2010).

Evidence of prison records on defendant's father were relevant in defendant's rape trial to eliminate other potential perpetrators of the rape; specifically paternal relative of defendant. State v. Watson, 179 N.C. App. 228, 634 S.E.2d 231 (2006), review denied, 361 N.C. 437, 649 S.E.2d 896 (2007).

Trial court properly admitted two photographs of defendant's foster daughters into evidence because they were relevant to the victim's motives for coming forward with her allegations. State v. Whitman, 179 N.C. App. 657, 635 S.E.2d 906 (2006).

Admissions of evidence of defendant's unauthorized use of church credit cards in an action charging defendant with the murder of defendant's wife was upheld because defendant's use of the credit cards was linked in time and circumstances with the crime and was relevant to show the financial status of defendant and defendant's wife before and immediately after the disappearance of defendant's wife. State v. Pulley, 180 N.C. App. 54, 636 S.E.2d 231 (2006), review denied, 361 N.C. 574, 651 S.E.2d 375 (2007).

In defendant's murder trial, the trial court did not err in admitting evidence of defendant's and defendant's wife's finances as well as the wife's job status as relevant for showing motive, pursuant to G.S. 8C-1-401; at trial, the evidence presented on finances tended to show that the couple had some financial difficulty and defendant stood to inherit a large amount of money upon the wife's death. State v. Peterson, 179 N.C. App. 437, 634 S.E.2d 594 (2006).

Average alcohol elimination rate offered by expert could have aided a finder of fact in determining whether it was more or less likely defendant's breath alcohol level exceeded the statutory limit for driving while impaired purposes; accordingly, the testimony was relevant. State v. Teate, 180 N.C. App. 601, 638 S.E.2d 29 (2006).

In a trial in which the State sought to show that defendant pressured her daughter to shoot defendant's husband so that defendant could be with a boyfriend she met at a swingers party, the admission of sexually suggestive photographs of defendant and the boyfriend was proper under G.S. 8C-1-401, G.S. 8C-1-403, and G.S. 8C-1-404(b) because the photographs corroborated the existence of a sexual relationship between defendant and the boyfriend, the photographs illustrated the chain of events leading up to the murder, and the probative value of the photographs was not substantially outweighed by the danger of unfair prejudice. State v. Shannon, 182 N.C. App. 350, 642 S.E.2d 516 (2007), review denied, 361 N.C. 436, 649 S.E.2d 893 (2007).

Evidence of a knife and a condom found at a crime scene was properly admitted as it was relevant under G.S. 8C-1-401 since: (1) defendant's relationship with the victim's mother was ending badly, and defendant had recently been experiencing sexual tension with the victim and had been asked to leave the home; (2) defendant stated that defendant had initially intended to use the condom when defendant assaulted the victim, and that defendant had left the knife in the master bedroom because defendant intended to kill the mother when the mother got home; (3) the knife further tended to corroborate the state's evidence that the victim's bra was cut in the front; and (4) defendant failed to establish prejudice. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886 (2007).

Employee of a victim's identification of a camera was clearly relevant, as the employee stated that the employee was personally familiar with the camera and testified that the employee recognized the camera found in a trailer that defendant claimed was defendant's as the camera that was taken from the victim's office. State v. Patterson, 185 N.C. App. 67, 648 S.E.2d 250 (2007), review denied, 362 N.C. 242, 660 S.E.2d 538 (2008).

Pastor was properly allowed to identify a camcorder as the one stolen from the pastor's church, as the identification of the camcorder was relevant and was preceded by a proper foundation. State v. Patterson, 185 N.C. App. 67, 648 S.E.2d 250 (2007), review denied, 362 N.C. 242, 660 S.E.2d 538 (2008).

Detective's statements as to other businesses that had reported break-ins was not inadmissible hearsay as: (1) defendant's objection was overruled only as to what the detective did, and the evidence offered was both relevant, in that it explained the chain of events in the police investigation, and was not hearsay as it precluded the further admission of statements regarding the reported break-ins; (2) the statements were offered to explain the chain of events and were not offered for the truth of the matter asserted; and (3) the probative value of the statements was not substantially outweighed by their prejudicial effect as the detective's testimony did not directly accuse defendant of other crimes, and was not offered to prove defendant's conformity with character to commit wrongs, but was offered to explain the sequence of events. State v. Patterson, 185 N.C. App. 67, 648 S.E.2d 250 (2007), review denied, 362 N.C. 242, 660 S.E.2d 538 (2008).

Statements referring to an officer's testimony given during trial and introduced to challenge the credibility of defendant's testimony were relevant and thus, admissible. State v. Parker, 187 N.C. App. 131, 653 S.E.2d 6 (2007).

Testimony of a trooper and a witness regarding an employee's actions in fleeing the scene of a motor vehicle accident was relevant to show the employee's motivation for leaving the scene as the evidence related to the possibility that the employee was acting as an agent for the employee's employer. Jackson v. Carland, 192 N.C. App. 432, 665 S.E.2d 553 (2008).

Evidence of the victims' state of mind, including the victim's fear that defendant would abuse the victim's younger sister, kill the victim, and kill the victim's family, and evidence concerning the treatment plan developed for the victim were all relevant to whether the victim had been sexually abused by defendant. State v. Davis, 191 N.C. App. 535, 664 S.E.2d 21.

Evidence of defendant's extra-marital affair was admissible because the evidence was relevant and helped explain why the child victim waited to come forward and report a sexual assault by defendant. State v. Tadeja, 191 N.C. App. 439, 664 S.E.2d 402 (2008).

As the trial court's preclusion of evidence regarding defendant's peaceful and law-abiding character prevented defendant from offering evidence of two character traits which were both relevant and admissible as to his self-defense claim, and defendant demonstrated a reasonable possibility that, had the trial court not committed the error, the result at trial would have been different; thus, the defendant was prejudiced by the error. State v. Banks, 191 N.C. App. 743, 664 S.E.2d 355 (2008).

Testimony about prior acts against defendant committed against the victim was admissible, where the testimony was relevant because it made it more probable than not that defendant committed the charged crimes against the victim given defendant's belief that the victim was cheating on defendant again. State v. Lofton, 193 N.C. App. 364, 667 S.E.2d 317 (2008).

Testimony that the victim of an arson refused to agree to allow defendant to store stolen goods in her home was relevant under G.S. 8C-1, N.C. R. Evid. 401 to show defendant's motive to burn the premises. G.S. 8C-1, N.C. R. Evid. 404(b) did not require exclusion of the victim's testimony as evidence that was probative only of defendant's propensity to commit crimes. State v. Chappelle, 193 N.C. App. 313, 667 S.E.2d 327 (2008), appeal dismissed, review denied, 362 N.C. 684, 670 S.E.2d 568 (2008).

Testimony by defendant's sister and the sister's boyfriend that they were feared defendant was relevant because the fear was a product of their belief in defendant's guilt and explained by the sister did not contact law enforcement directly or more immediately after a codefendant confessed; as such, the testimony had some tendency as circumstantial evidence to make the existence of defendant's guilt more probable. State v. Garcell, 363 N.C. 10, 678 S.E.2d 618 (2009).

Letter from defendant to defendant's mother was properly admitted, because it constituted defendant's admission to the crime in defendant's own words, reflecting a calculated murder for money and goods without any provocation, and had some tendency to make the fact of defendant's real deliberation of the murder more probable, and thus, it was relevant. State v. Garcell, 363 N.C. 10, 678 S.E.2d 618 (2009).

Trial court did not err by admitting into evidence a DVD recording of defendant's police interview without redacting those questions posed to him by the detectives, which contained statements attributed to non-testifying third parties. The questions were relevant under G.S. 8C-1, N.C. R. Evid. 401 as their content made facts of consequence to the case more probable or less probable than they would be otherwise and also gave context to defendant's responses. State v. Miller, 197 N.C. App. 78, 676 S.E.2d 546 (2009), review denied, 363 N.C. 586, 683 S.E.2d 216 (2009).

Evidence of the reason for a son's discontinued employment was relevant to the extent of opportunities usurped from a partnership and the resulting lost profits in an unfair trade practices suit; therefore, the evidence bore substantial probative value and minimal risk of confusing the issues, misleading the jury, or unfairly prejudicing the son and the father. Accordingly, the trial court did not abuse its discretion in allowing the partners' counsel to ask questions concerning an alleged theft. White v. Thompson, 196 N.C. App. 568, 676 S.E.2d 104 (2009), aff'd by 364 N.C. 47, 691 S.E.2d 676, 2010 N.C. LEXIS 349 (2010).

Admission of statements defendant made after defendant's arrest was proper, because they showed defendant's intent and the absence of mistake or accident in the commission of the offenses. State v. Madures, 197 N.C. App. 682, 678 S.E.2d 361 (2009).

Trial court did not err when it admitted the shaken baby syndrome demonstration because the shaken baby syndrome demonstration was relevant under G.S. 8C-1, N.C. R. Evid. 401 since defendant was charged with felonious child abuse inflicting serious injury and first-degree murder. Defendant's intent to physically harm the child was a key element to the jury's determination of the case. G.S. 14-17, G.S. 14-318.4(a3). The severity of the child's injuries and how the injuries were inflicted made it more probable defendant intended to harm the child, and a demonstration for the jury of how those injuries were inflicted was relevant to defendant's intent to harm the child; moreover, the State established the relevancy of that demonstration with a proper foundation from an expert in forensic pathology and a doctor. State v. Anderson, 200 N.C. App. 216, 684 S.E.2d 450 (2009).

Trial court did not commit plain error by allowing an employee of child protective services, to testify that the victim's mother had been a victim of sexual abuse as a child because the information that the mother had been a sexual abuse victim was relevant to the question of why she hesitated to contact authorities in the face of information from the victims that defendant was sexually molesting them; the employee's statement concerning the possible emotions that the mother felt as a child victim of sexual abuse was relevant to explain why she delayed notifying authorities of the victims' claims of sexual abuse and to rebut defendant's assertion that the victims were lying because their mother did not immediately report the abuse. State v. Espinoza-Valenzuela, 203 N.C. App. 485, 692 S.E.2d 145 (2010), review denied, 364 N.C. 328, 701 S.E.2d 238, 2010 N.C. LEXIS 592 (2010), cert. dismissed, 372 N.C. 708, 831 S.E.2d 83, 2019 N.C. LEXIS 816 (2019).

Trial court did not commit plain error by admitting evidence that defendant had struck victims' mother in their presence because the evidence was relevant to show why the victims were afraid to report defendant's sexual abuse and to refute defendant's assertion that the mother was pushing the victims to make the allegations to get defendant arrested and out of the house; under the plain error standard, G.S. 15A-1443(a), defendant failed to show a reasonable possibility that had the error not been committed, a different result would have been reached at the trial because the State presented overwhelming evidence against him. State v. Espinoza-Valenzuela, 203 N.C. App. 485, 692 S.E.2d 145 (2010), review denied, 364 N.C. 328, 701 S.E.2d 238, 2010 N.C. LEXIS 592 (2010), cert. dismissed, 372 N.C. 708, 831 S.E.2d 83, 2019 N.C. LEXIS 816 (2019).

Testimony of an earlier robbery victim was relevant to an armed robbery claim against defendant because it made the existence of several material facts more probable or less probable than they would have been without the evidence; facts that a truck had been used by two people in the commission of a robbery with a deadly weapon at an ATM earlier that evening was relevant to the jury's determination of whether defendant, who was found driving the truck, was involved in a later ATM robbery scheme. State v. Hill, 210 N.C. App. 170, 706 S.E.2d 799 (2011).

Admission of a detective's testimony that defendant was lying was proper, as it as relevant, in that it provided the context surrounding defendant's inculpatory responses, and the admission of such testimony was not unduly prejudicial. State v. Castaneda, 215 N.C. App. 144, 715 S.E.2d 290 (2011).

Evidence that defendant had previously burglarized the victim's apartment was relevant to prove defendant's identity as the perpetrator, his motive, and the existence of a common plan or scheme. State v. Adams, 220 N.C. App. 319, 727 S.E.2d 577 (2012).

In defendant's trial on a charge of embezzlement, evidence related to certain charge cards and insurance payments was relevant and properly admitted because the evidence showed that defendant "willfully misapplied" her employer's funds by paying the charge card bills which defendant knew were incurred without the employer's authorization on accounts she was instructed to close and "willfully misapplied" her employer's funds by paying the insurance bills without making a corresponding deduction from her paycheck. State v. Renkosiak, 226 N.C. App. 377, 740 S.E.2d 920 (2013), review denied, 747 S.E.2d 548, 2013 N.C. LEXIS 840 (2013).

Detective's testimony about his interrogation techniques was relevant to defendant's credibility since the detective's interrogation strategy was designed to encourage a defendant to provide any explanation for a killing that he had, and defendant, despite that encouragement, stuck to his guns. State v. Garcia, 228 N.C. App. 89, 743 S.E.2d 74 (2013), review denied, 755 S.E.2d 619, 2014 N.C. LEXIS 218 (2014).

Detective's opinion, expressed in his comments during the interrogation that defendant was lying, did not invade the jury's province to determine credibility and was relevant since defendant acknowledged at trial that the detective was correct when he accused defendant of lying in the interrogation. State v. Garcia, 228 N.C. App. 89, 743 S.E.2d 74 (2013), review denied, 755 S.E.2d 619, 2014 N.C. LEXIS 218 (2014).

Detective's interrogation statements were relevant to defendant's credibility where defendant steadfastly denied any involvement in the killing during his interrogation, but, at trial, admitted killing the victim and consciously and purposefully lying during the interrogation; the fact that defendant was willing to repeatedly lie, in spite of the detective's pressuring interrogation techniques was highly probative of defendant's credibility. State v. Garcia, 228 N.C. App. 89, 743 S.E.2d 74 (2013), review denied, 755 S.E.2d 619, 2014 N.C. LEXIS 218 (2014).

Epsom salt taken from defendant along with a police officer's testimony regarding his observations and belief that it could be crack cocaine and as a result field tested the substance, was relevant in that it had a tendency to make the existence of the fact that defendant sold and delivered a counterfeit controlled substance or possessed a counterfeit controlled substance with the intent to sell or deliver more probable than it would be without the evidence. State v. Hanif, 228 N.C. App. 207, 743 S.E.2d 690 (2013).

Testimony from officers concerning their search for weapons and recovery of firearms, ammunition, and instructions for claymore mines from defendant's property was properly admitted, as it was relevant to show defendant's advanced planning and state of mind. State v. Stewart, 231 N.C. App. 134, 750 S.E.2d 875 (2013).

Because the photographs of defendant's tattoo taken after his arrest were relevant to proving his identity as the perpetrator, the photographs were relevant and admissible. State v. Carpenter, 232 N.C. App. 637, 754 S.E.2d 478 (2014).

Expert testimony of forensic pathologists was admissible because: (1) the testimony was sufficiently reliable to let a jury find weight; (2) the witnesses were qualified, as one had done 6,700 to 6,800 forensic autopsies and both were cross-examined; and (3) the testimony on cause of death was relevant. State v. Borders, 236 N.C. App. 149, 762 S.E.2d 490 (2014).

Trial court erred in refusing to allow defense counsel to cross-examine a witness, defendant's sister, with a message the witness left on another sister's answering machine to attack the witnesses credibility because the message was relevant to attack the witness's credibility and show her bias towards defendant and defendant's family. State v. Triplett, 236 N.C. App. 192, 762 S.E.2d 632 (2014).

Testimony of a daycare worker regarding statements by defendant's daughter was relevant, as it clearly related to the identity of the victim's assailant and was probative that the child observed the assailant, who cared for the child someway, leaving the child unharmed after the assault on the victim, the child's mother. State v. Young, 233 N.C. App. 207, 756 S.E.2d 768 (2014).

Trial court did not err by admitting evidence of four firearms found in the car when defendant was arrested following a traffic stop in South Carolina because it was relevant to show the context of defendant's flight after the murder. State v. Broussard, 239 N.C. App. 382, 768 S.E.2d 367 (2015).

Statements defendant made to others prior to shooting indicating that he intended to shoot someone in order to retrieve the keys to his grandmother's car were relevant to the charge of first-degree murder under the theory of premeditation and deliberation to illustrate his state of mind near the time of the shooting. State v. Mitchell, 240 N.C. App. 246, 770 S.E.2d 740 (2015).

Trial court properly determined that, while barely so, the evidence in question was relevant, and then weighed its probative value against prejudice concerns; because the trial court conducted that analysis, it necessarily found the voice mail relevant, and otherwise, the trial court would have excluded the evidence, making a prejudice analysis unnecessary or at least, mere surplusage. State v. Triplett, 368 N.C. 172, 775 S.E.2d 805 (2015).

Defendant's failure to respond and to attend or reschedule the examination raised a reasonable inference as to her awareness that her claims were fraudulent; because this evidence was relevant to an essential element of an offense of obtaining property by false pretenses, its admission did not violate the rule. State v. Holanek, 242 N.C. App. 633, 776 S.E.2d 225 (2015).

Trial court did not err, in defendant's trial for cyber-bullying, by admitting defendant's statements about Christianity because the comments were relevant to show defendant's intent to intimidate or torment the victim and were also relevant to show the chain of events leading up to the victim's parent contacting law enforcement. The trial court weighed the probative value of this evidence against any prejudicial effect and properly ruled it was admissible. State v. Bishop, 241 N.C. App. 545, 774 S.E.2d 337 (2015).

Testimony by a doctor, who performed a physical examination of an alleged sexual abuse victim almost a full week after the last possible occurrence of sexual abuse alleged in defendant's indictment, was relevant not only to help the jury understand the results of the examination, but also to demonstrate that a lack of physical evidence of sexual abuse did not preclude sexual abuse when there was a passing of time between the alleged incidents and the physical examination. State v. Chavez, 241 N.C. App. 562, 773 S.E.2d 108 (2015).

Trial court did not commit prejudicial error by allowing an accident report into evidence, which showed redactions for an automobile accident victim's alcohol use and zeros or blanks for a motorist's alcohol use because the victim's estate failed to show any prejudice to warrant a different result at trial in that other unchallenged and admitted evidence showed that the motorist was not under the influence of alcohol. Scheffer v. Dalton, 243 N.C. App. 548, 777 S.E.2d 534 (2015).

Child custody expert's testimony was admissible because the testimony was (1) limited to the qualified expert's experience, and (2) relevant and not more prejudicial than probative. Smith v. Smith, 247 N.C. App. 135, 786 S.E.2d 12 (2016).

Testimony of the victim's suicide was relevant, as it was necessary to complete the story of the crime. State v. McLaughlin, 246 N.C. App. 306, 786 S.E.2d 269 (2016).

Trial court did not abuse its discretion by admitting into evidence a rap song recording alleged to be defendant's where it was relevant to prove that a social media webpage on which it was found was defendant's page and that defendant knew that his dog was vicious and that he was proud of that fact. The trial court did not err by determining that the probative value of the song was not substantially outweighed by the prejudicial effect. State v. Ford, 245 N.C. App. 510, 782 S.E.2d 98 (2016).

Officer testified as an expert witness of crash investigation and reconstruction and explained to the jury, without objection, that one vehicle had struck a truck from behind, and thus the photographs in question were relevant as the photographs served as a visual aid to the officer's expert testimony regarding how the accident occurred. State v. Moultry, 246 N.C. App. 702, 784 S.E.2d 572 (2016).

Trial court did not err by overruling defendant's objections under this rule to the admission of the consensual sexual activity between defendant and his wife because the wife's testimony was relevant to the victim's allegations as it showed a common scheme or plan and was sufficiently similar to the victim's allegations of sexual abuse. The probative value of the evidence was not outweighed by the danger of undue prejudice because it was of great probative value and was not so sensitive to be potentially inflammatory to the jury. State v. Godbey, 250 N.C. App. 424, 792 S.E.2d 820 (2016).

Trial court properly admitted a photograph because it illustrated a detective's testimony that the victim used the photograph to identify defendant; the photograph was relevant to the victim's identification of defendant, and it was not unduly prejudicial. State v. Thompson, 254 N.C. App. 220, 801 S.E.2d 689 (2017).

Allowing the State to question defendant's expert witness regarding the amount of fees he received for testifying in other, unrelated criminal cases was relevant to test partiality towards the party by whom the expert was called. State v. Coleman, 254 N.C. App. 497, 803 S.E.2d 820 (2017).

Clinical studies were admissible in a medical malpractice case because, (1) despite being published after a patient was hospitalized, the studies showed lack of causation and addressed morbidity, and (2) the studies' subjects' differences from the patient went to weight, not admissibility, so there was no unfair prejudice. Ingram v. Henderson Cty. Hosp. Corp., 259 N.C. App. 266, 815 S.E.2d 719 (2018).

Given that the trial court redacted civil domestic violence protective orders (DVPOs) and properly instructed the jury regarding the State of North Carolina's burden of proof as well as the jury's duty to find the facts in defendant's trial for misdemeanor stalking, the trial court did not abuse its discretion in admitting the DVPOs and related filings into evidence because the DVPOs were relevant to show defendant's course of conduct as well as defendant's motive to commit the offense of stalking. State v. Hobson, 261 N.C. App. 60, 819 S.E.2d 397 (2018), review denied, 371 N.C. 793, 821 S.E.2d 173, 2018 N.C. LEXIS 1082 (2018).

Trial court did not err by admitting the photos because they were obtained from defendant's cell phone, they showed he had access to firearms and the car depicted in one photo, they depicted him at almost the precise location where the shooting took place and one of the gun photos showed defendant in possession of a firearm resembling that used in the shooting. State v. Dixon, 261 N.C. App. 676, 821 S.E.2d 232 (2018).

Letters were relevant as they indicated that defendant faced financial hardships, and this, coupled with evidence that the victim had threatened to remove defendant from the home and continue to request child support, indicated that the letters made the existence of a financial motive to murder the victim more probable; the court also limited the danger of unfair prejudice by prohibiting the State from publishing to the jury letters which indicated a criminal action against defendant. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708 (2018), review denied, 824 S.E.2d 415, 2019 N.C. LEXIS 272 (2019).

Evidence of the jailhouse attack on the witness and testimony that the witness was concerned for his safety was relevant and admissible because defendant was, at minimum, aware of the attack or might have encouraged it; defendant was not unfairly prejudiced in light of the similar unchallenged evidence of defendant's threats to intimidate the witness; and the evidence was relevant and probative to both the issues of defendant's knowledge of his guilt and the witness's credibility, and was not substantially outweighed by any undue prejudice. State v. Smith, 263 N.C. App. 550, 823 S.E.2d 678 (2019).

Trial court properly admitted a domestic violence protective order (DVPO) into evidence because it was relevant to show that defendant's wife was not residing in or had not recently visited the home at the time a firearm was found, and, even if the DVPO was irrelevant for the purposes attributed to it by the State, such error was harmless where the State put on sufficient evidence that it was not likely that a different verdict would have been reached. State v. Robinson, - N.C. App. - , 823 S.E.2d 167, appeal dismissed, 372 N.C. 292, 826 S.E.2d 717, 2019 N.C. LEXIS 438 (2019), review denied, 2020 N.C. LEXIS 784 (N.C. 2020).

Trial court did not plainly err by admitting evidence of defendant's past incidents of domestic violence against the victim and her mother because the evidence was relevant as the victim had delayed in reporting the alleged sexual abuse and the evidence went directly to the victim's fear in reporting the abuse. State v. Betts, - N.C. App. - , 833 S.E.2d 41 (2019).

Impeachment exception to this rule applied, and therefore the decedent's impeachment of an assistant division traffic engineer with his report, which stated that the stop sign at the intersection where the accident occurred was "too far out" and needed to be "moved in closer" to the road "for better sight distance," was relevant to show a defect in the engineer's perception, memory, and narration, as well as the veracity of his testimony on direct examination. Holland v. French, - N.C. App. - , - S.E.2d - (Sept. 1, 2020).

Testimony Which Opens the Door to Otherwise Inadmissible Evidence. - When defendant testified that he loved his wife and did not intend to kill her, the door was opened to questions by the State as to matters which would show the defendant did not love his wife, as evidenced by his affairs with other women. State v. Norman, 331 N.C. 738, 417 S.E.2d 233 (1992).

In a cardiologist's action for breach of employment contract, the employer was properly allowed to present rebuttal evidence of the cardiologist's prior performance problems at another hospital since the cardiologist had testified regarding his positive performance prior to working for the employer. Maglione v. Aegis Family Health Ctrs., 168 N.C. App. 49, 607 S.E.2d 286 (2005).

Testimony by the victim's grandmother was relevant to show what occurred immediately after defendant's alleged assault upon the victim as the fact that the victim reported the incident immediately tended to bolster the credibility of her testimony. State v. Harris, 236 N.C. App. 388, 763 S.E.2d 302 (2014).

Trial court erred in admitting portions of a detective's notes because defendant "opened the door" to the first page of the detective's interview notes by eliciting testimony about a notation during cross-examination; the first page of the detective's notes, which recounted defendant's self-reported criminal history, was admissible to dispel the favorable inference created by defendant's selective introduction of a single phrase found at the bottom of the page. State v. Hensley, 254 N.C. App. 173, 802 S.E.2d 744 (2017), appeal dismissed, 807 S.E.2d 571, 2017 N.C. LEXIS 993 (N.C. 2017).

Demonstrative Evidence Properly Admitted. - Where defendant, who was convicted of strangling his pregnant high school girlfriend with her waitress apron string, testified that his action was impulsive as shown by the fact that he tore off the "skirt" part of the apron after the strangulation. It was proper to allow a detective, using a mannequin at trial, to demonstrate how the apron was tied around the victim's neck as the demonstration was relevant as to whether defendant acted with premeditation and deliberation and the demonstration was not excessively inflammatory. State v. Fowler, 159 N.C. App. 504, 583 S.E.2d 637 (2003).

Repetition of Evidence During Closing Argument. - Defendant waived his right to object to the admission of testimony of a prosecution witness that he was afraid to testify for fear of gangs and to the prosecutor's reference to that testimony during closing arguments; because the evidence was previously admitted under G.S. 8C-1, N.C. R. Evid. 401, allowing repetition of the evidence by the State in closing arguments was not an abuse of discretion. State v. Bodden, 190 N.C. App. 505, 661 S.E.2d 23 (2008), review denied, appeal dismissed 336 N.C. 131, 675 S.E.2d 660 (2009), cert. denied, 130 S. Ct. 175, 175 L. Ed. 2d 111 (2009).

III. IRRELEVANT EVIDENCE.

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Prosecutor's Questions Exceeded the Purpose for Which They Were Allowed. - Although, in murder prosecution, evidence that defendant was familiar with the gun and had used it previously might have rebutted defendant's claim of accident, the State greatly exceeded this purpose and questioned the witness at length about the details of the breaking and entering, details which had no connection with the crime for which defendant was being prosecuted. State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456, cert. denied, 323 N.C. 627, 374 S.E.2d 594 (1988).

Evidence Attempting to Implicate Another. - Evidence showing that the defendant's ex-girlfriend's two sons were hostile toward his wife and were not in school on the day of the murder was not admissible under this rule because it did no more than arouse suspicion that the sons had motive and opportunity to murder the victim; this evidence neither directly linked sons to the murder nor tended to exculpate the defendant. State v. Floyd, 143 N.C. App. 128, 545 S.E.2d 238 (2001), cert. denied, 534 U.S. 1092, 122 S. Ct. 838, 151 L. Ed. 2d 717 (2002).

There was no abuse of discretion in the denial of defendant's request to argue that another person shot the victim, where there was no evidence presented at trial that pointed directly or indirectly to the guilt of the other person, as the admissibility of the guilt of one other than defendant was governed by the general principle of relevancy, pursuant to G.S. 8C-1, N.C. R. Evid. 401. State v. Bullock, 154 N.C. App. 234, 574 S.E.2d 17, appeal dismissed, 357 N.C. 64, 579 S.E.2d 396, cert. denied, 540 U.S. 928, 124 S. Ct. 338, 157 L. Ed. 2d 231 (2003).

It was no error to exclude defendant's testimony that a neighbor sexually assaulted defendant's other daughter because the testimony (1) did not tend to prove defendant was less likely to have assaulted the victim or (2) impeach defendant's wife's eyewitness testimony due to the wife's failure to report defendant's assault while reporting the neighbor's assault. State v. Alonzo, 261 N.C. App. 51, 819 S.E.2d 584 (2018), aff'd, 2020 N.C. LEXIS 86 (N.C. 2020).

Evidence of Prior Convictions. - In an habitual offender prosecution, evidence of convictions not relied on to prove the habitual offender charge were irrelevant and should have been redacted from documents submitted to the jury. State v. Lotharp, 148 N.C. App. 435, 559 S.E.2d 807 (2002).

In defendant's indecent liberties with a child case, the court erred by admitting evidence that defendant sexually assaulted a four-year-old boy 18 years before because there was no evidence of an ongoing pattern of crimes between the 1990 offense and the instant case, but only the single prior conviction for an offense over 18 years old. State v. Gray, 210 N.C. App. 493, 709 S.E.2d 477 (2011), review denied, stay denied, 723 S.E.2d 540, 2012 N.C. LEXIS 191 (2012).

Evidence Held Irrelevant. - In trial on charge of first degree rape, which was tried on the theory that defendant was the principal and two other men were aiders and abettors, evidence of previous convictions of the other men was irrelevant under this rule, and being irrelevant, was not admissible. Further, the admission of such evidence violated defendant's U.S. Const., Amend. VI right to confront the witnesses against him with regard to this charge. State v. Brown, 319 N.C. 361, 354 S.E.2d 225 (1987).

Testimony of cellmate and detective that defendant was in jail on a charge of attempted murder of his girlfriend was not relevant where defendant was on trial for an unrelated crime of murder since the court determined that this testimony was not relevant to any fact or issue other than the character of the accused. State v. Cashwell, 322 N.C. 574, 369 S.E.2d 566 (1988).

Evidence of prior, noncriminal unrelated fire held inadmissible because of its prejudicial character since such evidence was irrelevant in that it neither confirmed nor suggested a relationship between two defendants charged with burning down a food market. Moreover, the State failed to show defendants had any connection with the previous fire. State v. Clark, 90 N.C. App. 489, 369 S.E.2d 607 (1988).

There can be no question that prejudice resulted from the testimony that defendant had returned to witness's motel room three hours after the murder occurred with "mud or grass" stains on the knees of his pants, and that he was "very nervous and upset" and wanted to "get drunk" and did so, and the prejudicial effect of this testimony far outweighed the need to show witness to be less than credible (especially where the remainder of her testimony included little of value in the State's case) or the need to bolster officer's credibility. State v. Hunt, 324 N.C. 343, 378 S.E.2d 754 (1989).

In wrongful death action, trial court erred in denying administrator's in limine motion seeking to prevent the admission of testimony concerning decedent's possession of a firearm and his blood/alcohol level; since no testimony existed on record that the defendant knew decedent had a handgun in his possession or that he was aware that decedent had consumed any alcohol, this evidence was not relevant. Young v. Warren, 95 N.C. App. 585, 383 S.E.2d 381 (1989).

Proffered testimony as to the victim's alcohol consumption with other people in party settings had no tendency to prove that the victim consented to sexual activity with the defendant on the day in question. State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762 (1990), discretionary review denied and appeal dismissed, 328 N.C. 573, 403 S.E.2d 516 (1991).

Admission in capital case of testimony by fingerprint expert witness to the effect that he had discovered identifiable fingerprints in only three percent of the criminal cases in which he had been involved was error, as the testimony was not relevant to the issues in the case; however, the error was not prejudicial. State v. Robinson, 330 N.C. 1, 409 S.E.2d 288 (1991).

The trial court did not abuse its discretion by not permitting cross-examination of witness in order to show the extent of the affectionate relations between defendant and the witness after a shooting. State v. Bryant, 337 N.C. 298, 446 S.E.2d 71 (1994).

Where defendant was charged with trafficking in cocaine, the mere ownership of a passport showing travel to Colombia was not probative of a fact at issue in the case. State v. Cuevas, 121 N.C. App. 553, 468 S.E.2d 425 (1996).

Even though the trial court erred in admitting evidence of defendant's passport showing travel to Colombia, that error alone did not mandate a new trial where it was unlikely that a different result would have occurred at trial but for the introduction of the passport. State v. Cuevas, 121 N.C. App. 553, 468 S.E.2d 425 (1996).

Testimony of codefendant's cell mate, which defendant sought to introduce to prove codefendant's manipulative hold over defendant, did not concern defendant's motives or any actions taken by defendant in relation to proving his guilt or innocence, and as such was collateral and irrelevant. State v. York, 347 N.C. 79, 489 S.E.2d 380 (1997).

The fact that defendant's wife had a prior criminal record, used drugs, had extra-marital affairs, and had a baby by another man during her marriage to defendant were of no relevance to any theory of defendant's case, nor probative of his defense of diminished capacity. State v. Clark, 128 N.C. App. 87, 493 S.E.2d 770 (1997), cert. denied, 348 N.C. 285, 501 S.E.2d 913 (1998).

In a rape and kidnapping case, evidence that defendant possessed pornographic magazines was not relevant because it did not tend to make the existence of any fact that is of consequence more or less probable since they were not shown to the victim, and they were not used to show dominion and control over a motel room; however, the error was harmless since a different outcome in the case would not have resulted due to overwhelming evidence of guilt. State v. Moore, 173 N.C. App. 494, 620 S.E.2d 1 (2005).

In a rape and kidnapping case, evidence of a criminal citation issued to defendant for drugs a few days before an attack was not relevant because it did not matter whether defendant actually possessed drugs; the admission of the evidence was harmless because the State could have proven the attack at any rate due to the testimony of the victim. State v. Moore, 173 N.C. App. 494, 620 S.E.2d 1 (2005).

In defendant's trial ending in her conviction for second-degree murder, evidence of her prior conduct in shooting a dog was irrelevant under G.S. 8C-1-401; the evidence was not necessary to show that defendant was knowledgeable about firearms or had used a gun in the past because defendant had admitted that she shot her victim and whether or not she knew how to use a pistol was not contested, and the evidence was irrelevant to her claim of self-defense. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703 (2006).

In the absence of evidence connecting a nine-millimeter bullet to a murder victim or to the defendant, the bullet was not relevant evidence, G.S. 8C-1, N.C. R. Evid. 401; the bullet did not have any tendency to prove that defendant committed the crime. State v. Bodden, 190 N.C. App. 505, 661 S.E.2d 23 (2008), review denied, appeal dismissed 336 N.C. 131, 675 S.E.2d 660 (2009), cert. denied, 130 S. Ct. 175, 175 L. Ed. 2d 111 (2009).

Domestic violence protective order against entered against a father pursuant to G.S. 50B-3 was erroneous because there was no competent evidence that the father had placed a member of the mother's family in fear of (1) imminent serious bodily injury or (2) continued harassment that rose to such a level as to inflict substantial emotional distress; the fact that there was an investigation by the Department of Social Service was not relevant where there was no evidence presented regarding what any alleged investigation revealed. The director of Department of Social Service was required to investigate any report of abuse, neglect, or dependency pursuant to G.S. 7B-302(a). Burress v. Burress, 195 N.C. App. 447, 672 S.E.2d 732 (2009).

Evidence about the guns was wholly irrelevant and, thus, inadmissible because there was not a scintilla of evidence linking either of the guns to the crimes charged where (1) the victims' description of the gun used in the attack did not match either of the guns found in defendant's closet; (2) neither witness identified either gun as the gun used in the robbery; and (3) although the assailant used the gun to hit the victim just above the eyebrow, opening up a bloody gash, no tissue or blood was collected from either gun. State v. Samuel, 203 N.C. App. 610, 693 S.E.2d 662 (2010).

Trial court erred in allowing gang-related testimony because it had no tendency to make any fact of consequence more likely than not; the State's proffered evidence that defendant was a self-admitted gang member was neither relevant to the alleged criminal act nor to the aggravating factor of which the State had given notice of its intent to show, and the admission of the testimony constituted plain error because it had a probable impact on the jury's finding that defendant was guilty. State v. Hinton, 226 N.C. App. 108, 738 S.E.2d 241 (2013).

Trial court erred by admitting two photographs, as substantive evidence, when a police detective was not able to authenticate the two photographs as depicting defendant's sons because the photographs did not have any tendency to make the existence of any fact of consequence more probable or less probable than it would have been without the photographs. State v. Murray, 229 N.C. App. 285, 746 S.E.2d 452 (2013).

Trial court did not err in excluding evidence about gang culture and evidence from other witnesses about the decedent's gang membership because the evidence was irrelevant; none of the proffered evidence related to what defendant knew about the victim's gang membership or character for violence. State v. Gayles, 233 N.C. App. 173, 756 S.E.2d 46 (2014).

In a case involving first degree rape and other offenses, evidence regarding a police department's evidence room was not relevant because the condition of the refrigerators had no tendency to make the existence of any fact more or less probable; moreover, the probative value was minimal, and photographs of the refrigerators might have confused the issues and misled the jury. State v. Davis, 237 N.C. App. 481, 767 S.E.2d 565 (2014).

While the trial court properly admitted evidence of a subsequent murder to show a common plan or design, the cumulative effect of the trial court's errors deprived defendant of a fair trial where there was a distinct risk that the jury might have been led to convict based on evidence of an offense not then before it, allowed the second victim's sister to testify about that victim's good character, which evidence was irrelevant to the crime charged, and allowed the prosecution to argue that defense counsel had in effect suborned perjury when, whether or not defendant committed perjury, there was no evidence that he had done so at his attorneys' behest. State v. Hembree, 368 N.C. 2, 770 S.E.2d 77 (2015).

Neither defendant proffered evidence tending to both implicate another person and exculpate either defendant; the proffered evidence merely inferred that another person might have been involved in or assisted in committing the crimes. Such inferences, if true, were not inconsistent with direct and eyewitness evidence of either defendant's guilt, and the trial court's exclusion of the proffered evidence, as not relevant and not admissible, was not reversible error. State v. Abbitt, - N.C. App. - , - S.E.2d - (Aug. 3, 2021).

Trial court did not err by concluding that cross-examination concerning the victims' civil suit was irrelevant because defendant did not seek to question the victim about a suit the victims had filed against defendant, but instead sought to question him about a suit they had filed against a third party-the parking lot owner. It was not necessary for the victims to prove in the civil suit that defendant was the assailant, but simply that the attack occurred; defendant's alleged involvement in the attack was immaterial to the civil suit. State v. Glenn, - N.C. App. - , - S.E.2d - (Nov. 17, 2020).

In a case involving assault on a law enforcement officer and attempted robbery charges, testimony concerning the field test conducted on a substance found in a plastic bag on defendant after the charged assault and attempted common law robbery was irrelevant, as it did not help to explain the officers' investigative actions before or during the events underlying the charges. The testimony regarding the field test should have been excluded, not limited via judicial instruction. State v. Cobb, - N.C. App. - , 845 S.E.2d 870 (2020).

As a consent order constituted an express contract, evidence tending to show that a company was unjustly enriched as the result of defendant's conduct was simply not relevant to plaintiff's breach of contract claim. Scigrip, Inc. v. Samuel B. Osae & Scott Bader, - N.C. - , - S.E.2d - (Feb. 28, 2019).

Although some of the expert's testimony touched upon information relevant to plaintiff's breach of contract claim, the opinions the expert expressed concerning whether the information constituted a trade secret had no bearing upon the validity of the contract claim, which was governed by the consent judgment. Scigrip, Inc. v. Samuel B. Osae & Scott Bader, - N.C. - , - S.E.2d - (Feb. 28, 2019).

Even though the trial court erred by admitted evidence of the submerged truck because it was not relevant to the insurance fraud charge, as it did not have a tendency to make any fact of defendant's failure to disclose major repairs more or less probable, defendant was not prejudiced because sufficient evidence supported defendant's conviction for insurance fraud. The truck for which defendant obtained insurance had previously been involved in an accident and the mechanic's testimony supported a finding that the repairs he preformed on the truck were major. State v. Koke, 264 N.C. App. 101, 824 S.E.2d 887 (2019).

Failure to Disclose Evidence Deemed Irrelevant. - Failure to disclose an internal report pertaining to a lead detective in the investigation of defendant's case was not erroneous, as the report was not material in the constitutional sense when the State was able to prove its case through the testimony of other law enforcement officers and without the detective ever taking the stand. State v. McCoy, 228 N.C. App. 488, 745 S.E.2d 367 (2013), dismissed 367 N.C. 530, 762 S.E.2d 462, 2014 N.C. LEXIS 712 (2014).

Erroneously But Not Prejudicially Admitted. - The State's exhibition of investigating officer's gun was error but not prejudicial error; the gun had not been introduced into evidence, and the exhibition was not relevant under this rule because the evidence did not establish any relationship between the investigating officer's gun and the gun used by defendant other than that defendant's gun "could have been a little bigger" than the investigating officer's gun. The exhibition of the gun did not establish that defendant knew the procedure for firing the gun that he used in the shootings; rather, this fact was established by his testimony regarding his use of his own gun. State v. Godley, 140 N.C. App. 15, 535 S.E.2d 566 (2000), cert. denied, 532 U.S. 964, 121 S. Ct. 1499, 149 L. Ed. 2d 384 (2001).

Evidence that defendant, who shot a police officer with a shotgun, possessed a pistol was irrelevant because the pistol was not connected to the shooting in any way; the error was harmless under G.S. 15A-1443(a), however, because of the overwhelming evidence of defendant's guilt. State v. Grant, 178 N.C. App. 565, 632 S.E.2d 258 (2006), cert. denied, appeal dismissed, 361 N.C. 223, 642 S.E.2d 712 (2007).

In defendant's prosecution for trafficking in cocaine by possession, the admission of testimony about defendant's alleged gang affiliation was erroneous under G.S. 8C-1-403 because such testimony was irrelevant under G.S. 8C-1-401 as to whether defendant trafficked in or possessed cocaine under G.S. 90-95(h)(3), but the error was harmless because the evidence of defendant's guilt was overwhelming, so defendant could not show that defendant was prejudiced. State v. Gayton, 185 N.C. App. 122, 648 S.E.2d 275 (2007).

In defendant's prosecution for carrying a concealed weapon, the admission of testimony about the effect of hollow point bullets, which were found in the weapons seized from defendant and defendant's associate, was erroneous because such testimony was irrelevant under G.S. 8C-1-401 as to whether defendant possessed a concealed weapon under G.S. 14-269(a1), but the error was harmless because the evidence of defendant's guilt was overwhelming, so defendant could not show that defendant was prejudiced. State v. Gayton, 185 N.C. App. 122, 648 S.E.2d 275 (2007).

Trial court abused its discretion in allowing the State, over defendant's objection, to make arguments referencing the amount of punishment that the finding of an aggravating factor would empower a judge to impose and the effect of the merger doctrine on defendant's convictions in the closing arguments, as those issues were irrelevant to the issue of a factor's presence in an offense; however, based on the overwhelming evidence that defendant was operating his vehicle at a dangerously high rate of speed while legally intoxicated, there was no reasonable possibility that, had the error in question not been committed, a different result would have been reached, and the error was therefore not prejudicial. State v. Lopez, 188 N.C. App. 553, 655 S.E.2d 895 (2008), appeal dismissed, review granted, 362 N.C. 512, 668 S.E.2d 567 (2008), aff'd, 363 N.C. 535, 681 S.E.2d 271 (2009).

Picture of the decedent with his family was irrelevant in that it did not make the existence of any fact that was of consequence to the determination of the murder trial more probable or less probable than it would have been without the evidence. However, the admission of the evidence was harmless due to the fact that, following defendant's objection to the picture, a witness testified about the decedent's family life and described his family, including his wife and two young children, without objection. State v. Mitchell, 194 N.C. App. 705, 671 S.E.2d 340 (2009), review denied, mot. dismissed, 363 N.C. 586, 683 S.E.2d 380 (2009), cert. denied, 363 N.C. 809, - S.E.2d - (2010).

Evidence of defendant's aunt's trial and conviction for drug trafficking was not relevant in defendant's trial for various controlled substance and firearms offenses, because it did not make the existence of any fact that was consequential to defendant's guilt or innocence more or less probable that it would have been without the evidence. State v. Cowan, 194 N.C. App. 330, 669 S.E.2d 811 (2008).

Evidence Improperly Admitted. - Defendant's conviction of indecent liberties with a child under G.S. 14-202.1 was reversed as a composition book entry relating to defendant's forced anal intercourse with an adult woman was inadmissible under G.S. 8C-1, N.C. R. Evid. 401 and 404(b) to prove intent and sexual gratification since the actual force used in the composition book was not analogous to the constructive force theory between a parent and a child; the writings did not give rise to any inference that defendant was desirous of or obtained sexual gratification from anal intercourse with his four- or six-year-old son. State v. Davis, - N.C. App. - , 726 S.E.2d 900 (2012).

Court properly excluded evidence that victim's father had been convicted of sexually assaulting the victim's sister 17 years before the claimed sexual assault allegedly committed by defendant was properly excluded. State v. Couser, 163 N.C. App. 727, 594 S.E.2d 420 (2004).

Evidence Properly Excluded. - In an action against an insurer in which plaintiff sought to recover the cost of chiropractic services rendered to her and her two minor children as a result of injuries sustained in an automobile collision, where plaintiff testified to the extent and type of damage to her automobile as a result of the collision, the court, in the exercise of its discretion under G.S. 8C-1, Rule 403, could properly exclude the automobile repair bill by which plaintiff sought to corroborate her testimony, as this evidence was cumulative and its probative value was weak, and moreover, the potential for confusion of issues by its admission was clear. Brown v. Allstate Ins. Co., 76 N.C. App. 671, 334 S.E.2d 89 (1985).

Proffered testimony as to the amount of rent victim was paying for her apartment had no logical tendency to prove that the shower in her apartment was in good working order on the day in question. State v. Coen, 78 N.C. App. 778, 338 S.E.2d 784 (1986).

Evidence that another person, bearing a resemblance to defendant and utilizing a modus operandi similar to that used in the robbery for which defendant was being tried, robbed another fast food restaurant two months after the robbery was not admissible where there was no evidence that the other person committed the crime with which defendant was charged. Stated another way, the proffered evidence did not point directly to the other person's guilt of the crime with which the defendant was charged. Neither did the proffered evidence in any way refute the identification of the defendant by the eyewitnesses as the perpetrator of the robbery. State v. Allen, 80 N.C. App. 549, 342 S.E.2d 571, cert. denied, 317 N.C. 707, 347 S.E.2d 441 (1986).

The fact that defendant pointed his gun at victim three years previously and that both men laughed afterward did not indicate that three years later defendant did not fear victim or make the apparent necessity to defend himself more or less probable than it would be without the evidence; thus, it was error to allow testimony of this extrinsic act of misconduct in order to show the defendant's character for violence and that therefore he must have acted in conformity with that character, and not in self defense, when he fatally shot the victim. State v. Mills, 83 N.C. App. 606, 351 S.E.2d 130 (1986).

In prosecution of defendant for committing sexual offenses upon two of her young stepsons, trial court committed reversible error in excluding evidence that defendant, her husband and the oldest stepson consulted a lawyer for the purpose of bringing an action for custody of the boys against their natural mother shortly before natural mother accused defendant of sexual offenses against them, as this evidence was relevant in tending to establish why natural mother might have suborned her sons' testimony. State v. Helms, 322 N.C. 315, 367 S.E.2d 644 (1988).

The evidence defendant sought to introduce in his trial for first-degree sexual offense of his two daughters, which primarily involved his marital dispute over their property would only have muddled the evidence worthy of the jury's consideration, and the trial court committed no error in precluding the introduction of evidence regarding defendant's theory that the victim's mother devised this scheme for her financial benefit. State v. Knight, 93 N.C. App. 460, 378 S.E.2d 424, cert. denied, 325 N.C. 230, 381 S.E.2d 789 (1989).

Where defendant was accused of sexually abusing his 14-year-old adopted daughter, evidence regarding a prior accusation of sexual misconduct made by the prosecutrix directed at her uncle was relevant and defendant should not have been prevented from offering such proof at his trial. State v. Maxwell, 96 N.C. App. 19, 384 S.E.2d 553, cert. denied, 326 N.C. 53, 389 S.E.2d 83 (1989).

The trial court properly excluded exhibits which merely indicated plaintiff's legal position towards defendants and did not have a tendency to prove a fact at issue in the case. Raintree Homeowners Ass'n v. Bleimann, 116 N.C. App. 561, 449 S.E.2d 13, rev'd on other grounds, 342 N.C. 159, 463 S.E.2d 72 (1995).

Interjecting evidence which the defendant contended would allow the jury to infer his immaturity, and immaterial matter, so that the jury could make an additional leap to infer a fact of consequence, that he lacked capacity to form the requisite intent would have unnecessarily confused the issues, given the slight probative value of the contested evidence; therefore, even if this evidence was relevant and admissible, its exclusion was within the trial court's discretion. State v. Huggins, 338 N.C. 494, 450 S.E.2d 479 (1994).

Trial court properly denied defendant's motion to question victim about prior arrests, where the arrests showed nothing beyond the facts that victim was arrested and there was insufficient evidence to proceed with the charges. State v. Johnson, 128 N.C. App. 361, 496 S.E.2d 805 (1998).

Trial court properly precluded defendant from cross-examining victim concerning an alleged sexual offense on grounds of lack of relevance. State v. Chavis, 134 N.C. App. 546, 518 S.E.2d 241 (1999).

The trial court properly excluded the defendant's proffered expert testimony that the defendant was reacting to a potential fear that he was about to be harmed when defendant killed the victim since such testimony would not aid but rather tend to confuse the jury in understanding the evidence and determining the facts in issue. State v. Lawrence, 352 N.C. 1, 530 S.E.2d 807 (2000).

Evidence of substantial amounts of drugs belonging to others and seized at the trailer where the defendant lived was irrelevant, prejudicial and inadmissible to show his knowledge that the substance in a van he was driving was cocaine where the defendant was not charged with any offense in connection with the drugs seized. State v. Moctezuma, 141 N.C. App. 90, 539 S.E.2d 52 (2000).

Trial court properly excluded as irrelevant evidence regarding the income and assets of an ex-wife's current husband, who was not a party, because a prior out-of-state court order determined the obligations of the ex-wife and her ex-husband for their sons educational and medical expenses and that order, by its plain and unambiguous language, obligated only the parties to pay for their sons' expenses and mandated that only the parties' income, assets, and liabilities be considered. Helms v. Schultze, 161 N.C. App. 404, 588 S.E.2d 524 (2003).

Where defendant was indicted for first-degree kidnapping, but the arrest warrant charged him with second-degree kidnapping, the trial court properly denied defendant's attempt to admit evidence of the arrest warrant since it had no relevance on the issue of defendant's guilt or whether the victim was released in a "safe place," because the allegations of an arrest warrant do not necessarily "frame" what is relevant to a particular criminal case tried upon an indictment. State v. Corbett, 168 N.C. App. 117, 607 S.E.2d 281 (2005), aff'd, - N.C. - , 624 S.E.2d 625 (2006).

Personal representatives for a decedent were properly disallowed from admitting evidence of a fishing club's insurance policy because the policy did not show whether a boat driver, who was a director for the fishing club, was its agent. Williams v. Bell, 167 N.C. App. 674, 606 S.E.2d 436 (2005).

In a termination of parental rights hearing in a case in which a mother's children were removed from her because, inter alia, her house was unsanitary, and the children were adjudicated neglected on that basis, in part, it was proper for the trial court to sustain an objection, at the termination hearing, to questions about the condition of the mother's home the day after the department of social services' initial visit there, because the relevant issue, under G.S. 8C-1, N.C. R. Evid. 401, at the termination hearing was whether the evidence supported a finding of neglect at the time of the termination hearing, rather than the condition of the mother's home before the children were adjudicated neglected. In re J.W., 173 N.C. App. 450, 619 S.E.2d 534 (2005), aff'd, 360 N.C. 176, 625 S.E.2d 780 (2006).

That an unidentified man accused the victim of assault several years before the murder for which defendant was charged took place did not make any fact in the case more probable or less probable, and the trial court's ruling that the testimony was not relevant and was, hence, inadmissible until defendant introduced substantive evidence of self-defense or evidence that the victim was the first aggressor, was not in error. State v. Campbell, 359 N.C. 644, 617 S.E.2d 1 (2005).

Trial court properly prohibited defendant from cross-examining a witness who was also at the crime scene as to why he refused to voluntarily submit DNA sample to compare with that taken from a hat; conflicting testimony was presented as to whether the assailant was wearing a hat, and thus whether or not the witness would submit to a DNA test did no more than raise a conjecture that he was wearing the hat, a fact which was not inconsistent with defendant's guilt and did not directly point to the witness's guilt. State v. Ryals, 179 N.C. App. 733, 635 S.E.2d 470 (2006), review denied, 362 N.C. 91, 657 S.E.2d 27 (2007).

Evidence of prior methamphetamine use by a shed owner's daughter was not relevant, as it did not tend to exculpate defendant, who was charged with various drug related offenses, in any way. State v. Loftis, 185 N.C. App. 190, 649 S.E.2d 1 (2007), review denied, 362 N.C. 241, 660 S.E.2d 494 (2008).

Parents' substance abuse records were not relevant during the adjudication hearing in a neglect and dependency case because the department of social services presented sufficient evidence of the parents' substance abuse without the subject records, and based upon the evidence presented, the trial court made findings regarding the parents' substance abuse and its impact on the welfare of the children. In re E.P, 183 N.C. App. 301, 645 S.E.2d 772 (2007).

In an involuntary manslaughter case, the trial court did not err in excluding the testimony of a nurse and a trooper, that defendant's brother told him he was a passenger in defendant's car at the time of the accident, because it was irrelevant; the excluded evidence did not point directly to the guilt of defendant's brother, did not tend to implicate defendant's brother in the commission of the crimes, and was not inconsistent with defendant's guilt. State v. Lopez, 188 N.C. App. 553, 655 S.E.2d 895 (2008), appeal dismissed, review granted, 362 N.C. 512, 668 S.E.2d 567 (2008), aff'd, 363 N.C. 535, 681 S.E.2d 271 (2009).

Trial court did not err in precluding ex mero motu defendant's cross-examination of his employer regarding the side effects of the chemicals to which defendant was exposed the day prior to a collision because defendant failed to show that the preclusion of the testimony constituted a manifest abuse of discretion; the trial court interrupted defense counsel's cross-examination, which attempted to introduce evidence of defendant's impairment by chemicals at work, sent the jury out of the courtroom, and found that the questioning was irrelevant, and defendant failed to request a limiting instruction upon the jury's return and to lay a sufficient foundation for the line of questioning through later testimony. State v. Cook, 193 N.C. App. 179, 666 S.E.2d 795 (2008).

Trial court properly excluded the proffered testimony of a sales agent's other clients because it was irrelevant; the agent's "good acts" or innocuous conduct with respect to his other clients did not tend to make the fact that he defrauded investors more or less probable given that the investors only alleged and attempted to prove that the agent defrauded them in connection with their investments. Latta v. Rainey, 202 N.C. App. 587, 689 S.E.2d 898 (2010).

Even if a trial court erred in excluding investors' net worths, a sales agent failed to demonstrate any prejudice resulting from the exclusion of the evidence because he testified that he took the investors' net worths into consideration in determining whether to recommend investing in a corporation; although the trial court prevented the agent from presenting to the jury evidence of each investors' net worth in specific monetary terms, the agent testified extensively that the corporation's investments were suitable for the investors based on their net worths. Latta v. Rainey, 202 N.C. App. 587, 689 S.E.2d 898 (2010).

Neuropharmacologist could not testify regarding the existence of a direct connection between any withdrawal symptoms and the reliability of defendant's confession; accordingly, this testimony was properly excluded by the trial court under G.S. 8C-1-401. State v. Lane, 365 N.C. 7, 707 S.E.2d 210 (2011).

There was no error in the exclusion of defendant's opinion testimony regarding his medical conditions and its impact on his conduct as it was more confusing than helpful to the jury without further supporting evidence, such as expert testimony, demonstrating its relevance. State v. Solomon, 259 N.C. App. 404, 815 S.E.2d 425 (2018).

Because what did or did not happen to other town council members was not relevant to the question of one member's residence, testimony to that effect would be properly excluded; the member had a full opportunity to test a citizen's credibility and purported biases for bringing the voter registration challenge on cross-examination following her testimony, but chose not to do so. Rotruck v. Guilford Cty. Bd. of Elections, 267 N.C. App. 260, 833 S.E.2d 345 (2019).


Rule 402. Relevant evidence generally admissible; irrelevant evidence inadmissible.

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of North Carolina, by Act of Congress, by Act of the General Assembly or by these rules. Evidence which is not relevant is not admissible.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 402 except that the phrases "by the Constitution of North Carolina" and "by Act of the General Assembly" were added and the phrase "by other rules prescribed by the Supreme Court pursuant to statutory authority" was deleted. The Advisory Committee's Note states:

"The provisions that all relevant evidence is admissible, with certain exceptions, and that evidence which is not relevant is not admissible are 'a presupposition involved in the very conception of a rational system of evidence.' Thayer, Preliminary Treatise on Evidence 264 (1898). They constitute the foundation upon which the structure of admission and exclusion rests. * * *

Not all relevant evidence is admissible. The exclusion of relevant evidence occurs in a variety of situations and may be called for by these rules, by the Rules of Civil . . . Procedure . . ., by Act of Congress, or by constitutional considerations.

Succeeding rules in the present article, in response to the demands of particular policies, require the exclusion of evidence despite its relevancy. In addition, . . . Article VI imposes limitations upon witnesses and the manner of dealing with them; Article VII specifies requirements with respect to opinions and expert testimony; Article VIII excludes hearsay not falling within an exception; Article IX spells out the handling of authentication and identification; and Article X restricts the manner of proving the contents of writings and recordings.

The Rules of Civil . . . Procedure in some instances require the exclusion of relevant evidence. For example, . . . the Rules of Civil Procedure, by imposing requirements of notice and unavailability of the deponent, place limits on the use of relevant depositions.

* * * * *

The rule recognizes but makes no attempt to spell out the constitutional considerations which impose basic limitations upon the admissibility of relevant evidence. Examples are evidence obtained by unlawful search and seizure, Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914); Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d. 576 (1967); incriminating statement elicited from an accused in violation of right to counsel, Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d. 246 (1964)."

Rule 402 is consistent with North Carolina practice.

Legal Periodicals. - For a note on the admissibility of a criminal defendant's hypnotically refreshed testimony, see 10 Campbell L. Rev. 311 (1988).

For comment, "Admissibility of DNA Evidence: Perfecting the 'Search for Truth' ," see 25 Wake Forest L. Rev. 591 (1990).

For article, "Issues Once Moot: The Other Evidentiary Objections to the Admission of Exculpatory Polygraph Examinations," see 32 Wake Forest L. Rev. 1045 (1997).

For article, "A Plea to North Carolina: Bring Fairness to the Assessment of Civil Battery Liability for Defendants with Cognitive Disabilities," see 39 Campbell L. Rev. 241 (2017).

For comment, "Have Your Cake and Eat it Too: Cognitive Neurology and Negligence Law in North Carolina," see 41 Campbell L. Rev. 181 (2019).

For article, "The Emotional Woman,” see 99 N.C.L. Rev. 1027 (2021).

CASE NOTES

Section 8C-1, Rule 803 Does Not Annul Relevancy Requirement. - While G.S. 8C-1, Rule 803 delineates instances in which evidence will not be excluded simply because such evidence is hearsay, it does not annul the requirement of this rule that the evidence be relevant. York v. Northern Hosp. Dist., 88 N.C. App. 183, 362 S.E.2d 859 (1987), cert. denied, 322 N.C. 116, 367 S.E.2d 922 (1988).

Res Gestae Rationale Survives. - Admission of evidence of a criminal defendant's prior bad acts, received to establish the circumstances of the crime on trial by describing its immediate context, is known variously as the "same transaction" rule, the "complete story" exception, and the "course of conduct" exception. Such evidence is admissible if it "forms part of the history of the event or serves to enhance the natural development of the facts"; and this rationale, established in pre-Rules cases, survives the adoption of the Rules of Evidence. State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990).

Evidence pertaining to the foreseeability of criminal attack shall not be limited to prior criminal acts occurring on the premises. Evidence of criminal acts occurring near the premises in question may be relevant to the question of foreseeability, and such evidence is admissible unless excluded by some specific rule. Murrow v. Daniels, 321 N.C. 494, 364 S.E.2d 392 (1988), overruled on other grounds, Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998).

Admission of evidence which is technically inadmissible will be treated as harmless unless prejudice is shown such that a different result likely would have ensued had the evidence been excluded. State v. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987).

The burden is on the party who asserts that evidence was improperly admitted to show both error and that he was prejudiced by its admission. State v. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987).

When relevant evidence not involving a right arising under the Constitution of the United States is erroneously excluded, a defendant has the burden of showing that the error was prejudicial. This burden may be met by showing that there is a reasonable possibility that a different result would have been reached had the error not been committed. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988).

Evidence Not Probative. - Where defendant was charged with trafficking in cocaine, the mere ownership of a passport showing travel to Colombia was not probative of a fact at issue in the case. State v. Cuevas, 121 N.C. App. 553, 468 S.E.2d 425 (1996).

In an involuntary manslaughter case, the trial court did not err in excluding the testimony of a nurse and a trooper, that defendant's brother told him he was a passenger in defendant's car at the time of the accident, because it was irrelevant; the excluded evidence did not point directly to the guilt of defendant's brother, did not tend to implicate defendant's brother in the commission of the crimes, and was not inconsistent with defendant's guilt. State v. Lopez, 188 N.C. App. 553, 655 S.E.2d 895 (2008), appeal dismissed, review granted, 362 N.C. 512, 668 S.E.2d 567 (2008), aff'd, 363 N.C. 535, 681 S.E.2d 271 (2009).

Probative Value Outweighed by Prejudicial Potential. - Where officer saw two small bottles of liquor in a purse but had no reason to believe that alcohol consumption contributed to car accident the probative value of this evidence was outweighed by its prejudicial potential. Browning v. Carolina Power & Light Co., 114 N.C. App. 229, 441 S.E.2d 607 (1994), aff'd, 340 N.C. 254, 456 S.E.2d 307 (1995).

In order to establish the relevancy of blood test results, plaintiff is required to lay a foundation by way of expert testimony explaining the way the test is conducted, attesting its scientific reliability, and vouching for its correct administration in this particular case. Further, the substance analyzed must be accurately identified by proving a chain of custody to insure that the substance came from the source claimed and that its condition was unchanged. Lombroia v. Peek, 107 N.C. App. 745, 421 S.E.2d 784 (1992).

Psychiatric Testimony About Ability to Form Specific Intent in Murder Trial. - Testimony of a psychiatric expert that in his opinion the defendant was suffering from organic brain impairment, that the defendant's capacity to plan, think or reflect was impaired at the time of the shootings, and that the defendant was incapable of forming the specific intent to kill at the time of the shootings was evidence tending to show that the defendant acted without premeditation or deliberation when he murdered victim and that he was incapable of forming the specific intent to kill when he shot his stepson and was therefore relevant in the defendant's trial for first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. State v. Daniel, 333 N.C. 756, 429 S.E.2d 724 (1993).

Expert Testimony Regarding Battered Child Syndrome. - Testimony from expert in pediatrics and child abuse regarding battered child syndrome was properly admitted. State v. Elliott, 344 N.C. 242, 475 S.E.2d 202 (1996), cert. denied, 520 U.S. 1106, 117 S. Ct. 1111, 137 L. Ed. 2d 312 (1997).

Photographs of Crime Scene and Victim's Clothes. - Photographs of the crime scene and victim's bloody clothes were admissible since they were only used so that the witnesses could explain and illustrate their testimony and the trial court instructed the jury as to their limited purpose; further, the photographs were not unnecessarily gory. State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001).

Autopsy photographs, photographs of the victim's car after she was shot, testimony regarding the amount of blood at the scene, and blood stained material were all properly admitted at defendant's murder trial in accordance with G.S. 8C-1, N.C. R. Evid. 401, 402, and were not overly prejudicial in violation of G.S. 8C-1, N.C. R. Evid. 403. State v. Chapman, 359 N.C. 328, 611 S.E.2d 794 (2005).

Evidence of "Look" Held Relevant. - Witness's testimony that the look on defendant juvenile's face was defiant related to the witness's perception of the juvenile shortly after the incident, and because the witness's testimony stemmed from the witness's personal experience combined with the witness's observation of the defendant, it was admissible to shed light on the circumstances surrounding the incident, and thus was relevant and admissible. In re M.J.G., 234 N.C. App. 350, 759 S.E.2d 361 (2014).

Evidence Held Relevant. - Although motive was not an element of any of the crimes for which the defendant was convicted (murder, arson and assault with a deadly weapon inflicting serious injury), his motives and state of mind at the time of the fire certainly were facts "of consequence to the determination of the action . . .", and the trial court did not err by admitting evidence thereof. State v. Riddick, 315 N.C. 749, 340 S.E.2d 55 (1986).

Watch and ring taken from victim of rape and kidnapping were "relevant" in defendant's trial for those offenses, because they tended to make the existence of a fact of consequence - defendant's connection to the offenses with which he was charged - more probable than it would be without the evidence, and their admission was not unduly prejudicial. State v. Mercer, 317 N.C. 87, 343 S.E.2d 885 (1986).

State's exhibits, which included $5,900 in United States currency, rolling papers and pipe, electric digital scales, a triple beam balance scale, a water bong, a plastic bag containing white powder, an airline bag in which the white powder was found and a briefcase with documents, with the exception of the briefcase, were relevant to the crime of trafficking in cocaine, in that they intended to show that defendant knowingly possessed cocaine and was trafficking in it, and the briefcase, which was in defendant's possession at the time of arrest, tended to explain or illustrate the circumstances surrounding his arrest. State v. Teasley, 82 N.C. App. 150, 346 S.E.2d 227 (1986), cert. denied and appeal dismissed, 318 N.C. 701, 351 S.E.2d 759 (1987).

Evidence merely disclosing the subsequent pregnancy of the rape victim was admissible as tending to prove penetration, an essential element of the crime of forcible rape; moreover, the victim's simple statement that she had an abortion served the purpose of corroborating both the fact of penetration and the fact of her pregnancy, and the mere fact that an abortion took place was not so inflammatory as to render it inadmissible. State v. Stanton, 319 N.C. 180, 353 S.E.2d 385 (1987).

In trial for robbery with a dangerous weapon, evidence of victim's scholastic achievements presented by the assistant district attorney during preliminary questioning was relevant; it was offered as a means of introducing the victim to the court and jury and to assist in explaining the victim's background, and considering the fact that defendant later portrayed victim as the aggressor, the challenged testimony was not prejudicial. State v. Summerlin, 98 N.C. App. 167, 390 S.E.2d 358, cert. denied, 327 N.C. 143, 394 S.E.2d 183 (1990).

Whether or not building met the standards of the Building Code, though not determinative of the issue of negligence, had some probative value as to whether or not defendant failed to keep his store in a reasonably safe condition, and expert testimony on this issue could properly be introduced in a negligence action against store owner. Thomas v. Dixson, 321 N.C. App. 226, 363 S.E.2d 209 (1988).

Testimony that the defendant was calm and was not crying which described her emotional state shortly after her husband was killed, based upon the witnesses' observations of her demeanor at that time, and evidence that the defendant disposed of her husband's personal effects the day after his funeral, amounted to evidence tending to shed light upon the circumstances surrounding husband's killing and, thus, were relevant and admissible. State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991).

Plaintiffs failed to make a timely objection to the admission of a report prepared by financial consultant, which was listed by defendant in the "order on final pre-trial conference," thus affording plaintiffs ample time to prepare for a timely objection to the introduction of the exhibit at trial. Furthermore, the report was relevant since it tended to show the interconnected operations of the parties, the inadequacies of the financial record keeping, and the degree of control that plaintiffs exercised over one party. Powell v. Omli, 110 N.C. App. 336, 429 S.E.2d 774 (1993), cert. denied, 334 N.C. 621, 435 S.E.2d 338 (1993).

Evidence regarding the issuance of a warrant for defendant's arrest for beating murder victim in the hour immediately preceding the murder tended to shed light on defendant's emotional state at or around the time of the killing and the circumstances surrounding that killing; thus, it was relevant and admissible. The testimony established intent and motive of returning to continue the assault and tended to prove premeditation, deliberation, and malice. State v. Fisher, 336 N.C. 684, 445 S.E.2d 866 (1994), cert. denied, 513 U.S. 1098, 115 S. Ct. 768, 130 L. Ed. 2d 665 (1995).

Testimony that the victim was a very good person, always went to church, loved her children, was a good wife and mother and died not knowing what happened to her two-and-a-half year old child was properly admitted. State v. Reeves, 337 N.C. 700, 448 S.E.2d 802 (1994), cert. denied, 514 U.S. 1114, 115 S. Ct. 1971, 131 L. Ed. 2d 860 (1995).

Evidence of flight, i.e. that the defendant did not appear at his first scheduled trial, is a relevant circumstance to be considered by the jury, together with other circumstances, in determining the issue of the defendant's guilt. State v. Williamson, 122 N.C. App. 229, 468 S.E.2d 840 (1996).

Bloody clothing of a victim that is corroborative of the state's case, is illustrative of the testimony of a witness, or throws any light on the circumstances of the crime is relevant and admissible evidence at trial. State v. Knight, 340 N.C. 531, 459 S.E.2d 481 (1995).

Plaintiff's possession of a Taurus .357 pistol was relevant where the victim died from gunshot wounds, a spent .38/.357 bullet was found in close proximity to the victim's body, and this bullet had markings consistent with those of a Taurus pistol. State v. Soles, 119 N.C. App. 375, 459 S.E.2d 4, appeal dismissed, cert. denied, 341 N.C. 655, 462 S.E.2d 523 (1995).

Testimony of Coast Guard officer as to ocean currents was relevant to show a connection between defendant and the crime where an inference could be drawn therefrom that a body had drifted from an area with which defendant was familiar. State v. Dial, 122 N.C. App. 298, 470 S.E.2d 84 (1996).

Evidence that victim, her family members, and a friend had threatened defendant's life was relevant to explain why defendant had a gun and to explain defendant's behavior and was not unfairly prejudicial. State v. Macon, 346 N.C. 109, 484 S.E.2d 538 (1997).

Testimony by the wife of an eyewitness to a murder that he was restless and unable to sleep prior to his identification of the defendant but that he slept much better after doing so was admissible in the defendant's prosecution for second degree murder, where the eyewitness' credibility was in issue, and the wife's testimony was relevant to the reliability of his identification. State v. Smith, 130 N.C. App. 71, 502 S.E.2d 390 (1998).

Evidence concerning the speed the defendant's vehicle was traveling when it struck the rear of the plaintiffs' vehicle was relevant to the extent of the plaintiffs' injuries, and thus was relevant to the issue of damages. Albrecht v. Dorsett, 131 N.C. App. 502, 508 S.E.2d 319 (1998).

Evidence of electrocution was relevant and admissible in a death benefits proceeding before the Industrial Commission, where the issue was whether the employee died of electrocution or of a preexisting heart condition. Westbrooks v. Bowes, 130 N.C. App. 517, 503 S.E.2d 409 (1998).

Where persuasive evidence existed to show that a death caused by unprotected floor openings placed the defendant on notice of the danger, evidence of OSHA citations against the defendant/general contractor showing continuing violations several days later was properly admitted as relevant to the questions of negligence and gross negligence. Lane v. R.N. Rouse & Co., 135 N.C. App. 494, 521 S.E.2d 137 (1999).

Although the weapons could not be directly tied to defendant's crimes, the trial court did not err in admitting the pepper spray and stun gun into evidence and allowing the prosecution to demonstrate their functioning to the jury. State v. Parker, 354 N.C. 268, 553 S.E.2d 885 (2001), cert. denied, 535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162 (2002).

Testimony as to the existence of a bullet hole in the wall of the defendant's house trailer, which an expert testified was made by a bullet that was not found and which exited the defendant's house trailer and which other parties testified did not exist before the victim's disappearance, was relevant and admissible in a case in which the defendant was found guilty of voluntary manslaughter in the death of a woman whose recovered skeletal remains showed was beaten to death. State v. Lassiter, 160 N.C. App. 443, 586 S.E.2d 488 (2003), cert. denied, 357 N.C. 660, 590 S.E.2d 853 (2003).

Trial court erred by its exclusion of evidence, during the trial on the issue of damages, regarding whether a businessman was financially ready, willing, and able to exercise a stock purchase option and restriction agreement during the period specified in the option contract, because the evidence was relevant to the issue of damages; for if, the businessman was not ready, willing, and able to exercise his rights under the option, he would be entitled to no more than nominal damages for its breach. Lee v. Scarborough, 162 N.C. App. 674, 592 S.E.2d 43 (2004).

Trial court properly allowed plaintiff's attorney to ask defendant motorist about traffic citations he received that resulted in a conviction, because the evidence was relevant to the issue of whether defendant company was liable for negligent entrustment because it employed the motorist and allowed him to drive a company van. Campbell v. McIlwain, 163 N.C. App. 553, 593 S.E.2d 799 (2004).

Although not conclusive, the testimony of a general partner of a company that owned land as to the intent to dedicate a right-of-way to the public if a rezoning application for property that the company owned was admissible into evidence as it was relevant to the trial court's determination of whether a dedication of the company's property was made. DOT v. Elm Land Co., 163 N.C. App. 257, 593 S.E.2d 131 (2004), cert. denied, 358 N.C. 542, 599 S.E.2d 42 (2004).

Defendant's threats to a holding cell officer that he "already killed one" and "I got one up under my belt" could have been interpreted as statements of guilt and used as direct evidence to prove that defendant acknowledged guilt in the death of his victim, as what was "up under his belt" was a human life, that he had already "killed one" was a woman like the officer, and "belt" was meant to imply that defendant had a black belt; accordingly, the statements were relevant in defendant's felony murder trial. State v. Garcia, 358 N.C. 382, 597 S.E.2d 724 (2004), cert. denied, - U.S. - , 125 S. Ct. 1301, 161 L. Ed. 2d 122 (2005).

Various items of drug paraphernalia, packaging materials, and bus tickets found at accomplice's house were properly placed into evidence because they were clearly relevant to the issue of defendant's guilty of the trafficking of drugs and conspiracy offenses. State v. Howell, 169 N.C. App. 741, 611 S.E.2d 200 (2005).

Defendant's statement to officers that he was expected to make a living outside prison showed a motive for the robbery and his statement that he wanted to go back to prison showed a possible motive to commit a crime in order to accomplish that objective; the statements were made by defendant himself shortly after the crime and were distinguishable from other evidence, and as such, the statements were probative of motive and intent, so there was no error in admission of the statements. State v. al-Bayyinah, 359 N.C. 741, 616 S.E.2d 500 (2005), cert. denied, 547 U.S. 1076, 126 S. Ct. 1784, 164 L. Ed. 2d 528 (2006), cert. denied, 700 S.E.2d 925, 2010 N.C. LEXIS 588 (2010), cert. denied 2010 N.C. LEXIS 588 (N.C. 2010).

In defendant's criminal trial on a variety of charges, arising from a vehicular incident that resulted in deaths, a trial court properly allowed admission of testimony regarding defendant's prior failure to take a breath test and defendant's conviction for driving while intoxicated, as such was relevant under N.C. R. Evid. 401 and 402 to show defendant's knowledge that the driver's license was suspended and to show malice, which was an element of one of the charged offenses; further, the evidence was properly admitted for the purpose of showing defendant's intent and it was not unfairly prejudicial under N.C. R. Evid. 404(b) and 403. State v. Lloyd, 187 N.C. App. 174, 652 S.E.2d 299 (2007), cert. denied, 363 N.C. 586, 683 S.E.2d 214 (2009).

Admission of testimony of victim's mother about the victim's involvement with drugs and admission of a photo of the victim before the victim started using drugs were proper since the testimony and the photo were relevant evidence pursuant to G.S. 8C-1-402, N.C. R. Evid. 402. The evidence was admitted to support the State's theory that the murder of the victim by defendant and another man was drug related and to show how the victim looked before the victim became caught up in drug use. State v. Hope, 189 N.C. App. 309, 657 S.E.2d 909 (2008), review denied, 362 N.C. 367, 664 S.E.2d 315 (2008).

Witness's 's statement was relevant to explain to the dispatcher why he felt threatened by defendant and why he called 911; the witness related in the 911 call the threatening caller's own statement concerning his motive and in context, this statement could be understood as a threat to take thirty dollars from the witness and the victim at gunpoint or, in other words, as a threat to commit armed robbery. The witness's comment that it was more than likely they were going to commit a robbery merely clarified and restated the evidence, to which defendant did not object. State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009), cert. denied 130 S. Ct. 2104, 2010 U.S. LEXIS 3379, 176 L. Ed. 2d 734 (U.S. 2010).

Witness's redirect testimony explained why she removed the guns and drugs from her apartment and this testimony showed that she, acting alone, made the decision to hide the guns because she knew defendant had left the apartment with firearms and under the influence of drugs and, as a result of what she had seen and heard, feared that he had shot someone. This information explaining why she acted as she did was within the witness's personal knowledge and was admissible to clarify evidence elicited by defense counsel on cross-examination; the witness's explanation of her motivation was not an opinion as to defendant's guilt. State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009), cert. denied 130 S. Ct. 2104, 2010 U.S. LEXIS 3379, 176 L. Ed. 2d 734 (U.S. 2010).

Defendant's statement to police indicating that he believed the vans entrusted to him by an acquaintance, who he knew because he used to go to his house to get high, were stolen was admissible as relevant evidence as to why the acquaintance would entrust the vans to defendant. State v. Monroe, 230 N.C. App. 70, 748 S.E.2d 179 (2013), review denied 367 N.C. 1418, 752 S.E.2d 477, 2013 N.C. LEXIS 1418 (2013).

Trial court properly determined that, while barely so, the evidence in question was relevant, and then weighed its probative value against prejudice concerns; because the trial court conducted that analysis, it necessarily found the voice mail relevant, and otherwise, the trial court would have excluded the evidence, making a prejudice analysis unnecessary or at least, mere surplusage. State v. Triplett, 368 N.C. 172, 775 S.E.2d 805 (2015).

Defendant's failure to respond and to attend or reschedule the examination raised a reasonable inference as to her awareness that her claims were fraudulent; because this evidence was relevant to an essential element of an offense of obtaining property by false pretenses, its admission did not violate the rule. State v. Holanek, 242 N.C. App. 633, 776 S.E.2d 225 (2015).

When a terminated state law enforcement agent alleged discrimination on the basis of political affiliation, the testimony by a former deputy secretary of the North Carolina Department of Public Safety (DPS) that a state senator told the deputy secretary that the agent's reassignment shouldn't have occurred and that they were going to fix it and that the incoming Secretary of the DPS had agreed that the reassignment shouldn't have happened was admissible in an administrative hearing to show the declarants' existing mental states and motives. N.C. Dep't of Pub. Safety v. Ledford, 247 N.C. App. 266, 786 S.E.2d 50 (2016).

Trial court properly admitted a photograph because it illustrated a detective's testimony that the victim used the photograph to identify defendant; the photograph was relevant to the victim's identification of defendant, and it was not unduly prejudicial. State v. Thompson, 254 N.C. App. 220, 801 S.E.2d 689 (2017).

Trial court did not err by admitting the photos because they were obtained from defendant's cell phone, they showed he had access to firearms and the car depicted in one photo, they depicted him at almost the precise location where the shooting took place and one of the gun photos showed defendant in possession of a firearm resembling that used in the shooting. State v. Dixon, 261 N.C. App. 676, 821 S.E.2d 232 (2018).

Evidence of the jailhouse attack on the witness and testimony that the witness was concerned for his safety was relevant and admissible because defendant was, at minimum, aware of the attack or might have encouraged it; defendant was not unfairly prejudiced in light of the similar unchallenged evidence of defendant's threats to intimidate the witness; and the evidence was relevant and probative to both the issues of defendant's knowledge of his guilt and the witness's credibility, and was not substantially outweighed by any undue prejudice. State v. Smith, 263 N.C. App. 550, 823 S.E.2d 678 (2019).

Evidence Held Irrelevant. - Proffered testimony as to the amount of rent victim was paying for her apartment had no logical tendency to prove that the shower in her apartment was in good working order on the day in question. State v. Coen, 78 N.C. App. 778, 338 S.E.2d 784 (1986).

Evidence that another person, bearing a resemblance to defendant and utilizing a modus operandi similar to that used in the robbery for which defendant was being tried, robbed another fast food restaurant two months after the robbery was not admissible, where there was no evidence that the other person committed the crime with which defendant was charged. Stated another way, the proffered evidence did not point directly to the other person's guilt of the crime with which the defendant was charged. Neither did the proffered evidence in any way refute the identification of the defendant by the eyewitnesses as the perpetrator of the robbery. State v. Allen, 80 N.C. App. 549, 342 S.E.2d 571, cert. denied, 317 N.C. 707, 347 S.E.2d 441 (1986).

In medical malpractice case, evidence of plaintiffs' separate lawsuit against a different defendant, which had been dismissed, was irrelevant under this rule, and its admission contravened the strong public policy favoring settlement of controversies out of court. Cates v. Wilson, 83 N.C. App. 448, 350 S.E.2d 898 (1986), modified on other grounds, 321 N.C. 1, 361 S.E.2d 734 (1987).

In a negligence action against a hospital, in which plaintiffs had previously settled with the attending physician, the court properly excluded references to the physician's participation as a defendant as irrelevant under this rule and as contravening the strong public policy favoring settlement of controversies out of court. Campbell ex rel. McMillan v. Pitt County Mem. Hosp., 84 N.C. App. 314, 352 S.E.2d 902, aff'd, 321 N.C. 260, 362 S.E.2d 273, appeal of right allowed pursuant to N.C.R.A.P., Rule 16(b) and petition allowed as to additional issues, 319 N.C. 458, 356 S.E.2d 2 (1987).

In trial on charge of first degree rape, which was tried on the theory that defendant was the principal and two other men were aiders and abettors, evidence of previous convictions of the other men was irrelevant under G.S. 8C-1, Rule 401, and being irrelevant, was not admissible. Further, the admission of such evidence violated defendant's U.S. Const., Amend. VI right to confront the witnesses against him with regard to this charge. State v. Brown, 319 N.C. 361, 354 S.E.2d 225 (1987).

Testimony of a cellmate and a detective that defendant was in jail on a charge of attempted murder of his girlfriend was not relevant where defendant was on trial for an unrelated crime of murder since the court determined that this testimony was not relevant to any fact or issue other than the character of the accused. State v. Cashwell, 322 N.C. 574, 369 S.E.2d 566 (1988).

Proffered testimony as to the victim's alcohol consumption with other people in party settings has no tendency to prove that the victim consented to sexual activity with the defendant on the day in question. State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762 (1990), discretionary review denied and appeal dismissed, 328 N.C. 573, 403 S.E.2d 516 (1991).

A trial court did not err by excluding medical records and preventing cross-examination of the State's witness regarding her mental and emotional condition and treatment where the trial court examined the medical records in camera, found no good cause to violate the confidentiality of the physician-patient relationship, preserved those records sealed for review by the appellate court, and found that the records revealed no evidence bearing on the witness's credibility. State v. Adams, 103 N.C. App. 158, 404 S.E.2d 708 (1991).

Trial judge did not abuse his discretion by refusing to admit the testimony of detective that a violation of G.S. 47C-4-110, for failure to put money in escrow, is not subject to criminal sanctions. State v. Rupe, 109 N.C. App. 601, 428 S.E.2d 480 (1993).

Where plaintiff in paternity case did not contend that an operation which could produce the effects of recanalization was performed on defendant who had vasectomy, nor was there any evidence that such an operation was performed, the testimony on the procedure was irrelevant. Brooks v. Hayes, 113 N.C. App. 168, 438 S.E.2d 420 (1993).

Photographs of witness used to corroborate her allegations that defendant used the photographs to blackmail her to prevent her from testifying were admissible, but it was error to admit other photographs into evidence, not used for any purpose during the trial. State v. Cummings, 113 N.C. App. 368, 438 S.E.2d 453 (1994), cert. denied and appeal dismissed, 336 N.C. 75, 445 S.E.2d 39 (1994).

The fact that a pipe, which according to the State's eyewitnesses was neither used nor noticed by anyone prior to shooting, was on the ground under the victim's automobile did not serve to establish that these eyewitnesses were part of an earlier fight or that it had any relevance with respect to the events which occurred at the time of the shooting; the fact that the chrome pipe was underneath victim's automobile before the shooting did not tend to make it more or less probable that defendant had no specific intent to kill victim because he could not premeditate and deliberate and, thus, the pipe itself was not relevant and was properly excluded as an exhibit. State v. Jackson, 340 N.C. 301, 457 S.E.2d 862 (1995).

Whether child of codefendant was abused by codefendant was irrelevant to the charges of first degree sexual offense and taking indecent liberties with a child against defendant and was properly excluded pursuant to this rule. State v. Parker, 119 N.C. App. 328, 459 S.E.2d 9 (1995).

Defendant's testimony that his Intoxilyzer reading did not accurately reflect his blood alcohol level was not admissible and the trial court correctly excluded this evidence. State v. Cothran, 120 N.C. App. 633, 463 S.E.2d 423 (1995).

Testimony of codefendant's cell mate, which defendant sought to introduce to prove codefendant's manipulative hold over defendant, did not concern defendant's motives or any actions taken by defendant in relation to proving his guilt or innocence, and as such was collateral and irrelevant. State v. York, 347 N.C. 79, 489 S.E.2d 380 (1997).

Trial court properly did not permit into evidence at defendant's murder trial the plea agreement of a witness who acted in concert with defendant, because the plea agreement did not show that the witness received any type of consideration for his testimony, and was, therefore, irrelevant. State v. Lambert, 149 N.C. App. 163, 560 S.E.2d 221 (2002).

Trial court properly excluded as irrelevant evidence regarding the income and assets of an ex-wife's current husband, who was not a party, because a prior out-of-state court order determined the obligations of the ex-wife and her ex-husband for their sons educational and medical expenses and that order, by its plain and unambiguous language, obligated only the parties to pay for their sons' expenses and mandated that only the parties' income, assets, and liabilities be considered. Helms v. Schultze, 161 N.C. App. 404, 588 S.E.2d 524 (2003).

Co-defendant's guilty plea was properly excluded under G.S. 8C-1, N.C. R. Evid. 201(d), because it was not an adjudicative fact; the co-defendant did not testify at defendant's trial for breaking or entering a motor vehicle with intent to commit larceny and the plea was irrelevant. It was improper to place irrelevant facts before a jury, by judicial notice or otherwise under G.S. 8C-1, N.C. R. Evid. 402. State v. Baskin, 190 N.C. App. 102, 660 S.E.2d 566 (2008).

Trial court properly excluded the proffered testimony of a sales agent's other clients because it was irrelevant; the agent's "good acts" or innocuous conduct with respect to his other clients did not tend to make the fact that he defrauded investors more or less probable given that the investors only alleged and attempted to prove that the agent defrauded them in connection with their investments. Latta v. Rainey, 202 N.C. App. 587, 689 S.E.2d 898 (2010).

Evidence about the guns was wholly irrelevant and, thus, inadmissible because there was not a scintilla of evidence linking either of the guns to the crimes charged where (1) the victims' description of the gun used in the attack did not match either of the guns found in defendant's closet; (2) neither witness identified either gun as the gun used in the robbery; and (3) although the assailant used the gun to hit the victim just above the eyebrow, opening up a bloody gash, no tissue or blood was collected from either gun. State v. Samuel, 203 N.C. App. 610, 693 S.E.2d 662 (2010).

Trial court could have properly excluded evidence that defendant filed amended tax returns following defendant's arrest for attempting to evade or defeat tax because, whether or not defendant subsequently satisfied defendant's tax liability to the State of North Carolina had no bearing on whether defendant willfully evaded defendant's tax obligations at the times when those taxes were due. Such evidence was therefore irrelevant and properly excluded under G.S. 8C-1, N.C. R. Evid. 402. State v. Howell, 191 N.C. App. 349, 662 S.E.2d 922 (2008).

In defendant's indecent liberties with a child case, the court erred by admitting evidence that defendant sexually assaulted a four-year-old boy 18 years before because there was no evidence of an ongoing pattern of crimes between the 1990 offense and the instant case, but only the single prior conviction for an offense over 18 years old. State v. Gray, 210 N.C. App. 493, 709 S.E.2d 477 (2011), review denied, stay denied, 723 S.E.2d 540, 2012 N.C. LEXIS 191 (2012).

Trial court erred by admitting two photographs, as substantive evidence, when a police detective was not able to authenticate the two photographs as depicting defendant's sons, because the photographs did not have any tendency to make the existence of any fact of consequence more probable or less probable than it would have been without the photographs. State v. Murray, 229 N.C. App. 285, 746 S.E.2d 452 (2013).

In a case involving first degree rape and other offenses, evidence regarding a police department's evidence room was not relevant because the condition of the refrigerators had no tendency to make the existence of any fact more or less probable; moreover, the probative value was minimal, and photographs of the refrigerators might have confused the issues and misled the jury. State v. Davis, 237 N.C. App. 481, 767 S.E.2d 565 (2014).

Because what did or did not happen to other town council members was not relevant to the question of one member's residence, testimony to that effect would be properly excluded; the member had a full opportunity to test a citizen's credibility and purported biases for bringing the voter registration challenge on cross-examination following her testimony, but chose not to do so. Rotruck v. Guilford Cty. Bd. of Elections, 267 N.C. App. 260, 833 S.E.2d 345 (2019).

Testimony Which Opens the Door to Otherwise Inadmissible Evidence. - When defendant testified that he loved his wife and did not intend to kill her, the door was opened to questions by the State as to matters which would show the defendant did not love his wife, as evidenced by his affairs with other women. State v. Norman, 331 N.C. 738, 417 S.E.2d 233 (1992).

Trial court did not err in ruling that defense counsel opened the door to introduction of evidence regarding the prior killing of a cat by defendant. State v. Cagle, 346 N.C. 497, 488 S.E.2d 535 (1997), cert. denied, 522 U.S. 1032, 118 S. Ct. 635, 139 L. Ed. 2d 614 (1998).

Trial court erred in admitting portions of a detective's notes because defendant "opened the door" to the first page of the detective's interview notes by eliciting testimony about a notation during cross-examination; the first page of the detective's notes, which recounted defendant's self-reported criminal history, was admissible to dispel the favorable inference created by defendant's selective introduction of a single phrase found at the bottom of the page. State v. Hensley, 254 N.C. App. 173, 802 S.E.2d 744 (2017), appeal dismissed, 807 S.E.2d 571, 2017 N.C. LEXIS 993 (N.C. 2017).

Evidence Improperly Excluded. - In a murder trial, where guilt was based on circumstantial evidence, the trial court committed reversible error in refusing to admit into evidence defendant's proposed exhibit, a drawing found by law enforcement officers among the victim's personal effects, which included a rough map of the area surrounding defendant's North Carolina home and numerous written notations indicating a possible larceny scheme. The exhibit was clearly relevant to a crucial issue in the case, namely, whether this defendant, and not some other person, was in fact the perpetrator of the crime, and it therefore should have been admitted into evidence at trial. State v. McElrath, 322 N.C. 1, 366 S.E.2d 442 (1988).

The defendant was entitled to a new trial because a different result might have been reached had the trial court not excluded relevant and admissible evidence which cast doubt upon the State's evidence that defendant was the perpetrator of the murder of an elderly victim and which further implicated another person as that perpetrator beyond conjecture or mere implication. State v. Israel, 353 N.C. 211, 539 S.E.2d 633 (2000).

While a corporation and its principal were properly held liable for breaching an option agreement with a consultant, it was error to exclude evidence as to whether the consultant ever intended to exercise the option; the corporation and the principal were entitled to a new trial so that a jury could determine whether the consultant was ready, willing, and able to exercise the option and, if not, the consultant was entitled to only nominal damages. Lee v. Scarborough, 164 N.C. App. 357, 595 S.E.2d 729 (2004).

Exclusion of Evidence Held Not Prejudicial. - Court's refusal to permit witness to testify that, based upon his personal knowledge of the State's only eyewitness, he would not believe the State's witness under oath was not prejudicial, where immediately before that evidence was offered, the same witness testified without objection that in his opinion the State's witness was a liar and had told him he would take a bribe to change his testimony. State v. Burge, 100 N.C. App. 671, 397 S.E.2d 760 (1990).

Admission of Evidence Held Prejudicial. - In prosecution for rape, first-degree kidnapping, sexual offense, and common law robbery, the admission of the officer's testimony that the defendant had a rifle in his car when he was arrested, if error, was not prejudicial, where there was no intimation by the officer that the defendant attempted to use the rifle when he was arrested, that it was used in the commission of any crime or that possession of the rifle was otherwise unlawful. State v. Herring, 322 N.C. 733, 370 S.E.2d 363 (1988).

Where the challenged evidence that defendant was in custody for assault with a deadly weapon with intent to kill his girlfriend was especially prejudicial because of its similarity to the charge at issue, which was murder and assault with a deadly weapon with intent to kill, and the similarity of the charges was compounded by the additional "verification" evidence of a detective, such admissions constituted prejudicial error and defendant was entitled to a new trial. State v. Cashwell, 322 N.C. 574, 369 S.E.2d 566 (1988).

Admission of Evidence Held Harmless. - Trial court's error in admitting irrelevant evidence of co-attacker's robbery and attack of another person following victims' deaths constituted harmless error. State v. Teague, 134 N.C. App. 702, 518 S.E.2d 573 (1999).

Even though the trial court erred in admitting evidence of defendant's passport showing travel to Colombia, that error alone did not mandate a new trial where it was unlikely that a different result would have occurred at trial but for the introduction of the passport. State v. Cuevas, 121 N.C. App. 553, 468 S.E.2d 425 (1996).

Cross-Examination Held Proper. - Where State did not cross-examine defendant in murder case about an unrelated rape accusation to show defendant was unworthy of belief because of this alleged bad act, but for purpose of establishing defendant's motive for crime for which he was on trial, cross-examination was proper. State v. Meekins, 326 N.C. 689, 392 S.E.2d 346 (1990).

Evidence Properly Admitted. - Admission into evidence of defendant's offer of $150,000 to plaintiff to terminate lease, which was an effort on part of defendant to satisfy a condition of sale of restaurant property, was not violative of G.S. 8C-1, Rule 408, nor was it barred by this rule, as offer was evidence of value of lease and was therefore relevant to issue of damages. Marina Food Assocs. v. Marina Restaurant, Inc., 100 N.C. App. 82, 394 S.E.2d 824 (1990).

Trial court did not commit reversible error when it allowed introduction of hair and fiber evidence removed from defendant's pants with a lint brush, even though defendant maintained that he could have picked up the incriminating hair and fibers by riding in the same police car in which the victim had ridden earlier in the day. Argument that defendant may have picked up the fibers somewhere else would go to the weight of such evidence, not to its admissibility. State v. Davy, 100 N.C. App. 551, 397 S.E.2d 634 (1990).

The trial court did not err by admitting the finger of a murder victim burned beyond recognition as evidence, because its probative value as to the issue of identity of the victim was not substantially outweighed by any danger of unfair prejudice. State v. Eason, 328 N.C. 409, 402 S.E.2d 809 (1991).

Knife which was found in a pond around three months after murder was admissible evidence. State v. DeCastro, 342 N.C. 667, 467 S.E.2d 653 (1996), cert. denied, 519 U.S. 896, 117 S. Ct. 241, 136 L. Ed. 2d 170 (1996).

A hacksaw frame and three hacksaw blades were admissible based on the proximity of the hacksaw frame to the location of the victim's severed hand and the expert witness' conclusions that the victim's right hand was severed by a hacksaw blade similar to those seized from the residence of defendant's parents. State v. Grooms, 353 N.C. 50, 540 S.E.2d 713 (2000), cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54 (2001).

Trial court did not err by admitting without editing or redacting letters that defendant and his accomplice wrote into evidence, as the letters were relevant under G.S. 8C-1-401 and G.S. 8C-1-402, and the probative value of the letters was not outweighed by prejudice under G.S. 8C-1-403. State v. Curry, 171 N.C. App. 568, 615 S.E.2d 327 (2005).

Where the State presented substantial evidence of guilt of second-degree sexual offense through the testimony of a cellmate, which was corroborated by two other inmates who heard defendant bragging about the sexual assault, the trial court did not commit plain error in admitting evidence of defendant's prior acts. State v. Locklear, 174 N.C. App. 547, 621 S.E.2d 254 (2005).

Evidence that the murder victim's last words were "I'm not scared of you. I'm a Christian," was admissible because it was offered not to show the good character of the victim, but instead it was offered as circumstantial evidence of defendant's state of mind when he was approaching the victim before he shot and killed the victim. State v. Kaher Maruf Muhammad, 186 N.C. App. 355, 651 S.E.2d 569 (2007), appeal dismissed, 362 N.C. 242, 660 S.E.2d 537 (2008).

Because a trial court had discretion to admit all relevant evidence under N.C. R. Evid. 402, as well as to exclude evidence under N.C. R. Evid. 403, based on confusion or unfair prejudice, it had discretion to admit testimony of plaintiff former employee's coworkers, who suffered symptoms similar to that of the employee, who sought to recover damages based on his exposure to an allegedly toxic workplace. Absent an abuse of discretion, which was not shown, that ruling would not be overturned. Cameron v. Merisel Props., 187 N.C. App. 40, 652 S.E.2d 660 (2007).

Trial court's denial of creditor's and auctioneer's motion to exclude any evidence that they failed to escrow the auction funds in violation of an agreement made between the parties was not an abuse of discretion as that evidence was highly relevant to the secured creditor's claims, and was not substantially outweighed by any prejudice to the creditors and the auctioneer. Bartlett Milling Co., L.P. v. Walnut Grove Auction & Realty Co., 192 N.C. App. 74, 665 S.E.2d 478, review denied, 362 N.C. 679, 669 S.E.2d 741 (2008).

Trial court did not commit prejudicial error by allowing an accident report into evidence, which showed redactions for an automobile accident victim's alcohol use and zeros or blanks for a motorist's alcohol use because the victim's estate failed to show any prejudice to warrant a different result at trial in that other unchallenged and admitted evidence showed that the motorist was not under the influence of alcohol. Scheffer v. Dalton, 243 N.C. App. 548, 777 S.E.2d 534 (2015).

Evidence Improperly Admitted. - Exhibit listing defendant's prior convictions was erroneously admitted; defendant stipulated that his license had been revoked and that he knew that it was revoked, and the State offered no justification for admission of the prior convictions, as opposed to just the license suspension. State v. Hudgins, 167 N.C. App. 705, 606 S.E.2d 443 (2005).

Expert Testimony. - Professional engineer's testimony as to the structure and appearance of the stairway on which plaintiff was injured was based on direct personal knowledge; therefore, this testimony was admissible so long as it was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice. Newton v. New Hanover County Bd. of Educ., 342 N.C. 554, 467 S.E.2d 58 (1996).

A robbery report containing statements regarding the seizure, at a bus station, of defendant's luggage which police suspected contained marijuana was relevant evidence; the statements made to the investigating officer were vital to the identification of the defendants as the suspects in the armed robbery and admissible for non-hearsay purposes. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 1380, 149 L. Ed. 2d 305 (2001), cert. dismissed, without prejudice, 805 S.E.2d 698, 2017 N.C. LEXIS 900 (2017), cert. granted, 370 N.C. 587, 809 S.E.2d 594, 2018 N.C. LEXIS 93 (2018), cert. dismissed, as moot, 847 S.E.2d 415, 2020 N.C. LEXIS 891 (N.C. 2020).

Admissibility of Records. - School records of minor son were not inadmissible hearsay, but were admissible under an exception to the hearsay rule as business records since the school records were not offered to prove the truth of what was contained in them but were used to impeach the mother's testimony. Sterling v. Gil Soucy Trucking, Ltd., 146 N.C. App. 173, 552 S.E.2d 674 (2001).

Trial court's admission of victim's testimony from a domestic violence protective order hearing did not violate his right to confront the witness against him, nor did it violate G.S. 8C-1, Rules 403, 404(b), and 803(3) of the North Carolina Rules of Evidence, where the hearsay statements constituted, and were admissible as, statements of the declarant's then-existing mental, emotional, or physical condition and where their probative value outweighed their prejudicial effect. State v. Thibodeaux, 352 N.C. 570, 532 S.E.2d 797 (2000), cert denied, 531 U.S. 1155, 121 S. Ct. 1106, 148 L. Ed. 2d 976 (2001).

Testimony Relevant to Negate Self-Defense And Establish State of Mind And Intent. - The testimony of four witnesses about victim's screams during murder, the appearance of the crime scene, and defendant's behavior and demeanor immediately following the murder was relevant to negate the defendant's claim of self-defense as well as to establish his state of mind and intent to kill. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001).

Error Alleged on Appeal Not Preserved. - Defendant's claim that certain testimony was erroneously admitted was not preserved for purposes of appeal because defendant claimed, on appeal, that the testimony was irrelevant, under G.S. 8C-1, N.C. R. Evid. 401 and 402, and that the testimony was unduly prejudicial, under G.S. 8C-1, N.C. R. Evid. 403, but defendant did not make these specific objections at trial, nor were such objections apparent from the context, under N.C. R. App. P. 10(b)(1), from which it appeared that defendant made a hearsay objection. State v. Hueto, 195 N.C. App. 67, 671 S.E.2d 62 (2009).

Applied in Sawyer v. Carter, 71 N.C. App. 556, 322 S.E.2d 813 (1984); State v. Price, 313 N.C. 297, 327 S.E.2d 863 (1985); Braun v. Glade Valley Sch., Inc., 77 N.C. App. 83, 334 S.E.2d 404 (1985); State v. Barnes, 77 N.C. App. 212, 334 S.E.2d 456 (1985); Wagner v. Barbee, 82 N.C. App. 640, 347 S.E.2d 844 (1986); Ward v. Zabady, 85 N.C. App. 130, 354 S.E.2d 369 (1987); State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987); Hogsed v. Ray, 88 N.C. App. 673, 364 S.E.2d 688 (1988); State v. Welch, 89 N.C. App. 135, 365 S.E.2d 190 (1988); State v. Crandell, 322 N.C. 487, 369 S.E.2d 579 (1988); State v. McLaughlin, 323 N.C. 68, 372 S.E.2d 49 (1988); Young v. Warren, 95 N.C. App. 585, 383 S.E.2d 381 (1989); State v. Harper, 96 N.C. App. 36, 384 S.E.2d 297 (1989); State v. Davis, 101 N.C. App. 409, 399 S.E.2d 371 (1991); State v. Withers, 111 N.C. App. 340, 432 S.E.2d 692 (1993); State v. Moore, 335 N.C. 567, 440 S.E.2d 797, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994); State v. Ingle, 336 N.C. 617, 445 S.E.2d 880 (1994); State v. Jones, 337 N.C. 198, 446 S.E.2d 32 (1994); State v. Johnson, 340 N.C. 32, 455 S.E.2d 644 (1995); State v. Solomon, 340 N.C. 212, 456 S.E.2d 778 (1995); State v. Johnston, 344 N.C. 596, 476 S.E.2d 289 (1996); State v. Wright, 127 N.C. App. 592, 492 S.E.2d 365 (1997), cert. denied, 347 N.C. 584, 502 S.E.2d 616 (1998), cert. dismissed, mot. dismissed, as moot, 842 S.E.2d 598, 2020 N.C. LEXIS 528 (N.C. 2020); State v. Trull, 349 N.C. 428, 509 S.E.2d 178 (1998), cert. denied, 528 U.S. 835, 120 S. Ct. 95, 145 L. Ed. 2d 80 (1999); State v. Robertson, 149 N.C. App. 563, 562 S.E.2d 551 (2002); N.C. State Bar v. Gilbert, 151 N.C. App. 299, 566 S.E.2d 685 (2002), aff'd, 357 N.C. 502, 586 S.E.2d 89 (2003); State v. Prevatte, 356 N.C. 178, 570 S.E.2d 440 (2002); State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004); State v. Bethea, 167 N.C. App. 215, 605 S.E.2d 173 (2004); State v. Augustine, 359 N.C. 709, 616 S.E.2d 515 (2005); State v. Theer, 181 N.C. App. 349, 639 S.E.2d 655 (2007), cert. denied, - U.S. - , 128 S. Ct. 2473, 171 L. Ed. 2d 769 (2008); State v. Carpenter, 361 N.C. 382, 646 S.E.2d 105 (2007); State v. Graham, 186 N.C. App. 182, 650 S.E.2d 639 (2007), review denied, appeal dismissed, 362 N.C. 477, 666 S.E.2d 765 (2008); State v. Cunningham, 188 N.C. App. 832, 656 S.E.2d 697 (2008); State v. Little, 191 N.C. App. 655, 664 S.E.2d 432 (2008), review denied, 362 N.C. 685, 671 S.E.2d 326 (2008); State v. Lofton, 193 N.C. App. 364, 667 S.E.2d 317 (2008); State v. Cowan, 194 N.C. App. 330, 669 S.E.2d 811 (2008); Blankenship v. Bartlett, 363 N.C. 518, 681 S.E.2d 759 (2009); State v. Conley, 220 N.C. App. 50, 724 S.E.2d 163 (2012); State v. McKnight, 239 N.C. App. 108, 767 S.E.2d 689 (2015).

Cited in Kapp v. Kapp, 336 N.C. 295, 442 S.E.2d 499, rehearing denied, 336 N.C. 786, 447 S.E.2d 424 (1994); State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985); Broyhill v. Coppage, 79 N.C. App. 221, 339 S.E.2d 32 (1986); State v. Hillard, 81 N.C. App. 104, 344 S.E.2d 54 (1986); McNabb v. Town of Bryson City, 82 N.C. App. 385, 346 S.E.2d 285 (1986); State v. Brooks, 83 N.C. App. 179, 349 S.E.2d 630 (1986); State v. Platt, 85 N.C. App. 220, 354 S.E.2d 332 (1987); State v. Austin, 320 N.C. 276, 357 S.E.2d 641 (1987); State v. Strickland, 321 N.C. 31, 361 S.E.2d 882 (1987); Matthews v. James, 88 N.C. App. 32, 362 S.E.2d 594 (1987); Smith v. Starnes, 88 N.C. App. 609, 364 S.E.2d 442 (1988); State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988); State v. Barber, 93 N.C. App. 42, 376 S.E.2d 497 (1989); State v. Bogle, 324 N.C. 190, 376 S.E.2d 745 (1989); State v. Levan, 32 N.C. 155, 388 S.E.2d 429 (1990); State v. Faucette, 326 N.C. 676, 392 S.E.2d 71 (1990); State v. Odom, 99 N.C. App. 265, 393 S.E.2d 146 (1990); State v. Franklin, 327 N.C. 162, 393 S.E.2d 781 (1990); State v. McKinnon, 328 N.C. 668, 403 S.E.2d 474 (1991); State v. Haskins, 104 N.C. App. 675, 411 S.E.2d 376 (1991); State v. Hightower, 331 N.C. 636, 417 S.E.2d 237 (1992); State v. Suddreth, 105 N.C. App. 122, 412 S.E.2d 126 (1992); State v. Mebane, 106 N.C. App. 516, 418 S.E.2d 245 (1992); State v. Quick, 106 N.C. App. 548, 418 S.E.2d 291 (1992); Wilson ex rel. Wilson v. Bellamy, 105 N.C. App. 446, 414 S.E.2d 347 (1992); State v. Hart, 105 N.C. App. 542, 414 S.E.2d 364 (1992); State v. Moore, 107 N.C. App. 388, 420 S.E.2d 691 (1992); State v. Wilson, 335 N.C. 220, 436 S.E.2d 831 (1993); State v. Collins, 335 N.C. 729, 440 S.E.2d 559 (1994); State v. McDougald, 336 N.C. 451, 444 S.E.2d 211 (1994); State v. Netcliff, 116 N.C. App. 396, 448 S.E.2d 311 (1994), overruled on other grounds, State v. Patton, 342 N.C. 633, 466 S.E.2d 708 (1996); State v. Ward, 338 N.C. 64, 449 S.E.2d 709 (1994), cert. denied, 514 U.S. 1134, 115 S. Ct. 2014, 131 L. Ed. 2d 1012 (1995), cert. denied, 343 N.C. 757, 473 S.E.2d 626 (1996), cert. denied, 354 N.C. 74, 571 S.E.2d 835 (2001); State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995); McFarland v. Cromer, 117 N.C. App. 678, 453 S.E.2d 527 (1995), cert. denied, 340 N.C. 114, 458 S.E.2d 183 (1995), cert. denied, 340 N.C. 114, 456 S.E.2d 317 (1995); State v. Holmes, 120 N.C. App. 54, 460 S.E.2d 915 (1995); State v. King, 343 N.C. 29, 468 S.E.2d 232 (1996); State v. Bruton, 344 N.C. 381, 474 S.E.2d 336 (1996); State v. Cunningham, 344 N.C. 341, 474 S.E.2d 772 (1996); Holt v. Williamson, 125 N.C. App. 305, 481 S.E.2d 307 (1997), cert. denied, 346 N.C. 178, 486 S.E.2d 204 (1997); State v. Larry, 345 N.C. 497, 481 S.E.2d 907 (1997), cert. denied, 522 U.S. 917, 118 S. Ct. 304, 139 L. Ed. 2d 234 (1997); State v. Robinson, 346 N.C. 586, 488 S.E.2d 174 (1997), cert. denied, - N.C. - , 502 S.E.2d 611 (1998); State v. Bishop, 346 N.C. 365, 488 S.E.2d 769 (1997); Reis v.
Hoots, 131 N.C. App. 721, 509 S.E.2d 198 (1998); State v. Atkins, 349 N.C. 62, 505 S.E.2d 97 (1998), cert. denied, 526 U.S. 1147, 119 S. Ct. 2025, 143 L. Ed. 2d 1036 (1999); State v. Dennis, 129 N.C. App. 686, 500 S.E.2d 765 (1998); State v. Jones, 137 N.C. App. 221, 527 S.E.2d 700 (2000); State v. Lytch, 142 N.C. App. 576, 544 S.E.2d 570 (2001), aff'd, 355 N.C. 270, 559 S.E.2d 547 (2002); State v. Wilson, 151 N.C. App. 219, 565 S.E.2d 223 (2002), cert. denied, 356 N.C. 313, 571 S.E.2d 215 (2002); State v. McDonald, 151 N.C. App. 236, 565 S.E.2d 273 (2002); State v. Marecek, 152 N.C. App. 479, 568 S.E.2d 237 (2002); State v. Trull, 153 N.C. App. 630, 571 S.E.2d 592 (2002), cert. denied, 356 N.C. 691, 578 S.E.2d 597 (2003); cert. dismissed, 794 S.E.2d 333, 2016 N.C. LEXIS 1059 (2016); State v. Taylor, 165 N.C. App. 750, 600 S.E.2d 483 (2004); State v. Simmons, 167 N.C. App. 512, 606 S.E.2d 133 (2004); State v. Streckfuss, 171 N.C. App. 81, 614 S.E.2d 323 (2005); State v. Blizzard, 169 N.C. App. 285, 610 S.E.2d 245 (2005); State v. Locklear, 172 N.C. App. 249, 616 S.E.2d 334 (2005); State v. Campbell, 359 N.C. 644, 617 S.E.2d 1 (2005); State v. Peterson, 179 N.C. App. 437, 634 S.E.2d 594 (2006); State v. Locklear, 180 N.C. App. 115, 636 S.E.2d 284 (2006); State v. Brockett, 185 N.C. App. 18, 647 S.E.2d 628 (2007); State v. Peterson, 361 N.C. 587, 652 S.E.2d 216 (2007), cert. denied, 552 U.S. 1271, 128 S. Ct. 1682, 170 L. Ed. 2d. 377 (2008); State v. Parker, 187 N.C. App. 131, 653 S.E.2d 6 (2007); State v. Beatty, 189 N.C. App. 464, 658 S.E.2d 508 (2008); State v. Buie, 194 N.C. App. 725, 671 S.E.2d 351 (2009), review denied, 363 N.C. 375, 679 S.E.2d 135 (2009); State v. Dean, 196 N.C. App. 180, 674 S.E.2d 453 (2009), appeal dismissed, review denied, 363 N.C. 376, 679 S.E.2d 139 (N.C. 2009); State v. Madures, 197 N.C. App. 682, 678 S.E.2d 361 (2009); State v. Ward, 199 N.C. App. 1, 681 S.E.2d 354 (2009), aff'd 2010 N.C. LEXIS 424 (2010); State v. Morrow, 200 N.C. App. 123, 683 S.E.2d 754 (2009), review denied, stay denied, 363 N.C. 747, 689 S.E.2d 372, 2009 N.C. LEXIS 1284 (2009); Midkiff v. Compton, 204 N.C. App. 21, 693 S.E.2d 172 (2010), cert. denied 364 N.C. 326, 700 S.E.2d 922, 2010 N.C. LEXIS 680 (2010); State v. Wilson, 207 N.C. App. 492, 700 S.E.2d 148 (2010); State v. Oliver, 210 N.C. App. 609, 709 S.E.2d 503 (2011), review denied 365 N.C. 206, 710 S.E.2d 37, 2011 N.C. LEXIS 495 (N.C. 2011); State v. Lane, 365 N.C. 7, 707 S.E.2d 210 (2011); State v. Beckelheimer, 211 N.C. App. 362, 712 S.E.2d 216 (2011), rev'd 366 N.C. 127, 726 S.E.2d 156, 2012 N.C. LEXIS 409 (2012); rev'd 722 S.E.2d 484, 2012 N.C. LEXIS 125 (2012); State v. Brown, 211 N.C. App. 427, 710 S.E.2d 265 (2011), aff'd, review improvidently allowed, 365 N.C. 465, 722 S.E.2d 508, 2012 N.C. LEXIS 123 (2012); State v. Edmonds, 212 N.C. App. 575, 713 S.E.2d 111 (2011); In re Yopp, 217 N.C. App. 488,
720 S.E.2d 769 (2011); State v. Privette, 218 N.C. App. 459, 721 S.E.2d 299 (2012), review denied, 365 N.C. 566, 724 S.E.2d 532, 2012 N.C. LEXIS 290 (N.C. 2012); State v. Laurean, 220 N.C. App. 342, 724 S.E.2d 657 (2012); State v. Stewart, 231 N.C. App. 134, 750 S.E.2d 875 (2013); State v. McGrady, 232 N.C. App. 95, 753 S.E.2d 361 (2014); State v. Triplett, 236 N.C. App. 192, 762 S.E.2d 632 (2014); State v. Royster, 237 N.C. App. 64, 763 S.E.2d 577 (2014); State v. McLaughlin, 246 N.C. App. 306, 786 S.E.2d 269 (2016).


Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 403. The Advisory Committee's Note states:

"The case law recognizes that certain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme. Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission. * * * The rules which follow in this Article are concrete applications evolved for particular situations. However, they reflect the policies underlying the present rule, which is designed as a guide for the handling of situations for which no specific rules have been formulated.

Exclusion for risk of unfair prejudice, confusion of issues, misleading the jury, or waste of time, all find ample support in the authorities. 'Unfair prejudice' within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one.

The rule does not enumerate surprise as a ground for exclusion, in this respect following Wigmore's view of the common law. 6 Wigmore § 1849. Cf. McCormick G.S. 152, p. 320, n. 29, listing unfair surprise as a ground for exclusion but stating that it is usually 'coupled with the danger of prejudice and confusion of issues'. * * * While it can scarcely be doubted that claims of unfair surprise may still be justified despite procedural requirements of notice and instrumentalities of discovery, the granting of a continuance is a more appropriate remedy than exclusion of the evidence. * * * Moreover, the impact of a rule excluding evidence on the ground of surprise would be difficult to estimate."

The rule is substantially in accord with North Carolina practice. See Brandis on North Carolina Evidence § 77 et seq. (1982). In North Carolina, unfair surprise appears to be a ground for exclusion of evidence. Id. § 77, p. 287. However, as the Advisory Committee states, the rule does not enumerate surprise as a ground for exclusion. Nonetheless, surprise may be covered by unfair prejudice, confusion of issues, or undue delay. See Wright and Graham, Federal Practice and Procedure: Evidence § 5218, at 298.

The Advisory Committee's Note states that:

"In reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction. See Rule 106 and Advisory Committee's Note thereunder. The availability of other means of proof may also be an appropriate factor."

Legal Periodicals. - For note on the future of character impeachment in North Carolina, in light of State v. Jean, 310 N.C. 157, 311 S.E.2d 266 (1984), see 63 N.C.L. Rev. 535 (1985).

For comment, "The Use of Rape Trauma Syndrome as Evidence in a Rape Trial: Valid or Invalid?," see 21 Wake Forest L. Rev. 93 (1985).

For note, "State v. Stafford: Rape Trauma Syndrome and the Admissibility of Statements Made by Rape Victims," see 64 N.C.L. Rev. 1364 (1986).

For comment, "Admissibility of DNA Evidence: Perfecting the 'Search for Truth' ," see 25 Wake Forest L. Rev. 591 (1990).

For note, "Evidence - Rape Shield Statute - Witnesses - State v. Guthrie, 110 N.C. App. 91, 428 S.E.2d 853 (1993)," see 72 N.C.L. Rev. 1777 (1994).

For note, "The Admissibility of Prior Acquittal Evidence - Has North Carolina Adopted the 'Minority View'? - The Effect of State v. Scott," see 16 Campbell L. Rev. 231 (1994).

For article, "A Six Step Analysis of 'Other Purposes' Evidence Pursuant to Rule 404(b) of the North Carolina Rules of Evidence," see 21 N.C. Cent. L.J. 1 (1995).

For article, "DNA Profiling in North Carolina," see 21 N.C. Cent. L.J. 300 (1995).

For note, "State v. Alston: North Carolina Continues to Broaden its Mind to Admissibility of a Victim's Out-of-Court Statements Under the Rule 803(3) Hearsay Exception in Criminal Cases," see 32 Wake Forest L. Rev. 1327 (1997).

For comment, "Corrosion of the Confrontation Clause in North Carolina: A Comparison of State v. Brewington and State v. Ortiz-Zape with State v. Craven," see 36 N.C. Cent. L. Rev. 295 (2014).

CASE NOTES

I. GENERAL CONSIDERATION.

Test for determining whether evidence of crimes, wrongs or acts other than those specifically at issue is admissible is whether the incidents are sufficiently similar and not too remote in time so as to be more probative than prejudicial under the balancing test of this rule. State v. Shultz, 88 N.C. App. 197, 362 S.E.2d 853 (1987); State v. Boyd, 321 N.C. 574, 364 S.E.2d 118 (1988); Pinckney v. Van Damme, 116 N.C. App. 139, 447 S.E.2d 825 (1994); State v. Hamilton, 132 N.C. App. 316, 512 S.E.2d 80 (1999).

In deciding whether evidence of insurance should be received under G.S. 8C-1, N.C. R. Evid. 411, a trial court should engage in the following analysis: (1) Is the insurance coverage offered for a purpose other than to show that a person acted negligently or otherwise wrongfully; (2) If so, is the evidence relevant to show that other purpose; and (3) If so, is the probative value of the relevant evidence substantially outweighed by the factors set forth in G.S. 8C-1, N.C. R. Evid. 403. Williams v. Bell, 167 N.C. App. 674, 606 S.E.2d 436 (2005).

Although admissible under G.S. 8C-1, Rule 404(b), the probative value of evidence must still outweigh the danger of undue prejudice to the defendant to be admissible under this rule. State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562 (1989), aff'd, 326 N.C. 777, 392 S.E.2d 391 (1990).

Even if testimony is admissible as corroborative, the trial court still must determine whether its probative value outweighs the danger of unfair prejudice to defendant. State v. Coffey, 345 N.C. 389, 480 S.E.2d 664 (1997).

"Unfair prejudice," as used in this rule, means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986); State v. Cameron, 83 N.C. App. 69, 349 S.E.2d 327 (1986).

Unfairness of Prejudice Is Determinative. - All evidence favorable to plaintiff will be, by definition, prejudicial to defendants; however, the test under this rule is whether that prejudice to defendants is unfair. Matthews v. James, 88 N.C. App. 32, 362 S.E.2d 594 (1987), cert. denied, 322 N.C. 112, 367 S.E.2d 913 (1988); Screaming Eagle Air, Ltd. v. Airport Comm'n, 97 N.C. App. 30, 387 S.E.2d 197 (1990).

Question of Prejudice Is One of Degree. - Necessarily, evidence which is probative in the State's case will have a prejudicial effect on the defendant; the question is one of degree. State v. Mercer, 317 N.C. 87, 343 S.E.2d 885 (1986).

Whether to exclude evidence on the ground that its probative value is substantially outweighed by the danger of unfair prejudice is a matter left to the sound discretion of the trial court, and the question is one of degree, because evidence that is probative of the state's case necessarily will have a prejudicial effect on the defendant. State v. Hoffman, 349 N.C. 167, 505 S.E.2d 80 (1998), cert. denied, 526 U.S. 1053, 119 S. Ct. 1362, 143 L. Ed. 2d 522 (1999).

Probative Value Must Be Substantially Outweighed. - Most evidence tends to prejudice the party against whom it is offered; to be excluded, the probative value of the evidence must not only be outweighed by the danger of unfair prejudice, it must be substantially outweighed. State v. Lyons, 340 N.C. 646, 459 S.E.2d 770 (1995).

Once a trial court determines that other crimes evidence is properly admissible under G.S. 8C-1, Rule 404(b), it must still determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice under G.S. 8C-1, Rule 403. State v. Bidgood, 144 N.C. App. 267, 550 S.E.2d 198 (2001).

Trial court did not abuse its discretion by admitting evidence of other break-ins alleged to have been perpetrated by defendant nine and 12 months after the break-in for which defendant was on trial because the lapses of time were not too remote considering the great similarity between the subsequent incidents and the one for which defendant was on trial where the perpetrator in each case had broken glass to enter a store and had used a large, white bag to carry away cartons of cigarettes and where defendant was identified by police officers as the perpetrator in the two subsequent break-ins; hence, the probative value of such evidence was not substantially outweighed by any prejudice resulting from its admission. State v. Owens, 160 N.C. App. 494, 586 S.E.2d 519 (2003).

Specific Finding Not Required So Long as Balancing Test Occurred. - The court's failure to make a specific finding as to whether the probative value of the evidence of defendant's prior assault on murder victim outweighed its prejudicial effect did not constitute reversible error where the court conducted the balancing test required by this rule outside the presence of the jury. State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388 (2000), cert denied, 353 N.C. 396, 547 S.E.2d 427 (2001).

As long as the procedure followed by the trial court when admitting prejudicial evidence demonstrates that a balancing test, weighing the prejudicial impact of the evidence against its probative value, has been conducted, a specific finding is not required. State v. Harris, 149 N.C. App. 398, 562 S.E.2d 547 (2002).

Where the State presented substantial evidence of guilt of second-degree sexual offense through the testimony of a cellmate, which was corroborated by two other inmates who heard defendant bragging about the sexual assault, the trial court did not commit plain error in admitting evidence of defendant's prior acts, despite defendant's claim that the trial court failed to use a balancing test. State v. Locklear, 174 N.C. App. 547, 621 S.E.2d 254 (2005).

Factors to Consider in Determining Admissibility. - Although no definitive test for the admissibility of photographs alleged to be inflammatory and unduly prejudicial has been developed, factors that courts have looked to in the past include: (1) the number of the photographs; (2) whether the photographs were unnecessarily duplicative of other testimony; (3) whether the purpose of the photographs was aimed solely at arousing the passions of the jury; and (4) the circumstances surrounding the presentation of the photographs. State v. Brown, 335 N.C. 477, 439 S.E.2d 589 (1994).

Although the trial court did not state its reason(s) for refusing to allow the persons who made statements regarding defendant's prior acts to testify, the court could have concluded that such testimony would have merely wasted time; thus, defendant's contention that the prosecutor's argument regarding the statements was improper because the evidence was necessarily prejudicial was unpersuasive to the appellate court. State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, appeal dismissed, cert. denied, 360 N.C. 653, 637 S.E.2d 189 (2006).

Where a party is responsible for opening the door with respect to certain evidence, that party may not complain of unfair prejudice resulting from its admission. Everhart v. O'Charley's, Inc., 200 N.C. App. 142, 683 S.E.2d 728 (2009).

Expert opinion regarding the general reliability of children's statements may be admissible so long as the requirements of G.S. 8C-1, N.C. R. Evid. 702 and this rule are met. As with any proposed expert opinion, the trial court shall use its discretion, guided by this rule and Rule 702, to determine whether the testimony should be allowed in light of the facts before it. State v. Walston, 244 N.C. App. 299, 780 S.E.2d 846 (2015).

Passage of Time Should Be Weighed in Admitting Evidence. - A process that allows for the passage of time to be weighed in a court's initial decision to admit such evidence is the better reasoned approach and one that ensures that an accused is tried only for the acts for which he has been indicted. State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988).

Effect of Remoteness in Time. - Remoteness in time is most important where evidence of another crime is used to show that both crimes arose out of a common scheme or plan; remoteness in time is less important when the other crime is admitted because its modus operandi is so strikingly similar to the modus operandi of the crime being tried as to permit a reasonable inference that the same person committed both crimes. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853 (1987).

Generally, remoteness in time goes to the weight of the evidence and not to its admissibility. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853 (1987).

Defendant's Conduct After Crime. - There is no rule prohibiting the admission of evidence concerning a defendant's conduct after the crime as long as it has a tendency to shed light on the issue of whether the defendant committed the crime for which he or she is standing trial; in order to evaluate the validity of a defendant's argument the court determines whether that evidence had probative value without being overly concerned about the temporal relationship between the events and the date upon which the crime was committed. State v. Young, 368 N.C. 188, 775 S.E.2d 291 (2015).

Prior Bad Act. - Where the testimony tended to prove that defendant's prior acts of sexual abuse occurred continuously over a period of twenty-six years, the prior bad acts were not too remote in time to be considered evidence of defendant's common plan or scheme to sexually abuse female family members. State v. Frazier, 344 N.C. 611, 476 S.E.2d 297 (1996).

Prior acts evidence was properly admitted under both G.S. 8C-1, N.C. R. Evid. 404(b) and G.S. 8C-1, N.C. R. Evid. 403 where notable similarities existed between defendant's prior drug related acts and the crimes he was charged with, the prior acts were not too remote in time, and the trial court guarded against prejudice by giving a limiting instruction. State v. Stevenson, 169 N.C. App. 797, 611 S.E.2d 206 (2005).

Trial court did not err in admitting the testimony of a witness that defendant had touched the witness, a minor at the time, in a sexual manner without the consent of the witness. The evidence pursuant to the balancing test of G.S. 8C-1, N.C. R. Evid. 403 was not more prejudicial than probative since there was a similarity and temporal proximity regarding that incident and the present charges against defendant. State v. Bowman, 188 N.C. App. 635, 656 S.E.2d 638 (2008).

Evidence of Another Child's Death. - Three reasons enumerated by the trial court were proper reasons to allow in the evidence of another child's death while under defendant's care in defendant's trial for misdemeanor child abuse and contributing to the delinquency of a minor, and it could not be said that the ruling was so arbitrary that it was not the result of a reasoned decision; however, the State's use of the evidence regarding the other child went beyond the purposes for which the trial court admitted the evidence and the State improperly argued that defendant had the propensity to leave young children unattended, resulting in death by drowning.

Evidence of a party's mental or physical condition at a time remote from the execution of a document is generally not admissible, but where he has a progressive degenerative illness, evidence of his condition some years prior to and after the date of execution may be admissible to show the onset of the disorder and the gradual deterioration of the party's mind and will. Matthews v. James, 88 N.C. App. 32, 362 S.E.2d 594 (1987), cert. denied, 322 N.C. 112, 367 S.E.2d 913 (1988).

Evidence of decedent's mental condition over a year before the critical time was admissible, and was not too remote. Caudill v. Smith, 117 N.C. App. 64, 450 S.E.2d 8 (1994).

Even relevant evidence may be excluded if its probative value is outweighed by the danger that it will confuse or mislead the jury. State v. Knox, 78 N.C. App. 493, 337 S.E.2d 154 (1985).

Regardless of a statement's relevancy, the court retains discretionary authority to exclude it if its probative value is substantially outweighed by its unfairly inflammatory effect. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506 (1985), cert. denied, 315 N.C. 593, 341 S.E.2d 33 (1986).

The admissibility of demonstrative or experimental evidence depends, as does any other piece of evidence, upon whether its probative value is outweighed by the potential undue prejudicial effect it may have on defendant's case. State v. Hunt, 80 N.C. App. 190, 341 S.E.2d 350 (1986).

Foundation for Courtroom Demonstration. - In the case of a courtroom demonstration, the demonstrator may not need to be qualified as an expert in the same way as an experimenter, but a proper foundation must still be laid as to the person's familiarity with the thing he or she is demonstrating. State v. Hunt, 80 N.C. App. 190, 341 S.E.2d 350 (1986).

Evidence of Psychological Trauma. - The trial court should balance the probative value of evidence of post-traumatic stress, or rape trauma, syndrome against its prejudicial impact under this rule. It should also determine whether admission of this evidence would be helpful to the trier of fact under Evidence Rule 702. State v. Hall, 330 N.C. 808, 412 S.E.2d 883 (1992).

In a trial on rape charges, evidence that the victim has suffered a conversion reaction may be admitted for corroborative purposes to the same extent as evidence that she has suffered from post-traumatic stress syndrome; however, admission of evidence on these two psychological phenomena constituted error where it was offered for the substantive purpose of proving that a rape did in fact occur. State v. Hall, 330 N.C. 808, 412 S.E.2d 883 (1992).

Evidence of Intent. - Evidence of robbery of a restaurant committed by defendants one week prior to the attempted robbery in case at issue was sufficiently similar to show intent. State v. Davis, 340 N.C. 1, 455 S.E.2d 627, cert. denied, 516 U.S. 846, 116 S. Ct. 136, 133 L. Ed. 2d 83 (1995).

The fact that victim had in his possession videotapes which depicted violent homosexual acts had little tendency to show that the victim was the aggressor with intent to sodomize the defendant. State v. Lovin, 339 N.C. 695, 454 S.E.2d 229 (1995).

Where defendant, who was convicted of strangling his pregnant high school girlfriend testified that his action was impulsive and that he tore off the "skirt" part of the apron after the strangulation, it was proper to allow a detective, using a mannequin at trial, to demonstrate how the apron was tied around the victim's neck as the demonstration was relevant as to whether defendant acted with premeditation and deliberation and the demonstration was not excessively inflammatory. State v. Fowler, 159 N.C. App. 504, 583 S.E.2d 637 (2003).

Trial court did not err in admitting song lyrics defendant wrote because in light of the similarities between the lyrics and the facts surrounding the charged offense, the lyrics were relevant to establish identity, motive, and intent, and their probative value substantially outweighed their prejudicial effect to defendant. State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636 (2015).

Rape Shield Rule Evidence. - Trial court erred by concluding that the evidence about the complainant was inadmissible per se because it did not fall within one of the four categories in the Rape Shield Statute, and the trial court should have looked beyond the four categories to determine whether the evidence was relevant to show the complainant's motive to falsely accuse defendant and, if so, conducted a balancing test; this error was prejudicial with respect to defendant's conviction of the 2008 incident, as the State's case was based almost entirely on the complainant's testimony, but he failed to show how the error prejudiced him regarding his conviction based on the 2006 incident. State v. Martin, 241 N.C. App. 602, 774 S.E.2d 330 (2015).

Waiver of Objection. - Where arresting officer's opinion that defendant possessed marijuana was of minimal probative value since the purposes for admitting "chain of circumstances" evidence could have easily been accomplished without the arresting officer's opinion, defendant waived any objection under this rule on appeal since defendant admitted during his direct examination the truth of the State's allegation that he possessed marijuana at the time of his arrest. State v. Agee, 93 N.C. App. 346, 378 S.E.2d 533 (1989), aff'd, 326 N.C. 542, 391 S.E.2d 171 (1990).

Discretion of Trial Judge. - Whether or not to exclude evidence under this rule is a matter within the sound discretion of the trial judge. State v. Mason, 315 N.C. 724, 340 S.E.2d 430 (1986); State v. Penley, 318 N.C. 30, 347 S.E.2d 783 (1986); State v. Brooks, 83 N.C. App. 179, 349 S.E.2d 630 (1986); State v. Morrison, 84 N.C. App. 41, 351 S.E.2d 810 (1987); State v. Frazier, 319 N.C. 388, 354 S.E.2d 475 (1987); State v. Morrison, 85 N.C. App. 511, 355 S.E.2d 182 (1987); State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, cert. denied, 320 N.C. 515, 358 S.E.2d 525 (1987); State v. Mack, 87 N.C. App. 24, 359 S.E.2d 485 (1987); State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990); In re Eldridge, 350 N.C. 152, 513 S.E.2d 296 (1999), cert. denied, 528 U.S. 973, 120 S. Ct. 417, 145 L. Ed. 2d 326 (1999).

Whether to exclude evidence under this rule is a matter within the sound discretion of the trial court; however, where the trial court has discretion, but erroneously fails to exercise it and rules as a matter of law, the prejudiced party is entitled to have the matter reconsidered. State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987).

Whether or not to exclude evidence under this rule because its probative value is substantially outweighed by the danger of unfair prejudice is a matter within the sound discretion of the trial judge. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853 (1987).

Whether or not to exclude evidence under this rule is a matter within the sound discretion of the trial court, and his ruling may be reversed for an abuse of discretion only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision. State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139 (1988).

Whether evidence should be excluded under this Rule is ordinarily a decision within the trial court's discretion. State v. Robertson, 115 N.C. App. 249, 444 S.E.2d 643 (1994).

Trial court's decision to admit evidence under this rule was not to be grounds for relief on appeal unless it was manifestly unsupported by reason or is so arbitrary it could not have been the result of a reasoned decision; in a case involving a charge that defendant performed a sex act on a minor girl, the trial court did not err in allowing the girl's mother to testify that defendant had performed a sex act on the mother nearly 20 years before. State v. Love, 152 N.C. App. 608, 568 S.E.2d 320 (2002), cert. denied, 357 N.C. 168, 581 S.E.2d 66 (2003).

Whether to exclude relevant evidence under G.S. 8C-1, N.C. R. Evid. 403, is in the trial court's discretion; the appellate court reviews the trial court's decision for an abuse of that discretion. State v. Sims, 161 N.C. App. 183, 588 S.E.2d 55 (2003).

Because the issue of whether to exclude evidence under G.S. 8C-1, N.C. R. Evid. 403 was within the sound discretion of the trial court, and the plain error standard of review did not apply to issues that fell within the realm of the trial court's discretion, defendant's assertion of error based on a stipulation was overruled. State v. Cunningham, 188 N.C. App. 832, 656 S.E.2d 697 (2008).

Trial court did not abuse its discretion by reviewing a representative portion of 562 e-mail correspondences between the parties because the court properly exercised its authority to limit the presentation of cumulative evidence. Wolgin v. Wolgin, 217 N.C. App. 278, 719 S.E.2d 196 (2011).

Because plain error review is inapplicable to issues that fall within the realm of the trial court's discretion, which include a trial court's determination as to the admissibility of evidence based on the balancing test in this rule, defendant's argument concerning the admissibility of the evidence was overruled. State v. Duffie, 241 N.C. App. 88, 772 S.E.2d 100 (2015).

Although affidavits were not actually offered into evidence, a trial court would not have abused its discretion in declining to admit the affidavits into evidence because the proponent of the evidence explicitly described the affidavits as unnecessary and cumulative and meant to bolster an earlier affidavit that had already been given to the court. In re Herndon, 245 N.C. App. 83, 781 S.E.2d 524 (2016).

Trial court did not abuse its discretion by disallowing defendant's expert from testifying about the time and disguise concepts as they relate to identifications because they were common sense conclusions that would have been of little if any benefit to the jury. The procedure the trial court followed showed that it conducted its discriminatory balancing test under this section and its ruling was the result of a reasoned decision. State v. Vann, 261 N.C. App. 724, 821 S.E.2d 282 (2018).

The appellate court will not intervene where the trial court has properly weighed both the probative and prejudicial value of evidence and made its ruling accordingly. Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 524 S.E.2d 591 (2000).

Standard of Review. - When analyzing rulings applying G.S. 8C-1, N.C. R. Evid. 404(b) and 403, the North Carolina Supreme Court conducts distinct inquiries with different standards of review; when a trial court has made findings of fact and conclusions of law to support an G.S. 8C-1, N.C. R. Evid. 404(b) ruling, the Court looks to whether the evidence supports the findings and whether the findings support the conclusions, and the Court reviews de novo the legal conclusion that the evidence is, or is not, within the coverage of G.S. 8C-1, N.C. R. Evid. 404(b), after which the Court reviews the trial court's G.S. 8C-1, N.C. R. Evid. 403 determination for abuse of discretion. State v. Beckelheimer, 366 N.C. 127, 726 S.E.2d 156 (2012).

Plain Error Analysis Not Required. - Defendant did not preserve his claim of error in the balancing test under this rule and a plain error analysis was not required. State v. Garcia, 228 N.C. App. 89, 743 S.E.2d 74 (2013), review denied, 755 S.E.2d 619, 2014 N.C. LEXIS 218 (2014).

Plain Error Review Not Applied. - Defendant failed to object to the introduction of certain evidence, but plain error review was not applied to issues that fell within the realm of the trial court's discretion, and defendant's attempt to rely on the rule was misplaced. State v. Holanek, 242 N.C. App. 633, 776 S.E.2d 225 (2015).

Preservation for Review. - Defendant's appeal was dismissed where he challenged an officer's testimony under G.S. 8C-1, N.C. R. Evid. 404 on appeal, but objected to the testimony at trial based on this rule as defendant did not object pursuant to Rule 404, his objection was not preserved on appeal, and he did not argue plain error. State v. Howard, 228 N.C. App. 103, 742 S.E.2d 858 (2013).

Error Not Properly Preserved. - Although defendant challenged the trial court's decision allowing a detective to testify concerning his ongoing investigation of defendant prior to his arrest, contending that the testimony should have been excluded under G.S. 8C-1-403, defendant failed to properly object to the proffered testimony, and therefore appellate review was for plain error only under N.C. R. App. P. 10(b)(1) and (c)(4); but because defendant did not specifically and distinctly allege plain error, he was not entitled to plain error review of the issue. State v. McDougald, 181 N.C. App. 41, 638 S.E.2d 546 (2007), discretionary review granted, 361 N.C. 689, 653 S.E.2d 152 (2007); rev'd, in part, remanded 362 N.C. 224, 657 S.E.2d 351 (2008,.

Trial court did not err by excluding evidence of a sexual assault victim's allegedly delinquent child support payments as not relevant to the sexual assault trial under G.S. 8C-1, N.C. R. Evid. 403; however, defendant had abandoned his argument because he only referenced it in a heading of his brief and did not provide a reason, argument, or authority to support his claim, as required by N.C. R. App. P. 28(b)(6). State v. Harris, 189 N.C. App. 49, 657 S.E.2d 701 (2008), review denied, 362 N.C. 366, 664 S.E.2d 315 (2008).

Defendant's claim that certain testimony was erroneously admitted was not preserved for purposes of appeal because defendant claimed, on appeal, that the testimony was irrelevant, under G.S. 8C-1, N.C. R. Evid. 401 and 402, and that the testimony was unduly prejudicial, under G.S. 8C-1, N.C. R. Evid. 403, but defendant did not make these specific objections at trial, nor were such objections apparent from the context, under N.C. R. App. P. 10(b)(1), from which it appeared that defendant made a hearsay objection. State v. Hueto, 195 N.C. App. 67, 671 S.E.2d 62 (2009).

Court of appeals could not conclude that the trial court abused its discretion in admitting the nature of defendant's prior felony conviction where the court of appeals was limited to a review for plain error; defendant stipulated that he was convicted of felony possession of cocaine, and defendant failed to preserve the issue for appeal. State v. Miles, 223 N.C. App. 160, 733 S.E.2d 572 (2012).

Defendant's relevance and hearsay arguments were not properly before the supreme court because a general objection, if overruled was no good, unless on the face of the evidence, there was no purpose whatever for which it could have been admissible, and the challenged evidence was not inadmissible for all purposes. State v. Young, 368 N.C. 188, 775 S.E.2d 291 (2015).

Claim Abandoned. - Defendant failed to argue error under this rule in his appellate brief, and any argument pertaining to this rule was deemed abandoned. State v. Howard, 228 N.C. App. 103, 742 S.E.2d 858 (2013).

Clearly False Statement. - The admission of a statement that is so clearly false and that is made by a witness who is unavailable to testify or be cross-examined would be misleading to a jury. State v. Brown, 335 N.C. 477, 439 S.E.2d 589 (1994).

In a trial before a judge without a jury, it is presumed that the judge disregarded any incompetent evidence and did not draw inferences from testimony otherwise competent which would render such testimony incompetent. In re Paul, 84 N.C. App. 491, 353 S.E.2d 254, cert. denied, 319 N.C. 673, 356 S.E.2d 779 (1987), cert. denied, 484 U.S. 1004, 108 S. Ct. 694, 98 L. Ed. 2d 646 (1988).

Admission of expert testimony regarding memory factors is within trial court's discretion, and appellate court will not intervene where trial court properly appraises probative and prejudicial value of evidence under G.S. 8C-1, Rule 403. State v. Cotton, 99 N.C. App. 615, 394 S.E.2d 456 (1990), aff'd, 329 N.C. 764, 407 S.E.2d 514 (1991).

Factors Entering into Expert's Opinion. - Although court was not required to conduct a balancing test under this section in the sentencing proceeding, it correctly allowed admission of evidence of list of serial killers defendant possessed near the time of two murders as relevant for cross-examination of mental health expert, because jury was entitled to know to what extent, if any, these materials entered into the expert's opinion regarding defendant's state of mind. State v. Moses, 350 N.C. 741, 517 S.E.2d 853 (1999), cert. denied, 528 U.S. 1124, 120 S. Ct. 951, 145 L. Ed. 2d 826 (2000), cert. denied 706 S.E.2d 246, 2011 N.C. LEXIS 121 (N.C. 2011.

Evidence of Common Malpractice Carrier. - Trial court did not abuse its discretion by granting motion in limine which suppressed evidence that defendant and two of his expert witnesses shared a common malpractice carrier. Warren v. Jackson, 125 N.C. App. 96, 479 S.E.2d 278 (1997).

Terminology of Expert. - Doctor's use of the term "homicidal assault" was not a legal term of art, nor correlated to a criminal offense and the testimony related a proper opinion for an expert in the field of forensic pathology; thus, the trial court did not err in allowing the testimony. State v. Flippen, 344 N.C. 689, 477 S.E.2d 158 (1996).

Applied in Booe v. Shadrik, 85 N.C. App. 230, 354 S.E.2d 305 (1987); State v. Jackson, 320 N.C. 452, 358 S.E.2d 679 (1987); State v. Bray, 321 N.C. 663, 365 S.E.2d 571 (1988); State v. Crandell, 322 N.C. 487, 369 S.E.2d 579 (1988); State v. Allen, 323 N.C. 208, 372 S.E.2d 855 (1988); State v. Roberson, 93 N.C. App. 83, 376 S.E.2d 486 (1989); Crump v. Board of Educ., 93 N.C. 168, 378 S.E.2d 32 (1989); State v. McDowell, 93 N.C. App. 289, 378 S.E.2d 48 (1989); Lowery v. Love, 93 N.C. App. 568, 378 S.E.2d 815 (1989); Dellinger Septic Tank Co. v. Sherrill, 94 N.C. App. 105, 379 S.E.2d 688 (1989); State v. Moore, 94 N.C. App. 55, 379 S.E.2d 858 (1989); In re Lucas, 94 N.C. App. 442, 380 S.E.2d 563 (1989); State v. Everett, 98 N.C. App. 23, 390 S.E.2d 160 (1990); State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990); State v. McNeil, 99 N.C. App. 235, 393 S.E.2d 123 (1990); State v. Simpson, 327 N.C. 178, 393 S.E.2d 771 (1990); State v. Davis, 101 N.C. App. 12, 398 S.E.2d 645 (1990); State v. Lopez, 101 N.C. App. 217, 398 S.E.2d 886 (1990); State v. Davis, 101 N.C. App. 409, 399 S.E.2d 371 (1991); State v. Shubert, 102 N.C. App. 419, 402 S.E.2d 642 (1991); State v. White, 101 N.C. App. 593, 401 S.E.2d 106; State v. Morgan, 329 N.C. 654, 406 S.E.2d 833 (1991); State v. Annadale, 329 N.C. 557, 406 S.E.2d 837 (1991); State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991); State v. Cotton, 329 N.C. 764, 407 S.E.2d 514 (1991); Rowan County Bd. of Educ. v. United States Gypsum Co., 103 N.C. App. 288, 407 S.E.2d 860 (1991); MacClements v. LaFone, 104 N.C. App. 179, 408 S.E.2d 878 (1991); State v. Ferguson, 105 N.C. App. 692, 414 S.E.2d 769 (1992); State v. Phipps, 331 N.C. 427, 418 S.E.2d 178 (1992); State v. Davis, 106 N.C. App. 596, 418 S.E.2d 263 (1992); State v. White, 331 N.C. 604, 419 S.E.2d 557 (1992); Borg-Warner Acceptance Corp. v. Johnston, 107 N.C. App. 174, 419 S.E.2d 195 (1992); State v. Cummings, 332 N.C. 487, 422 S.E.2d 692 (1992); State v. Daniel, 333 N.C. 756, 429 S.E.2d 724 (1993); State v. Webster, 111 N.C. App. 72, 431 S.E.2d 808 (1993), aff'd, 337 N.C. 674, 447 S.E.2d 349 (1994); State v. Withers, 111 N.C. App. 340, 432 S.E.2d 692 (1993); State v. Morgan, 111 N.C. App. 662, 432 S.E.2d 877 (1993); State v. Yelverton, 334 N.C. 532, 434 S.E.2d 183 (1993); State v. McHone, 334 N.C. 627, 435 S.E.2d 296 (1993); State v. Moore, 335 N.C. 567, 440 S.E.2d 797, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994); State v. Ingle, 336 N.C. 617, 445 S.E.2d 880 (1994); State v. Moseley, 336 N.C. 710, 445 S.E.2d 906 (1994); State v. Reeves, 337 N.C. 700, 448 S.E.2d 802 (1994), cert. denied, 514 U.S. 1114, 115 S. Ct. 1971, 131 L. Ed. 2d 860 (1995); Madden v. Carolina Door Controls, Inc., 117 N.C. App. 56, 449 S.E.2d 769 (1994); State v. Weathers, 339 N.C. 441, 451 S.E.2d 266 (1994); State v. Taylor, 117 N.C. App. 644, 453 S.E.2d 225 (1995); State v. Kelly, 118 N.C. App. 589, 456 S.E.2d 861 (1995); Capitol Funds, Inc. v. Royal Indem. Co., 119 N.C. App.
351, 458 S.E.2d 741 (1995); State v. Serzan, 119 N.C. App. 557, 459 S.E.2d 297 (1995); State v. Powell, 340 N.C. 674, 459 S.E.2d 219 (1995); State v. Burr, 341 N.C. 263, 461 S.E.2d 602 (1995); State v. Vick, 341 N.C. 569, 461 S.E.2d 655 (1995); State v. Alston, 341 N.C. 198, 461 S.E.2d 687 (1995), cert. denied, 516 U.S. 1148, 116 S. Ct. 1021, 134 L. Ed. 2d 100 (1996); Lumley v. Capoferi, 120 N.C. App. 578, 463 S.E.2d 264 (1995); Carrier v. Starnes, 120 N.C. App. 513, 463 S.E.2d 393 (1995); State v. Jones, 342 N.C. 457, 466 S.E.2d 696 (1996); State v. Williamson, 122 N.C. App. 229, 468 S.E.2d 840 (1996); State v. Howell, 343 N.C. 229, 470 S.E.2d 38 (1996); State v. Thomas, 350 N.C. 315, 514 S.E.2d 486 (1999), cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388 (1999); State v. Rivera, 350 N.C. 285, 514 S.E.2d 720 (1999); State v. Underwood, 134 N.C. App. 533, 518 S.E.2d 231 (1999), cert. dismissed, 352 N.C. 669, 535 S.E.2d 33 (2000); State v. Chavis, 134 N.C. App. 546, 518 S.E.2d 241 (1999); State v. Lathan, 138 N.C. App. 234, 530 S.E.2d 615 (2000); State v. Brooks, 138 N.C. App. 185, 530 S.E.2d 849 (2000); In re Hayes, 139 N.C. App. 114, 532 S.E.2d 553 (2000); Carpenter v. Brooks, 139 N.C. App. 745, 534 S.E.2d 641 (2000), cert. denied, 353 N.C. 261, 546 S.E.2d 91 (2000); State v. Johnson, 145 N.C. App. 51, 549 S.E.2d 574 (2001); State v. Ward, 354 N.C. 231, 555 S.E.2d 251 (2001); State v. Cole, 147 N.C. App. 637, 556 S.E.2d 666 (2001), appeal dismissed, cert. denied, 356 N.C. 169, 568 S.E.2d 619 (2002), cert. denied, 537 U.S. 1203, 123 S. Ct. 1275, 154 L. Ed. 2d 1045 (2003); State v. Diehl, 147 N.C. App. 646, 557 S.E.2d 152 (2001), cert. denied, 356 N.C. 170, 568 S.E.2d 624 (2002); State v. Robertson, 149 N.C. App. 563, 562 S.E.2d 551 (2002); State v. Hannah, 149 N.C. App. 713, 563 S.E.2d 1 (2002); State v. White, 355 N.C. 696, 565 S.E.2d 55 (2002), cert. denied, 537 U.S. 1163, 123 S. Ct. 972, 154 L. Ed. 2d 900 (2003); N.C. State Bar v. Gilbert, 151 N.C. App. 299, 566 S.E.2d 685 (2002), aff'd, 357 N.C. 502, 586 S.E.2d 89 (2003); State v. Prevatte, 356 N.C. 178, 570 S.E.2d 440 (2002); State v. Hyman, 153 N.C. App. 396, 570 S.E.2d 745 (2002), cert. denied, 357 N.C. 253, 583 S.E.2d 41 (2003); State v. Hargett, 157 N.C. App. 90, 577 S.E.2d 703 (2003); State v. Perry, 159 N.C. App. 30, 582 S.E.2d 708 (2003), cert. denied, 357 N.C. 510, 588 S.E.2d 469 (2003); State v. McCree, 160 N.C. App. 19, 584 S.E.2d 348 (2003), notice of appeal dismissed, cert. denied, 357 N.C. 661, 590 S.E.2d 855 (2003); Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004); State v. Simmons, 167 N.C. App. 512, 606 S.E.2d 133 (2004); State v. Petro, 167 N.C. App. 749, 606 S.E.2d 425 (2005); State v. Thaggard, 168 N.C. App. 263, 608 S.E.2d 774 (2005); State v. Davis, 168 N.C. App. 321, 608 S.E.2d 74 (2005), cert. denied, 359 N.C. 412, 612 S.E.2d 324 (2005), cert. dismissed 365 N.C. 87,
706 S.E.2d 471, 2011 N.C. LEXIS 158 (2011), mot. dismissed, 365 N.C. 87, 706 S.E.2d 471 (2011); State v. Alvarez, 168 N.C. App. 487, 608 S.E.2d 371 (2005); State v. Carmon, 169 N.C. App. 750, 611 S.E.2d 211 (2005); State v. Goblet, 173 N.C. App. 112, 618 S.E.2d 257 (2005), overruled in part by State v. Tanner, 2010 N.C. LEXIS 423 (2010); State v. Anderson, 177 N.C. App. 54, 627 S.E.2d 501 (2006); State v. Boyd, 177 N.C. App. 165, 628 S.E.2d 796 (2006); State v. King, 178 N.C. App. 122, 630 S.E.2d 719 (2006); State v. Watson, 179 N.C. App. 228, 634 S.E.2d 231 (2006), review denied, 361 N.C. 437, 649 S.E.2d 896 (2007); State v. Teate, 180 N.C. App. 601, 638 S.E.2d 29 (2006); State v. Theer, 181 N.C. App. 349, 639 S.E.2d 655 (2007), cert. denied, - U.S. - , 128 S. Ct. 2473, 171 L. Ed. 2d 769 (2008); State v. Erickson, 181 N.C. App. 479, 640 S.E.2d 761 (2007); State v. Carpenter, 361 N.C. 382, 646 S.E.2d 105 (2007); State v. Wiggins, 1 85 N.C. App. 376, 648 S.E.2d 865 (2007); State v. Lofton, 193 N.C. App. 364, 667 S.E.2d 317 (2008); State v. Jacobs, 363 N.C. 815, 689 S.E.2d 859 (2010); State v. McCravey, 203 N.C. App. 627, 692 S.E.2d 409 (2010); State v. Paddock, 204 N.C. App. 280, 696 S.E.2d 529 (2010), review denied, 364 N.C. 330, 701 S.E.2d 251, 2010 N.C. LEXIS 594 (2010); State v. Peterson, 205 N.C. App. 668, 695 S.E.2d 835 (2010); State v. Mohamed, 205 N.C. App. 470, 696 S.E.2d 724 (2010); State v. Register, 206 N.C. App. 629, 698 S.E.2d 464 (2010); State v. Crandell, 208 N.C. App. 227, 702 S.E.2d 352 (2010), review denied 365 N.C. 194, 710 S.E.2d 34, 2011 N.C. LEXIS 505 (N.C. 2011); State v. Wright, 210 N.C. App. 52, 708 S.E.2d 112 (2011), review denied 365 N.C. 200, 710 S.E.2d 9, 2011 N.C. LEXIS 409 (N.C. 2011); State v. Flaugher, 214 N.C. App. 370, 713 S.E.2d 576 (2011); State v. Adams, 220 N.C. App. 319, 727 S.E.2d 577 (2012); State v. Houseright, 220 N.C. App. 495, 725 S.E.2d 445 (2012); State v. King, 366 N.C. 68, 733 S.E.2d 535 (2012); State v. Davis, 222 N.C. App. 562, 731 S.E.2d 236 (2012); State v. Golden, 224 N.C. App. 136, 735 S.E.2d 425 (2012); State v. Rollins, 226 N.C. App. 129, 738 S.E.2d 440 (2013); State v. Jackson, 229 N.C. App. 644, 748 S.E.2d 50 (2013); State v. Monroe, 230 N.C. App. 70, 748 S.E.2d 179 (2013), review denied 367 N.C. 1418, 752 S.E.2d 477, 2013 N.C. LEXIS 1418 (2013); State v. May, 230 N.C. App. 366, 749 S.E.2d 483 (2013); State v. Rayfield, 231 N.C. App. 632, 752 S.E.2d 745 (2014), review denied 758 S.E.2d 871, 2014 N.C. LEXIS 440 (2014), review denied 758 S.E.2d 871, 2014 N.C. LEXIS 435 (2014); State v. Parker, 233 N.C. App. 577, 756 S.E.2d 122 (2014); State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860 (2014); State v. Davis, 239 N.C. App. 522, 768 S.E.2d 903 (2015); State v. Mitchell, 240 N.C. App. 246, 770 S.E.2d 740 (2015); State v. Jones, 241 N.C. App. 132, 772 S.E.2d 470 (2015); DOT v. Adams Outdoor Adver. of Charlotte Ltd. P'ship, 247 N.C. App. 39, 785 S.E.2d 151 (2016), aff'd in part and rev'd in
part, 370 N.C. 101, 804 S.E.2d 486, 2017 N.C. LEXIS 687 (2017).

Cited in State v. Acklin, 317 N.C. 677, 346 S.E.2d 481 (1986); State v. Chul Yun Kim, 318 N.C. 614, 350 S.E.2d 347 (1986); Broyhill v. Coppage, 79 N.C. App. 221, 339 S.E.2d 32 (1986); State v. McClintick, 315 N.C. 649, 340 S.E.2d 41 (1986); State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986); State v. West, 317 N.C. 219, 345 S.E.2d 186 (1986); State v. Young, 317 N.C. 396, 346 S.E.2d 626 (1986); State v. Johnson, 317 N.C. 417, 347 S.E.2d 7 (1986); State v. McKoy, 317 N.C. 519, 347 S.E.2d 374 (1986); State v. Springer, 83 N.C. App. 657, 351 S.E.2d 120 (1986); Whisenhunt v. Zammit, 86 N.C. App. 425, 358 S.E.2d 114 (1987); State v. Clemmons, 319 N.C. 192, 353 S.E.2d 209 (1987); State v. Teeter, 85 N.C. App. 624, 355 S.E.2d 804 (1987); Medina v. Town & Country Ford, Inc., 85 N.C. App. 650, 355 S.E.2d 831 (1987); State v. Strickland, 321 N.C. 31, 361 S.E.2d 882 (1987); State v. Bell, 87 N.C. App. 626, 362 S.E.2d 288 (1987); Klassette ex rel. Klassette v. Mecklenburg County Area Mental Health, Mental Retardation & Substance Abuse Auth., 88 N.C. App. 495, 364 S.E.2d 179 (1988); State v. Anderson, 322 N.C. 22, 366 S.E.2d 459 (1988); State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988); State v. Fultz, 92 N.C. App. 80, 373 S.E.2d 445 (1988); State v. Summers, 92 N.C. App. 453, 374 S.E.2d 631 (1988); Smith v. Pass, 95 N.C. App. 243, 382 S.E.2d 781 (1989); State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467 (1989); State v. Rosario, 93 N.C. App. 627, 379 S.E.2d 434 (1989); State v. Brewer, 325 N.C. 550, 386 S.E.2d 569 (1989); State v. Smith, 99 N.C. App. 67, 392 S.E.2d 642 (1990); Mosley & Mosley Bldrs., Inc. v. Landin Ltd., 97 N.C. App. 511, 389 S.E.2d 576 (1990); State v. Hall, 98 N.C. App. 1, 390 S.E.2d 169 (1990); State v. Noble, 326 N.C. 581, 391 S.E.2d 168 (1990); State v. Canady, 99 N.C. App. 189, 392 S.E.2d 457 (1990); State v. Scott, 99 N.C. App. 113, 392 S.E.2d 621 (1990); State v. Odom, 99 N.C. App. 265, 393 S.E.2d 146 (1990); State v. Arnold, 98 N.C. App. 518, 392 S.E.2d 140 (1990); State v. Norris, 101 N.C. App. 144, 398 S.E.2d 652 (1990); State v. Bunch, 104 N.C. App. 106, 408 S.E.2d 191 (1991); State v. Crawford, 329 N.C. 466, 406 S.E.2d 579 (1991); State v. Wallace, 104 N.C. App. 498, 410 S.E.2d 226 (1991); State v. Haskins, 104 N.C. App. 675, 411 S.E.2d 376 (1991); State v. Suddreth, 105 N.C. App. 122, 412 S.E.2d 126 (1992); State v. Baldwin, 330 N.C. 446, 412 S.E.2d 31 (1992); State v. Handy, 331 N.C. 515, 419 S.E.2d 545 (1992); State v. Stallings, 107 N.C. App. 241, 419 S.E.2d 586 (1992); State v. Taylor, 332 N.C. 372, 420 S.E.2d 414 (1992); State v. Moore, 107 N.C. App. 388, 420 S.E.2d 691 (1992); State v. Wilson, 108 N.C. App. 117, 423 S.E.2d 473 (1992); State v. Syriani, 333 N.C. 350, 428 S.E.2d 118 (1993), cert. denied, 510 U.S. 948, 114 S. Ct. 392, 126 L. Ed. 2d 341 (1993), reh'g denied, 510 U.S. 1066, 114 S. Ct. 745, 126 L. Ed. 2d 707 (1994); State v. Rupe, 109 N.C. App. 601, 428 S.E.2d 480 (1993); State v. Mixion, 110 N.C. App. 138, 429 S.E.2d 363 (1993); State v. Rannels, 333 N.C. 644,
430 S.E.2d 254 (1993); State v. Matheson, 110 N.C. App. 577, 430 S.E.2d 429 (1993); Hales v. Thompson, 111 N.C. App. 350, 432 S.E.2d 388 (1993); State v. Black, 111 N.C. App. 284, 432 S.E.2d 710 (1993); State v. Bynum, 111 N.C. App. 845, 433 S.E.2d 778 (1993); State v. Cummings, 113 N.C. App. 368, 438 S.E.2d 453 (1994); State v. Barlowe, 337 N.C. 371, 446 S.E.2d 352 (1994); State v. McDougald, 336 N.C. 451, 444 S.E.2d 211 (1994); State v. Lynch, 337 N.C. 415, 445 S.E.2d 581 (1994); State v. Fisher, 336 N.C. 684, 445 S.E.2d 866 (1994); Robertson v. Nelson, 116 N.C. App. 324, 447 S.E.2d 488 (1994); State v. Netcliff, 116 N.C. App. 396, 448 S.E.2d 311 (1994), overruled on other grounds, State v. Patton, 342 N.C. 633, 466 S.E.2d 708 (1996); Richardson v. Patterson, 116 N.C. App. 661, 448 S.E.2d 861 (1994); State v. Ward, 338 N.C. 64, 449 S.E.2d 709 (1994), cert. denied, 514 U.S. 1134, 115 S. Ct. 2014, 131 L. Ed. 2d 1012 (1995), cert. denied, 343 N.C. 757, 473 S.E.2d 626 (1996), cert. denied, 354 N.C. 74, 571 S.E.2d 835 (2001); State v. Corbett, 339 N.C. 313, 451 S.E.2d 252 (1994); Pittman v. Barker, 117 N.C. App. 580, 452 S.E.2d 326, cert. denied, 340 N.C. 261, 456 S.E.2d 833 (1995); State v. McAbee, 120 N.C. App. 674, 463 S.E.2d 281 (1995); State v. King, 343 N.C. 29, 468 S.E.2d 232 (1996); State v. Johnston, 344 N.C. 596, 476 S.E.2d 289 (1996); State v. Taylor, 344 N.C. 31, 473 S.E.2d 596 (1996); State v. Thomas, 344 N.C. 639, 477 S.E.2d 450 (1996), cert. denied, 522 U.S. 824, 118 S. Ct. 84, 139 L. Ed. 2d 41 (1997); State v. Wilson, 345 N.C. 119, 478 S.E.2d 507 (1996); Jones v. Rochelle, 125 N.C. App. 82, 479 S.E.2d 231 (1996); State v. Collins, 345 N.C. 170, 478 S.E.2d 191 (1996); State v. Perkins, 345 N.C. 254, 481 S.E.2d 25 (1997), cert. denied, 522 U.S. 837, 118 S. Ct. 111, 139 L. Ed. 2d 64 (1997); State v. Jackson, 126 N.C. App. 129, 484 S.E.2d 405 (1997), rev'd on other grounds, 348 N.C. 644, 503 S.E.2d 101 (1998); State v. Robinson, 346 N.C. 586, 488 S.E.2d 174 (1997), cert. denied, - N.C. - , 502 S.E.2d 611 (1998); State v. Cagle, 346 N.C. 497, 488 S.E.2d 535 (1997), cert. denied, 522 U.S. 1032, 118 S. Ct. 635, 139 L. Ed. 2d 614 (1998); State v. Gray, 347 N.C. 143, 491 S.E.2d 538 (1997), cert. denied, 523 U.S. 1031, 118 S. Ct. 1323, 140 L. Ed. 2d 486 (1998); State v. Wright, 127 N.C. App. 592, 492 S.E.2d 365 (1997), cert. denied, 347 N.C. 584, 502 S.E.2d 616 (1998), cert. dismissed, mot. dismissed, as moot, 842 S.E.2d 598, 2020 N.C. LEXIS 528 (N.C. 2020); Reis v. Hoots, 131 N.C. App. 721, 509 S.E.2d 198 (1998); State v. Richmond, 347 N.C. App. 412, 495 S.E.2d 677 (1998); State v. Stinnett, 129 N.C. App. 192, 497 S.E.2d 696 (1998), cert. denied, 525 U.S. 1008, 119 S. Ct. 526, 142 L. Ed. 2d 436 (1998); State v. Corpening, 129 N.C. App. 60, 497 S.E.2d 303 (1998); State v. Jackson, 348 N.C. 644, 503 S.E.2d 101 (1998); State v. Atkins, 349 N.C. 62, 505 S.E.2d 97 (1998), cert. denied, 526 U.S. 1147, 119 S.
Ct. 2025, 143 L. Ed. 2d 1036 (1999); Russell v. Buchanan, 129 N.C. App. 519, 500 S.E.2d 728 (1998), cert. denied, 348 N.C. 501, 510 S.E.2d 655 (1998); State v. Allred, 131 N.C. App. 11, 505 S.E.2d 153 (1998); State v. Love, 131 N.C. App. 350, 507 S.E.2d 577 (1998), aff'd, 350 N.C. 586, 516 S.E.2d 382 (1999); State v. White, 349 N.C. 535, 508 S.E.2d 253 (1998), cert. denied, 527 U.S. 1026, 119 S. Ct. 2376, 144 L. Ed. 2d 779 (1999); Albrecht v. Dorsett, 131 N.C. App. 502, 508 S.E.2d 319 (1998); State v. Burgess, 134 N.C. App. 632, 518 S.E.2d 209 (1999); State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001); State v. Fluker, 139 N.C. App. 768, 535 S.E.2d 68 (2000); State v. Riley, 137 N.C. App. 403, 528 S.E.2d 590 (2000), cert. denied, 352 N.C. 596, 545 S.E.2d 218 (2000); State v. Aldridge, 139 N.C. App. 706, 534 S.E.2d 629 (2000), cert. denied, 353 N.C. 269, 546 S.E.2d 114 (2000); State v. Locklear, 136 N.C. App. 716, 525 S.E.2d 813 (2000); State v. Merrill, 138 N.C. App. 215, 530 S.E.2d 608 (2000); State v. Lawrence, 352 N.C. 1, 530 S.E.2d 807 (2000); State v. Doisey, 138 N.C. App. 620, 532 S.E.2d 240 (2000), cert. denied, 352 N.C. 678, 545 S.E.2d 434 (2000), cert. denied, 531 U.S. 1177, 121 S. Ct. 1153, 148 L. Ed. 2d 1015 (2001); State v. Taylor, 354 N.C. 28, 550 S.E.2d 141 (2001), cert. denied, 535 U.S. 934, 122 S. Ct. 1312, 152 L. Ed. 2d 221 (2002); State v. Wilson, 151 N.C. App. 219, 565 S.E.2d 223 (2002), cert. denied, 356 N.C. 313, 571 S.E.2d 215 (2002); State v. Smith, 152 N.C. App. 514, 568 S.E.2d 289 (2002), cert. denied, 356 N.C. 623, 575 S.E.2d 757 (2002); State v. Curry, 153 N.C. App. 260, 569 S.E.2d 691 (2002); State v. Bartlett, 153 N.C. App. 680, 571 S.E.2d 28 (2002), appeal dismissed, cert. denied, 356 N.C. 679, 577 S.E.2d 892 (2003); State v. Trull, 153 N.C. App. 630, 571 S.E.2d 592 (2002), cert. denied, 356 N.C. 691, 578 S.E.2d 597 (2003); cert. dismissed, 794 S.E.2d 333, 2016 N.C. LEXIS 1059 (2016); State v. McConico, 153 N.C. App. 723, 570 S.E.2d 776 (2002), cert. denied, 357 N.C. 168, 581 S.E.2d 440 (2003); State v. Bethea, 156 N.C. App. 167, 575 S.E.2d 831 (2003); Dunn v. Custer, 162 N.C. App. 259, 591 S.E.2d 11 (2004); State v. Morgan, 359 N.C. 131, 604 S.E.2d 886 (2004); State v. Oakley, 167 N.C. App. 318, 605 S.E.2d 215 (2004), cert. denied, - N.C. - , 610 S.E.2d 386 (2005); Barham v. Hawk, 165 N.C. App. 708, 600 S.E.2d 1 (2004), aff'd, 360 N.C. 358, 625 S.E.2d 778 (2006); State v. Taylor, 165 N.C. App. 750, 600 S.E.2d 483 (2004); State v. Hudgins, 167 N.C. App. 705, 606 S.E.2d 443 (2005); State v. Blizzard, 169 N.C. App. 285, 610 S.E.2d 245 (2005); State v. Locklear, 172 N.C. App. 249, 616 S.E.2d 334 (2005); State v. Jacobs, 172 N.C. App. 220, 616 S.E.2d 306 (2005); State v. Moore, 173 N.C. App. 494, 620 S.E.2d 1 (2005); State v. Anderson, 175 N.C. App. 444, 624 S.E.2d 393
(2006), cert. denied, - N.C. - , 632 S.E.2d 492 (2006); State v. Jones, 176 N.C. App. 678, 627 S.E.2d 265 (2006); State v. Smith, 180 N.C. App. 86, 636 S.E.2d 267 (2006); State v. Christian, 180 N.C. App. 621, 638 S.E.2d 470 (2006), cert. denied, 362 N.C. 178, 658 S.E.2d 658 (2008); State v. Combs, 182 N.C. App. 365, 642 S.E.2d 491 (2007); State v. Wood, 185 N.C. App. 227, 647 S.E.2d 679, review denied, 361 N.C. 703, 655 S.E.2d 402 (2007); State v. Peterson, 361 N.C. 587, 652 S.E.2d 216 (2007), cert. denied, 552 U.S. 1271, 128 S. Ct. 1682, 170 L. Ed. 2d. 377 (2008); State v. Jones, 188 N.C. App. 562, 655 S.E.2d 915 (2008); State v. Hope, 189 N.C. App. 309, 657 S.E.2d 909 (2008), review denied, 362 N.C. 367, 664 S.E.2d 315 (2008); State v. Davis, 191 N.C. App. 535, 664 S.E.2d 21; State v. Washington, 192 N.C. App. 277, 665 S.E.2d 799 (2008); State v. Buie, 194 N.C. App. 725, 671 S.E.2d 351 (2009), review denied, 363 N.C. 375, 679 S.E.2d 135 (2009); State v. Herrera, 195 N.C. App. 181, 672 S.E.2d 71 (2009); State v. Madures, 197 N.C. App. 682, 678 S.E.2d 361 (2009); State v. Mello, 200 N.C. App. 561, 684 S.E.2d 477 (2009); State v. Samuel, 203 N.C. App. 610, 693 S.E.2d 662 (2010); State v. Curry, 203 N.C. App. 375, 692 S.E.2d 129 (2010); Midkiff v. Compton, 204 N.C. App. 21, 693 S.E.2d 172 (2010), cert. denied 364 N.C. 326, 700 S.E.2d 922, 2010 N.C. LEXIS 680 (2010); State v. Blymyer, 205 N.C. App. 240, 695 S.E.2d 525 (2010); State v. Wilson, 207 N.C. App. 492, 700 S.E.2d 148 (2010); State v. Ross, 207 N.C. App. 379, 700 S.E.2d 412 (2010), review denied 717 S.E.2d 377, 2011 N.C. LEXIS 666 (N.C. 2011); State v. Capers, 208 N.C. App. 605, 704 S.E.2d 39 (2010), dismissed 365 N.C. 187, 707 S.E.2d 236, 2011 N.C. LEXIS 227 (2011); State v. Banks, 210 N.C. App. 30, 706 S.E.2d 807 (2011); State v. Oliver, 210 N.C. App. 609, 709 S.E.2d 503 (2011), review denied 365 N.C. 206, 710 S.E.2d 37, 2011 N.C. LEXIS 495 (N.C. 2011); State v. Beckelheimer, 211 N.C. App. 362, 712 S.E.2d 216 (2011), rev'd 366 N.C. 127, 726 S.E.2d 156, 2012 N.C. LEXIS 409 (2012); rev'd 722 S.E.2d 484, 2012 N.C. LEXIS 125 (2012); State v. Twitty, 212 N.C. App. 100, 710 S.E.2d 421 (2011); State v. Edmonds, 212 N.C. App. 575, 713 S.E.2d 111 (2011); State v. Foust, 220 N.C. App. 63, 724 S.E.2d 154 (2012); State v. Laurean, 220 N.C. App. 342, 724 S.E.2d 657 (2012); State v. Rollins, 220 N.C. App. 443, 725 S.E.2d 456 (2012); State v. Privette, 218 N.C. App. 459, 721 S.E.2d 299 (2012), review denied, 365 N.C. 566, 724 S.E.2d 532, 2012 N.C. LEXIS 290 (N.C. 2012); State v. Flood, 221 N.C. App. 247, 726 S.E.2d 908 (2012), review denied 366 N.C. 427, 736 S.E.2d 488, 2013 N.C. LEXIS 60 (2013); State v. Ortiz-Zape, 367 N.C. 1, 743 S.E.2d 156 (2013), cert. denied 134 S. Ct. 2660, 2014 U.S. LEXIS 3730, 189 L. Ed. 2d 208 (U.S. 2014); State v. Hanif, 228 N.C. App. 207, 743 S.E.2d 690 (2013); State v. Walston, 229 N.C.
App. 141, 747 S.E.2d 720 (2013), review denied 753 S.E.2d 666, 2014 N.C. LEXIS 28 (2014), rev'd 367 N.C. 721, 766 S.E.2d 312, 2014 N.C. LEXIS 953 (2014); State v. Lewis, 231 N.C. App. 438, 752 S.E.2d 216 (2013), review denied, 755 S.E.2d 617, 2014 N.C. LEXIS 206 (2014); Lloyd v. Norfolk S. Ry. Co., 231 N.C. App. 368, 752 S.E.2d 704 (2013); State v. McGrady, 232 N.C. App. 95, 753 S.E.2d 361 (2014); State v. Council, 232 N.C. App. 68, 753 S.E.2d 223 (2014); State v. Williams, 232 N.C. App. 152, 754 S.E.2d 418 (2014); State v. Blakney, 233 N.C. App. 516, 756 S.E.2d 844 (2014); State v. Cousin, 233 N.C. App. 523, 757 S.E.2d 332 (2014); State v. Posey, 233 N.C. App. 723, 757 S.E.2d 369 (2014); State v. Dinan, 233 N.C. App. 694, 757 S.E.2d 481 (2014);.

State v. Royster, 237 N.C. App. 64, 763 S.E.2d 577 (2014); State v. Crockett, 238 N.C. App. 96, 767 S.E.2d 78 (2014); State v. Barker, 240 N.C. App. 224, 770 S.E.2d 142 (2015); State v. Chapman, 244 N.C. App. 699, 781 S.E.2d 320 (2016); State v. McLaughlin, 246 N.C. App. 306, 786 S.E.2d 269 (2016); Town of Beech Mt. v. Genesis Wildlife Sanctuary, Inc., 247 N.C. App. 444, 786 S.E.2d 335 (2016); N.C. DOT v. Mission Battleground Park, DST, 249 N.C. App. 333, 791 S.E.2d 478 (2016), aff'd in part and rev'd in part, 2018 N.C. LEXIS 61 (N.C. 2018); State v. Mbaya, 249 N.C. App. 529, 791 S.E.2d 266 (2016), review denied, 794 S.E.2d 343, 2016 N.C. LEXIS 1054 (2016); Watts-Robinson v. Shelton, 251 N.C. App. 507, 796 S.E.2d 51 (2016).

II. PHOTOGRAPHS AND VIDEOTAPES.

Photographs Held Relevant. - Color autopsy photographs, although gruesome, were relevant to illustrate the testimony of the pathologist and were illustrative of testimony regarding the number and nature of the victim's wounds and were therefore admissible. State v. Rose, 335 N.C. 301, 439 S.E.2d 518, cert. denied, 512 U.S. 1246, 114 S. Ct. 2770, 129 L. Ed. 2d 883 (1994), overruled in part on other grounds, State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001).

Autopsy photographs, photographs of the victim's car after she was shot, testimony regarding the amount of blood at the scene, and blood stained material were all properly admitted at defendant's murder trial in accordance with G.S. 8C-1, N.C. R. Evid. 401, 402, and were not overly prejudicial in violation of G.S. 8C-1, N.C. R. Evid. 403. State v. Chapman, 359 N.C. 328, 611 S.E.2d 794 (2005).

Photographs which showed numerous gunshot wounds were relevant to show not only the cause of death, but were also relevant as a means of proving the premeditation and deliberation elements of first-degree murder. State v. Brown, 335 N.C. 477, 439 S.E.2d 589 (1994).

Photographs of the decedent admitted into evidence that were illustrative of testimony regarding the nature and number of the victim's wounds and the condition of the body upon discovery and of the crime scene were properly admitted. State v. Williams, 341 N.C. 1, 459 S.E.2d 208 (1995), cert. denied, 516 U.S. 1128, 116 S. Ct. 945, 133 L. Ed. 2d 870 (1996).

The relevance of fifty-one photographs was upheld where these photographs, albeit numerous, were unique in subject matter and in detail in that they (1) depicted the exceedingly large number of wounds inflicted upon different parts of the victim's body by various weapons, including a knife, a drill bit, a pipe, an ax head, and a limb or pruning saw, (2) depicted the condition of the body, its location, and the crime scene, (3) corroborated defendant's confession by demonstrating that the victim was attacked in his bedroom, that he fell to the floor with his head toward the closet, that he was stabbed while on the floor, and that his neck was cut with a saw while on the floor. State v. Hyde, 352 N.C. 37, 530 S.E.2d 281 (2000), cert. denied, 531 U.S. 1114, 121 S. Ct. 862, 148 L. Ed. 2d 775 (2001).

A photograph depicting blood in victim's grocery store, which resulted from a head injury defendant inflicted on victim when he struck him with a gun during robbery, and the accompanying testimony were relevant to support the existence of the aggravating circumstance that defendant had been previously convicted of a felony involving the use of violence to the person. State v. Blakeney, 352 N.C. 287, 531 S.E.2d 799 (2000), cert. denied, 531 U.S. 1117, 121 S. Ct. 868, 148 L. Ed. 2d 780 (2001).

Admission of photos of guns found in defendant's home in a case charging defendant with drug trafficking and possession was proper because such evidence was relevant, and because guns were often used for protection in illegal drug trade, probative value was not substantially outweighed by danger of unfair prejudice. State v. Lakey, 183 N.C. App. 652, 645 S.E.2d 159 (2007).

There was no abuse of discretion in the admission under G.S. 8-97 of eight autopsy photographs in defendant's criminal trial that arose from the murder of a victim in a gunfight, as there was an issue as to whether defendant shot the victim in self-defense and the photographs depicted the location of the wounds and illustrated the manner of the killing; the photographs were probative and any prejudicial effect under G.S. 8C-1, N.C. R. Evid. 403 was outweighed. State v. Damenon Ropmele Early, 194 N.C. App. 594, 670 S.E.2d 594 (2009).

Trial court did not abuse its discretion in admitting photographs of the victim's decomposed body because the photographs were used to illustrate relevant testimony regarding an element of the crime of first-degree murder, and the victim suffered many distinct injuries to different parts of her body; the photographs were used to illustrate the testimony of the law enforcement officers who unearthed the victim's body and the testimony of the pathologist who conducted the autopsy, and the pathologist's testimony about the dealing of lethal blows after the victim was rendered helpless but still alive and the brutality and number of her wounds were circumstantial evidence of defendant's premeditation and deliberation, elements of first-degree murder. State v. Bedford, 208 N.C. App. 414, 702 S.E.2d 522 (2010).

In an action in which defendant appealed his conviction for first-degree murder and his death sentence, trial court did not abuse its discretion by admitting the autopsy photographs where: (1) they were relevant and probative of material facts in this case; and (2) the photos were not unnecessarily repetitive, were not unduly gruesome or inflammatory, and illustrated both the doctor's testimony pertaining to the autopsy and corroborating statements made by defendant to the investigators. State v. Waring, 364 N.C. 443, 701 S.E.2d 615 (2010).

Trial court properly admitted a photograph because it illustrated a detective's testimony that the victim used the photograph to identify defendant; the photograph was relevant to the victim's identification of defendant, and it was not unduly prejudicial. State v. Thompson, 254 N.C. App. 220, 801 S.E.2d 689 (2017).

Photographs Held Irrelevant. - In a case involving first degree rape and other offenses, evidence regarding a police department's evidence room was not relevant because the condition of the refrigerators had no tendency to make the existence of any fact more or less probable; moreover, the probative value was minimal, and photographs of the refrigerators might have confused the issues and misled the jury. State v. Davis, 237 N.C. App. 481, 767 S.E.2d 565 (2014).

Discretion of Court. - What represents an excessive number of photographs and whether the photographic evidence is more probative than prejudicial are matters within the sound discretion of the trial court. State v. Flippen, 344 N.C. 689, 477 S.E.2d 158 (1996).

In defendant's trial on charges of first-degree murder and robbery with a firearm, the trial court did not abuse its discretion by admitting photographs of the location where the victim was killed, even though those photographs depicted a cross and memorial flowers at the scene. State v. Haselden, 357 N.C. 1, 577 S.E.2d 594 (2003).

Proper Inquiry Regarding Admissibility of Photographs. - Critical to the trial court's inquiry into the admissibility of a photograph is the determination that it does not unduly reiterate illustrative evidence already presented. When a photograph adds nothing to the State's case, then its probative value is nil, and nothing remains but its tendency to prejudice. State v. Hennis, 323 N.C. 279, 372 S.E.2d 523 (1988).

What a photograph depicts, its level of detail and scale, whether it is color or black and white, a slide or a print, where and how it is projected or presented, the scope and clarity of the testimony it accompanies - these are all factors the trial court must examine in determining the illustrative value of photographic evidence and in weighing its use by the State against its tendency to prejudice the jury. State v. Hennis, 323 N.C. 279, 372 S.E.2d 523 (1988).

The test for excess in the use of photographs is not formulaic; the trial court's task is to examine both the content and the manner in which photographic evidence is used, and to scrutinize the totality of circumstances composing that presentation. State v. Hennis, 323 N.C. 279, 372 S.E.2d 523 (1988).

Repetitive photographs may be introduced, even if they are gruesome or revolting, as long as they are used for illustrative purposes and are not offered solely to arouse prejudice or passion of the jury. State v. Flippen, 344 N.C. 689, 477 S.E.2d 158 (1996).

When the use of photographs that have inflammatory potential is excessive or repetitious, the probative value of such evidence is eclipsed by its tendency to prejudice the jury. State v. Hennis, 323 N.C. 279, 372 S.E.2d 523 (1988).

Photographs Held Not Excessive. - Photographs of the murder victim, including one illustrating the visible wounds on the decedent's body, were not excessive. State v. Larrimore, 340 N.C. 119, 456 S.E.2d 789 (1995).

Two photographs of a dead police officer in the emergency room were properly admitted into evidence at defendant's trial for second-degree murder in the death of a law enforcement officer during a high speed pursuit of defendant, because the photographs were introduced during another police officer's testimony to provide a chain of causation between the accident and the victim's death and to illustrate the testifying officer's observations of the state of the victim's body; the photographs were not introduced in an excessive or repetitious manner in order to arouse the passions of the jury but, rather, were introduced to allow the State to prove the chain of causation, which was an essential element of the case. State v. Bethea, 167 N.C. App. 215, 605 S.E.2d 173 (2004).

Where a party introduces photographs for illustrative purposes and not solely to arouse prejudice or passion, they are admissible even if revolting and repetitious. State v. Daughtry, 340 N.C. 488, 459 S.E.2d 747 (1995), cert. denied, 516 U.S. 1079, 116 S. Ct. 789, 133 L. Ed. 2d 739 (1996).

Where defendant conceded that the autopsy photographs of the victim were used to illustrate the testimony of the medical examiner, the defendant failed to show that the photographs were unduly prejudicial or that their admission was not proper. State v. Norwood, 344 N.C. 511, 476 S.E.2d 349 (1996), cert. denied, 520 U.S. 1158, 117 S. Ct. 1341, 137 L. Ed. 2d 500 (1997).

The admission of two photographs depicting the victim's damaged car did not result in unfair prejudice to defendant where the court instructed the jury that the photographs were being admitted only for the purpose of illustrating the investigating trooper's testimony; although blood was visible in both photographs, and prominent in one, the photographs were not gruesome, horrifying, or revolting. State v. Gray, 137 N.C. App. 345, 528 S.E.2d 46 (2000).

Videotape taken of the murder victim's body found sitting beside a road was admissible as the videotape was offered and received solely for illustrative purposes and not to inflame the passions of the jury; furthermore, a proper foundation was laid for the admission of the videotape. State v. Smith, 152 N.C. App. 29, 566 S.E.2d 793 (2002).

Defendant's Photograph Admissible to Contradict Self-Defense Theory. - A photograph of defendant which only illustrated his facial features and showed he looked like a "mean kind of fellow" was admissible to demonstrate that defendant was neither injured nor disheveled and to contradict defendant's theory of self-defense. State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388 (2000), cert denied, 353 N.C. 396, 547 S.E.2d 427 (2001).

Trial court did not err in allowing child sexual molestation victim to describe photos she took of defendant and her mother, even though the trial court refused to admit the photos themselves; the testimony was not significantly different than the daughter's prior testimony about the sexual relationship between her mother and defendant. State v. Pendleton, 175 N.C. App. 230, 622 S.E.2d 708 (2005).

Photographs Held Properly Admitted. - Photographs of decedent's body after he had been shot illustrated testimony with respect to the crime scene in general, the location and position of the body when found, and the wounds suffered by the deceased, and it was therefore within the trial court's discretion to allow these pictures into evidence. State v. Smith, 320 N.C. 404, 358 S.E.2d 329 (1987).

While some photographic evidence at issue was gruesome, there was no suggestion slide projections were done unfairly, there was no needless repetition of photographs and presentation of each photograph or slide was accompanied by competent testimony of witnesses, which photographic evidence illustrated; thus, trial court did not abuse its discretion in permitting photographic evidence to be used. State v. Robinson, 327 N.C. 346, 395 S.E.2d 402 (1990).

The defaced photographs of victim's wife given to murder victim by defendant, considered with the original photographs defendant gave to the wife moments before the shooting, were important, highly probative evidence for the State. This evidence tended to show defendant's hostility toward the victim and his bizarre preoccupation with the victim's wife during the four months immediately before the shooting. The probative value of this evidence to show malice was not outweighed by the potential for unfair prejudice. State v. Terry, 329 N.C. 191, 404 S.E.2d 658 (1991).

Admission in murder trial of color photographs and slides picturing the victim's body and of testimony about the condition of the body when found including the fact that it was infested with maggots, did not constitute an abuse of discretion. State v. Wynne, 329 N.C. 507, 406 S.E.2d 812 (1991); State v. Trull, 349 N.C. 428, 509 S.E.2d 178 (1998), cert. denied, 528 U.S. 835, 120 S. Ct. 95, 145 L. Ed. 2d 80 (1999).

Where doctor who performed autopsy used one photograph showing victim's bare breast to illustrate his testimony about the cause of death and the nature and location of the wound, the danger of redundant and excessive use of potentially inflammatory photographs was not present, and the trial court acted within its sound discretion in ruling under G.S. 8C-1, Rule 403 that the probative value of the unaltered photograph was not substantially outweighed by any prejudice. State v. Butler, 331 N.C. 227, 415 S.E.2d 719 (1992).

Defendant failed to show that the trial court abused its discretion in denying his motion to exclude gun and photograph of gun from evidence. State v. Thompson, 332 N.C. 204, 420 S.E.2d 395 (1992).

Where photographs of a homicide victim's body were not excessive in number and were used solely for the purpose of illustrating a medical examiner's testimony, the trial court did not err in admitting them into evidence. State v. Mahaley, 332 N.C. 583, 423 S.E.2d 58 (1992), cert. denied, 513 U.S. 1089, 115 S. Ct. 749, 130 L. Ed. 2d 649 (1995).

Photograph of rape victim was properly admitted for the limited purpose of illustrating witness medical examiner's testimony as to cause of death. State v. McCollum, 334 N.C. 208, 433 S.E.2d 144 (1993), cert. denied, 512 U.S. 1254, 114 S. Ct. 2784, 129 L. Ed. 2d 895, reh'g denied, 512 U.S. 1278, 115 S. Ct. 26, 129 L. Ed. 2d 924 (1994).

There was no abuse of discretion in the admission of photographs where each photograph related to material events and facts to which each identifying witness was testifying and further, the testimony of each witness whose testimony the photographs illustrated related to different aspects of the case and served different purposes. State v. Gray, 337 N.C. 772, 448 S.E.2d 794 (1994).

Photographs of defendants' home were properly admitted for the purpose of illustrating four witnesses' testimony. Raintree Homeowners Ass'n v. Bleimann, 116 N.C. App. 561, 449 S.E.2d 13, rev'd on other grounds, 342 N.C. 159, 463 S.E.2d 72 (1995).

Photographs which depicted the victim's fatal wound may have been prejudicial to the defendant, but they were not unfairly so. They were not excessive in number, repetitious or peculiarly gruesome, were properly used to illustrate the testimony of deputy sheriff, and as such, their admission by the trial court did not amount to an abuse of discretion. State v. Huggins, 338 N.C. 494, 450 S.E.2d 479 (1994).

Where there was no evidence that photograph was used solely to arouse the passions of the jury but was used to illustrate testimony concerning defendant's possession and control of the murder weapon, because the photograph had probative value and there was minimal potential for any unfair prejudice, the trial court did not abuse its discretion; this assignment of error was overruled. State v. Thibodeaux, 341 N.C. 53, 459 S.E.2d 501 (1995).

Admission of photo was not error where the photograph was used for illustrative purposes during nephew's testimony to describe his aunt and uncle while alive. State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995).

Videotape and photographs of crime scene and autopsy photographs of child who had been brutally raped and murdered were properly admitted. State v. Kandies, 342 N.C. 419, 467 S.E.2d 67 (1996), cert. denied, 519 U.S. 894, 117 S. Ct. 237, 136 L. Ed. 2d 167 (1996).

The State may introduce photographs into evidence although the defendant stipulates the cause of death. State v. French, 342 N.C. 863, 467 S.E.2d 412 (1996).

The probative value of the gruesome photographs outweighed the prejudice where they were used to show the circumstances of the killing and to establish the extent of the victim's head wound. State v. Ocasio, 344 N.C. 568, 476 S.E.2d 281 (1996).

Seven photographs of the victim were properly admitted where they were used during the testimony of a police officer to show the location, position, and condition of the body when it was discovered and used to illustrate a pathologist's testimony. State v. Warren, 348 N.C. 80, 499 S.E.2d 431 (1998).

Photographs of the victims' bodies at the crime scene, and the victims' bodies during autopsy were admissible in a prosecution for aiding and abetting first-degree murder, since the photographs depicted the condition and location of the bodies at the time they were found or showed a unique perspective or contained unique details or subject matter. State v. Goode, 350 N.C. 247, 512 S.E.2d 414 (1999).

Court properly allowed photographs of victims before and after their deaths where it gave due consideration to counsel's objection and arguments and found the photos relevant, not repetitive, and no more gruesome than photos from other murders of the same nature, and where the probative value of the photos outweighed the danger of any prejudice to the defendant. State v. Morganherring, 350 N.C. 701, 517 S.E.2d 622 (1999), cert. denied, 529 U.S. 1024, 120 S. Ct. 1432, 146 L. Ed. 2d 322 (2000).

Photographs of defendant's victims were not too gory or gruesome to show to the jury. State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808 (2003).

Photographs of two murder victims were properly admitted into evidence where they were not excessively gruesome and were used to identify one of the victims and to indicate the relative location of the victims to each other. State v. Walters, 357 N.C. 68, 588 S.E.2d 344 (2003), cert. denied, 540 U.S. 971, 124 S. Ct. 442, 157 L. Ed. 2d 320 (2003).

Trial court did not err in ruling that 10 autopsy photos of the murder victim were more probative than prejudicial and in allowing admission of them into evidence. State v. Gladden, 168 N.C. App. 548, 608 S.E.2d 93 (2005), appeal dismissed, cert. denied, - N.C. - , 614 S.E.2d 312 (2005).

Trial court's ruling admitting enlarged autopsy photographs that were projected onto a screen was proper for the purpose of illustrating the extent of the victim's wounds; thus, the probative value of the photographs outweighed any potential unfair prejudice due to the nature of the photographs. State v. Snider, 168 N.C. App. 701, 609 S.E.2d 231 (2005).

Two photographs of defendant's foster daughters were not unduly prejudicial where they were not necessarily sexually suggestive as alleged by defendant but could have been viewed as relatively benign. State v. Whitman, 179 N.C. App. 657, 635 S.E.2d 906 (2006).

In an action in which defendants appealed from a judgment of the Wayne County Court, which convicted defendants of first degree murder, the State had shown that inflaming the jury was not the sole purpose of the evidence; the photographic evidence introduced was offered to illustrate its witnesses' testimony. State v. Sloan, 180 N.C. App. 527, 638 S.E.2d 36 (2006), appeal dismissed, cert. denied, 361 N.C. 367, 644 S.E.2d 560 (2007), aff'd, 361 N.C. 584, 650 S.E.2d 594 (2007).

Photographs of victim's frontal injuries were not cumulative or excessive, as other photographs shown were of the crime scene and defendant while defendant was lying face down in the position in which officers found defendant; thus, they showed a different view of the body, a different injury inflicted, and different pieces of evidence found around the body. State v. Bowman, 183 N.C. App. 631, 644 S.E.2d 596 (2007).

In a trial in which the State sought to show that defendant pressured her daughter to shoot defendant's husband so that defendant could be with a boyfriend she met at a swingers party, the admission of sexually suggestive photographs of defendant and the boyfriend was proper under G.S. 8C-1-401, G.S. 8C-1-403, and G.S. 8C-1-404(b) because the photographs corroborated the existence of a sexual relationship between defendant and the boyfriend, the photographs illustrated the chain of events leading up to the murder, and the probative value of the photographs was not substantially outweighed by the danger of unfair prejudice. State v. Shannon, 182 N.C. App. 350, 642 S.E.2d 516 (2007), review denied, 361 N.C. 436, 649 S.E.2d 893 (2007).

Trial court did not abuse its discretion by overruling defendant's objection to the admission of photographs showing the murder victim's dismembered and decomposed body, where the photographs were introduced to illustrate the testimony by a special agent about the condition of victim's body, having exposed bone and being in a state of mummification, when it was discovered. State v. Bare, 194 N.C. App. 359, 669 S.E.2d 882 (2008).

In a case in which defendant was convicted for both first and second degree murder, he unsuccessfully argued on appeal that the trial court erred in allowing the State to introduce into evidence four photographs of the deceased victims at the crime scene because, according to defendant, the photographs were unnecessarily gruesome and carried no probative value. The State made use of the photographs in conjunction with testimony for illustrative purposes only, and the photographs were not used to inflame the jury's passions. State v. Stitt, 201 N.C. App. 233, 689 S.E.2d 539 (2009), review denied 364 N.C. 246, 699 S.E.2d 920, 2010 N.C. LEXIS 493 (2010).

Photograph of defendant with a gun that looked like the one defendant had in defendant's possession on the day crimes were committed was properly admitted under G.S. 8C-1, N.C. R. Evid. 403, as its probative value outweighed any prejudicial effect. State v. Stevenson, 211 N.C. App. 583, 710 S.E.2d 304 (2011), review denied 780 S.E.2d 563, 2015 N.C. LEXIS 1233 (2015).

Trial court did not abuse its discretion in admitting photographs into evidence to illustrate witness testimony concerning the crime scene, the victims' locations, or the injuries sustained by each victim. State v. Stewart, 231 N.C. App. 134, 750 S.E.2d 875 (2013).

Because the photographs of defendant and his tattoos taken at the jail after his arrest did not clearly show defendant in jail garb or in handcuffs, and the trial court specifically found that it was unable to determine from the pictures of defendant that they were taken in a jail, the admission of the pictures was not unfairly prejudicial. State v. Carpenter, 232 N.C. App. 637, 754 S.E.2d 478 (2014).

Even to the extent that a juror could have deduced that the pictures of defendant and his tattoos were taken in a jail, the trial court did not abuse its discretion in determining that the unfair prejudice did not substantially outweigh the probative value of the photographs and did not err in admitting the photographs of defendant because it is common knowledge that defendants charged with armed robbery are often arrested and that when people are arrested they are taken to jail. State v. Carpenter, 232 N.C. App. 637, 754 S.E.2d 478 (2014).

Trial court provided a limiting instruction to the jury explaining that photographs were only allowed for the purpose of illustrating an officer's testimony; thus, the defendant did not show any unfair prejudice from the jury's viewing of the photographs. State v. Moultry, 246 N.C. App. 702, 784 S.E.2d 572 (2016).

Trial court did not err in allowing the State of North Carolina to introduce several crime scene photographs into evidence at defendant's trial for murder, assault with a deadly weapon, and attempted murder because the admission of each photograph - of the victim as found at the crime scene and of the autopsy - was a thoroughly reasoned decision. Furthermore, defendant was unable to show that the admission of the photographs, cumulatively, was prejudicial because of the other overwhelming evidence of defendant's guilt. State v. Canady, - N.C. App. - , 833 S.E.2d 215 (2019).

Photographs and videotape were properly admitted where each photograph at issue illustrated, in some unique respect, the manner in which the victim was killed, including depiction of electrical wire used to bind the victim at the wrists, knees, and ankles, and the videotape uniquely depicted the condition and location of the victim's body in the context of the crime scene; both illustrated witness testimony. State v. Blakeney, 352 N.C. 287, 531 S.E.2d 799 (2000), cert. denied, 531 U.S. 1117, 121 S. Ct. 868, 148 L. Ed. 2d 780 (2001).

Admission of Photographs Held Error. - The admission into evidence of 26 photographs taken at the victims' autopsies which added nothing to the State's case as already delineated in crime scene slides and their accompanying testimony, was error; given the absence of additional probative value, these photographs - grotesque and macabre in and of themselves - had potential only for inflaming the jurors. State v. Hennis, 323 N.C. 279, 372 S.E.2d 523 (1988).

The prejudicial effect of photographs used repetitiously in a murder case was compounded by the manner in which the photographs were presented, where an unusually large screen was erected on a wall directly over defendant's head such that the jury would continually have him in its vision as it viewed the slides. This was a manner of presentation that in itself quite probably enhanced the prejudicial impact of the slides themselves. State v. Hennis, 323 N.C. 279, 372 S.E.2d 523 (1988).

Trial court erred by admitting two photographs, as substantive evidence, when a police detective was not able to authenticate the two photographs as depicting defendant's sons, because the photographs did not have any tendency to make the existence of any fact of consequence more probable or less probable than it would have been without the photographs. State v. Murray, 229 N.C. App. 285, 746 S.E.2d 452 (2013).

Although the trial court may have abused its discretion in defendant's trial for misdemeanor stalking by admitting into evidence photographs of firearms, ammunition, and surveillance equipment found throughout defendant's home, all of which defendant legally possessed at the time the search warrant was executed, defendant received a fair trial, free from prejudicial error, because of the overwhelming additional evidence presented at trial. State v. Hobson, 261 N.C. App. 60, 819 S.E.2d 397 (2018), review denied, 371 N.C. 793, 821 S.E.2d 173, 2018 N.C. LEXIS 1082 (2018).

Admittance of Videotape Recordings. - The basic principles governing the admissibility of photographs apply also to motion pictures. Videotape recordings may be admitted into evidence where they are relevant and have been properly authenticated. State v. Billings, 104 N.C. App. 362, 409 S.E.2d 707 (1991).

Condensed videotape which included footage of a body being turned over, placed in a body bag and on a stretcher, then transported to elevator for removal was relevant to illustrate the crime scene prior to the arrival of medical personnel and was neither excessive nor cumulative evidence. State v. Leazer, 337 N.C. 454, 446 S.E.2d 54 (1994).

A relevant videotape may be played for a jury even if gory and gruesome if not used solely to arouse the passions of the jury. State v. French, 342 N.C. 863, 467 S.E.2d 412 (1996).

A videotape of capital murder defendant's stepdaughter made 49 days before her death was properly admitted, where the videotape of the two-year-old, thirty pound victim was probative of the State's case to show why it would be especially heinous, atrocious, or cruel for a man as large and powerful as defendant to murder the child with his hands while she was in his care. State v. Flippen, 349 N.C. 264, 506 S.E.2d 702 (1998), cert. denied, 526 U.S. 1135, 119 S. Ct. 1813, 143 L. Ed. 2d 1015 (1999).

Where defendant was accused of inviting teenage girls to his home, giving them alcohol and drugs, and encouraging them to undress as he photographed them, the trial court did not err in allowing portions of a 17 year old videotape of defendant engaging in sexual activity with a minor to be played for the jury, as the probative value of the videotape was not outweighed by the prejudicial effect upon defendant. State v. Patterson, 149 N.C. App. 354, 561 S.E.2d 321 (2002).

Videotape of the crime scene was properly admitted into evidence, as it provided a unique perspective into the layout of the area in question that still photographs admitted into evidence did not depict; the record reflected that the videotape was not used excessively or solely to inflame the passions and prejudices of the jury against defendant, and in light of the distinctive perspective that the videotape afforded and the limiting instruction given by the trial court its admission was not an abuse of discretion. State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004).

Defendant's conviction of robbery with a firearm was proper; the State set a proper foundation for the admission of a videotape of the robbery under G.S. 8-97 by presenting testimony that the tape came from a store security camera, and had been in police custody and had not been altered, and the probative value of the videotape was not outweighed by any undue prejudice under G.S. 8C-1, N.C. R. Evid. 403. State v. Ayscue, 169 N.C. App. 548, 610 S.E.2d 389 (2005).

Admission of videos did not violate G.S. 8C-1, N.C. R. Evid. 403, since the portions of the tape that defendant contended were inflammatory were not shown at trial. State v. Buff, 170 N.C. App. 374, 612 S.E.2d 366 (2005).

Video of Surgical Procedure Properly Admitted. - Trial court properly admitted a video into evidence and instructed the jury on the issues at trial because an expert established that the video was a fair and accurate representation of the surgical procedure he was describing and did not create a risk of potential prejudice or confusion, allowing defense counsel to refer to a nurse anesthetist by his first was within the trial court's discretion in managing the trial proceeding, the jury properly was instructed both on the issues it must decide and on the legal responsibility of the nurse and hospital respectively, and the trial court's re-instruction did not create any contradiction or confusion. Connette v. Charlotte-Mecklenburg Hosp. Auth., - N.C. App. - , 845 S.E.2d 168 (2020).

Failure to View Videotape Prior to Admission. - Trial court did not violate G.S. 8C-1, N.C. R. Evid. 403 by failing to view the DVD recording of defendant's police interview before ruling on its admissibility as the trial court made its ruling on admissibility based on forecasts provided by both parties as to what was contained in the DVD. Given that the trial court gave a limiting instruction with regard to the evidence in dispute, it followed that it recognized the potential for prejudice and exercised its discretion in permitting its introduction. State v. Miller, 197 N.C. App. 78, 676 S.E.2d 546 (2009), review denied, 363 N.C. 586, 683 S.E.2d 216 (2009).

Inability to View Lost Videotape. - That jurors were unable to view a lost videotape did not, per se, result in a violation of G.S. 8C-1, Rule 403; G.S. 8C-1, Rule 1004 permits admissibility of secondary evidence where the original is lost or destroyed. State v. Thorne, 173 N.C. App. 393, 618 S.E.2d 790 (2005).

Statements of Defendant on Videotape. - If a videotape contains incriminating statements by the defendant, upon his objection, the judge must conduct a voir dire to determine the admissibility of any in-custody statements or admissions in the tape. State v. Billings, 104 N.C. App. 362, 409 S.E.2d 707 (1991).

Sequence of Events Video. - Admission of videotape showing the sequence of events at issue in the defendant's murder trial, even if shown in slow motion, was not an abuse of discretion because of the videotape's probative value. State v. Brewington, 343 N.C. 448, 471 S.E.2d 398 (1996).

Conduct of Defendant on Videotape. - Where a videotape depicts conduct of a defendant in a criminal case, the trial judge should grant a request from the defense to preview the tape. State v. Billings, 104 N.C. App. 362, 409 S.E.2d 707 (1991).

Compact disc presentation on shaken baby syndrome, used to illustrate the State's expert's testimony on the manner in which shaking an infant causes the severity of injuries sustained in the typical shaken baby syndrome case, was not unduly prejudicial to defendant accused of felony murder for shaking a child; the trial court limited the jury's consideration of the video to its use as illustrative evidence only. State v. Carrilo, 149 N.C. App. 543, 562 S.E.2d 47 (2002).

Motion Pictures. - The principles that govern the admissibility of photographs apply to motion pictures as well. State v. French, 342 N.C. 863, 467 S.E.2d 412 (1996).

III. PREJUDICIAL EVIDENCE, EVIDENCE EXCLUDED BASED ON CONFUSION, ETC.

.

Analysis Under This Section Necessary to Determine Admissibility. - Trial court's determination that the victim's prior allegations and inconsistent statements were covered by this rule was error, as although the statements involved the mention of sexual behavior, they were not with the purview of this rule and may have been admissible to attack the victim's credibility if they were not more prejudicial than probative under G.S. 8C-1, N.C. R. Evid. 403. State v. Rorie, 242 N.C. App. 655, 776 S.E.2d 338 (2015).

Refusal to Exclude Evidence of Other Killings Held Prejudicial. - In trial for murder of defendant's husband, rulings of the trial judge denying defendant's motion in limine to exclude evidence implicating her in other killings was held to have impermissibly chilled her right to testify in her own defense. State v. Lamb, 321 N.C. 633, 365 S.E.2d 600 (1988).

While the trial court properly admitted evidence of a subsequent murder to show a common plan or design, the cumulative effect of the trial court's errors deprived defendant of a fair trial where there was a distinct risk that the jury might have been led to convict based on evidence of an offense not then before it, allowed the second victim's sister to testify about that victim's good character, which evidence was irrelevant to the crime charged, and allowed the prosecution to argue that defense counsel had in effect suborned perjury when, whether or not defendant committed perjury, there was no evidence that he had done so at his attorneys' behest. State v. Hembree, 368 N.C. 2, 770 S.E.2d 77 (2015).

Evidence of One Murder in Support of Another. - The defendant failed to show that the trial court abused its discretion in permitting evidence of one murder to show opportunity and identity in support of another murder. State v. Moses, 350 N.C. 741, 517 S.E.2d 853 (1999), cert. denied, 528 U.S. 1124, 120 S. Ct. 951, 145 L. Ed. 2d 826 (2000), cert. denied 706 S.E.2d 246, 2011 N.C. LEXIS 121 (N.C. 2011.

Gang-Related Testimony Prejudicial. - Trial court erred in allowing gang-related testimony because it had no tendency to make any fact of consequence more likely than not. and in addition to being irrelevant, the extensive gang-related testimony carried the danger of unfair prejudice that substantially outweighed its non-existent probative value; the admission of the testimony constituted plain error because it had a probable impact on the jury's finding that defendant was guilty. State v. Hinton, 226 N.C. App. 108, 738 S.E.2d 241 (2013).

Evidence of Offense for Which Defendant Acquitted Not Admissible. - The State may not introduce in a subsequent criminal trial evidence of a prior alleged offense for which defendant had been tried and acquitted in an earlier trial. Where the probative value of such evidence depends upon defendant's 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. State v. Scott, 331 N.C. 39, 413 S.E.2d 787 (1992).

In requiring the exclusion of evidence otherwise admissible pursuant to G.S. 8C-1, N.C. R. Evid. 404(b) under G.S. 8C-1, N.C. R. Evid. 403, where the probative value of such evidence depends upon defendant's 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. This does not bar the admission of testimony relating to other bad acts for which the defendant was acquitted if the other bad acts and the crime charged were part of a single continuous transaction. State v. Ward, 199 N.C. App. 1, 681 S.E.2d 354 (2009), aff'd 2010 N.C. LEXIS 424 (2010).

Trial court erred by admitting evidence seized at the time of his February 10, 2005, arrest for alleged violations of the controlled substance laws similar to those under consideration in the instant case and defendant was entitled to a new trial in the cases with which he was charged with prescription drug-related offenses; each of the reasons listed by the trial court as justifications for the admission of the disputed evidence hinged upon a determination that defendant actually committed an offense for which he was later acquitted. State v. Ward, 199 N.C. App. 1, 681 S.E.2d 354 (2009), aff'd 2010 N.C. LEXIS 424 (2010).

Evidence Improperly Admitted. - In prosecution charging defendant with being an accessory before the fact to second degree murder, where the real effect of questions about devil worship, satanic bibles, graveyard seances, and the like could only have been to arouse the passion and prejudice of the jury, and where relative veracity of the State's two accomplice witnesses and the defendant was critical, the trial court committed reversible error in permitting the district attorney, over objection, to ask defendant questions about devil worshipping activities. State v. Kimbrell, 320 N.C. 762, 360 S.E.2d 691 (1987).

It was reversible error for the trial court to allow extrinsic evidence of prior inconsistent statements to impeach defense witness' testimony when that testimony concerned matters collateral to the issues in the case (what he did or did not tell his parole officer), and had that evidence not been erroneously admitted there was a reasonable possibility of a different result. See State v. Williams, 322 N.C. 452, 368 S.E.2d 624 (1988).

There can be no question that prejudice resulted from the testimony that defendant had returned to witness's motel room three hours after the murder occurred with "mud or grass" stains on the knees of his pants, and that he was "very nervous and upset" and wanted to "get drunk" and did so, and the prejudicial effect of this testimony far outweighed the need to show witness to be less than credible (especially where the remainder of her testimony included little of value in the state's case) or the need to bolster officer's credibility. State v. Hunt, 324 N.C. 343, 378 S.E.2d 754 (1989).

In a first-degree murder case evidence that insulation particles in defendant's clothing had apparently come from the attic used to gain access to the victim's apartment did not prove that he killed her, but was relevant to the State's case since evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue, and certainly a fact of consequence was the presence of fiber on the defendant's clothing consistent with that found in the victim's apartment. State v. Crandell, 322 N.C. 487, 369 S.E.2d 579 (1988).

Evidence that approximately two weeks before he killed victim the defendant threatened to kill him, or to kill a group of which he was a member, was relevant and admissible as evidence tending to show premeditation and deliberation and to negate self-defense. State v. Groves, 324 N.C. 360, 378 S.E.2d 763 (1989).

Where defendant was accused of sexually abusing his 14-year-old adopted daughter, the trial court erred in admitting testimony of alleged prior bad acts committed by defendant; namely, defendant's alleged frequent nudity, his alleged frequent fondling of himself, and an adulterous affair in which he was allegedly involved, as under the circumstances of this case, the admission of such evidence was highly prejudicial and of questionable relevance. State v. Maxwell, 96 N.C. App. 19, 384 S.E.2d 553 (1989), cert. denied, 326 N.C. 53, 389 S.E.2d 83 (1990).

Because doctor explicitly implicated defendant in her testimony regarding post traumatic stress disorder, the effects of alleged sexual assault on victim, and because doctor specifically named defendant twice and repeatedly implicated defendant as "friend" who caused victim's post traumatic stress disorder by unexpected and "unjust" attack, probative value of doctor's testimony was outweighed by danger of unfair prejudice. Therefore its admission violated this rule. This testimony not only directly implicated defendant, but also encouraged jury's outrage about injustice of defendant's alleged act. State v. Huang, 99 N.C. App. 658, 394 S.E.2d 279 (1990), vacated in part, 107 N.C. App. 710, 421 S.E.2d 812 (1992).

The trial court erred in allowing the State to cross-examine defendant charged with a sexual offense in the first degree concerning the following items on cross-examination: photographs, a dildo, a catalogue of condoms, lubricant, and two books entitled "Sexual Intercourse" and "The Sex Book," all of which were found in his home. State v. Hinson, 102 N.C. App. 29, 401 S.E.2d 371, cert. denied, 329 N.C. 273, 407 S.E.2d 846 (1991).

The probative value of defendant's convictions in 1986 was substantially outweighed by the potential for prejudice; and the convictions should have been excluded under this rule upon defendant's motion in limine and his objection at trial. State v. Coffey, 336 N.C. 412, 444 S.E.2d 431 (1994).

The appellate court agreed with 14-year-old defendant that allegations of a subsequent sexual assault on a four-year-old were not admissible since the incident was not sufficiently similar to the one at issue involving a nine-year-old; the admission of such evidence tended only to show the propensity of the defendant to commit sexual acts against young female children, an improper purpose, and therefore entitled defendant to a new trial. State v. White, 135 N.C. App. 349, 520 S.E.2d 70 (1999).

Although the trial court properly admitted a police officer's testimony about the underlying facts of defendant's prior 1995 conviction for assault inflicting serious injury, the trial court committed reversible error by admitting the state's exhibit of a copy of defendant's criminal conviction for that assault because admitting the bare fact of a non-testifying defendant's prior conviction after testimony had been elicited to establish the factual basis underlying that conviction violated G.S. 8C-1, N.C. R. Evid. 404(b), and 403; the bare fact of the prior conviction was inherently prejudicial. State v. McCoy, 174 N.C. App. 105, 620 S.E.2d 863 (2005).

Admission of evidence that defendant hid from police under a pile of clothing was not an abuse of discretion because it showed defendant's guilty conscience, and thus was probative as circumstantial evidence of guilt and not unduly prejudicial. State v. Bagley, 183 N.C. App. 514, 644 S.E.2d 615 (2007).

In defendant's indecent liberties with a child case, the court erred by admitting evidence that defendant sexually assaulted a four-year-old boy 18 years before because there was no evidence of an ongoing pattern of crimes between the 1990 offense and the instant case, but only the single prior conviction for an offense over 18 years old. State v. Gray, 210 N.C. App. 493, 709 S.E.2d 477 (2011), review denied, stay denied, 723 S.E.2d 540, 2012 N.C. LEXIS 191 (2012).

Defendant was prejudiced by the erroneous introduction of evidence regarding an interrogation of an unavailable individual who accused defendant of raping her at knife point nine years earlier, because the error in admission was not harmless where the State's evidence against defendant was not overwhelming and the State provided a skewed view of the previous encounter by not presenting evidence that the declarant might have been acting as a prostitute at the time of the prior incident. State v. Glenn, 220 N.C. App. 23, 725 S.E.2d 58 (2012), dismissed and review denied 734 S.E.2d 863, 2012 N.C. LEXIS 1093 (2012).

Trial court did not abuse its discretion in declining to exclude a line of questioning related to whether the surgeon was using pain medication in the period of time leading up to and during the surgery where the extent to which the medications may have caused the surgeon to experience confusion and impairment of cognitive function at a later point in time was relevant to whether those admittedly appreciable side effects occurred prior to and during the surgery. Nicholson v. Thom, 236 N.C. App. 308, 763 S.E.2d 772 (2014).

Trial court did not abuse its discretion in a private condemnation action by granting the property owner's motion for a new trial because it was error for the court to have allowed a natural gas company, which sought easements across the owner's property, to cross-examine the owner about the sales price of a nearby property. Although the owner could have been asked whether the owner was familiar with the sales price of other properties in the vicinity, it was error to allow cross-examination on the purported sales price of the nearby property. Piedmont Natural Gas Co. v. Kinlaw, 258 N.C. App. 481, 813 S.E.2d 642 (2018).

Evidence Properly Excluded. - In an action against an insurer in which plaintiff sought to recover the cost of chiropractic services rendered to her and her two minor children as a result of injuries sustained in an automobile collision, where plaintiff testified to the extent and type of damage to her automobile as a result of the collision, the court, in the exercise of its discretion under this rule, could properly exclude the automobile repair bill by which plaintiff sought to corroborate her testimony, as this evidence was cumulative and its probative value was weak, and moreover, the potential for confusion of issues by its admission was clear. Brown v. Allstate Ins. Co., 76 N.C. App. 671, 334 S.E.2d 89 (1985).

For case in which exclusion of expert testimony of a professor of psychology, by whom defendant had sought to provide expert evidence on memory variables affecting eyewitness identification, but who had not interviewed the victim, was upheld, see State v. Knox, 78 N.C. App. 493, 337 S.E.2d 154 (1985).

Where the trial court's rulings which excluded some testimony about slander plaintiff's background excluded only a small portion of the evidence presented by defendants concerning plaintiff's background, the trial court properly exercised its discretion under this rule excluding the testimony because its probative value was substantially outweighed by a danger of unfair prejudice. Raymond U v. Duke Univ., 91 N.C. App. 171, 371 S.E.2d 701, cert. denied, 323 N.C. 629, 374 S.E.2d 590 (1988).

The evidence defendant sought to introduce in his trial for first-degree sexual offense of his two daughters, which primarily involved his marital dispute over their property would only have muddled the evidence worthy of the jury's consideration, and the trial court committed no error in precluding the introduction of evidence regarding defendant's theory that the victim's mother devised this scheme for her financial benefit. State v. Knight, 93 N.C. App. 460, 378 S.E.2d 424, cert. denied, 325 N.C. 230, 381 S.E.2d 789 (1989).

In paternity action, trial court did not err by excluding the child's birth certificate in which the name of the father was left blank. The absence of a named father on the birth certificate had little probative value and was misleading because, under G.S. 130A-101(f), the name of the father of an illegitimate child may not be entered on the child's birth certificate without the father's sworn consent. State v. McInnis, 102 N.C. App. 338, 401 S.E.2d 774, cert. denied, 329 N.C. 274, 407 S.E.2d 848 (1991).

The trial court did not err by excluding hospital records which purported to show that the mother, a father and child were "bonding"; the hospital records had little probative value and were misleading because no evidence was presented identifying the male person who could have been a relative or friend. State v. McInnis, 102 N.C. App. 338, 401 S.E.2d 774, cert. denied, 329 N.C. 274, 407 S.E.2d 848 (1991).

Because the document was remote in time, failed to specify to whom the document was referring, and failed to show a definite susceptibility of propounder to influence testatrix, its probative value was substantially outweighed by its danger of prejudice, and the trial court properly exercised its discretion in excluding the evidence. In re Will of Prince, 109 N.C. App. 58, 425 S.E.2d 711 (1993).

Where officer saw two small bottles of liquor in a purse but had no reason to believe that alcohol consumption contributed to car accident, the probative value of this evidence was outweighed by its prejudicial potential. Browning v. Carolina Power & Light Co., 114 N.C. App. 229, 441 S.E.2d 607 (1994), aff'd, 340 N.C. 254, 456 S.E.2d 307 (1995).

Trial court acted within its sound discretion as required by this rule and properly excluded testimony of three defense witnesses regarding defendant/wife's claims of domestic violence and mysogynistic behavior of husband. State v. Owen, 133 N.C. App. 543, 516 S.E.2d 159, cert. denied, 351 N.C. 117, 540 S.E.2d 743 (1999).

The trial court made a meticulous effort to perform the balancing test pursuant to this rule while redacting statements from defendant's interview and did not abuse its discretion in doing so; while the court redacted statements which contain the child-victim's observations about sexual activity around her home and which the defendant claimed might have been relevant in determining why she made certain statements involving him, the trial court also carefully excluded from the jury's consideration statements by defendant regarding his murder conviction in the State of Tennessee and his sexual relationship with his half-sister. State v. Campbell, 142 N.C. App. 145, 541 S.E.2d 803 (2001).

The trial court properly refused to permit plaintiff to offer insurer's original answer, admitting liability as evidence to contradict its amended answer denying liability, where the probative value of the answers was substantially outweighed by the danger of prejudice and confusion of the issues by the jury. Warren v. GMC, 142 N.C. App. 316, 542 S.E.2d 317 (2001).

Trial court properly excluded from the defendant's murder trial the testimony of a man whom the victim had shot earlier because that man admitted that he was the aggressor in the shooting incident, whereas, the defendant was claiming at his trial that the victim was the aggressor in the shooting; thus, the trial court did not abuse its discretion in excluding the testimony because the testimony was not relevant to the victim's aggressiveness or propensity for violence as pertaining to the defendant. State v. Nance, 157 N.C. App. 434, 579 S.E.2d 456 (2003).

Trial court did not err in holding that evidence of defendant's prior conviction for driving while impaired was of little probative value because the evidence of the prior conviction in an unrelated matter was highly prejudicial in nature. Headley v. Williams, 162 N.C. App. 300, 590 S.E.2d 443 (2004), cert. denied, 358 N.C. 375, 598 S.E.2d 136 (2004).

In a cardiologist's action for breach of an employment contract, though testimony from another doctor regarding what the employers said in regard to that doctor's contract was admissible as an admission by a party opponent under G.S. 8C-1, N.C. R. Evid. 801(d), the trial court did not abuse its discretion in excluding the evidence as misleading since the jury might impermissibly have found that the employer breached the contract with the cardiologist based purely on the evidence of the employer's possible breach of a contract with the other doctor. Maglione v. Aegis Family Health Ctrs., 168 N.C. App. 49, 607 S.E.2d 286 (2005).

Trial court did not abuse its discretion by excluding the statements of defendant's psychiatrist as to the basis for her opinion that defendant could not form the requisite state of mind for murder; the court found that the statements, although relevant to show the basis for her expert opinion, were likely to confuse the jury due to the danger of the statements prejudicing, confusing, or misleading the jury and thus outweighing the statements' probative value. State v. Smith, 359 N.C. 199, 607 S.E.2d 607 (2005), cert. denied, - U.S. - , 126 S. Ct. 109, 163 L. Ed. 2d 121 (2005).

Where defendant, after resting defendant's case, moved to reopen the evidence to allow a child witness to rebut defendant's son's testimony that the victim had a bad bicycle wreck, corroborating defendant's story as to why the victim's buttocks were bruised, the trial court did not abuse its discretion under G.S. 15A-1226(b) in denying the motion; the trial court was permitted to exclude the testimony on grounds of undue delay, waste of time, or needless presentation of cumulative evidence under G.S. 8C-1-403, as defendant could have asked defendant's son before trial whether anyone else had seen the victim wreck on the bicycle and could have cross-examined the son about this, and the child's testimony was cumulative and would have only possibly served to corroborate defendant's testimony or facts brought to the jury's attention during the son's cross-examination. State v. Phillips, 171 N.C. App. 622, 615 S.E.2d 382 (2005), cert. denied, appeal dismissed, - N.C. - , 622 S.E.2d 628 (2005).

Because no evidence proffered at an in camera hearing supported an inference that a victim's prior sexual activity was forced or caused any injuries, evidence of the victim's prior sexual activity was properly excluded under the rape shield statute, G.S. 8C-1, N.C. R. Evid. 412(b)(2); the probative value, if any, to defendant was substantially outweighed by the danger of unfair prejudice to the State and the prosecuting witness under G.S. 8C-1, N.C. R. Evid. 403. State v. Harris, 360 N.C. 145, 622 S.E.2d 615 (2005).

Trial court in a condemnation proceeding did not err in excluding opinion testimony as to property value offered by four witnesses, where the opinions were based upon prior condemnation sales, which were an improper basis for valuing property in a current condemnation proceeding, or based on sales of property which was insufficiently similar to the property in question. City of Charlotte v. Ertel, 170 N.C. App. 346, 612 S.E.2d 438 (2005).

Testimony that defendant was found with marijuana and a pistol was not admissible because it was considered unfairly prejudicial in a trial for robbing and shooting a marijuana supplier. State v. Bagley, 183 N.C. App. 514, 644 S.E.2d 615 (2007).

Testimony of an expert who did not interview the witnesses, observe their testimony, or visit the crime scene was properly excluded, as the probative value of the testimony, considered in the light most favorable to defendant, was "marginally weak," and evidence would have confused the jury, unnecessarily delayed the proceeding, and would not have been of significant assistance to the jury. State v. McLean, 183 N.C. App. 429, 645 S.E.2d 162 (2007), review denied, 361 N.C. 700, 654 S.E.2d 706 (2007).

Trial court properly excluded mental health expert's testimony as to the likelihood of defendant's release from the hospital if the jury found defendant not guilty by reason of insanity after finding that the expert's testimony could confuse the issues of the case with the possible consequences, and the expert's testimony would not assist the jury in regard to any matter in issue or fact. State v. Hall, 187 N.C. App. 308, 653 S.E.2d 200 (2007), review denied, appeal dismissed, 362 N.C. 366, 663 S.E.2d 431 (2008).

It was error to exclude under G.S. 8C-1, N.C. R. Evid. 403, testimony that in a questionnaire the victim had stated that she sometimes saw herself as if she were looking at someone else, that she was sometimes not sure whether something that happened was real or a dream, and that she sometimes heard voices inside her head; the evidence should have been admitted under G.S. 8C-1, N.C. R. Evid. 611(b), because it went to the credibility of the victim, whose testimony was crucial to the state's case, because the victim's testimony was contradicted by two eyewitnesses, and because attacking the victim's credibility was the defense's main theory. State v. Whaley, 362 N.C. 156, 655 S.E.2d 388 (2008).

Trial court properly sustained the State's objection under G.S. 8C-1, N.C. R. Evid. 403, on the basis that the prejudicial effect of testimony, that defendant and his sexual assault victim previously had rented motel rooms together, outweighed its probative benefit. The evidence was not relevant and admissible under G.S. 8C-1, N.C. R. Evid. 412(b)(1) because defendant had not raised the victim's consent as a defense. State v. Harris, 189 N.C. App. 49, 657 S.E.2d 701 (2008), review denied, 362 N.C. 366, 664 S.E.2d 315 (2008).

Trial court did not abuse its discretion in ruling that the probative value of a plastic baggie, which contained an undetermined white powder and was found on the accident victim following an automobile accident in which the victim was a passenger in the automobile that crashed, was substantially outweighed by the danger of unfair prejudice. Robinson v. Trantham, 195 N.C. App. 687, 673 S.E.2d 771 (2009).

Trial court did not abuse its discretion in excluding evidence of a child's prior sexual conduct with her boyfriend under G.S. 8C-1, N.C. R. Evid. 403: (1) the temporal sequence created a risk of jury confusion, (2) a doctor had indicated that the child's internal scarring likely resulted from penetration by a penis; and (3) although defendant did not contend, and the evidence did not support, that the child's intercourse with her boyfriend could have caused the scarring, a jury could have been confused and mistakenly believed that the evidence was offered as an alternative explanation for the scarring. State v. Cook, 195 N.C. App. 230, 672 S.E.2d 25 (2009).

In an action for injuries suffered in a motor vehicle collision, because plaintiff's contributory negligence was not at issue in the case, any probative value of evidence of plaintiff's conduct was outweighed by the danger of such evidence confusing the jury; accordingly, the trial court did not err by precluding defendants from presenting evidence of plaintiff's contributory negligence. Rabon v. Hopkins, 208 N.C. App. 351, 703 S.E.2d 181 (2010), review denied 365 N.C. 195, 710 S.E.2d 22, 2011 N.C. LEXIS 470 (N.C. 2011).

Trial court properly granted defendant's motion to suppress evidence of repressed memory where, pursuant to G.S. 8C-1, N.C. R. Evid. 403, the probative value of the evidence outweighed the prejudicial effect of the evidence; the scientific aura surrounding repressed memory theory and the expert who would testify might become so firmly established in the minds of potential jurors that they might assign undue credibility to repressed memory evidence. State v. King, 214 N.C. App. 114, 713 S.E.2d 772 (2011), aff'd and modified 366 N.C. 68, 733 S.E.2d 535, 2012 N.C. LEXIS 418 (N.C. 2012).

Trial court could reasonably have determined that the probative value of evidence from detention officers regarding defendant's behaviors in 2009, five years after the events at issue, was substantially outweighed by the potential for jury confusion and undue prejudice, as defendant presented voluminous expert and family testimony relating to the actual time frame at issue. State v. Shareef, 221 N.C. App. 285, 727 S.E.2d 387 (2012).

Motion in limine was properly granted in a medical malpractice case because, had the jury been allowed to hear expert testimony to the effect that a doctor violated the standard of care in reviewing a patient's May 27, 2008, x-ray, it could have created confusion of the issues in the minds of the jurors and ensuing prejudice due to the fact that this was not a proximate cause of the patient's death. Schmidt v. Petty, 231 N.C. App. 406, 752 S.E.2d 690 (2013).

It was not error to admit defendant's recorded interview on grounds the interview disclosed defendant's assessment of defendant's acts and belief defendant deserved to go to jail because (1) this was not an improper basis for a decision, and (2) the prejudice to defendant was not unfair. State v. Baldwin, 240 N.C. App. 413, 770 S.E.2d 167 (2015).

State could have proven even without a witness's testimony that defendant knew about the plan to rob the victim, and thus any alleged bias resulting from a fight between the witness and her family became less probative, and the trial court did not abuse its discretion in excluding the evidence under the balancing test; the trial court weighed the weak probative value of the evidence against the confusion that could result from drawing the jury into a family feud that was tangential to the death of the victim, and the trial court did not err. State v. Triplett, 368 N.C. 172, 775 S.E.2d 805 (2015).

Trial court did not err in denying defendant's motion to admit a social worker's letters to the editor of a newspaper because defendant failed to demonstrate a reasonable possibility of a different result at trial had the letters been admitted; in light of the social worker's testimony, it was difficult to see how admitting the letters would have provided any necessary additional insight into her thoughts and outrage about child abuse, including her advocacy for children who had been abused by their parents. State v. Mendoza, 250 N.C. App. 731, 794 S.E.2d 828 (2016), review denied, 797 S.E.2d 300, 2017 N.C. LEXIS 172 (2017).

Trial court properly excluded evidence of the victim's admitted commission of a sexual assault when he was a child because the act occurred more than a decade earlier, involved no factual elements similar to the events underlying the charge for which defendant was on trial, was disturbing and highly prejudicial, other evidence presented by the State also rendered the victim's inconsistent statements less relevant to the contested factual issues at trial, and the fact that defendant asked the victim if he was a virgin, regardless of the victim's response, was probative of defendant's intent in meeting the victim at the shed where the sexual offense occurred. State v. West, 255 N.C. App. 162, 804 S.E.2d 225 (2017).

Trial court did not abuse its discretion by excluding the physician's expert testimony because the probative value of the testimony was substantially outweighed by the danger of unfair prejudice, as the physician's testimony did not speak directly to defendant's condition at the time of the victim's death. State v. Broyhill, 254 N.C. App. 478, 803 S.E.2d 832 (2017), review denied, 2018 N.C. LEXIS 241 (2018).

It was no error to exclude defendant's testimony that a neighbor sexually assaulted defendant's other daughter because (1) the testimony could have confused the jury, and (2) any probative value was outweighed by the prejudicial or inapplicable nature of the testimony. State v. Alonzo, 261 N.C. App. 51, 819 S.E.2d 584 (2018), aff'd, 2020 N.C. LEXIS 86 (N.C. 2020).

Claim Estimates by Insurer Properly Excluded. - In personal injury action against plaintiff's UIM insurer, admitting claim estimates prepared by the insurer would unduly prejudice the defense and circumvent the policy of having the jury focus on the facts and not the existence of liability insurance. Braddy v. Nationwide Mut. Liab. Ins. Co., 122 N.C. App. 402, 470 S.E.2d 820 (1996).

Medical Record Properly Excluded. - In a case arising from an automobile accident which plaintiff testified resulted in injury to her neck, shoulder and thoracic spine, the court properly excluded evidence from her 10-year-old medical record indicating "longstanding mid-thoracic pain" and "paraspinal muscle pain" along with the testimony of defense witness/doctor regarding disputed medical record. Sitton v. Cole, 135 N.C. App. 625, 521 S.E.2d 739 (1999).

Evidence of subsequent remedial measures in the form of written instructions to security guards was properly excluded since it could not be used to impeach testimony and since its probative value tended to be outweighed by the danger of unfair prejudice. Benton v. Hillcrest Foods, Inc., 136 N.C. App. 42, 524S.E.2d 53 (1999).

Evidence Held Prejudicial. - Evidence of prior sexual assaults against a witness, which happened seven years before a similar sexual assault for which defendant was charged, was prejudicial to defendant's fundamental right to a fair trial because the prior acts were too remote in time. State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988).

Where counsel for the defendant asked over 60 questions referencing an action arising out of events occurring some 12 to 14 years earlier and these inquiries related to an extremely remote event, they were minimally probative when compared to their prejudicial effect, and were therefore proscribed by this rule; further, the continued repetitive questioning reflected the harassment and "needless consumption of time" that Rule 611(a) prohibits. Weston v. Daniels, 114 N.C. App. 418, 442 S.E.2d 69 (1994), cert. denied, 336 N.C. 785, 447 S.E.2d 433 (1994).

Where the probative value of witness's testimony to prove intent, common scheme, plan, modus operandi, or absence of mistake directly depended on defendant having committed the crime about which she testified, defendant's acquittal of the offense in an earlier trial so divested the evidence of probative value that, as a matter of law, it could not outweigh the tendency of such evidence to unfairly prejudice the defendant. State v. Robinson, 115 N.C. App. 358, 444 S.E.2d 475, cert. denied, 337 N.C. 697, 448 S.E.2d 538 (1994).

Interjecting evidence which would allow the jury to infer the defendant's immaturity so that the jury could infer that he lacked capacity to form the requisite intent would have unnecessarily confused the issues; therefore, even if this evidence was relevant and admissible, its exclusion was within the trial court's discretion. State v. Huggins, 338 N.C. 494, 450 S.E.2d 479 (1994).

Trial court acted within its discretion in ruling that defendant could not inquire of a witness about sexual paraphernalia found in the murder victim's home, in that its probative value was substantially outweighed by the danger of unfair prejudice, G.S. 8C-1, Rule 403. State v. Campbell, 359 N.C. 644, 617 S.E.2d 1 (2005).

Evidence of defendant's prior incarceration constituted inadmissible character evidence that prejudiced his defense because the State improperly elicited that evidence to show defendant's propensity to commit the drug crimes for which he was on trial; the State could not purport to rebut the testimony of defendant's girlfriend with bad character evidence as she did not testify as to defendant's reputation for being law-abiding; and there was a reasonable possibility that, had the error not been committed, the jury would have reached a different result, as the evidence against defendant was largely circumstantial, and a jury could have reasonably concluded that the marijuana and cocaine were attributable to defendant's roommates. State v. Rios, 251 N.C. App. 318, 795 S.E.2d 234 (2016).

Exclusion of Evidence Held Harmless. - Trial court's decision to prevent defendant's expert from relating statements made by defendant to him and used by him to form the basis of his expert opinion of defendant's mental state at the time of the homicide, if an abuse of discretion, was harmless error since the same information was related in answers given by the expert to other questions. State v. Holston, 134 N.C. App. 599, 518 S.E.2d 216 (1999).

Character of Victim. - Defendant failed to show that the trial court abused its discretion by excluding the testimony of witnesses where his theory that the testimony was relevant because it showed that the victim had been involved in a shooting incident a few hours prior to his death, providing someone other than the defendant with a motive to kill him, was pure conjecture, and the proffered testimony was prejudicial to the State in that it suggested the victim was himself a violent person. State v. McCray, 342 N.C. 123, 463 S.E.2d 176 (1995).

The trial court did not abuse its discretion in finding that evidence was being offered to unfairly prejudice the State, to confuse the issues, and to mislead the jury by inflaming the jury's passions against murder victim by implying that she was involved in an interracial relationship and that she was a drug user. State v. Julian, 345 N.C. 608, 481 S.E.2d 280 (1997).

Admission of Prejudicial Evidence within the Discretion of the Court. - The court determined within its discretion that the probative value of the admission of the un-redacted version of the incident report, obtained through a subpoena duces tecum, when the redacted version had previously been introduced into evidence, outweighed its tendency to prejudice the defendant. Kilgo v. Wal-Mart Stores, Inc., 138 N.C. App. 644, 531 S.E.2d 883 (2000).

Evidence Improperly Excluded. - Where the trial court erred by not allowing the defendant to question the complainant in the presence of the jury regarding the allegation of rape made five months earlier and subsequently withdrawn, defendant was entitled to a new trial because there was a reasonable probability that the outcome of the trial would have been different. State v. Ginyard, 122 N.C. App. 25, 468 S.E.2d 525 (1996).

Opinion evidence of defendant's friend should not have been excluded since the evidence of defendant's trusting nature was not offered to show that defendant trusted her husband or that she valued her familial relationships but, rather, to show that defendant was trusting of individuals whom she did not know; the opinion testimony would have been the only evidence regarding defendant's character trait for being trusting of others. State v. Tatum-Wade, 229 N.C. App. 83, 747 S.E.2d 382 (2013).

It was the defense's decision to chance the risk of prejudice from cross-examining the witness with a message challenging the witness's credibility, and the trial court erred by excluding the evidence. State v. Triplett, 236 N.C. App. 192, 762 S.E.2d 632 (2014).

Exclusion of Expert Testimony Prejudicial. - Defendant was prejudiced by the trial court's erroneous exclusion of his expert's testimony, as the error prevented defendant from challenging the strongest piece of the State's evidence, a Google map search conducted on defendant's laptop of the exact area where the victim's body was discovered. State v. Cooper, 229 N.C. App. 442, 747 S.E.2d 398 (2013), dismissed, 367 N.C. 290, 753 S.E.2d 783, 2014 N.C. LEXIS 96 (2014).

Report In Defamation Case. - Report did not demonstrate the substantial truth of the statements in question or the articles generally, did not address whether plaintiff's work was deficient, and did not address the accuracy of the actual work; thus, the report was not relevant; even if the report had some relevance, it was substantially outweighed by the danger of unfair prejudice, as the report was an interim report and recommended further investigation, and that investigation confirmed that plaintiff's analysis was accurate. Desmond v. News & Observer Publ'g Co., 263 N.C. App. 26, 823 S.E.2d 412 (2018), aff'd, and rev'd, in part, remanded, 375 N.C. 21, 846 S.E.2d 647, 2020 N.C. LEXIS 698 (2020).

Probative Value of Evidence Outweighed Danger of Unfair Prejudice. - The prosecutor's cross-examination of defendant about a specific prison infraction was properly allowed in light of defendant's extensive testimony on direct examination regarding the amount of time that defendant was confined to lockup at various institutions throughout the prison system. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001).

Evidence Properly Admitted. - Trial court did not abuse its discretion in balancing the probative value of detective's testimony about the contents of a lost surveillance video tape against its prejudicial effect because the testimony provided evidence of the identity of the perpetrator, who was disguised with sunglasses and wore a dark covering over his face; although prejudicial, defendant made no showing that the prejudice was unfair or had the undue tendency to suggest a decision on an improper basis. State v. Thorne, 173 N.C. App. 393, 618 S.E.2d 790 (2005).

Trial court did not abuse its discretion in admitting evidence of a prior robbery under G.S. 8C-1-404(b) because the similarities between the prior robbery and the current offense, which occurred within one week of each other, were sufficient to support a finding that the probative value of the evidence of the prior robbery was not substantially outweighed by the danger of unfair prejudice. State v. Hagans, 177 N.C. App. 17, 628 S.E.2d 776 (2006).

Because a trial court had discretion to admit all relevant evidence under N.C. R. Evid. 402, as well as to exclude evidence under N.C. R. Evid. 403, based on confusion or unfair prejudice, it had discretion to admit testimony of plaintiff former employee's coworkers, who suffered symptoms similar to that of the employee, who sought to recover damages based on his exposure to an allegedly toxic workplace. Absent an abuse of discretion, which was not shown, that ruling would not be overturned. Cameron v. Merisel Props., 187 N.C. App. 40, 652 S.E.2d 660 (2007).

Trial court's denial of creditor's and auctioneer's motion to exclude any evidence that they failed to escrow the auction funds in violation of an agreement made between the parties was not an abuse of discretion as that evidence was highly relevant to the secured creditor's claims, and was not substantially outweighed by any prejudice to the creditors and the auctioneer. Bartlett Milling Co., L.P. v. Walnut Grove Auction & Realty Co., 192 N.C. App. 74, 665 S.E.2d 478, review denied, 362 N.C. 679, 669 S.E.2d 741 (2008).

Evidence of defendant's extra-marital affair was admissible because the evidence was relevant and helped explain why the child victim waited to come forward and report what was happening. State v. Tadeja, 191 N.C. App. 439, 664 S.E.2d 402 (2008).

Admission of evidence identifying defendant as Muslim was not error since defendant could not show that, without such evidence, a different result would likely have been reached; the subject testimony was provided by defendant's prior girlfriend and indicated that the girlfriend provided a false alibi for defendant after defendant asked the witness to do so and the witness felt that such help was what the girlfriend was supposed to do for defendant. State v. Rankin, 191 N.C. App. 332, 663 S.E.2d 438 (2008), review denied, 363 N.C. 136, 674 S.E.2d 143 (2009), review denied, 363 N.C. 136, 674 S.E.2d 143 (2009).

Testimony of a trooper and a witness regarding an employee's actions in fleeing the scene of a motor vehicle accident was relevant and properly admitted to show the employee's motivation for leaving the scene as the evidence related to the possibility that the employee was acting as an agent for the employee's employer. Jackson v. Carland, 192 N.C. App. 432, 665 S.E.2d 553 (2008).

Letter from defendant to defendant's mother was properly admitted, because it was not needlessly cumulative given that it was the only piece of evidence originating directly from defendant reflecting defendant's acute memory of significant details of the crime scene, and it was not unfairly prejudicial. State v. Garcell, 363 N.C. 10, 678 S.E.2d 618 (2009).

Admission of defendant's nursing board records and defendant's use of prescription pain medications was not unduly prejudicial under G.S. 8C-1, Rule 403 as in defendant's self-report, defendant disclosed that defendant's history of prescription drug abuse resulted in the loss of defendant's job and financial problems, that defendant's family and financial issues/relationships were strained but slowly improving, and that defendant's spouse, whom defendant allegedly murdered, was more supportive, all of which demonstrated motive. State v. Lawson, 194 N.C. App. 267, 669 S.E.2d 768 (2008), review denied, 363 N.C. 378, 679 S.E.2d 837 (2009).

Admission of a detective's testimony that defendant was lying was proper, as it as relevant, in that it provided the context surrounding defendant's inculpatory responses, and the admission of such testimony was not unduly prejudicial. State v. Castaneda, 215 N.C. App. 144, 715 S.E.2d 290 (2011).

Trial court did not err by admitting a forensic psychologist's report and testimony because the probative value of the report and testimony substantially outweighed the potential prejudicial effect to defendant; the psychologist's reflections of defendant's character, which comprised a small portion of the report, were not admitted for the truth of the matters asserted but were offered to demonstrate how the resulting recommendations were relevant to defendant's state of mind. State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636 (2015).

Trial court properly determined that, while barely so, the evidence in question was relevant, and then weighed its probative value against prejudice concerns; because the trial court conducted that analysis, it necessarily found the voice mail relevant, and otherwise, the trial court would have excluded the evidence, making a prejudice analysis unnecessary or at least, mere surplusage. State v. Triplett, 368 N.C. 172, 775 S.E.2d 805 (2015).

Defendant failed to satisfy his burden to establish plain error in the admission of rap lyrics found in a notebook in his room because he did not explain why, had the rap lyrics not been admitted, the jury probably would have rejected the State's other evidence and found him not guilty. State v. Santillan, 259 N.C. App. 394, 815 S.E.2d 690 (2018).

IV. ADMISSION OR EXCLUSION OF EVIDENCE NOT PREJUDICIAL.

.

Cumulative Character Evidence. - It was not error for the trial judge, in a trial for first degree sexual offense, after the defendant had called and examined six character witnesses, to ask him to list his seven remaining character witnesses and have them stand and state their names and addresses, where the jury was informed by the comments of the court and counsel that these witnesses were present to attest to the defendant's good character and reputation in the community. State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986).

The probative value of defendant's prior conviction for involuntary manslaughter was not outweighed by its prejudicial effect in a capital murder case and was, therefore, clearly admissible as an aggravating factor in the sentencing phase of defendant's trial where defendant admitted the conviction and stipulated to it. State v. McLaughlin, 323 N.C. 68, 372 S.E.2d 49 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1021, 110 S. Ct. 1463, 108 L. Ed. 2d 601 (1990) in light of State v. Anderson, 85 N.C. App. 104, 354 S.E.2d 264.

Where the trial court, by sustaining the prosecutor's objection to a question, did nothing more than exclude cumulative evidence, the trial court's action did not constitute error. State v. Barton, 335 N.C. 696, 441 S.E.2d 295 (1994).

Evidence of Prior Conviction Properly Admitted After Character Put at Issue. - Although defendant's motion to suppress evidence of his prior conviction for assault with a deadly weapon had been granted, the trial court did not abuse its discretion by permitting the evidence to be admitted where defendant put his character at issue by offering the testimony of two witnesses as to his peaceful nature during the time frame of the conviction. State v. Rhue, 150 N.C. App. 280, 563 S.E.2d 72 (2002).

Evidence of Sexual Activity in Paternity Case. - Character evidence is generally not admitted in civil cases unless it is character which is in issue because this evidence is often more prejudicial than probative. Where, however, evidence of sexual activity and promiscuity goes to a central element of the case, i.e., opportunity to impregnate plaintiff, whether or not other men had the opportunity to father child born out of wedlock is of ultimate relevance to the issue of paternity. In addition, this nongenetic outside information, as a factor in the probability of paternity calculation, must be received in order for the jury to weigh the expert's assumptions underlying the calculation of numerical probability of paternity. State ex rel. Williams v. Coppedge, 105 N.C. App. 470, 414 S.E.2d 81, rev'd on other grounds, 332 N.C. 654, 422 S.E.2d 691 (1992).

Evidence from Sexual Assault Kit. - The results of a test based on the "Phadebas methodology" were not excludable under this section, where the test confirmed the presence of saliva on the vaginal swab taken from the victim's sexual assault kit, which served to corroborate the victim's testimony that the defendant had placed his mouth on her vagina. State v. Dennis, 129 N.C. App. 686, 500 S.E.2d 765 (1998).

Evidence regarding victim's cash advances to defendant and the victims real estate dealings with defendant shed light on their relationship at the time of the victim's death and was relevant; thus, the trial court did not abuse its discretion by declining to exclude this evidence pursuant to this Rule. State v. Bishop, 346 N.C. 365, 488 S.E.2d 769 (1997).

Evidence of Prior Shooting. - Trial court did not err in admitting evidence of a prior shooting committed by defendant since the prior shooting was similar to the shooting with which defendant was accused at trial and the prior shooting was not too remote in time; further, the trial court did not have to consider the years defendant served in prison for the prior shooting in determining remoteness. State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001).

Repressed Memory of Evidence of Prior Crime. - Repressed memory evidence of sexual offense committed by defendant was not unfairly prejudicial where the evidence's value in proving a common plan or scheme outweighed the danger of such prejudice. State v. Williamson, 146 N.C. App. 325, 553 S.E.2d 54 (2001).

Cross-Examination Upheld. - The defendant on trial for nine murders was not prejudiced by the cross-examination of expert witnesses concerning two additional murders he had committed. State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S. 1018, 121 S. Ct. 581, 148 L. Ed. 2d 498 (2000).

Cross-Examination to Establish Motive Proper. - Where State did not cross-examine defendant in murder case about an unrelated rape accusation to show defendant was unworthy of belief because of this alleged bad act, but for purpose of establishing defendant's motive for the crime for which he was on trial, the cross-examination was proper. State v. Meekins, 326 N.C. 689, 392 S.E.2d 346 (1990).

Admission of Evidence Held Not Prejudicial. - Even if evidence of defendant's prior convictions for driving while impaired was admitted in error, defendant failed to show prejudice where the evidence of defendant's guilt presented at trial was overwhelming, including defendant's admission that he had been drinking the afternoon of the accident, defendant's admission that he was speeding, witness testimony that defendant smelled of alcohol, a doctor's testimony that defendant's blood alcohol level was between 0.05 and 0.094 at the time of the collision, and testimony that defendant was driving 75 miles per hour in a 45 mile per hour zone. State v. Norman, 213 N.C. App. 114, 711 S.E.2d 849 (2011), review denied, 718 S.E.2d 401, 2011 N.C. LEXIS 940 (2011).

Even of the trial court erred in admitting evidence of a prior robbery, the error was harmless given the victim's identification of defendant and evidence that not only did defendant know the victim's brother hid money at her house, but when the victim told the men the money was her mother's house the men left and shortly thereafter someone attempted to break into the victim' smother's house, supporting an inference that defendant was the perpetrator. State v. Green, 229 N.C. App. 121, 746 S.E.2d 457 (2013).

Clarifying testimony as to the absence of evidence that defendant had participated in, or been affiliated with, the violent, anti-government activities of certain tax protestor groups mitigated any prejudicial impact of the challenged testimony; even if the evidence of the anti-government, violent nature of the groups was erroneously admitted, defendant failed to show plain error. State v. Tatum-Wade, 229 N.C. App. 83, 747 S.E.2d 382 (2013).

Evidence of a prior incident where defendant drove impaired was more probative of proving the malice necessary for second-degree murder than prejudicial, and any prejudice was addressed by the court's limiting instruction to the jury. State v. Grooms, 230 N.C. App. 56, 748 S.E.2d 162 (2013), review denied 367 N.C. 281, 752 S.E.2d 148, 2013 N.C. LEXIS 1397 (2013).

Even if the trial court erred in admitting song lyrics defendant wrote, the error was not prejudicial due to the other abundant evidence of defendant's guilt. State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636 (2015).

Even if the trial court erred by admitting a forensic psychologist's report and testimony, any error was non-prejudicial because the State presented other abundant evidence of defendant's guilt; defendant failed to carry his burden of showing that had the psychologist's report and corresponding testimony not been admitted at trial, a reasonable possibility existed that the jury would have reached a different result; State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636 (2015).

Because the court of appeals erred by holding that the trial court violated the rule by admitting evidence concerning defendant's response to a wrongful death and declaratory judgment action, defendant was not entitled to relief from the trial court's judgment on the basis of the admission of that evidence. State v. Young, 368 N.C. 188, 775 S.E.2d 291 (2015).

Court of appeals erred by holding that the trial court violated the rule by admitting evidence concerning defendant's response to the wrongful death and declaratory judgment actions filed against him because the evidence had at least some material probative value for the purpose of challenging the validity of defendant's alibi defense, and the trial made a serious attempt to address the risk of unfair prejudice in its jury instructions. State v. Young, 368 N.C. 188, 775 S.E.2d 291 (2015).

Trial court did not abuse its discretion in determining that the danger of unfair prejudice did not substantially outweigh the probative value of the evidence of the prior incident of defendant's altercation with a prior boyfriend given the significant points of commonality between the prior incident and the murder, as they both involved defendant and her current boyfriend, escalation of an argument that led to the use of force, defendant's further escalation of the argument, and her deliberate decision to obtain a knife from the kitchen, and the limiting instructions given to the jury. State v. Mangum, 242 N.C. App. 202, 773 S.E.2d 555 (2015), review denied 780 S.E.2d 564, 2015 N.C. LEXIS 1230 (2015).

Even though the trial court's failure to disclose the third jury note violated defendant's right to presence, defendant was not prejudiced because had the trial court disclosed the note and defendant had renewed his objection under this rule, the trial court would not have had any reason to change its ruling admitting the inmate's testimony of defendant's confession and threats to potential witnesses. State v. Mackey, 241 N.C. App. 586, 774 S.E.2d 382 (2015).

Trial court did not err by admitting into evidence under G.S. 8C-1, N.C. R. Evid. 404(b), portions of an audiotape and transcript that included a conversation between defendant and an informant while they were incarcerated where the informant's credibility was crucial to the State's case, the trial court gave the jury a limiting instruction. The admission of the evidence did not violate G.S. 8C-1, N.C.R. Evid. 403 because the relevance of the redacted version of the transcript, when combined with the limiting instruction, substantially outweighed any unfair prejudice. State v. Carvalho, 243 N.C. App. 394, 777 S.E.2d 78 (2015), cert. denied, 138 S. Ct. 59, 2017 U.S. LEXIS 4741, 199 L. Ed. 2d 19 (U.S. 2017).

Trial court did not commit prejudicial error by allowing an accident report into evidence, which showed redactions for an automobile accident victim's alcohol use and zeros or blanks for a motorist's alcohol use because the victim's estate failed to show any prejudice to warrant a different result at trial in that other unchallenged and admitted evidence showed that the motorist was not under the influence of alcohol. Scheffer v. Dalton, 243 N.C. App. 548, 777 S.E.2d 534 (2015).

Medical records and North Carolina Department of Social Services records of the decedent and the decedent's child were admissible in a wrongful death and medical malpractice action because the personal representative failed to carry the burden to show that the records were unfairly prejudicial, or that the trial court abused its discretion in admitting the prior records into evidence. The prior records illustrated a complete picture of the decedent's mental health and were relevant concerning causation and damages. Clarke v. Mikhail, 243 N.C. App. 677, 779 S.E.2d 150 (2015).

Even though the trial court erred by refusing to allow defense counsel to cross-examine a victim about statements he allegedly made to his wife and the police that he was addicted to porn, had an affair, and that he could not control his behavior because of defendant's abuse of him, because the evidence was relevant and was not barred by the Rape Shield Act, defendant was not prejudiced because the evidence of defendant's guilt was overwhelming. State v. Goins, 244 N.C. App. 499, 781 S.E.2d 45 (2015).

When a terminated state law enforcement agent alleged discrimination on the basis of political affiliation, the testimony by a former deputy secretary of the North Carolina Department of Public Safety (DPS) that a state senator told the deputy secretary that the agent's reassignment shouldn't have occurred and that they were going to fix it and that the incoming Secretary of the DPS had agreed that the reassignment shouldn't have happened was admissible in an administrative hearing to show the declarants' existing mental states and motives. N.C. Dep't of Pub. Safety v. Ledford, 247 N.C. App. 266, 786 S.E.2d 50 (2016).

Trial court did not abuse its discretion by admitting into evidence a rap song recording alleged to be defendant's where it was relevant to prove that a social media webpage on which it was found was defendant's page and that defendant knew that his dog was vicious and that he was proud of that fact. The trial court did not err by determining that the probative value of the song was not substantially outweighed by the prejudicial effect. State v. Ford, 245 N.C. App. 510, 782 S.E.2d 98 (2016).

Trial court did not err by admitting an officer's testimony that contained admissions that defendant had embezzled cash receipts from his previous employer because it was relevant to show his intent, plan, or absence of mistake or accident, the crimes and defendant's methods were similar, and the trial court limited the evidence's use in its instructions to the jury. State v. Fink, 252 N.C. App. 379, 798 S.E.2d 537 (2017).

Defendant failed to demonstrate that the trial court abused its discretion in admitting a confidential informant's statements because the statements were relevant and explained the steps taken by officers during the investigation; the trial court's limiting instruction demonstrated that the trial court thoughtfully considered the nature of the testimony and how it could potentially be used by the jury. State v. Steele, 260 N.C. App. 315, 817 S.E.2d 487 (2018), review denied, 371 N.C. 788, 821 S.E.2d 183, 2018 N.C. LEXIS 1111 (2018).

Even if the trial court improperly excluded defendant's testimony defendant's opinion testimony regarding his medical conditions and its impact on his conduct, the purported error was not prejudicial, as the State's evidence tended to show that defendant drove with a suspended license, fled to elude police, and drove at speeds nearly double the posted speed limit, ignoring his passengers; pleas to slow down and stop fleeing. State v. Solomon, 259 N.C. App. 404, 815 S.E.2d 425 (2018).

Clinical studies were admissible in a medical malpractice case because, (1) despite being published after a patient was hospitalized, the studies showed lack of causation and addressed morbidity, and (2) the studies' subjects' differences from the patient went to weight, not admissibility, so there was no unfair prejudice. Ingram v. Henderson Cty. Hosp. Corp., 259 N.C. App. 266, 815 S.E.2d 719 (2018).

Defendant failed to show that the trial court plainly erred in defendant's trial for misdemeanor stalking by admitting challenged portions of the testimony of defendant's ex-paramour that defendant had assaulted the ex-paramour in the past and that the ex-paramour was afraid of defendant because the challenged portions of the ex-paramour's testimony were relevant not only to show defendant's propensity to commit the offense of stalking, but also established that the victim was in reasonable fear of defendant. State v. Hobson, 261 N.C. App. 60, 819 S.E.2d 397 (2018), review denied, 371 N.C. 793, 821 S.E.2d 173, 2018 N.C. LEXIS 1082 (2018).

Given that the trial court redacted civil domestic violence protective orders (DVPOs) and properly instructed the jury regarding the State of North Carolina's burden of proof as well as the jury's duty to find the facts in defendant's trial for misdemeanor stalking, the trial court did not abuse its discretion in admitting the DVPOs and related filings into evidence because the DVPOs were relevant to show defendant's course of conduct as well as defendant's motive to commit the offense of stalking. State v. Hobson, 261 N.C. App. 60, 819 S.E.2d 397 (2018), review denied, 371 N.C. 793, 821 S.E.2d 173, 2018 N.C. LEXIS 1082 (2018).

During defendant's first-degree murder trial, the trial court did not err by admitting the victim's skull into evidence because it was relevant to the State's case, as the State claimed that it proved the victim's identity and race and it illustrated the testimony of the hunter who found it. State v. Enoch, 261 N.C. App. 474, 820 S.E.2d 543 (2018), review denied, 824 S.E.2d 422, 2019 N.C. LEXIS 261 (2019).

During defendant's first-degree murder trial, the trial court did not err by admitting the victim's rib bones into evidence because the State used them to illustrate the victim's injuries, which the medical examiner later concluded caused her death. State v. Enoch, 261 N.C. App. 474, 820 S.E.2d 543 (2018), review denied, 824 S.E.2d 422, 2019 N.C. LEXIS 261 (2019).

During defendant's first-degree murder trial, the trial court did not err by admitting the victim's femur into evidence because the State used it to establish the identity of the victim through DNA testing and therefore it was highly probative. State v. Enoch, 261 N.C. App. 474, 820 S.E.2d 543 (2018), review denied, 824 S.E.2d 422, 2019 N.C. LEXIS 261 (2019).

During defendant's first-degree murder trial, the trial court did not err by admitting the testimony of two witnesses' regarding prior abusive relationships they had with defendant, despite the nine-year gap between assaults, because of the similarity of the assaults and the overwhelming evidence against defendant. State v. Enoch, 261 N.C. App. 474, 820 S.E.2d 543 (2018), review denied, 824 S.E.2d 422, 2019 N.C. LEXIS 261 (2019).

Letters were relevant as they indicated that defendant faced financial hardships, and this, coupled with evidence that the victim had threatened to remove defendant from the home and continue to request child support, indicated that the letters made the existence of a financial motive to murder the victim more probable; the court also limited the danger of unfair prejudice by prohibiting the State from publishing to the jury letters which indicated a criminal action against defendant. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708 (2018), review denied, 824 S.E.2d 415, 2019 N.C. LEXIS 272 (2019).

Evidence of the jailhouse attack on the witness and testimony that the witness was concerned for his safety was relevant and admissible because defendant was, at minimum, aware of the attack or might have encouraged it; defendant was not unfairly prejudiced in light of the similar unchallenged evidence of defendant's threats to intimidate the witness; and the evidence was relevant and probative to both the issues of defendant's knowledge of his guilt and the witness's credibility, and was not substantially outweighed by any undue prejudice. State v. Smith, 263 N.C. App. 550, 823 S.E.2d 678 (2019).

Trial court did not plainly err by admitting evidence of defendant's past incidents of domestic violence against the victim and her mother because the evidence was relevant as the victim had delayed in reporting the alleged sexual abuse and the evidence went directly to the victim's fear in reporting the abuse. State v. Betts, - N.C. App. - , 833 S.E.2d 41 (2019).

Trial court did not abuse its discretion by allowing the engineer's report because it was highly probative as to whether the engineer's testimony was credible concerning the stop sign's placement, as his testimony contracted what he wrote in the report, and the risk of unfair prejudice was low. Holland v. French, - N.C. App. - , - S.E.2d - (Sept. 1, 2020).

Admission of Improper Evidence Not Prejudicial. - The admission of evidence concerning the defendant's convictions of failure to follow a truck route and improper turning was improper under G.S. 8C-1, Rule 609, but the error was not prejudicial to the defendant in prosecution for driving while his license was revoked, where the defendant admitted driving the van while his license was revoked. State v. Gainey, 84 N.C. App. 107, 351 S.E.2d 819 (1987).

Watch and ring taken from victim of rape and kidnapping were "relevant" in defendant's trial for those offenses, because they tended to make the existence of a fact of consequence - defendant's connection to the offenses with which he was charged - more probable than it would be without the evidence, and their admission was not unduly prejudicial. State v. Mercer, 317 N.C. 87, 343 S.E.2d 885 (1986).

State's exhibits, which included $5,900 in United States currency, rolling papers and pipe, electric digital scales, a triple beam balance scale, a water bong, a plastic bag containing white powder, an airline bag in which the white powder was found and a briefcase with documents, with the exception of the briefcase, were relevant to the crime of trafficking in cocaine, in that they intended to show that defendant knowingly possessed cocaine and was trafficking in it, and the briefcase, which was in defendant's possession at the time of arrest, tended to explain or illustrate the circumstances surrounding his arrest. State v. Teasley, 82 N.C. App. 150, 346 S.E.2d 227 (1986), cert. denied, 318 N.C. 701, 351 S.E.2d 759 (1987).

In prosecution for incest, evidence tending to show that defendant had had prior sexual contact with the prosecuting witness was reasonably probative of defendant's knowledge, opportunity, intent, and plan, and was not so prejudicial as to outweigh its probative value and render it inadmissible; moreover, even if there was error in the admission of such evidence, absent a showing of a reasonable possibility that a different result would have been reached had the evidence been excluded, any possible error would be considered harmless. State v. Cameron, 83 N.C. App. 69, 349 S.E.2d 327 (1986).

The admission into evidence of the defendant's prior convictions for driving while impaired and for hit and run did not unfairly prejudice the defendant in prosecution for driving while his license was revoked, where the defendant admitted driving the van while his license was revoked. State v. Gainey, 84 N.C. App. 107, 351 S.E.2d 819 (1987).

Evidence merely disclosing the subsequent pregnancy of the rape victim was admissible as tending to prove penetration, an essential element of the crime of forcible rape; moreover, the victim's simple statement that she had an abortion served the purpose of corroborating both the fact of penetration and the fact of her pregnancy, and the mere fact that an abortion took place was not so inflammatory as to render it inadmissible. State v. Stanton, 319 N.C. 180, 353 S.E.2d 385 (1987).

In a prosecution for rape and sexual offense committed against a mentally defective female, the trial court did not err in allowing a pediatrician to testify on the credibility of children in general who report sexual abuse. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, cert. denied, 320 N.C. 174, 358 S.E.2d 64 (1987).

Where improperly admitted evidence merely corroborated testimony from other witnesses, the Supreme Court found no reasonable possibility that the jury would have reached a different result absent the doctor's testimony. State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

In view of the entire body and weight of relevant evidence presented by the State against defendant, and the utter irrelevance of a prior sex act to the charges on which defendant was ultimately convicted, the erroneous admission of a statement concerning the sex act did not constitute prejudicial error. State v. Gibson, 333 N.C. 29, 424 S.E.2d 95 (1992), overruled on other grounds, 334 N.C. 402, 432 S.E.2d 349 (1993).

Where a defendant made a general objection to a police officer's testimony and not a specific objection to the officer's qualification as an expert, the admissibility of the officer's testimony was not preserved for review, and because the testimony was in the form of an opinion based on the officer's expertise and was likely to assist the jury, the testimony was not patently inadmissible and prejudicial. State v. White, 154 N.C. App. 598, 572 S.E.2d 825 (2002).

Defendant argued that the trial court erred in allowing the State to cross-examine defendant about convictions that were more than 10 years old; however, while the admission of convictions was an error, defendant failed to demonstrate that defendant was prejudiced by the admission. State v. Smith, 155 N.C. App. 500, 573 S.E.2d 618 (2002), cert. denied, 357 N.C. 255, 583 S.E.2d 287 (2003).

When taxpayers sued county commissioners for entering into a contract which benefitted one of the commissioners, while the probative value of a witness's "testimony," during which he consistently asserted his Fifth Amendment privilege, did not substantially outweigh the prejudicial effect of allowing the jury to improperly speculate and draw inappropriate conclusions, there was no showing that this testimony was prejudicial. Gibbs v. Mayo, 162 N.C. App. 549, 591 S.E.2d 905, cert. denied, 358 N.C. 543, 599 S.E.2d 45 (2004).

In defendant's prosecution for trafficking in cocaine by possession, the admission of testimony about defendant's alleged gang affiliation was erroneous under G.S. 8C-1-403 because such testimony was irrelevant under G.S. 8C-1-401 as to whether defendant trafficked in or possessed cocaine under G.S. 90-95(h)(3), but the error was harmless because the evidence of defendant's guilt was overwhelming, so defendant could not show that defendant was prejudiced. State v. Gayton, 185 N.C. App. 122, 648 S.E.2d 275 (2007).

Defendant's assignment of plain error to the admission into evidence of a photograph of the victim when she was alive, the victim's bloody eyeglasses, and the victim's key chain was overruled because the evidence against defendant was substantial and any prejudice arising from the admission of this physical evidence was de minimis. State v. Kaher Maruf Muhammad, 186 N.C. App. 355, 651 S.E.2d 569 (2007), appeal dismissed, 362 N.C. 242, 660 S.E.2d 537 (2008).

Even if the admission of defendant's statement that he was a "B and E guy" was error as it was evidence of defendant's character, defendant was not entitled to relief because defendant could not show that it changed the result of case and, thus, the admission of said testimony did not prejudice defendant. State v. Speight, 213 N.C. App. 38, 711 S.E.2d 808 (2011).

Potentially Prejudicial Testimony with Limiting Instruction. - Where the court gave a limiting instruction, the probative value of the testimony evidence of defendant's former girlfriend describing defendant's prior bad acts was not substantially outweighed by its prejudicial impact. State v. Penland, 343 N.C. 634, 472 S.E.2d 734 (1996), cert. denied, 519 U.S. 1098, 117 S. Ct. 781, 136 L. Ed. 2d 725 (1997).

Evidence of prior drug sales was admissible under G.S. 8C-1, N.C. R. Evid. 403 and 404(b), as the drive-by, street-level drug sale that occurred between defendant and an undercover female officer was not a general substantive crime in and of itself, but was a modus operandi by which defendant carried out the sale or distribution of drugs. The trial court guarded against the possibility of prejudice by conducting voir dire and by instructing the jury that it could only consider that evidence for the limited purposes of identity, intent, and common plan or scheme. State v. Welch, 193 N.C. App. 186, 666 S.E.2d 826 (2008).

Witnesses' prior inconsistent statements to the police were properly admitted in defendant's murder trial as before each statement was admitted, the trial court instructed the jury not to consider the witnesses' prior inconsistent statements substantively, but only for purposes of determining their credibility; defendant did not show that the probative value of the statements was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. State v. Avent, 222 N.C. App. 147, 729 S.E.2d 708 (2012).

Trial court's decision to not exclude the testimony of two women whom defendant had exposed himself to was affirmed where the court was aware of the danger of unfair prejudice and gave a limiting instruction in response. State v. Waddell, 239 N.C. App. 202, 767 S.E.2d 921 (2015).

Jury Instructions. - Allowance of the testimony of defendant's robbery and kidnapping victim at his trial for the kidnapping, robbery, rape, and murder of two victims was not unduly prejudicial as the jury was instructed to consider the testimony only for the limited purpose of motive, intent, identity, or common plan, and the jury was specifically admonished not to consider the testimony on the issue of defendant's character. State v. Hyatt, 355 N.C. 642, 566 S.E.2d 61 (2002).

Trial court guarded against the possibility of unfair prejudice resulting from the admission of evidence relating to a prior crime by instructing the jury to consider such evidence for the limited purposes allowed by G.S. 8C-1-404(b). State v. Badgett, 361 N.C. 234, 644 S.E.2d 206 (2007).

Evidence Properly Admitted. - In a murder trial involving a 60-year-old victim who was beaten and kicked about the head in June, 1983 and died in December, 1983 of complications resulting from injury to the brain received in the incident, admission of evidence regarding victim's physical appearance at the scene and in the hospital was relevant under G.S. 8C-1, Rule 401 on the issue of excessive force, was not prejudicial under this rule, and was not inflammatory under the old rules. State v. Moxley, 78 N.C. App. 551, 338 S.E.2d 122 (1985), cert. denied, 316 N.C. 384, 342 S.E.2d 904 (1986).

In a prosecution charging defendant with making harassing, embarrassing and annoying telephone calls in violation of G.S. 14-196(a)(3), the actual contents of the statements attributed to defendant were relevant to show whether the intent of the telephone calls was to abuse, annoy, threaten, terrify, harass or embarrass the victims of the calls, and the trial court did not err in allowing witnesses to testify about the actual contents of the calls. State v. Boone, 79 N.C. App. 746, 340 S.E.2d 527, cert. denied, 317 N.C. 708, 347 S.E.2d 442 (1986).

In prosecution for first degree rape and intercourse by a substitute parent, the trial court did not commit prejudicial error in admitting into evidence, over objection, a letter which the defendant wrote to the victim's mother, in which defendant promised not to "bother" victim again, despite defendant's contention that what he had meant was that he would not discipline the victim anymore. State v. Moses, 316 N.C. 356, 341 S.E.2d 551 (1986).

In a first degree sexual offense case, evidence of defendant's similar attempted offense some 10 weeks after his attack on victim was not unfairly prejudicial, especially since the trial judge issued limiting jury instructions regarding this evidence. State v. Bagley, 321 N.C. 201, 362 S.E.2d 244 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 912 (1988).

Whether or not building met the standards of the Building Code, though not determinative of the issue of negligence, had some probative value as to whether or not defendant failed to keep his store in a reasonably safe condition, and expert testimony on this issue could properly be introduced in a negligence action against store owner. Thomas v. Dixson, 88 N.C. App. 337, 363 S.E.2d 209 (1988).

In trial for possession with intent to sell and deliver cocaine and marijuana and for sale and delivery thereof, admission of evidence that on a previous occasion, when officers went to defendant's admitted residence to purchase controlled substances from another person, an officer saw defendant inside the apartment did not constitute prejudicial error. State v. Fielder, 88 N.C. App. 463, 363 S.E.2d 662 (1988).

Where defendant was charged with raping his stepdaughter in her bunk-bed while her mother was working late at night, mother's testimony tending to show that defendant similarly took advantage of her cousin when the child was left in his custody, while in his stepdaughter's bunk-bed, while she was working late at night was admissible under the exception of G.S. 8C-1, Rule 404(b), and trial judge did not abuse his discretion by failing to exclude this testimony under the balancing test of this rule, since the alleged incident was sufficiently similar to the act charged and not too remote in time. State v. Boyd, 321 N.C. 574, 364 S.E.2d 118 (1988).

Where young victim's testimony clearly tended to establish the relevant fact that defendant took sexual advantage of her availability and susceptibility at times when she was left in his care, victim's testimony concerning her father's other acts of sexual intercourse with her was admissible under G.S. 8C-1, Rule 404, and the trial court did not abuse its discretion in failing to exclude such testimony under this rule. State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368 (1988).

Where defendant in a capital murder case testified that he had not robbed or injured the victim or anyone else, he "opened the door" to cross-examination designed to rebut his assertion, which produced evidence of prior instances of violent conduct by defendant that resulted in injury to others; there was no abuse of discretion in the refusal of the court to prohibit the cross-examination on the ground that the probative value of the evidence produced thereby was outweighed by the danger of unfair prejudice. State v. Darden, 323 N.C. 356, 372 S.E.2d 539 (1988).

Evidence detailing factual circumstances of prior conviction was neither excessive nor repetitious, and the trial judge exercised the necessary discretion to prevent the hearing from degenerating into a mini-trial of the prior crime. State v. Cummings, 323 N.C. 181, 372 S.E.2d 541 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1021, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Where victim testified defendant stated "they are never going to take me in again alive," the statement was probative of defendant's knowledge of his guilt, and defendant made no showing that the probative value of the statement was substantially outweighed by its prejudicial effect. State v. Charles, 92 N.C. App. 430, 374 S.E.2d 658 (1988), cert. denied, 324 N.C. 338, 378 S.E.2d 800 (1989).

Where detective testified that defendant had told television crew that she had killed her son, the trial court did not err in admitting the detective's testimony; the evidence was not unfairly prejudicial since officer had previously testified without objection that defendant stated "It's my fault. I killed him." State v. France, 94 N.C. App. 72, 379 S.E.2d 701 (1989).

There was no abuse of discretion where the trial judge admitted evidence of prior sexual misconduct since the judge allowed the evidence for a limited purpose and specifically instructed the jury before their deliberations that they could consider this evidence only for the limited purposes of considering (i), whether or not the defendant had the necessary intent required to commit the crimes charged and (ii), whether or not there existed in the mind of the defendant a plan, scheme, system or design involving the crimes charged in these cases; moreover, the evidence was not grossly shocking or so cumulative as to mislead the jury away from the offenses for which defendant was being tried. State v. Pruitt, 94 N.C. App. 261, 380 S.E.2d 383, cert. denied, 325 N.C. 435, 384 S.E.2d 545 (1989).

In a prosecution for felonious possession of stolen property, testimony of son of property owner, who allegedly furnished defendant with the property, that he was indebted to defendant (for purchase of cocaine) was properly admitted to illustrate a possible motive, and its probative value substantially outweighed the danger of unfair prejudice against defendant. State v. Martin, 97 N.C. App. 19, 387 S.E.2d 211 (1990).

In capital murder trial for the murder of a 10-year-old girl, this rule and G.S. 8C-1, Rule 404(b) did not require the exclusion of evidence concerning an earlier incident when defendant had masturbated in the presence of a three-year-old girl. State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990), cert. denied, 421 S.E.2d 360 (1992).

Evidence of defendant's cocaine and marijuana possession occurring eight days after the last crime of sale of LSD and cocaine charged under G.S. 90-95 was relevant and had a probative value that substantially outweighed the danger of unfair prejudice. State v. Goldman, 326 N.C. App. 457, 389 S.E.2d 281, cert. denied, 327 N.C. 434, 395 S.E.2d 691 (1990).

In trial for first degree burglary and first degree rape, circumstantial evidence showing that defendant was the perpetrator of a rape committed five months earlier, which included both fingerprint evidence and pattern of perpetration similar to the crime charged at trial, demonstrated a potent, logical pertinence to the question of the assailant's identity in the offense on trial; thus, under the circumstances of the crime charged and those of the offense admitted, for the purpose of proving identity under G.S. 8C-1, Rule 404(b) the trial court did not err in admitting evidence of the other, similar offense, which shared strong circumstantial indicia that defendant had been the perpetrator. State v. Jeter, 326 N.C. 457, 389 S.E.2d 805 (1990).

Murder victim's statements to her son and sister regarding defendant's threat revealed her then-existing fear of defendant, further explaining why she did not want defendant visiting her home. The prohibition of visits to the home by defendant was relevant to prove defendant's state of mind, that is, that he knew he was entering victim's home without consent. State v. Faucette, 326 N.C. 676, 392 S.E.2d 71 (1990).

Evidence that an arson defendant had previously solicited or attempted to solicit youths to commit other crimes was admissible under G.S. 8C-1, Rule 404(b) for the purpose of showing defendant's intent, plan, design, or mode of operation and that its probative value outweighed its prejudicial effect. State v. Richardson, 100 N.C. App. 240, 395 S.E.2d 143 (1990).

The trial court did not err by admitting the finger of a murder victim burned beyond recognition, because its probative value as to the issue of identity of the victim was not substantially outweighed by any danger of unfair prejudice. State v. Eason, 328 N.C. 409, 402 S.E.2d 809 (1991).

Where a defendant showed, to the brother of a sexual-offense victim, condoms to be used "whenever they were going to make love," the prosecution's questions to defendant concerning the condoms were admissible to show proof of intent, preparation, plan, knowledge and absence of mistake. State v. Hinson, 102 N.C. App. 29, 401 S.E.2d 371, cert. denied, 329 N.C. 273, 407 S.E.2d 846 (1991).

During murder prosecution, where victim was a young woman, rebuttal testimony by a woman previously assaulted by defendant, concerning the prior assault, was admissible to clarify defendant's admission that he "beat this girl," as the jury reasonably could infer, in light of the witness' testimony, that defendant, in a "hysterical state" shortly after an aggressive sexual encounter with the victim, was referring to the victim rather than the witness when he made his admission. State v. McKinnon, 328 N.C. 668, 403 S.E.2d 474 (1991).

In case in which defendant was convicted of second degree sexual offense and first degree burglary, evidence that defendant committed a similar break-in and sexual offense approximately one month earlier, about two blocks from victim's house was admissible under G.S. 8C-1, Rule 404(b), to show intent, identity, common scheme, plan or design, and under this rule in that the probative value of the evidence substantially outweighed the danger of unfair prejudice to defendant's case and the court's charge to the jury correctly stated the limited purpose of the evidence. State v. Whitaker, 103 N.C. App. 386, 405 S.E.2d 911 (1991).

In a trial for assault with a deadly weapon in which defendant claimed self-defense, the trial court did not err in admitting evidence that prior to wounding the victim, defendant placed a gun to the head of a fourteen year old boy and questioned him regarding stolen cocaine. State v. Jones, 104 N.C. App. 251, 409 S.E.2d 322 (1991).

In a case of first degree sexual offense and taking indecent liberties with two young boys, defendant's statement to detective concerning prior incidents of taking indecent liberties with two young girls was relevant to show defendant's unnatural lust, intent, or state of mind. State v. Reeder, 105 N.C. App. 343, 413 S.E.2d 580, cert. denied, 331 N.C. 290, 417 S.E.2d 68 (1992).

Tape recorded statements regarding defendant's prior crimes including a statement from defendant's own mouth that he had killed various people by sundry methods of his own volition in the past were sufficiently similar and not so remote as to run afoul of the balancing test between probative value and prejudicial effect set out in this rule. State v. Gibson, 333 N.C. 29, 424 S.E.2d 95 (1992).

In capital murder trial, trial court did not err by permitting the jury to listen to an audio tape recording of the defendant's telephone conversation with county sheriff because the tape recording was extremely probative. During the conversation, the defendant discussed problems he had experienced with his stepson, whom he shot, the defendant admitted the shooting of his stepson and the "other fellow" and stated that he told the "other guy" that he would "blow (them) away" if "the law comes out here." State v. Daniel, 333 N.C. 756, 429 S.E.2d 724 (1993).

Trial court's admission of the testimony of kidnapping victim regarding a prior incident during which defendant struck the murder victim in the back of the head with a pole and threatened to cut her throat with a butcher knife was upheld. State v. Kyle, 333 N.C. 687, 430 S.E.2d 412 (1993).

No error in the trial judge's discretionary ruling allowing the introduction of a note indicating that the victim was scared of defendant because he had threatened to kill her with a gun earlier that evening into evidence at defendant's first-degree murder trial. State v. Shoemaker, 334 N.C. 252, 432 S.E.2d 314 (1993).

The trial court did not err in admitting evidence that defendant had previously sexually assaulted another daughter pursuant to Rule 404(b) and this rule. State v. Jacob, 113 N.C. App. 605, 439 S.E.2d 812 (1994).

Court did not err in allowing testimony concerning defendant's threats to the state's principal witness, these threats were a strong indication of defendant's awareness of his own guilt. State v. Mason, 337 N.C. 165, 446 S.E.2d 58 (1994).

Where, during her account of how she was sexually assaulted, the victim testified that defendant put his hand over her mouth and told her that if she told anybody what he was going to do he was going to "hurt her like he hurt Koda", the trial court did not err in allowing defendant's statement. State v. Robertson, 115 N.C. App. 249, 444 S.E.2d 643 (1994).

There was no error where the defendant was required to place over his head a stocking recovered from co-defendant's car because the demonstration was relevant to aid the jury in assessing the credibility of the store clerk's identification of defendant. State v. Westall, 116 N.C. App. 534, 449 S.E.2d 24 (1994), cert. denied, 338 N.C. 671, 453 S.E.2d 185 (1994).

In a murder prosecution, evidence of a prior murder was properly admitted by the trial court to show identity, plan, and the existence of a common modus operandi between the two murders. State v. Moseley, 338 N.C. 1, 449 S.E.2d 412 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738 (1995).

Chain-of-events evidence leading up to murder was properly admitted to establish defendant's intent and motive for the murders at issue, the evidence was more probative than prejudicial. State v. Rose, 339 N.C. 172, 451 S.E.2d 211 (1994), cert. denied, 515 U.S. 1135, 115 S. Ct. 2565, 132 L. Ed. 2d 818 (1995).

In a prosecution for murder, testimony that a witness saw defendant dancing with the victim and that the witness called the police was relevant and properly admitted as evidence of defendant's character. Also, evidence that witness called the police because he recognized defendant only after seeing on television that defendant had been charged with another murder was not irrelevant, inflammatory, or improperly prejudicial. State v. Moseley, 338 N.C. 1, 449 S.E.2d 412 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738 (1995).

Bloody clothing of a victim that is corroborative of the state's case, is illustrative of the testimony of a witness, or throws any light on the circumstances of the crime is relevant and admissible evidence at trial. State v. Knight, 340 N.C. 531, 459 S.E.2d 481 (1995).

Questions on alcohol use were not so prejudicial as to be improper where incident took place in a club in which alcohol was served, the prosecutrix and another witness, as well as defendant, were questioned on cross-examination as to whether they were drinking that night and defendant was not singled out by the questioning but was subjected to the same type of limited questioning on alcohol use as were the other witnesses. State v. Alkano, 119 N.C. App. 256, 458 S.E.2d 258, appeal dismissed, 341 N.C. 653, 467 S.E.2d 898 (1995).

Trial court did not abuse its discretion by concluding that the probative value of the interwoven evidence of defendant's confession to murder of stepson and involvement in her husband's murder outweighed any prejudicial effect such evidence might have had against her. State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995).

Trial court did not abuse its discretion in admitting a rape kit and emergency room records where they were relevant to corroborate the victim's testimony that the defendant raped her and showed trauma to the victim's vaginal area tending to establish penetration. State v. McKenzie, 122 N.C. App. 37, 468 S.E.2d 817 (1996).

Where victim testified that she loved her father before the alleged sexual abuse, but that she no longer loved him, the change in her affection was relevant to show that it is likely that he committed these acts. State v. Woody, 124 N.C. App. 296, 477 S.E.2d 462 (1996).

Demonstration by doctor which used colored dowels and mannequins to illustrate testimony about the angles at which bullets entered the bodies of murder victims was probative, helpful, and not unfairly prejudicial. State v. Barnes, 345 N.C. 184, 481 S.E.2d 44 (1997), cert. denied, 522 U.S. 876, 118 S. Ct. 196, 139 L. Ed. 2d 134 (1997), cert. denied, 523 U.S. 1024, 118 S. Ct. 1309, 140 L. Ed. 2d 473 (1998), cert. denied, 362 N.C. 239, 660 S.E.2d 53 (2008).

Trial court did not abuse its discretion in admitting three letters which expressed the victim's love for his wife and his pain and anguish that she had left him. State v. Moody, 345 N.C. 563, 481 S.E.2d 629 (1997), cert. denied, 522 U.S. 871, 118 S. Ct. 185, 139 L. Ed. 2d 125 (1997).

Trial court did not abuse its discretion under this rule in determining the testimony of defendant's girlfriends not to be unduly prejudicial. Holt v. Williamson, 125 N.C. App. 305, 481 S.E.2d 307 (1997), cert. denied, 346 N.C. 178, 486 S.E.2d 204 (1997).

Doctor's statement about victim's pain being "excessive" which followed testimony about victim's extensive injuries in the upper abdomen, was not unfairly prejudicial. State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, 522 U.S. 900, 118 S. Ct. 248, 139 L. Ed. 2d 177 (1997).

Evidence that victim, her family members, and a friend had threatened defendant's life was relevant to explain why defendant had a gun and to explain defendant's behavior and was not unfairly prejudicial. State v. Macon, 346 N.C. 109, 484 S.E.2d 538 (1997).

Evidence of prior instances when the murder defendant beat the victim was not more prejudicial than probative in showing the escalating nature of the attacks and to rebut the claim that the killing was accidental. State v. Murillo, 349 N.C. 573, 509 S.E.2d 752 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 103, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5310, 68 U.S.L.W. 3225 (1999).

Where defendant and his stepson kidnapped two boys and put them in the trunk of a car while they murdered the boys' father and then murdered the two boys, evidence regarding the murder of the father was so intertwined with evidence of the murder of the boys that it was admissible and was not an abuse of discretion. State v. Sidden, 347 N.C. 218, 491 S.E.2d 225 (1997), cert. denied, 523 U.S. 1097, 118 S. Ct. 1583, 140 L. Ed. 2d 797 (1998).

Testimony from witness about her dreams and diary entry when first incarcerated was relevant under Rule 401 and admissible under this rule; however, references to later bad dreams were properly excluded. State v. Jones, 347 N.C. 193, 491 S.E.2d 641 (1997).

Court did not err in admitting doctor's opinion that victims wound was consistent with the victim leaning over a chair when he was shot. State v. Cummings, 346 N.C. 291, 488 S.E.2d 550 (1997), cert. denied, 522 U.S. 1092, 118 S. Ct. 886, 139 L. Ed. 2d 873 (1998).

The State had no alternative but to introduce evidence of defendant's prior convictions in order to meet its burden of showing an element of possession of a firearm by a felon; thus, the trial did not commit error by the admission of the evidence. State v. Faison, 128 N.C. App. 745, 497 S.E.2d 111 (1998).

In a prosecution for stalking, evidence which related to events occurring before defendant was warned to stay a away from the victim was not irrelevant and prejudicial. State v. Ferebee, 128 N.C. App. 710, 499 S.E.2d 459 (1998).

Admission of a letter written by the defendant to the murder victim did not unfairly prejudice him, where he wrote the letter to the mother of his child promising not to physically harm her again, in that the letter tended to shed light on both his state of mind and the nature of his relationship with the victim, and although it implied that he had been violent with the victim in the past, it did not indicate that he would be in the future. State v. Owen, 130 N.C. App. 505, 503 S.E.2d 426 (1998), cert. denied, 349 N.C. 372, 525 S.E.2d 188 (1998).

Testimony by the wife of an eyewitness to a murder that he was restless and unable to sleep prior to his identification of the defendant as the perpetrator but that he slept much better after doing so was admissible in the defendant's prosecution for second degree murder, where the eyewitness' credibility was in issue, and the wife's testimony was relevant to the reliability of his identification, and the defendant failed to show any prejudice resulting from the testimony. State v. Smith, 130 N.C. App. 71, 502 S.E.2d 390 (1998).

The probative value of the murder victim's statements to her friends concerning defendant's abuse of the victim and his threats against her was not substantially outweighed by the danger of unfair prejudice. State v. Hayes, 130 N.C. App. 154, 502 S.E.2d 853 (1998), aff'd, 350 N.C. 79, 511 S.E.2d 302 (1999).

Testimony by the murder victim's mother was admissible in defendant's murder prosecution, despite the defendant's contention that the testimony was irrelevant, prejudicial evidence of prior bad acts, where the mother testified that the defendant cursed her when she went to talk to him, and further testified as to her daughter's attempts to "work things out" herself, in reference to the defendant's threats to kill her if she left him or refused to marry him. State v. Gary, 348 N.C. 510, 501 S.E.2d 57 (1998).

Evidence that defendant had been convicted in the shooting death of his first wife was properly argued to the jury as making more incredulous his claim of accident in the shooting death of his second wife, particularly as defendant had made incriminating remarks regarding his role in the death of his first wife to threaten his second one. State v. Murillo, 349 N.C. 573, 509 S.E.2d 752 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 103, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5310, 68 U.S.L.W. 3225 (1999).

The probative value of testimony by experts that they had seen children with the same condition as the defendant's child but never one in such poor condition outweighed any prejudicial effect in the mother's prosecution for child abuse and involuntary manslaughter, as it was relevant to show that the defendant had not provided adequate care to the child. State v. Fritsch, 132 N.C. App. 262, 511 S.E.2d 325 (1999), cert. granted, 350 N.C. 841, 538 S.E.2d 576 (1999), aff'd in part and rev'd in part, 351 N.C. 373, 526 S.E.2d 451 (2000).

The decedent/wife's statements that her husband was jealous and had repeatedly threatened to kill her were admissible, although arguably no more than recitations of fact, where the facts that she recited tended to show her state of mind as to her marriage, indicated her relationship with the defendant and, therefore, were relevant under this rule, and rebutted testimony by the defendant that they had a good marriage. State v. Jones, 137 N.C. App. 221, 527 S.E.2d 700 (2000).

Court properly allowed testimony about a letter written by defendant to rape victim's mother who later destroyed it, because any prejudicial effect the letter may have had was outweighed by its probative value. State v. Jarrell, 133 N.C. App. 264, 515 S.E.2d 247 (1999).

Where State introduced evidence of defendant's assaultive behavior prior to a brain injury which he claimed partially caused his violence, the court correctly determined that the probative value of the evidence of defendant's prior violent acts was not substantially outweighed by the danger of unfair prejudice under this rule. Dobson v. Harris, 350 N.C. 776, 517 S.E.2d 605 (1999), cert. denied, 529 U.S. 1006, 120 S. Ct. 1274, 146 L. Ed. 2d 223 (2000).

Evidence of defendant's participation in several robberies was properly admitted in murder trial under G.S. 8C-1, Rule 404 to corroborate the accounts of other witnesses or for the purpose of showing defendant's motive, intent or plan to commit the instant crime and presented with limiting jury instructions could not fairly be characterized as arbitrary and unreasonable under this rule. State v. Hall, 134 N.C. App. 417, 517 S.E.2d 907 (1999).

Evidence of a prior robbery and a prior attempted robbery was correctly admitted after court determined that the evidence was relevant for some purpose other than to show defendant's propensity to commit this type of crime, as required by G.S. 8C-1, Rule 404, and that it was more probative than prejudicial, as required by this rule. State v. Leggett, 135 N.C. App. 168, 519 S.E.2d 328 (1999).

Evidence of defendant's molestation of a fourth sister had probative value to show the existence of intent, plan or design which, in light of the direct evidence presented by the other three sisters/victims and the investigator, was not outweighed by any unfair prejudice. State v. Owens, 135 N.C. App. 456, 520 S.E.2d 590 (1999).

Witness testimony regarding statements made by murder victim, regarding the presence of drugs and money in the hotel room where she was staying with a drug dealer, were admissible to show what the hearer did based on the victim's statements. State v. McCord, 140 N.C. App. 634, 538 S.E.2d 633 (2000), review denied, 353 N.C. 392 (2001).

Statements made by victim approximately six months prior to murder, to the effect that she and defendant were not getting along well, that she no longer wanted to be married, that if defendant had not left by May, 1997, she would "push the issue" for him to leave, that defendant told her that one day he would come home and find her dead with her throat cut, and that she believed defendant wanted her to sell her house so he could get some of her money, were admissible under this rule. State v. Aldridge, 139 N.C. App. 706, 534 S.E.2d 629 (2000), cert. denied, 353 N.C. 269, 546 S.E.2d 114 (2000).

The court rejected defendant state trooper's argument that evidence of his alleged crimes, wrongs, and acts was admitted in violation of the Rules of Evidence and his due process rights; testimony that defendant asked one witness to ride in the floor of his patrol car before the shooting, that another witness and defendant had violated or circumvented numerous automobile title transfer procedures, and that, upon searching defendant's patrol car, a third witness had found licenses and registrations that should have been turned over to a magistrate under highway patrol policy, was admissible to chronicle the murder, and its probative value was not outweighed by the danger of prejudice. State v. Parker, (N.C. App. Oct. 3, 2000).

The description of a pocketknife which the defendant usually carried with him and the admission of a hacksaw frame and several hacksaws were not unfairly prejudicial to the defendant so as to require exclusion pursuant to this section. State v. Grooms, 353 N.C. 50, 540 S.E.2d 713 (2000), cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54 (2001).

Where arresting officer's testimony about defendant's demeanor shortly after committing murder was probative of the circumstances surrounding the murder and defendant's intent, the trial court did not abuse its discretion in permitting the testimony and ruling that the probative value of the testimony was not substantially outweighed by unfair prejudice. State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001).

Where defendant was accused of inviting teenage girls to his home for parties, giving them alcohol and drugs, and photographing them as they undressed, the trial court did not err in admitting into evidence defendant's prior convictions for similar conduct, as the acts for which defendant was on trial were sufficiently similar to the previous acts, and the prior incidents, occurring 10 to 15 years earlier, were not too remote in time as to no longer be more probative than prejudicial. State v. Patterson, 149 N.C. App. 354, 561 S.E.2d 321 (2002).

Murder defendant was not prejudiced by the testimony of defendant's case manager as to defendant's frustration and desire to leave a homeless shelter and that defendant was irritated and argumentative. State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808 (2003).

Failure to exclude evidence, under G.S. 8C-1, Rule 403, that a defendant used drugs shortly before a fire he was accused of starting was not an abuse of discretion. State v. Sexton, 153 N.C. App. 641, 571 S.E.2d 41 (2002), cert. granted, 356 N.C. 622, 575 S.E.2d 756 (2002).

In defendant's trial on charges of first degree murder, first degree burglary, second degree kidnapping, and robbery with a dangerous weapon, the trial court (1) properly admitted the videotaped statement that defendant's wife gave to police, pursuant to G.S. 8C-1, N.C. R. Evid. 804(b)(5), after defendant's wife refused to testify for the State at defendant's trial, (2) properly admitted letters one of defendant's co-conspirators wrote to a girlfriend urging her to lie about her involvement in the co-conspirator's attempt to conceal evidence of the crime, pursuant to G.S. 8C-1, N.C. R. Evid. 804(b)(3), (b)(5), and (3) properly admitted evidence of similar crimes that defendant committed shortly after the murder, pursuant to G.S. 8C-1, N.C. R. Evid. 404(b). State v. Carter, 156 N.C. App. 446, 577 S.E.2d 640 (2003), cert. denied, 358 N.C. 547, - S.E.2d - (2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 868, 160 L. Ed. 2d 784 (2005).

Testimony by a discharged employee's wife that the wife's husband just wanted to be heard and that the wife knew until the day that the wife died that her husband would not have lost the husband's job, if the husband had been heard, was probative on the issues of emotional distress and mental anguish, and was not substantially outweighed by the danger of unfair prejudice; exclusion of evidence was left to the sound discretion of the trial court, and to show an abuse of that discretion required a showing that the decision was so arbitrary that it could not have been the product of a reasoned decision. Hummer v. Pulley, Watson, King & Lischer, P.A., 157 N.C. App. 60, 577 S.E.2d 918 (2003), cert. denied, 357 N.C. 459, 585 S.E.2d 758 (2003).

Where defendant had sexually explicit conversations with a 15-year-old former karate student in violation of G.S. 14-202.1, the trial court's admission of evidence of defendant's subsequent conduct with another student where there were certain similarities was not prejudicial under the circumstances. State v. Every, 157 N.C. App. 200, 578 S.E.2d 642 (2003).

Trial court did not err in denying the defendant's motion in limine seeking to exclude from cross-examination his prior conviction for malicious wounding, as the trial court had no discretion under G.S. 8C-1, Rule 609 to conduct a balancing test as the admission of the evidence was mandatory under Rule 609(a) and a balancing test was only required under Rule 609(b) if the conviction was more than 10 years old, which it was not. State v. Brown, 357 N.C. 382, 584 S.E.2d 278 (2003), cert. denied, 540 U.S. 1194, 124 S. Ct. 1447, 158 L. Ed. 2d 106 (2004).

Trial court did not abuse its discretion in admitting into evidence a rag and scientific analysis of it, which revealed the victim's blood and traces of defendant's semen, as its probative value was not substantially outweighed by its prejudicial effect under G.S. 8C-1, N.C. R. Evid. 403; the evidence was relevant to defendant's claim that he had no knowledge of the kidnapping, corroborated an accomplice's testimony that defendant participated in the crimes, and the trial court properly stated several times that there was no evidence of sexual assault, and instructed the jury that the rag and the test results could not be used as evidence of a sexual assault given that there was no other evidence that any sexual assault occurred. State v. Sims, 161 N.C. App. 183, 588 S.E.2d 55 (2003).

Defendant's conviction for second-degree sexual assault was affirmed because the defendant's videotaped statement made in the back of a patrol car during a conversation with an officer was admissible as the defendant was not being interrogated by the officer at the time, so Miranda warnings were not required, the statement was relevant to the crime, and the danger of unfair prejudice did not substantially outweigh the probative value of the evidence. State v. Gantt, 161 N.C. App. 265, 588 S.E.2d 893 (2003).

Testimony from an inmate that shared a jail cell with one of two defendants accused of robbery, burglary, and kidnapping that one defendant told him that defendants were going to claim that they were forced to commit the crimes was properly admitted because the evidence tended to prove that defendant and his co-defendant concocted a scheme to avoid liability for their criminal actions; furthermore, the evidence was not unfairly prejudicial because defendant failed to demonstrate how the testimony was so unfair that a different result at trial would have been likely. State v. Escoto, 162 N.C. App. 419, 590 S.E.2d 898 (2004).

Evidence of events occurring after defendant left a patrol car was not inadmissible under G.S. 8C-1, N.C. R. Evid. 403 and 404(b) as the evidence was part of a single, continuing transaction beginning with defendant's insertion of herself into the events at a school and continuing through her arrest; evidence of what occurred after she left the patrol car was part of the chain of events leading to defendant's arrest and, therefore, was admissible, and the evidence of events occurring after defendant left the patrol car provided added evidentiary support for the charge of obstructing and delaying an officer. State v. Bell, 164 N.C. App. 83, 594 S.E.2d 824 (2004).

Audiotape of a conversation defendant had with his wife and stepson, which the wife's relatives found 10 months after the wife and stepson were killed, was properly authenticated, and the state supreme court held that the trial court did not err when it admitted the tape for the limited purpose of showing defendant's malice, intent, and ill will towards the victims. State v. Jones, 358 N.C. 330, 595 S.E.2d 124 (2004).

Defendant's threats to a holding cell officer that he "already killed one" and "I got one up under my belt" could have been interpreted as statements of guilt and used as direct evidence to prove that defendant acknowledged guilt in the death of his victim, as what was "up under his belt" was a human life, that he had already "killed one" was a woman like the officer, and "belt" was meant to imply that defendant had a black belt; accordingly, the statements were relevant and they were not subject to exclusion. State v. Garcia, 358 N.C. 382, 597 S.E.2d 724 (2004), cert. denied, - U.S. - , 125 S. Ct. 1301, 161 L. Ed. 2d 122 (2005).

Defendant's objection to recorded phone calls with his mother based on N.C. R. Evid. 403 was not preserved for appellate review because the objection referred to the evidence as a whole; it did not request anything but a suppression of the evidence in its entirety, and the evidence that was allegedly inflammatory was not identified. State v. Price, 170 N.C. App. 57, 611 S.E.2d 891 (2005).

Although defendant failed to preserve an evidentiary issue for appellate review, pursuant to G.S. 8C-1-103(a)(2), a review under G.S. 8C-1-403 indicated that the probative value of a letter that he wrote to his daughter, who was the victim of his unlawful sexual conduct, was not outweighed by the potential prejudice, as the meaning and intent of the letter were for the jury to decide. State v. Dorton, 172 N.C. App. 759, 617 S.E.2d 97, cert. denied, 360 N.C. 69, 623 S.E.2d 775 (2005).

Trial court did not err by admitting without editing or redacting letters that defendant and his accomplice wrote into evidence, as the letters were relevant under G.S. 8C-1-401 and G.S. 8C-1-402, and the probative value of the letters was not outweighed by prejudice under G.S. 8C-1-403. State v. Curry, 171 N.C. App. 568, 615 S.E.2d 327 (2005).

Defendant was not prejudiced by the trial court admitting into evidence testimony as to defendant's prior acts of being a passenger in a car where an officer smelled marijuana and being found asleep in a car with a bag of marijuana and a scale in plain view to support the case against defendant and his co-defendants for conspiring to possess, manufacture, and distribute marijuana, as the evidence showed that defendant had a propensity to commit the crime. State v. Harrington, 171 N.C. App. 17, 614 S.E.2d 337, cert. denied, sub nom., State v. Rattis, 360 N.C. 70, 623 S.E.2d 36 (2005).

Trial court properly admitted various evidence in defendant's trial pursuant to G.S. 8C-1, Rule 404(b), because the various evidence was not admitted to prove the character of defendant in order to show that he acted in conformity therewith and was not overly prejudicial. State v. Matthews, 175 N.C. App. 550, 623 S.E.2d 815 (2006).

In a drug case, the testimony of a probation officer regarding defendant's residence was admissible under G.S. 8C-1, Rule 404(b) because they evidence was only used to establish that defendant occupied a dwelling where drugs were located; moreover, the danger of unfair prejudice was outweighed by the probative value of the evidence. State v. Shine, 173 N.C. App. 699, 619 S.E.2d 895 (2005).

Use of the descriptive term, "the Last Supper tapestry," by witnesses and the prosecution to describe a tapestry on the victim's wall was proper, and the trial court did not abuse its discretion by so ruling; nothing in the record suggested that the description was used excessively and solely to inflame the passions and prejudices of the jury against defendant. As a result, the trial court's ruling was not so arbitrary that it could not have been the result of a reasoned decision. State v. Campbell, 359 N.C. 644, 617 S.E.2d 1 (2005).

Testimony of a State witness, made after the trial judge conducted voir dire of the witness, was properly admitted as it was relevant to show plan, modus operandi, and identity. Admission of the evidence was upheld under G.S. 8C-1-403 since it did not have an undue tendency to suggest a decision on an improper basis when offered for the limited purpose of showing a common plan or scheme. State v. Summers, 177 N.C. App. 691, 629 S.E.2d 902, appeal dismissed, cert. denied, 637 S.E.2d 192 (N.C. 2006).

Evidence that defendant who shot a police officer with a shotgun possessed an assault rifle was relevant and was not more prejudicial than probative; evidence showed why defendant was in a field and why he used the shotgun rather than the rifle, and it was also highly probative of defendant's motive for the shooting: not wanting the victim to discover that defendant was violating his probation by possessing firearms. State v. Grant, 178 N.C. App. 565, 632 S.E.2d 258 (2006), cert. denied, appeal dismissed, 361 N.C. 223, 642 S.E.2d 712 (2007).

Defendant's statement concerning prison while defendant was fleeing from police was admissible because the trial court's ruling was the product of a reasoned decision in the weighing of the probative value of the testimony against its prejudicial effect. State v. Locklear, 180 N.C. App. 115, 636 S.E.2d 284 (2006).

In defendant's murder trial, the trial court did not err in admitting evidence pursuant to G.S. 8C-1-403 regarding an individual close to defendant who 17 years prior to the victim's death was found dead at the bottom of a set of stairs; there was little doubt that the evidence of the individual's death was useful to the State for challenging defendant's sole defense, namely, that the victim's death was an accident. State v. Peterson, 179 N.C. App. 437, 634 S.E.2d 594 (2006).

In defendant's prosecution for robbery with a dangerous weapon and first-degree kidnapping, evidence of defendant's prior armed robbery conviction and the facts underlying that conviction were properly admitted under G.S. 8C-1-404(b) and G.S. 8C-1-403 because, inter alia: (1) the evidence of defendant's involvement in another robbery tended to show defendant was one of three men involved in a similar pattern of robberies occurring over a short period of time; and (2) the robbery being prosecuted shared similarities with one of the other robberies defendant was convicted of because, in each of the robberies, a perpetrator brandished a gun at the victims at public establishments, demanded money, fired a shot, stole property of others, and fled the scene. State v. Morgan, 183 N.C. App. 160, 645 S.E.2d 93 (2007), appeal dismissed, review denied, 362 N.C. 241 660 S.E.2d 536 (2008).

Detective's statements as to other businesses that had reported break-ins was not inadmissible hearsay as: (1) defendant's objection was overruled only as to what the detective did, and the evidence offered was both relevant, in that it explained the chain of events in the police investigation, and was not hearsay as it precluded the further admission of statements regarding the reported break-ins; (2) the statements were offered to explain the chain of events and were not offered for the truth of the matter asserted; and (3) the probative value of the statements was not substantially outweighed by their prejudicial effect as the detective's testimony did not directly accuse defendant of other crimes, and was not offered to prove defendant's conformity with character to commit wrongs, but was offered to explain the sequence of events. State v. Patterson, 185 N.C. App. 67, 648 S.E.2d 250 (2007), review denied, 362 N.C. 242, 660 S.E.2d 538 (2008).

Admission of the transcript of defendant's guilty plea to three robberies that occurred about two months before the instant event was not prejudicial; the document was more than evidence of a bare conviction but was an admission that defendant participated in the robberies, a limiting instruction was given, and the actual judgment was not admitted in evidence. State v. Brockett, 185 N.C. App. 18, 647 S.E.2d 628 (2007).

Trial court properly allowed defendant's alleged co-conspirator to testify that defendant and another person had sent him threats and to read to the jury three threatening letters that he testified he had received while in prison, as defendant could not show that without them a different result would likely have been reached, and thus exclusion was not required under N.C. R. Evid. 403. State v. Carter, 186 N.C. App. 259, 650 S.E.2d 650 (2007).

Evidence that the murder victim's last words were "I'm not scared of you. I'm a Christian," was admissible because it was offered not to show the good character of the victim, but instead it was offered as circumstantial evidence of defendant's state of mind when he was approaching the victim before he shot and killed the victim. State v. Kaher Maruf Muhammad, 186 N.C. App. 355, 651 S.E.2d 569 (2007), appeal dismissed, 362 N.C. 242, 660 S.E.2d 537 (2008).

In defendant's criminal trial on a variety of charges, arising from a vehicular incident that resulted in deaths, a trial court properly allowed admission of testimony regarding defendant's prior failure to take a breath test and defendant's conviction for driving while intoxicated, as such was relevant under N.C. R. Evid. 401 and 402 to show defendant's knowledge that the driver's license was suspended and to show malice, which was an element of one of the charged offenses; further, the evidence was properly admitted for the purpose of showing defendant's intent and it was not unfairly prejudicial under N.C. R. Evid. 404(b) and 403. State v. Lloyd, 187 N.C. App. 174, 652 S.E.2d 299 (2007), cert. denied, 363 N.C. 586, 683 S.E.2d 214 (2009).

Trial court neither erred nor abused its discretion by allowing witnesses to testify to the victim's statements concerning her and defendant's financial situation and defendant's alleged acts of domestic violence against the victim. Furthermore, the evidence of the victim's state of mind was relevant and related directly to the victim's relationship with defendant before she was killed and his motive, intent, plan, or absence of mistake or accident in the victim's death. State v. Petrick, 186 N.C. App. 597, 652 S.E.2d 688 (2007), appeal dismissed, review denied, 362 N.C. 242, 660 S.E.2d 540 (2008).

Trial court did not abuse its discretion by permitting testimony of evidence of defendant's financial dealings with other people, depletion of the victim's bank accounts, violent acts toward the victim, and his adulterous relationships because the evidence tended to show defendant's motive, intent, preparation, plan, absence of mistake, and knowledge under N.C. R. Evid. 404(b). Moreover, the relevancy of the evidence outweighed its danger of unfair prejudice under N.C. R. Evid. 403. State v. Petrick, 186 N.C. App. 597, 652 S.E.2d 688 (2007), appeal dismissed, review denied, 362 N.C. 242, 660 S.E.2d 540 (2008).

Evidence of a later incident between defendant and a witness was properly admitted under G.S. 8C-1, N.C. R. Evid. 404(b) and 403 as: (1) the later incident occurred 20 days after the incident with a victim, (2) the two incidents occurred in the early morning hours, (3) defendant told both victims that defendant's vehicle would not start, (4) defendant told the victim defendant would let the victim live if the victim stopped struggling, and told the witness that the defendant would kill the witness if the witness made any noise, and (5) defendant tried to restrain and silence the victim and the witness, and defendant ceased defendant's efforts when the victim and the witness forcefully resisted defendant's advances; the prejudicial effect of the witness's testimony did not substantially outweigh its probative value. State v. Simpson, 187 N.C. App. 424, 653 S.E.2d 249 (2007).

On appeal from convictions including rape and kidnapping, the trial court did not err or abuse its discretion in admitting into evidence a receipt for pornographic movies that listed the movie titles, and for admitting evidence of defendant's alleged prior acts of domestic violence against the victim, as: (1) defendant failed to state his grounds for objection to the admission of physical evidence; (2) the evidence was relevant; (3) the prior acts evidence was properly admitted to show defendant's motive, intent or purpose, opportunity, and plan; (4) defendant failed to request a limiting instruction at the time of the admission of the receipt, and failed to request that the trial court redact the movie titles from the receipt; and (5) even assuming that defendant's general objection preserved the matter for appellate review, the record revealed that the admission of the receipt into evidence did not prejudice defendant. State v. Daniels, 189 N.C. App. 705, 659 S.E.2d 22 (2008).

Trial court did not err when it overruled defendant's objection to the admission of a red notebook containing gang information found in defendant's brother's room. As the jury did not find that gang involvement was an aggravating factor of the crime, there was no undue prejudice from the introduction of the notebook into evidence. State v. Beatty, 189 N.C. App. 464, 658 S.E.2d 508 (2008).

Victim's testimony regarding the shiny object in defendant's hand was relevant to the first-degree rape charge and admission of the testimony was not unfairly prejudicial; any question as to the testimony's speculative nature went to the weight of the evidence. State v. Lawrence, 191 N.C. App. 422, 663 S.E.2d 898 (2008), aff'd, 363 N.C. 118, 678 S.E.2d 658 (2009).

Admission of the testimony of three witnesses that the alleged assault against each witness took place within one year of the attack on a victim, and that defendant used substantially the same method of restraining each witness during the attack, employing defendant's greater size and strength, limiting the witness's breathing, making dire threats against the witness, and calling each witness after the attack was not plain error under N.C. R. App. P. 10(c)(4), and was proper under G.S. 8C-1, N.C. R. Evid. 403 and 404(b). State v. Simmons, 191 N.C. App. 224, 662 S.E.2d 559 (2008).

In equitably distributing the martial property between a former husband and a former wife, a trial court did not abuse its discretion in admitting evidence of the husband's criminal activity because the majority of the trial court's findings of fact concentrated on the extent and nature of the damage the husband's actions inflicted on the marital home; the trial court referred to the husband's treatment of the wife only as necessary to explain the sequence of events. Troutman v. Troutman, 193 N.C. App. 395, 667 S.E.2d 506 (2008).

Trial court did not err in not redacting questions in a DVD recording of defendant's police interview containing purported statements made by non-testifying witnesses on the ground that the probative value was substantially outweighed by its unfairly prejudicial effect and violated G.S. 8C-1, N.C. R. Evid. 403. The trial court sufficiently instructed the jury as to how it was to treat the statements attributed to non-testifying third parties, and the questions to which defendant objected comprised only a small portion of defendant's one-hour interview. State v. Miller, 197 N.C. App. 78, 676 S.E.2d 546 (2009), review denied, 363 N.C. 586, 683 S.E.2d 216 (2009).

Testimony concerning a prior assault on another victim was a major identity piece of evidence, relevant to showing that defendant was in possession of and fired a gun that was used in the subject murder less than 48 hours before the murder, and thus, its probative value outweighed any prejudice to defendant. State v. Dean, 196 N.C. App. 180, 674 S.E.2d 453 (2009), appeal dismissed, review denied, 363 N.C. 376, 679 S.E.2d 139 (N.C. 2009).

Although defendant asserted that even assuming arguendo the demonstration was relevant, it should still have been excluded because it was both misleading and unfairly prejudicial under G.S. 8C-1, N.C. R. Evid. 403, defendant's argument was without merit because the State laid a proper foundation to establish the relevancy of the doctor's shaken baby syndrome demonstration, and thus, that demonstration was neither misleading to the jury nor unfairly prejudicial to defendant. State v. Anderson, 200 N.C. App. 216, 684 S.E.2d 450 (2009).

In a case in which defendant was convicted by a jury on two counts first-degree murder on the bases of felony murder and of malice, premeditation and deliberation and, after a capital sentencing proceeding, he was sentenced to two consecutive terms of life imprisonment without the possibility of parole, defendant argued unsuccessfully on appeal that the trial court's decision to admit G.S. 8C-1, N.C. R. Evid. 404(b) evidence about his 1995 assault on his estranged wife, one of the murder victims, unfairly prejudiced him in violation of G.S. 8C-1, N.C. R. Evid. 403. The trial court admitted evidence of the 1995 assault for the purposes of showing motive, malice, hatred, ill-will and intent; that evidence had probative value for all of those purposes and was properly admissible. State v. Graham, 200 N.C. App. 204, 683 S.E.2d 437 (2009), review denied, 363 N.C. 857, 694 S.E.2d 766 (2010).

Evidence related to a murder committed 32 months earlier, which was admitted at defendant's trial for a second murder for purposes of showing defendant's knowledge, plan, opportunity, intent, modus operandi, and motive to kill, was not so prejudicial as to be inadmissible under G.S. 8C-1, N.C. R. Evid. 403. State v. Locklear, 363 N.C. 438, 681 S.E.2d 293 (Aug. 28, 2009).

Witness's redirect testimony explained why she removed the guns and drugs from her apartment and this testimony showed that she, acting alone, made the decision to hide the guns because she knew defendant had left the apartment with firearms and under the influence of drugs and, as a result of what she had seen and heard, feared that he had shot someone. This information explaining why she acted as she did was within the witness's personal knowledge and was admissible to clarify evidence elicited by defense counsel on cross-examination; the witness's explanation of her motivation was not an opinion as to defendant's guilt. State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009), cert. denied 130 S. Ct. 2104, 2010 U.S. LEXIS 3379, 176 L. Ed. 2d 734 (U.S. 2010).

Trial court did not abuse its discretion in admitting the evidence of a mannequin's head and a newly-purchased couch to refute defendant's version of the events where (1) the police were not performing an experiment with the mannequin head and couch, but rather were using the model to "illustrate or explain" the physical conditions existing at the time of the shooting, including the position of the victim's head and the path and direction of the bullet; and (2) the demonstration was probative of premeditation because it related to whether defendant was standing at the middle of the couch, resting her hands on the back of the couch, as she claimed, or whether she was standing over the victim's head near the armrest when the gun discharged. State v. Witherspoon, 199 N.C. App. 141, 681 S.E.2d 348 (2009), review denied, 363 N.C. 812, 693 S.E.2d 142, N.C. LEXIS 93 (2010).

Introduction of the prior inconsistent statements did not violate G.S. 8C-1-403 because they were introduced to impeach material testimony and thus had probative value, but were not unduly prejudicial. State v. Gabriel, 207 N.C. App. 440, 700 S.E.2d 127 (2010).

Defendant offered no evidence suggesting that the trial court abused its discretion in admitting the unsworn out-of-court statement a witness made to the police because defendant failed to present evidence showing that the probative value of the witness's statement was substantially outweighed by the risk of unfair prejudice; mere prejudice is not the determining factor in the G.S. 8C-1-403 balancing test, but rather the trial judge must determine whether the unfair prejudice substantially outweighs the probative value. State v. Walters, 209 N.C. App. 159, 703 S.E.2d 493 (2011), review denied 365 N.C. 188, 707 S.E.2d 240, 2011 N.C. LEXIS 232 (2011).

Trial court did not err by admitting allegedly irrelevant evidence that defendant had been selling drugs in the vicinity of a shooting; demonstrating gang affiliation and the selling of illegal drugs was relevant to show that defendant could have had a different objective in mind when the altercation took place and could refute defendant's claim of self-defense. State v. Kirby, 206 N.C. App. 446, 697 S.E.2d 496 (2010).

Testimony of an earlier robbery victim was relevant to an armed robbery claim against defendant because it made the existence of several material facts more probable or less probable than they would have been without the evidence; facts that a truck had been used by two people in the commission of a robbery with a deadly weapon at an ATM earlier that evening was relevant to the jury's determination of whether defendant, who was found driving the truck, was involved in a later ATM robbery scheme, and the probative value was not outweighed by the danger of unfair prejudice to defendant. State v. Hill, 210 N.C. App. 170, 706 S.E.2d 799 (2011).

Defendant was not prejudiced when the trial court allowed a Spanish-speaking juror to interpret a conversation without relying on the certified translations because defendant did not argue that the written translation differed in any way from the recording and defendant failed to identify how a Spanish-speaking juror might interpret the recording different from the written translation. State v. Gomez, 209 N.C. App. 611, 705 S.E.2d 421 (2011).

In a child rape case, a court properly admitted a pornographic book under G.S. 8C-1, N.C. R. Evid. 403, as there was nothing to show that the jury convicted defendant solely out of disgust for the content, and the jury's potential disapproval of defendant's possession of the book did not substantially outweigh the strong probative value. State v. Brown, 211 N.C. App. 427, 710 S.E.2d 265 (2011), aff'd, review improvidently allowed, 365 N.C. 465, 722 S.E.2d 508, 2012 N.C. LEXIS 123 (2012).

In a trial for robbery with a dangerous weapon, the trial court did not err in admitting evidence relating to defendant's break-in at a gun store, as the bloody clothing connected defendant to the break-in and was necessary to provide the jury was a complete narrative of the events; the evidence was not unfairly prejudicial. State v. Howard, 215 N.C. App. 318, 715 S.E.2d 573 (2011).

Any prejudice in the admission of evidence of defendant's financial hardship and misconduct in the years prior to the death of the victim, defendant's wife, was outweighed by the probative value in proving defendant's motive and cured by the limiting instruction given. State v. Britt, 217 N.C. App. 309, 718 S.E.2d 725 (2011).

Evidence presented at a suppression hearing was sufficient to link defendant to a later break-in, including DNA evidence collected at the scene of the second break-in. The crimes were substantially similar in that a window at a convenience store in Charlotte was broken, cigarettes were taken, the crimes occurred a short time apart and at the same time of day, and defendant's blood was found at both scenes; they were therefore admissible under G.S. 8C-1, N.C. R. Evid. 404(b). Also, the evidence was relevant on the issue of whether defendant committed the charged crime, pursuant to G.S. 8C-1, N.C. R. Evid. 401, and was not prejudicial. State v. Matthews, 218 N.C. App. 277, 720 S.E.2d 829 (2012).

In a prosecution for uttering a forged instrument (G.S. 14-120) and attempting to obtain property by false pretenses (G.S. 14-100), the trial court did not err in admitting a second forged check under G.S. 8C-1, N.C. R. Evid. 404(b), as it was relevant to undercut defendant's explanations for possessing the check at issue and establish his intent to defraud, and the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury under G.S. 8C-1, N.C. R. Evid. 403. State v. Conley, 220 N.C. App. 50, 724 S.E.2d 163 (2012).

In a prosecution for indecent liberties with a child and first-degree sexual offense, the admission of defendant's prior sexual acts with a minor did not offend G.S. 8C-1, N.C. R. Evid. 403 because (1) a proper limiting instruction was given, and (2) excluding testimony about an insufficiently similar prior act showed the trial court carefully considered the evidence. State v. Beckelheimer, 366 N.C. 127, 726 S.E.2d 156 (2012).

Admission of evidence that defendant possessed credit cards of persons other than the victims in the instant case to show intent, motive, and plan was not erroneous. State v. Jones, 223 N.C. App. 487, 734 S.E.2d 617 (2012), aff'd, 758 S.E.2d 345, 2014 N.C. LEXIS 173 (2014).

Probative value of prior bad acts evidence outweighed any unfair prejudice, as testimony of the victim and prior victim showed some similarities and a progression of sexual abuse, all three women were members of defendant's family, all were prepubescent girls, and defendant molested them at his home. State v. Barnett, 223 N.C. App. 450, 734 S.E.2d 130 (2012).

Defendant's statement that he touched 5 to 10 other boys was an admission under G.S. 8C-1, N.C. R. Evid. 801(d)(A) and 404(b) to show his identity as the perpetrator and his intent as the facts were similar to the charges of touching two young boys here; defendant connected the acts as a continuous pattern by stating that he had a problem with touching young boys, and had had this problem since he was young, and the evidence was properly allowed under G.S. 8C-1, N.C. R. Evid. 403. State v. Graham, 223 N.C. App. 150, 733 S.E.2d 100 (2012).

Trial court did not err in allowing an officer to testify that he saw cigarettes at defendant's house because the testimony was relevant since it tended to throw light upon whether defendant was the perpetrator of the crime; a convenience store clerk testified that the two men who robbed the store demanded cigarettes. State v. Stokes, 225 N.C. App. 483, 738 S.E.2d 208 (2013).

Trial court did not err, in defendant's trial for cyber-bullying, by admitting defendant's statements about Christianity because the comments were relevant to show defendant's intent to intimidate or torment the victim and were also relevant to show the chain of events leading up to the victim's parent contacting law enforcement. The trial court weighed the probative value of the comments against any prejudicial effect and properly ruled it was admissible, while defendant failed to show prejudice by the admission of the comments. State v. Bishop, 241 N.C. App. 545, 774 S.E.2d 337 (2015).

This rule did not bar the admission of evidence of defendant's breaking or entering a house on the same night that he entered the church because it tended to show that defendant's intent in entering the church was to commit a larceny therein and tended to contradict defendant's later testimony that he entered the church for sanctuary. State v. Campbell, 243 N.C. App. 563, 777 S.E.2d 525 (2015).

Trial court did not err by admitting testimony from several former high school wrestlers that defendant utilized various hazing techniques against his wrestlers because it was highly probative of defendant's intent, plan, or scheme to carry out the crimes charged against him and the State's elicitation of the testimony was not excessive. State v. Goins, 244 N.C. App. 499, 781 S.E.2d 45 (2015).

Trial court did not err by overruling defendant's objections under this rule to the admission of the consensual sexual activity between defendant and his wife because the wife's testimony was relevant to the victim's allegations as it showed a common scheme or plan and was sufficiently similar to the victim's allegations of sexual abuse. The probative value of the evidence was not outweighed by the danger of undue prejudice because it was of great probative value and was not so sensitive to be potentially inflammatory to the jury. State v. Godbey, 250 N.C. App. 424, 792 S.E.2d 820 (2016).

Officer's testimony that the officer observed defendant leaving a house being investigated for drugs and defendant had a bad reputation in the neighborhood was admissible because (1) the testimony showed the officer's familiarity with defendant and explained why the officer paid attention to defendant, which was relevant to the officer's identification of defendant, (2) the unnecessary drug reference did not affect the jury's verdict, and (3) the probative value of the identification outweighed any undue prejudice. State v. Weldon, 258 N.C. App. 150, 811 S.E.2d 683 (2018).

During defendant's trial for first-degree sex offense with a child, the trial court did not err by admitting evidence of two prior incidents because those incidents and the instant offense each involved the same victim, the same specific alleged mode of penetration, and occurred while the victim was under defendant's supervision, and therefore the prior incidents were relevant to show that the instant offense was part of a common scheme or plan. The trial court did not err by finding that the prior incidents were more probative than prejudicial, it gave a limiting instruction, and the evidence was not cumulative or likely to mislead the jury. State v. Godfrey, 263 N.C. App. 264, 822 S.E.2d 894 (2018).

Trial court properly convicted defendant, upon a jury verdict, of first-degree murder and possession of a firearm by a felon because evidence of a prior break-in was properly admitted since it tended to show how defendant gained possession of the murder weapon, was necessary for the natural development of the facts and to complete the story of the murder for the jury, allowed the jury to understand how defendant came to possess the murder weapon and how long it had been outside the possession of its original lawful owner, explained why the legal gun owner was not considered a suspect and showed the thoroughness of law enforcement's investigation. State v. Washington, - N.C. App. - , - S.E.2d - (May 18, 2021).

DNA Evidence Properly Admitted. - Where DNA evidence was highly probative of the identity of the victim's killer, it did not unfairly prejudice defendant, confuse the issues, or mislead the jury; the trial court properly allowed forensic serologist to testify about the results of DNA analysis and the statistical significance thereof. State v. Daughtry, 340 N.C. 488, 459 S.E.2d 747 (1995), cert. denied, 516 U.S. 1079, 116 S. Ct. 789, 133 L. Ed. 2d 739 (1996).

The admission of testimony regarding the source of the DNA in the DNA data bank which led to the conviction of the defendant for a murder committed 4 years earlier was not plain error under this section. State v. Berry, 143 N.C. App. 187, 546 S.E.2d 145 (2001), review denied, 353 N.C. 729, 551 S.E.2d 439 (2001).

Trial court's admission of a detective's notes did not amount to an abuse of discretion because significant evidence existed such that it was not likely a different result would have been obtained had the evidence been excluded; having created the impression that he denied all involvement with any guns when questioned about a sold firearm, defendant could not complain of unfair prejudice when the trial court allowed the State's evidence that his denial pertained to his criminal history prior to this incident. State v. Hensley, 254 N.C. App. 173, 802 S.E.2d 744 (2017), appeal dismissed, 807 S.E.2d 571, 2017 N.C. LEXIS 993 (N.C. 2017).

Testimony Based on Blood-Alcohol Analyzer. - Court did not abuse its discretion in admitting Blood-Alcohol Analyzer as a reliable scientific method of proof under G.S. 8C-1, Rule 702(a), nor should it have been excluded under this rule, since the probative value of its results were not substantially outweighed by the danger of unfair prejudice or jury confusion and since both parties had opportunity to either attack or support its reliability. State v. Cardwell, 133 N.C. App. 496, 516 S.E.2d 388 (1999).

Testimony on Chain of Custody Procedures by SBI Not Prejudicial. - Admission of testimony referring to the chain of custody procedures followed by the State Bureau of Investigation (SBI), stating that the evidence from a crime scene is transferred back to the local police department once the district attorney clears the police officer of any wrongdoing, was not prejudicial since defendant failed to show a reasonable possibility that, had the testimony not been allowed, the result would have been different; the testimony referred to all items collected for evidence and was allowed only to show the SBI's general procedure regarding evidence. State v. Garris, 191 N.C. App. 276, 663 S.E.2d 340 (2008), review denied, 362 N.C. 684, 670 S.E.2d 907 (2008).

Admission of a tape recording of a 911 call made by murder victim's children was properly admitted. State v. Jordan, 128 N.C. App. 469, 495 S.E.2d 732 (1998), cert. denied, 348 N.C. 287, 501 S.E.2d 914 (1998).

Defendant failed to show that the decision of the trial court to admit 911 tape recording of his daughter telling dispatchers that he was "trying to kill" her mother was not the result of a reasoned choice in conformity with the requirements of this rule. State v. Wilds, 130 N.C. App. 195, 515 S.E.2d 466 (1999).

Admission of 911 Statements Held Proper. - Child's statements in the 911 call were clearly probative as to whether defendant had shot the victim; the child was in the next room when he heard the shot and the surrounding circumstances established that defendant had been inside when the shooting occurred. State v. Wright, 151 N.C. App. 493, 566 S.E.2d 151 (2002).

Witness's statement was relevant to explain to the dispatcher why he felt threatened by defendant and why he called 911; the witness related in the 911 call the threatening caller's own statement concerning his motive and in context, this statement could be understood as a threat to take thirty dollars from the witness and the victim at gunpoint or, in other words, as a threat to commit armed robbery. The witness's comment that it was more than likely they were going to commit a robbery merely clarified and restated the evidence, to which defendant did not object. State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009), cert. denied 130 S. Ct. 2104, 2010 U.S. LEXIS 3379, 176 L. Ed. 2d 734 (U.S. 2010).

Taped telephone statements made by defendant while he was incarcerated, in which he attempted to coordinate an alibi and threaten or coerce the victim, were admissible as admissions by a party opponent under G.S. 8C-1, Rule 801(d), an exception to the hearsay rule. While they were prejudicial as indicating defendant's consciousness of guilt, they were not unduly prejudicial under G.S. 8C-1, Rule 403. State v. Rainey, 198 N.C. App. 427, 680 S.E.2d 760 (2009).

Evidence of Victim's State of Mind Admissible. - Testimony by the victim's friend was admissible to show the victim's state of mind prior to a meeting with defendant and revealed her fear of defendant and of an imminent encounter with him; the probative value of the testimony outweighed any prejudicial effect. State v. Williams, 151 N.C. App. 535, 566 S.E.2d 155 (2002), cert. denied, 356 N.C. 313, 571 S.E.2d 214 (2002).

Evidence that an officer had seen defendant driving with a revoked license after an arrest for driving with a revoked license was not unduly prejudicial under G.S. 8C-1, Rule 403, N.C. R. Evid. 403, and was properly admitted to show defendant's knowledge, specifically that defendant knowingly drove with a revoked license, under G.S. 8C-1, Rule 404, N.C. R. Evid. 404. State v. Hargrave, 198 N.C. App. 579, 680 S.E.2d 254 (2009).

Expert Testimony Admitted. - Defendant failed to show that any error in overruling the defendant's objection and motion to strike testimony was prejudicial because a special agent had not begun testifying about defendant's case in particular but was speaking generally about the nature of the agent's work; the special agent explained that when no DNA match was found, the person in question could not have committed the crime and did not affirmatively state that when a match was found, the subject definitely committed the crime. State v. Hurt, 235 N.C. App. 174, 760 S.E.2d 341 (2014).

Child custody expert's testimony was admissible because the testimony was (1) limited to the qualified expert's experience, and (2) relevant and not more prejudicial than probative. Smith v. Smith, 247 N.C. App. 135, 786 S.E.2d 12 (2016).

Evidence Properly Excluded. - Defendant's testimony that his Intoxilyzer reading did not accurately reflect his blood alcohol level was not admissible and the trial court correctly excluded this evidence. State v. Cothran, 120 N.C. App. 633, 463 S.E.2d 423 (1995).

Expert testimony was properly excluded where it would have directed the jury's attention away from defendant's actual conduct and confused it with evidence unrelated to the legality of the arrest or the force the officers used in attempting to apprehend defendant. State v. Harden, 344 N.C. 542, 476 S.E.2d 658 (1996).

Trial court did not err by excluding doctor's testimony regarding his opinion that defendant did not act with a cool state of mind. State v. Boyd, 343 N.C. 699, 473 S.E.2d 327 (1996), cert. denied, 519 U.S. 1096, 117 S. Ct. 778, 136 L. Ed. 2d 722 (1997).

Where plaintiffs introduced records of 911 calls from January 1988 through July 1993 concerning incidents at a restaurant where the subject murder occurred, and where their crime analyst testified as to the type of offenses that prompted the calls in 1992 and 1993 as well as crimes that occurred within a one-half mile radius of the restaurant in those years, the trial court did not err in excluding data pertaining to criminal activity from 1988 to 1991, some of which was probably cumulative; if such exclusion did constitute error, such error was, in the face of the plaintiffs' contributory negligence, harmless. Benton v. Hillcrest Foods, Inc., 136 N.C. App. 42, 524S.E.2d 53 (1999).

The trial court properly excluded expert testimony that was not case specific, lacked probative value and presented a danger of prejudice. State v. Lee, 154 N.C. App. 410, 572 S.E.2d 170 (2002).

Trial court did not abuse its discretion by excluding testimony by a mental health expert retained by the State that in 10 prior cases she had never found a defendant insane at the time of his crime; although the trial court might properly have admitted such evidence, the trial court's determination to exclude such testimony was not manifestly unsupported by reason. State v. Durham, 175 N.C. App. 202, 623 S.E.2d 63 (2005).

Trial court did not abuse its discretion by excluding testimony by defendant's brother about the brother's own mental illness, which was similar to defendant's mental illness, even though two mental health experts had previously testified that mental illnesses tended to run in families and a mental health expert retained by the State specifically testified that mental illness ran in defendant's family; defendant's claim that the brother's testimony was more compelling evidence that a type of mental illness ran in defendant's family and bolstered defendant's claim of insanity was rejected. State v. Durham, 175 N.C. App. 202, 623 S.E.2d 63 (2005).

Even if a trial court erred in excluding investors' net worths, a sales agent failed to demonstrate any prejudice resulting from the exclusion of the evidence because he testified that he took the investors' net worths into consideration in determining whether to recommend investing in a corporation; although the trial court prevented the agent from presenting to the jury evidence of each investors' net worth in specific monetary terms, the agent testified extensively that the corporation's investments were suitable for the investors based on their net worths. Latta v. Rainey, 202 N.C. App. 587, 689 S.E.2d 898 (2010).

Trial court did not abuse its discretion in excluding the testimony of defendant's expert because there was evidence to support its decision, and it properly acted as a gatekeeper in determining the admissibility of testimony; the trial court heard arguments from both parties regarding the subject matter of the proffered testimony, conducted voir dire, and considered the testimony defendant wished to elicit from the expert and the parties' balancing arguments. State v. Walston, 369 N.C. 547, 798 S.E.2d 741 (2017).

Exclusion of Evidence Held Not Prejudicial. - Court's refusal to permit witness to testify that, based upon his personal knowledge of the State's only eyewitness, he would not believe the State's witness under oath was not prejudicial where immediately before that evidence was offered, the same witness testified without objection that in his opinion the State's witness was a liar and had told him he would take a bribe to change his testimony. State v. Burge, 100 N.C. App. 671, 397 S.E.2d 760 (1990).

Where doctor who performed autopsy used one photograph showing victim's bare breast to illustrate his testimony about the cause of death and the nature and location of the wound, the danger of redundant and excessive use of potentially inflammatory photographs was not present, and the trial court acted within its sound discretion in ruling under this rule that the probative value of the unaltered photograph was not substantially outweighed by any prejudice. State v. Butler, 331 N.C. 227, 415 S.E.2d 719 (1992).

Because a steamroller driver's convictions for driving without a license and driving with a revoked license were admissible under G.S. 8C-1, N.C. R. Evid. 609(a), and because the trial court had no discretion to exclude such evidence under G.S. 8C-1, N.C. R. Evid. 403, the trial court erred in granting the driver's motion in limine, but defendants had not demonstrated how they were specifically prejudiced by the trial court's error, nor had they alleged the jury verdict would have been different had the convictions been admitted. Therefore, the trial court's error was harmless. Outlaw v. Johnson, 190 N.C. App. 233, 660 S.E.2d 550 (2008).

Error in excluding opinion evidence by defendant's friend as to defendant's character for trustworthiness was not prejudicial since the jury was not limited to assessing the believability of defendant's story based solely on her own testimony, but heard from several witnesses whose testimony arguably had greater probative force regarding defendant's state of mind than the excluded testimony would have had; had the opinion evidence been heard, evidence that defendant was not gullible, which could have diminished her defense, would also have been heard. State v. Tatum-Wade, 229 N.C. App. 83, 747 S.E.2d 382 (2013).

Only possible confusion was that the evidence given by the president's wife might be used against co-defendants, but it is common sense that this was the reason plaintiffs would want to use the evidence, and such use is explicitly permitted when the co-defendant was represented at the deposition which an adverse party seeks to admit; excluding the proffered portions of the wife's deposition was error, but as the inclusion of the deposition would have had no effect on plaintiffs' breach of fiduciary duty claims, error was not prejudicial. Green v. Freeman, 233 N.C. App. 109, 756 S.E.2d 368 (2014).

Trial court did not err in ruling that co-defendants would not be called to testify due to the fact that they would invoke their Fifth Amendment privilege without conducting the balancing inquiry required by this rule, where defendant did not submit an offer of proof as to their testimony outside the presence of the jury; his testimony on his own behalf indicated his version of the incident but did not qualify as an offer of proof as to his co-defendants's testimony. State v. Harris, 139 N.C. App. 153, 532 S.E.2d 850 (2000).

Exclusion of Evidence Held Prejudicial. - Where defendant sought to reveal that two years ago witness had deceived a person he was investigating in an effort to obtain a confession for that crime, the evidence was probative of the witness's character for untruthfulness, was not too remote and was unfairly prejudicial; thus, the defendant was entitled to a new trial. State v. Baldwin, 125 N.C. App. 530, 482 S.E.2d 1 (1997), cert. granted, 345 N.C. 756, 485 S.E.2d 299 (1997), discretionary review improvidently allowed, 347 N.C. 348, 492 S.E.2d 354 (1997).

When defendant was retried after an officer had improper contact with a juror at defendant's first trial, it was prejudicial error to exclude evidence of the officer's improper contact because (1) defendant should have been allowed to raise the misconduct when cross-examining the officer to show the officer's bias, and character for untruthfulness, under G.S. 8C-1, N.C. R. Evid. 608(b), and (2) the error barred inquiry into the officer's bias, and kept the jury from knowledgeably weighing the officer's credibility. State v. Lewis, 365 N.C. 488, 724 S.E.2d 492 (2012).

When defendant was retried after an officer had improper contact with a juror at defendant's first trial, it was error to exclude evidence of the officer's improper contact on the theory that prejudicial evidence of defendant's prior conviction could come in because defense counsel stated the risk was worth taking, so any error resulting from admitting the evidence would have been invited. State v. Lewis, 365 N.C. 488, 724 S.E.2d 492 (2012).

Statements Regarding Prior Similar Actions. - Trial court did not abuse its discretion in admitting certain statements by a town mayor regarding previous actions of a chief building official where the statements were relevant to the claim for negligent supervision and the trial court thrice gave a limiting instruction as to their applicability. Leftwich v. Gaines, 134 N.C. App. 502, 521 S.E.2d 717 (1999).

Evidence of defendant's prior assault on another victim admitted for the limited purposes of proving a common scheme and defendant's intent, was not unfairly prejudicial; the prior assault and the current charges were similar in nature; in both instances the victims, similar in age, visited various residences or places in which they were unfamiliar and then were taken by automobile to isolated areas at night; where the defendant told the victims something was wrong with the automobile, asked the victims to get out of the automobile, and then proceeded to sexually assault them. State v. Chavis, 141 N.C. App. 553, 540 S.E.2d 404 (2000).

Admission of defendant's inculpatory admissions made to a sex offender evaluator in another case did not violate G.S. 8C-1, N.C. R. Evid. 403 where the trial court's ruling that the value of the statements outweighed any prejudicial effect was the result of the exercise of sound discretion. State v. Maney, 151 N.C. App. 486, 565 S.E.2d 743 (2002).

Trial court did not abuse its discretion by ruling that the evidence regarding a second impersonation of a police officer and robbery incident was admissible in a defendant's trial for a similar incident because the prior incident occurred two days after the first, involved the assailants' entry into the victim's residences under the auspices of legitimate law enforcement activity, and each assailant displayed a bogus search warrant and firearms in an effort to gain entry into the respective residences. State v. Jacobs, 174 N.C. App. 1, 620 S.E.2d 204 (2005), vacated in part, rev'd in part, on other grounds, 361 N.C. 565, 648 S.E.2d 841 (2007).

Trial court did not err by admitting evidence at defendant's trial for arson that defendant had four years earlier committed arson because the evidence was probative of defendant's intent and was sufficiently similar, logically relevant, and not too remote in time. Both the arson for which defendant was tried and the prior arson were set during the nighttime on the exterior of a building at an entrance when defendant was intoxicated, knew the buildings to be occupied, and was angry about a perceived harm against defendant by the occupant. State v. Wilson-Angeles, 251 N.C. App. 886, 795 S.E.2d 657 (2017).

Other crimes evidence was properly admitted under G.S. 8C-1-404(b), as defendant's statement that if someone did not call him back he was going to "burn you all up," was admissible to prove a number of the listed purposes, namely defendant's motive, intent, plan, common scheme, as well as defendant's identity as the arsonist; the trial court guarded against the possibility of prejudice under G.S. 8C-1-403 by instructing the jury to consider the evidence only for the limited purposes of establishing identity, intent, motive, absence of mistake, and common plan. State v. Curmon, 171 N.C. App. 697, 615 S.E.2d 417 (2005).

Evidence that first-degree murder defendant had robbed drug dealers and hit a drug dealer during a robbery was relevant to refute his contention that he shot a police officer without premeditation and deliberation, while evidence about his illegal acquisition of weapons and his curfew violation was relevant as part of the chain of circumstances leading up to the shooting. State v. Grant, 178 N.C. App. 565, 632 S.E.2d 258 (2006), cert. denied, appeal dismissed, 361 N.C. 223, 642 S.E.2d 712 (2007).

Professional engineer's testimony as to the structure and appearance of a stairway that plaintiff was injured on was based on direct personal knowledge; therefore, this testimony was admissible so long as it was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice. Newton v. New Hanover County Bd. of Educ., 342 N.C. 554, 467 S.E.2d 58 (1996).

Photographs of Other Houses' Cracks in Structural Defect Case - Photographs of cracks in the foundations and floors of other houses constructed by the defendant/construction company were properly admitted into evidence because the probative value of the photographs was not outweighed by unfair prejudice. Allen v. Roberts Constr. Co., 138 N.C. App. 557, 532 S.E.2d 534 (2000).

Demonstration of Weaponry. - Where defense counsel commented in his opening statement that the State could present no evidence of the existence of shell casings from the revolver allegedly used by the defendant, the state's demonstration of semi-automatic weapons to explain that shell casings are not ejected by revolvers was relevant in light of defense counsel's statement. State v. Reaves, 132 N.C. App. 615, 513 S.E.2d 562 (1999).

Demonstration of Effects of Pepper Spray. - Trial court properly allowed the State, during its presentation of rebuttal evidence, to demonstrate the effects of pepper spray in an experiment under circumstances dissimilar to those that actually occurred and with the use of law enforcement officers trained in the use of pepper spray; defendant was given, but chose not to take, the opportunity to present his own demonstration on lay witnesses. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 1380, 149 L. Ed. 2d 305 (2001), cert. dismissed, without prejudice, 805 S.E.2d 698, 2017 N.C. LEXIS 900 (2017), cert. granted, 370 N.C. 587, 809 S.E.2d 594, 2018 N.C. LEXIS 93 (2018), cert. dismissed, as moot, 847 S.E.2d 415, 2020 N.C. LEXIS 891 (N.C. 2020).

Admission of Prior Misconduct with Gun. - Defendant was not prejudiced by admission of testimony that witness remembered a gun, similar to that used in two murders, because defendant had playfully held it to his head. State v. Moses, 350 N.C. 741, 517 S.E.2d 853 (1999), cert. denied, 528 U.S. 1124, 120 S. Ct. 951, 145 L. Ed. 2d 826 (2000), cert. denied 706 S.E.2d 246, 2011 N.C. LEXIS 121 (N.C. 2011.

Admission of Prior Voluntary Manslaughter Conviction. - Trial court did commit prejudicial error under this rule in rejecting defendant's tendered limiting stipulation and admitting evidence of an earlier prior voluntary manslaughter conviction, where defendant was not charged with any attendant offenses similar to his prior conviction and where the jury was not informed that his prior conviction in any way involved use of a firearm. State v. Jackson, 139 N.C. App. 721, 535 S.E.2d 48 (2000), aff'd in part and rev'd in part on other grounds, 353 N.C. 495 546 S.E.2d 570 (2001).

Admission of Prior Murder Conviction. - Evidence of defendant's conviction for second-degree murder 27 years earlier was properly admitted in defendant's murder trial where the trial court found similarities between the two murders, and the 18 years defendant spent in prison were excluded when the trial court ruled on whether the previous crime was too remote; the probative value of the previous conviction upon the issues for which it was offered, defendant's intent to kill and his identity as the perpetrator, far outweighed the possibility of unfair prejudice. State v. Castor, 150 N.C. App. 17, 562 S.E.2d 574 (2002), cert. denied, 357 N.C. 508, 587 S.E.2d 885 (2003).

Admission of Prior Sexual Offenses - In defendant's prosecution for sexual offenses against a student, his prior offenses against other students were admissible against him because, in light of the similarities between the alleged acts, the probative value of admitting the evidence exceeded any unfair prejudice to defendant. State v. Curry, 153 N.C. App. 260, 569 S.E.2d 691 (2002).

Evidence of defendant's prior assault on the victim, a few months before the act which caused victim's death, was not prohibited, because it tended to show a common plan or scheme and absence of accident, and tended to negate self-defense, and was, thus, more probative than prejudicial. State v. Harris, 149 N.C. App. 398, 562 S.E.2d 547 (2002).

In defendant's trial on a charge of murder in the first degree, the trial court properly admitted testimony which showed that defendant assaulted the victim, his girlfriend, on prior occasions and that defendant's girlfriend had asked defendant to leave her residence on the day he shot her, because the testimony was relevant to defendant's claim that he discharged his gun accidentally and the prejudicial effect of the evidence did not outweigh its probative value. State v. Latham, 157 N.C. App. 480, 579 S.E.2d 443 (2003), cert. denied, 357 N.C. 509, 588 S.E.2d 376 (2003).

Evidence of Other Drug Transactions - In defendant's trial on charges of maintaining a vehicle to keep and sell a controlled substance, trafficking by possession of oxycodone, trafficking by sale of oxycodone, and trafficking by transportation of oxycodone, the trial court did not abuse its discretion by allowing an informant and other witnesses to testify that they met with defendant at various locations over a five-week period to buy oxycodone because, although the evidence described drug transactions that were not charged, it showed knowledge, plan, scheme, design, opportunity, and absence of mistake or entrapment, and was not so remote that its prejudicial impact outweighed its probative value. State v. McCracken, 157 N.C. App. 524, 579 S.E.2d 492 (2003).

Confidential police informant's testimony as to prior, uncharged drug transactions with defendant was admitted for a proper purpose under G.S. 8C-1, N.C. R. Evid. 404(b), and the trial court did not act arbitrarily in allowing the testimony under G.S. 8C-1, N.C. R. Evid. 403 because the testimony was offered to show intent, knowledge, and common plan or scheme as well as to explain the relationship between the informant and defendant; additionally, an appropriate limiting instruction to that effect was given to the jury both at the time the informant testified and in the jury instructions. State v. Houston, 169 N.C. App. 367, 610 S.E.2d 777 (2005).

Second defendant was not prejudiced by the admission of evidence of codefendant's prior possession of prescription drugs, where evidence was presented that second defendant was clearly not involved in the earlier incident and the trial court gave a limiting instruction to the jury. State v. Ellison, 213 N.C. App. 300, 713 S.E.2d 228 (2011).

Evidence of defendant's offenses subsequent to burglary, namely, shoplifting, breaking, entering and larceny, and car theft, were admissible to show intent and motive (the defendant wanted money for drugs) and was not unfairly prejudicial where the judge gave a limiting instruction. State v. Hutchinson, 139 N.C. App. 132, 532 S.E.2d 569 (2000).

Admission of testimony that defendant viewed sexually explicit photos on his home computer was relevant, and any prejudice that might have been caused by allowing the jury to see the photos was addressed by the trial court's decision not to show the photos to the jury. State v. Quinn, 166 N.C. App. 733, 603 S.E.2d 886 (2004).

Admission of expert testimony regarding memory factors is within trial court's discretion, and appellate court will not intervene where trial court properly appraises probative and prejudicial value of evidence under this rule. State v. Cotton, 99 N.C. App. 615, 394 S.E.2d 456 (1990), aff'd, 329 N.C. 764, 407 S.E.2d 514 (1991).

Witness testimony in which he stated he was "pretty sure" that defendant had admitted to killing victim was relevant to the issue of the identification of defendant and not unfairly prejudicial. State v. Moses, 350 N.C. 741, 517 S.E.2d 853 (1999), cert. denied, 528 U.S. 1124, 120 S. Ct. 951, 145 L. Ed. 2d 826 (2000), cert. denied 706 S.E.2d 246, 2011 N.C. LEXIS 121 (N.C. 2011.

Trial court's admission of victim's testimony from a domestic violence protective order hearing did not violate his right to confront the witness against him, nor did it violate G.S. 8C-1, Rules 403, 404(b), and 803(3) of the North Carolina Rules of Evidence where the hearsay statements constituted, and were admissible as, statements of declarant's then-existing mental, emotional, or physical condition and where their probative value outweighed their prejudicial effect. State v. Thibodeaux, 352 N.C. 570, 532 S.E.2d 797 (2000), cert denied, 531 U.S. 1155, 121 S. Ct. 1106, 148 L. Ed. 2d 976 (2001).

State Bar Disciplinary Hearing. - North Carolina State Bar Disciplinary Hearing Commission (DHC) did not violate the rule in admitting the results of two prior audits because the results of the audits were relevant to the intent of the attorney to commit acts where the harm or potential harm was foreseeable and a pattern of misconduct; the attorney did not demonstrate an improper basis on which the DHC could have considered the evidence. N.C. State Bar v. Adams, 239 N.C. App. 489, 769 S.E.2d 406 (2015).

Evidence from Myspace Page. - Trial court did not err in excluding a police report and a minor child's Myspace website pursuant to G.S. 8C-1, N.C. R. Evid. 412, during an adjudicatory and disposition hearing because it was permissible for a trial judge in a civil case to use Rule 412 as a basis for excluding irrelevant evidence about a plaintiff's prior sexual behavior; pursuant to Rule 412, evidence of the prior sexual history of the victim is irrelevant in most instances, but upon a finding by the trial court that certain evidence is relevant because it falls into one of the exceptions under Rule 412, or if the evidence falls outside of the rule, a G.S. 8C-1, N.C. R. Evid. 403 balancing of probative value versus unfair prejudice should be utilized in the trial court's discretion. In re K.W., 192 N.C. App. 646, 666 S.E.2d 490 (2008).


Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes.

  1. Character evidence generally. - Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
    1. Character of accused. - Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;
    2. Character of victim. - Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
    3. Character of witness. - Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
  2. Other crimes, wrongs, or acts. - 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. Admissible evidence may include evidence of an offense committed by a juvenile if it would have been a Class A, B1, B2, C, D, or E felony if committed by an adult.

History

(1983, c. 701, s. 1; 1994, Ex. Sess., c. 7, s. 3; 1995, c. 509, s. 7.)

COMMENTARY

This rule is identical to Fed. Evid. Rule 404, except for the addition of the word "entrapment" in the last sentence of subdivision (b).

Subdivision (a) deals with the basic question whether character evidence should be admitted. The Advisory Committee's Note states:

"Once the admissibility of character evidence in some form is established under this rule, reference must then be made to Rule 405, which follows, in order to determine the appropriate method of proof. If the character is that of a witness, see Rules 608 and 610 for methods of proof.

Character questions arise in two fundamentally different ways. (1) Character may itself be an element of a crime, claim, or defense. A situation of this kind is commonly referred to as 'character in issue.' Illustrations are: the chastity of the victim under a statute specifying her chastity as an element of the crime of seduction, or the competency of the driver in an action for negligently entrusting a motor vehicle to an incompetent driver. No problem of the general relevancy of character evidence is involved, and the present rule therefore has no provision on the subject. The only question relates to allowable methods of proof, as to which see Rule 405, immediately following. (2) Character evidence is susceptible of being used for the purpose of suggesting an inference that the person acted on the occasion in question consistently with his character. This use of character is often described as 'circumstantial.' Illustrations are: evidence of a violent disposition to prove that the person was the aggressor in an affray, or evidence of honesty in disproof of a charge of theft. This circumstantial use of character evidence raises questions of relevancy as well as questions of allowable methods of proof."

The rule is consistent with North Carolina practice in that character evidence is generally not admissible as circumstantial evidence of conduct.

Subdivision (a)(1) creates an exception which permits an accused to introduce pertinent evidence of good character, in which event the prosecution may rebut with evidence of bad character. The exception is consistent with North Carolina practice except that subdivision (a)(1) speaks in terms of a "pertinent trait of his character". This limits the exception to relevant character traits, whereas North Carolina practice permits use of evidence of general character. Professor Brandis states that:

"The North Carolina rule on this subject is unique, and appears to have had its origin in a misinterpretation of the earlier opinions.

In a majority of jurisdictions, character evidence must be confined to the particular trait of character involved in the conduct which is being investigated: In the case of a witness, his character for truth and veracity; of a defendant charged with a crime of violence, his peaceable or violent character; of an alleged embezzler, his honesty and integrity, etc.; a few courts will also admit evidence of general moral character, and this view was adopted by the North Carolina Court at an early date. For at least eighty years it was permissible to prove either the general character or the specific relevant trait of character of the person in question. When, during this period, the Court stated that only 'general character' could be shown, it meant that the only method of proving character was by general reputation, as distinguished from 'particular facts and the opinion of witnesses.' In State v. Hairston the principle of the earlier cases seems to have been misunderstood, and the rule was stated: 'A party introducing a witness as to character can only prove the general character of the person asked about. The witness, of his own motion, may say in what respect it is good or bad.' * * *

When the witness is asked whether he knows the general 'reputation' or 'reputation and character' of the subject, if he answers 'No' he should be stood aside; but if he answers 'Yes' it seems that he need not confine his testimony to that reputation, but may testify to reputation for some specific trait of character. This may be highly relevant, as when witness character is at stake and the answer deals with reputation for veracity. However, it may deal with reputation for liquor-selling, or horse trading, or domestic cruelty, even though the trait is wholly irrelevant to any issue in the case.

The Court recently reviewed the history of the rule, but did not change it. It explicitly held that it is proper for counsel to prepare his witness by explaining the rule and that this does not render the specific trait evidence inadmissible unless, at counsel's suggestion, it is false. To this writer this is convincing proof that the rule should be scrapped. When counsel ascertains in advance a trait which the witness will specify, his question to elicit it should surely not merely be allowed, but be required to deal with that trait. In such case, objection may be made to the question and relevance rationally appraised. As it is, the question is foolproof and there is no opportunity to object until the specific trait evidence is actually given and the damage is done." Brandis on North Carolina Evidence § 114 (1982) (footnotes omitted):

Brandis also notes that:

"At best the present rule requires use of an ambiguous and misleading formula in examining character witnesses. At worst it has positively undesirable consequences. It opens the door to evidence of character traits which are irrelevant and prejudicial, and permits the prosecution, under the guise of impeaching the defendant as a witness, to prove traits having no relation to veracity but which are relevant on the issue of guilt, thus evading the rule (see § 104) prohibiting the State from attacking the defendant's character unless he first puts it in issue. These consequences would be avoided, and logic and symmetry restored, by confining the inquiry to traits relevant for the particular purpose and holding the witness to responsive answers." Id. at 114, n. 91.

Subdivision (a)(2) creates an exception to permit an accused to introduce pertinent evidence of character of the victim and to permit the prosecution to introduce similar evidence in rebuttal of the character evidence. The subdivision extends the exception recognized in North Carolina homicide and assault and battery cases to include all criminal cases. See Brandis on North Carolina Evidence § 106 (1982).

North Carolina practice permits evidence of the character of the victim tending to show that the defendant had a reasonable apprehension of death or bodily harm. Id. Such evidence when introduced to show the reasonable apprehension of death or bodily harm to the accused, rather than to prove that the victim acted in conformity with his character trait on a particular occasion, would not be within the ban created by subdivision (a).

North Carolina practice also permits evidence of the character of the victim tending to show that the victim was the first aggressor. Unlike Rule 404, current North Carolina practice permits such evidence to be introduced only if the State's evidence is wholly circumstantial or the nature of the transaction is in doubt.

Subdivision (a)(2) permits proof of any pertinent trait of the victim. North Carolina practice has confined the evidence to character for violence. Id.

Subdivision (a)(2) is consistent with North Carolina practice in that evidence of the character of the victim for peace and quiet would be admissible to rebut evidence of the deceased's character for violence and evidence of the victim's good general character would not. Id. at 397.

The second part of subdivision (a)(2) permits introduction of "evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor." In North Carolina the prosecution may offer evidence of the deceased's character for peace and quiet only if the defendant has introduced evidence of the deceased's character for violence. See Nance v. Fike, 244 N. C. 368, 372 (1956). Thus in North Carolina the accused can apparently claim self-defense without opening the door to character evidence relating to the victim. Subdivision (a)(2) would alter this practice and permit the prosecution to offer evidence of the peacefulness of the victim to rebut any evidence that the victim was the first aggressor.

The North Carolina exception, unlike the rule, applies to cases of civil assault and battery. See Brandis on North Carolina Evidence § 106, at 393 (1982). The Advisory Committee's Note states:

" The argument is made that circumstantial use of character ought to be allowed in civil cases to the same extent as in criminal cases, i.e., evidence of good (nonprejudicial) character would be admissible in the first instance, subject to rebuttal by evidence of bad character. * * * The difficulty with expanding the use of character evidence in civil cases is set forth by the California Law Revision Commission * * *:

'Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened.' "

Subdivision (a)(3) creates an exception to the general rule and permits the introduction of evidence of the character of a witness, as provided in Rules 607, 608, and 609, to prove that he acted in conformity therewith on a particular occasion.

Subdivision (b) permits the introduction of specific "crimes, wrongs, or acts" for a purpose other than to prove the conduct of a person. The Advisory Committee's Note states:

"Subdivision (b) deals with a specialized but important application of the general rule excluding circumstantial use of character evidence. Consistently with that rule, evidence of other crimes, wrongs, or acts is not admissible to prove character as a basis for suggesting the inference that conduct on a particular occasion was in conformity with it. However, the evidence may be offered for another purpose, such as proof of motive, opportunity, and so on, which does not fall within the prohibition. In this situation the rule does not require that the evidence be excluded. No mechanical solution is offered. The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence, in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403."

The list in the last sentence of subdivision (b) is nonexclusive and the fact that evidence cannot be brought within a category does not mean that the evidence is inadmissible.

Subdivision (b) is consistent with North Carolina practice.

Relevance of the complainant's past behavior in a rape or sex offense case is governed by Rule 412.

Legal Periodicals. - For note, "Indelible Ink in the Milk: Adoption of the Inclusionary Approach to Uncharged Misconduct Evidence in State v. Coffey," see 69 N.C.L. Rev. 1604 (1991).

For Survey of Developments in North Carolina Law (1992), see 71 N.C.L. Rev. 1893 (1993).

For note, "The Admissibility of Prior Acquittal Evidence - Has North Carolina Adopted the 'Minority View'? - The Effect of State v. Scott," see 16 Campbell L. Rev. 231 (1994).

For article, "A Six Step Analysis of 'Other Purposes' Evidence Pursuant to Rule 404(b) of the North Carolina Rules of Evidence," see 21 N.C. Cent. L.J. 1 (1995).

For article, "Issues Once Moot: The Other Evidentiary Objections to the Admission of Exculpatory Polygraph Examinations," see 32 Wake Forest L. Rev. 1045 (1997).

For article, "What Went Wrong with FRE Rule 609: A Look at How Jurors Really Misuse Prior Conviction Evidence," see 23 N.C. Cent. L.J. 14 (1997).

For article, "Let's Talk Specifics: Why STI Evidence Should Be Treated as a ‘Specific Instance' Under Rape Shield Laws,” see 98 N.C.L. Rev. 689 (2020).

CASE NOTES

I. GENERAL CONSIDERATION.

Rule 405 Compared. - A criminal defendant is entitled to introduce evidence of his good character, thereby placing his character at issue, and the State in rebuttal can then introduce evidence of defendant's bad character; unlike evidence of prior bad acts being offered under G.S. 8C-1, Rule 404(b), G.S. 8C-1, Rule 405(a) does not contain any time limit or rule regarding remoteness, and the North Carolina Supreme Court has explicitly refused to impose one. State v. Rhue, 150 N.C. App. 280, 563 S.E.2d 72 (2002).

Unlike evidence of prior bad acts being offered under subsection (b) of this rule, G.S. 8C-1, Rule 405(a) does not contain any time limit or rule regarding remoteness, and the North Carolina Supreme Court has explicitly refused to impose one; rather, a "relevant" specific instance of conduct under Rule 405(a) would be any conduct that rebuts the earlier reputation or opinion testimony offered by the defendant. State v. Hargett, 157 N.C. App. 90, 577 S.E.2d 703 (2003).

Federal Rule Compared. - This rule is identical to Federal Evidentiary Rule 404, except for the addition of the word "entrapment" in the last sentence of subsection (b). State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986).

This rule is virtually identical to Federal Rule of Evidence 404, the legislative history of which tends to favor admissibility. State v. Wortham, 80 N.C. App. 54, 341 S.E.2d 76 (1986), rev'd in part, 318 N.C. 669, 351 S.E.2d 294 (1987); Medina v. Town & Country Ford, Inc., 85 N.C. App. 650, 355 S.E.2d 831, appeal of right allowed pursuant to Rule 16(b) and petition allowed as to additional issues, 320 N.C. 513, 358 S.E.2d 521 (1987), aff'd, 320 N.C. 517, 358 S.E.2d 533 (1987).

This rule is consistent with prior North Carolina practice. State v. Wortham, 80 N.C. App. 54, 341 S.E.2d 76 (1986), rev'd in part, 318 N.C. 669, 351 S.E.2d 294 (1987).

Subsection (b) of this rule is consistent with prior North Carolina practice. State v. Belton, 77 N.C. App. 559, 335 S.E.2d 522 (1985), aff'd, 318 N.C. 141, 347 S.E.2d 755 (1986); State v. Spinks, 77 N.C. App. 657, 335 S.E.2d 786 (1985); In re Paul, 84 N.C. App. 491, 353 S.E.2d 254 (1987); State v. Teeter, 85 N.C. App. 624, 355 S.E.2d 804, writ denied, 320 N.C. 175, 358 S.E.2d 66, appeal dismissed and cert. denied, 320 N.C. 175, 358 S.E.2d 67 (1987).

Subsection (b) of this rule permits the introduction of specific "crimes, wrongs, or acts" for a legitimate purpose other than to prove the conduct of a person. In so doing, it is consistent with North Carolina practice prior to its enactment. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986).

Subsection (b) of this rule codifies the longstanding rule in this jurisdiction that evidence of other offenses is inadmissible on the issue of guilt if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact, it will not be excluded merely because it also shows him to have been guilty of an independent crime. State v. Young, 317 N.C. 396, 346 S.E.2d 626 (1986).

This rule is a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring 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. State v. Kennedy, 130 N.C. App. 399, 503 S.E.2d 133 (1998), aff'd, 350 N.C. 87, 511 S.E.2d 305 (1999).

This rule is a general rule of inclusion of evidence, subject to an exception when the only probative value of the evidence is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged. State v. West, 103 N.C. App. 1, 404 S.E.2d 191 (1991).

This rule addresses the admissibility of evidence; it is not a discovery statute which requires the State to disclose such evidence as it might introduce thereunder. State v. Payne, 337 N.C. 505, 448 S.E.2d 93 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1405, 131 L. Ed. 2d 292 (1995).

Construction. - North Carolina's appellate courts have been markedly liberal in admitting evidence of similar sex offenses by a defendant for the purposes now enumerated in G.S. 8C-1, Rule 404(b), such as establishing the defendant's identity as the perpetrator of the crime charged. State v. Bidgood, 144 N.C. App. 267, 550 S.E.2d 198 (2001).

Probative Value Substantially Outweighs Prejudice. - Once a trial court determines that other crimes evidence is properly admissible under G.S. 8C-1, Rule 404(b), it must still determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice under G.S. 8C-1, Rule 403. State v. Bidgood, 144 N.C. App. 267, 550 S.E.2d 198 (2001).

Evidence that defendant had jokingly scared other employees by pretending to rob them in a manner similar to that used by the robber during the robbery at issue tended to show motive, opportunity, intent, preparation, plan, or knowledge, was more relevant and probative than unduly prejudicial, and was properly admitted at trial. State v. Ingram, 160 N.C. App. 224, 585 S.E.2d 253 (2003).

Section 8C-1, Rule 608(b) Distinguished. - Although subsection (b) of this rule and G.S. 8C-1, Rule 608(b) concern the use of specific instances of a person's conduct, the two rules have very different purposes and are intended to govern entirely different uses of extrinsic conduct evidence. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).

"Extrinsic conduct evidence" refers to evidence of a specific prior or subsequent act, not charged in the indictment, which may be criminal but, as applied in G.S. 8C-1, Rule 608(b), does not result in a conviction. Criminal convictions are included in subsection (b) of this rule. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).

Section 8C-1, Rule 608(b) governs reference to specific instances of conduct only on cross-examination regarding the credibility of any witness and prohibits proof by extrinsic evidence. Under subsection (b) of this rule, however, evidence regarding extrinsic acts is not limited to cross-examination and may be provided by extrinsic evidence as well as through cross-examination. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).

Although evidence of other acts is not permissible under G.S. 8C-1, N.C. R. Evid. 404(b) to show a propensity for violence solely because a defendant raised the claim of self-defense, such evidence may be used to refute specific evidence of a defendant's credibility under G.S. 8C-1, N.C. R. Evid. 608, when such credibility is at issue (such as when a criminal defendant introduces evidence of his good character, thereby placing his character at issue); when the criminal defendant introduces such evidence, the State in rebuttal can then introduce evidence of defendant's bad character, and under G.S. 8C-1, N.C. R. Evid. 405(a), and the State may do so by cross-examining a defendant's character witnesses as to relevant specific instances of conduct. State v. Ammons, 167 N.C. App. 721, 606 S.E.2d 400 (2005).

Rule 609 Distinguished. - Although the State exceeded the permissible scope of inquiry into defendant's prior criminal conviction under G.S. 8C-1, Rule 609 by delving into his motivation for his "forgery activity," the evidence that defendant previously committed forgery to finance his drug habit could properly be admitted under this section, to show that his need to support his drug habit and his lack of finances were the motive for the robbery and murder of the victim. State v. Barnett, 141 N.C. App. 378, 540 S.E.2d 423 (2000), appeal dismissed and cert. denied, 353 N.C. 527, 549 S.E.2d 552 (2001).

Single Scheme or Plan. - Where there existed an extended interval of as much as several years between sex offenses and where there was a lack of a consistent pattern in defendant's molesting behavior, all of the charged acts perpetrated against three sisters did not constitute part of a single scheme or plan, as a matter of law, and the trial court erred in joining the cases under G.S. 15A-926; however, since evidence of other molestations would have been admissible pursuant to this rule to show "intent, plan or design," at the trial of any one offense, the error was harmless. State v. Owens, 135 N.C. App. 456, 520 S.E.2d 590 (1999).

Evidence Which Was Irrelevant as Substantive Evidence Held Proper When Used for Rebuttal. - While State would not have been allowed to introduce, in the first instance, evidence of defendant's bad conduct toward fellow employees, trial court did not err in allowing State to rebut defendant's evidence of a good employment record. State v. Cotton, 99 N.C. App. 615, 394 S.E.2d 456 (1990), aff'd, 329 N.C. 764, 407 S.E.2d 514 (1991).

It was error for a trial judge not to conduct a voir dire in order to rule on questions of admissibility and order a tape recording to be edited or redacted as necessary. State v. Gibson, 333 N.C. 29, 424 S.E.2d 95 (1992), overruled on other grounds, 334 N.C. 402, 432 S.E.2d 349 (1993).

Evidence of Victim's State of Mind. - Evidence that the victim was peaceful and unarmed the night of the murder was relevant to prove that the victim did not provoke defendant and that the murder was committed with premeditation and deliberation. State v. Alford, 339 N.C. 562, 453 S.E.2d 512 (1995).

Evidence of Accused's State of Mind. - In prosecution for assault with a deadly weapon, testimony about defendant's conduct prior to confrontation with deputies and admission of videotape allegedly depicting this conduct would be upheld, as part of the "chain of events" and as showing defendant's state of mind immediately prior to the deputies being called to the scene. State v. Price, 118 N.C. App. 212, 454 S.E.2d 820 (1995).

Evidence of Motive. - The evidence of defendant's drug dealing activities, the victim's desire for a greater cut of the profits and his failure to turn in all the money, was relevant to show defendant's motive for murdering the victim. State v. Lundy, 135 N.C. App. 13, 519 S.E.2d 73 (1999).

Defendant's disturbance at the bank was relevant and admissible to show defendant's need for money and the motivation to commit the kidnapping and ultimate murder. State v. Parker, 354 N.C. 268, 553 S.E.2d 885 (2001), cert. denied, 535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162 (2002).

Factors Affecting Mental State. - Defendant was properly permitted to cross-examine plaintiff about other factors in her life which had a bearing upon her mental state, such as acts of wrong-doing on the part of her children. Pelzer v. UPS, Inc., 126 N.C. App. 305, 484 S.E.2d 849 (1997), cert. denied, 346 N.C. 549, 488 S.E.2d 808 (1997).

Premeditation and deliberation are generally not susceptible of direct proof, but are mental processes which may be inferred from circumstantial evidence surrounding a murder, including lack of provocation on the part of the victim. State v. Alford, 339 N.C. 562, 453 S.E.2d 512 (1995).

Failure to Exclude Not Amounting to Plain Error. - Even if the trial court erred in not intervening to exclude the portion of witness's statement which referred to defendant's prior bad act, the court's error did not result in manifest injustice and did not amount to plain error. State v. Ocasio, 344 N.C. 568, 476 S.E.2d 281 (1996).

Defendant's Burden of Proof on Appeal. - Appeal by a defendant, who contended that evidence that he performed oral sex on a minor victim should have been excluded, was denied because, in light of defendant's admissions and other evidence admitted concerning defendant's sexual improprieties with the minor victim, defendant failed to show that in the absence of the evidence a different result would have been reached at the trial. State v. Anderson, 177 N.C. App. 54, 627 S.E.2d 501 (2006).

Evidence Held Admissible to Show Motive. - Follow-up question to first defendant about first defendant's motivation for denying involvement in the subject crime, the fact that if found guilty first defendant would have violated his federal probation for another offense, was admissible for the purpose of showing motive. State v. Brown, 177 N.C. App. 177, 628 S.E.2d 787 (2006).

Evidence in Jury Instruction. - Because an instruction given by the trial court as to the state's G.S. 8C-1-404(b) evidence was substantially similar to that which defendant requested, as the only difference was that the trial court's actual instruction identified the officer as the person who saw defendant in possession of what appeared to be a handgun, the instruction was proper. State v. Junious, 180 N.C. App. 656, 638 S.E.2d 497 (2006).

Preservation for Review. - Defendant's appeal was dismissed where he challenged an officer's testimony under this rule on appeal, but objected to the testimony at trial based on G.S. 8C-1, N.C. R. Evid. 403, as defendant did not object pursuant to this rule, his objection was not preserved on appeal, and he did not argue plain error. State v. Howard, 228 N.C. App. 103, 742 S.E.2d 858 (2013).

Standard of Review. - When analyzing rulings applying G.S. 8C-1, N.C. R. Evid. 404(b) and 403, the North Carolina Supreme Court conducts distinct inquiries with different standards of review; when a trial court has made findings of fact and conclusions of law to support an G.S. 8C-1, N.C. R. Evid. 404(b) ruling, the Court looks to whether the evidence supports the findings and whether the findings support the conclusions, and the Court reviews de novo the legal conclusion that the evidence is, or is not, within the coverage of G.S. 8C-1, N.C. R. Evid. 404(b), after which the Court reviews the trial court's G.S. 8C-1, N.C. R. Evid. 403 determination for abuse of discretion. State v. Beckelheimer, 366 N.C. 127, 726 S.E.2d 156 (2012).

Applied in State v. Blalock, 77 N.C. App. 201, 334 S.E.2d 441 (1985); State v. Barnes, 77 N.C. App. 212, 334 S.E.2d 456 (1985); State v. Shipman, 77 N.C. App. 650, 335 S.E.2d 912 (1985); State v. Head, 79 N.C. App. 1, 338 S.E.2d 908 (1986); State v. Mack, 87 N.C. App. 24, 359 S.E.2d 485 (1987); State v. Holden, 321 N.C. 125, 362 S.E.2d 513 (1987); State v. Roth, 89 N.C. App. 511, 366 S.E.2d 486 (1988); State v. Fultz, 92 N.C. App. 80, 373 S.E.2d 445 (1988); Hinnant v. Holland, 92 N.C. App. 142, 374 S.E.2d 152 (1988); State v. Chandler, 324 N.C. 172, 376 S.E.2d 728 (1989); State v. McQueen, 324 N.C. 118, 377 S.E.2d 38 (1989); Dellinger Septic Tank Co. v. Sherrill, 94 N.C. App. 105, 379 S.E.2d 688 (1989); State v. Hunt, 325 N.C. 187, 381 S.E.2d 453 (1989); State v. Everett, 98 N.C. App. 23, 390 S.E.2d 160 (1990); State v. Cinema Blue of Charlotte, Inc., 98 N.C. App. 628, 392 S.E.2d 136, cert. denied, 498 U.S. 1083, 111 S. Ct. 953, 112 L. Ed. 2d 1042 (1991); State v. McCarty, 326 N.C. 782, 392 S.E.2d 359 (1990); State v. Whitted, 99 N.C. App. 502, 393 S.E.2d 590 (1990); State v. Simpson, 327 N.C. 178, 393 S.E.2d 771 (1990); State v. Franklin, 327 N.C. 162, 393 S.E.2d 781 (1990); State v. Lynch, 327 N.C. 210, 393 S.E.2d 811 (1990); State v. Phillips, 328 N.C. 1, 399 S.E.2d 293; State v. Young, 103 N.C. App. 415, 406 S.E.2d 3 (1991); State v. Morgan, 329 N.C. 654, 406 S.E.2d 833 (1991); State v. Gordon, 104 N.C. App. 455, 410 S.E.2d 4 (1991); State v. Maye, 104 N.C. App. 437, 410 S.E.2d 8 (1991); State v. Garner, 330 N.C. 273, 410 S.E.2d 861 (1991); State v. Reeder, 105 N.C. App. 343, 413 S.E.2d 580 (1992); State v. Hammonds, 105 N.C. App. 594, 414 S.E.2d 55 (1992); State v. Suddreth, 105 N.C. App. 122, 412 S.E.2d 126 (1992); State v. White, 331 N.C. 604, 419 S.E.2d 557 (1992); State v. Cummings, 332 N.C. 487, 422 S.E.2d 692 (1992); State v. Harding, 110 N.C. App. 155, 429 S.E.2d 416 (1993); State v. Jennings, 333 N.C. 579, 430 S.E.2d 188 (1993); State v. McKinney, 110 N.C. App. 365, 430 S.E.2d 300 (1993); State v. Morgan, 111 N.C. App. 662, 432 S.E.2d 877 (1993); State v. Bynum, 111 N.C. App. 845, 433 S.E.2d 778 (1993); State v. Everette, 111 N.C. App. 775, 433 S.E.2d 802 (1993); State v. Yelverton, 334 N.C. 532, 434 S.E.2d 183 (1993); State v. McCarroll, 336 N.C. 559, 445 S.E.2d 18 (1994); State v. Moseley, 336 N.C. 710, 445 S.E.2d 906 (1994); State v. Grace, 341 N.C. 640, 461 S.E.2d 330 (1995); State v. Jones, 342 N.C. 457, 466 S.E.2d 696 (1996); State v. Sisk, 123 N.C. App. 361, 473 S.E.2d 348 (1996), aff'd in part and discretionary review improvidently allowed in part, 345 N.C. 749, 483 S.E.2d 440 (1997); State v. Stinnett, 129 N.C. App. 192, 497 S.E.2d 696 (1998), cert. denied, 525 U.S. 1008, 119 S. Ct. 526, 142 L. Ed. 2d 436 (1998); State v. Trull, 349 N.C. 428, 509 S.E.2d 178 (1998), cert. denied, 528 U.S. 835, 120 S. Ct. 95, 145 L. Ed. 2d 80 (1999); State v. Cardwell, 133 N.C. App. 496, 516 S.E.2d 388 (1999); State v. Krider,
138 N.C. App. 37, 530 S.E.2d 569 (2000); Allen v. Roberts Constr. Co., 138 N.C. App. 557, 532 S.E.2d 534 (2000); In re Hayes, 139 N.C. App. 114, 532 S.E.2d 553 (2000); State v. Perry, 142 N.C. App. 177, 541 S.E.2d 746 (2001); State v. Johnson, 145 N.C. App. 51, 549 S.E.2d 574 (2001); State v. Hannah, 149 N.C. App. 713, 563 S.E.2d 1 (2002); State v. Walters, 357 N.C. 68, 588 S.E.2d 344 (2003), cert. denied, 540 U.S. 971, 124 S. Ct. 442, 157 L. Ed. 2d 320 (2003); State v. Perry, 159 N.C. App. 30, 582 S.E.2d 708 (2003), cert. denied, 357 N.C. 510, 588 S.E.2d 469 (2003); State v. Maske, 358 N.C. 40, 591 S.E.2d 521 (2004); Jackson v. Carland, 192 N.C. App. 432, 665 S.E.2d 553 (2008); State v. McCravey, 203 N.C. App. 627, 692 S.E.2d 409 (2010); State v. Mack, 206 N.C. App. 512, 697 S.E.2d 490 (2010); State v. Norman, 213 N.C. App. 114, 711 S.E.2d 849 (2011), review denied, 718 S.E.2d 401, 2011 N.C. LEXIS 940 (2011); State v. Ellison, 213 N.C. App. 300, 713 S.E.2d 228 (2011); State v. Griffin, 213 N.C. App. 625, 713 S.E.2d 185 (2011), dismissed 719 S.E.2d 623, 2011 N.C. LEXIS 1042 (N.C. 2011), cert. dismissed, 747 S.E.2d 559, 2013 N.C. LEXIS 873 (2013); State v. Glenn, 220 N.C. App. 23, 725 S.E.2d 58 (2012), dismissed and review denied 734 S.E.2d 863, 2012 N.C. LEXIS 1093 (2012); State v. Davis, 368 N.C. 794, 785 S.E.2d 312 (2016).

Cited in State v. Robinson, 115 N.C. App. 358, 444 S.E.2d 475, cert. denied, 337 N.C. 697, 448 S.E.2d 538 (1994); State v. Hyman, 312 N.C. 601, 324 S.E.2d 264 (1985); State v. Gregory, 78 N.C. App. 565, 338 S.E.2d 110 (1985); State v. Brown, 81 N.C. App. 622, 344 S.E.2d 817 (1986); State v. Riddick, 315 N.C. 749, 340 S.E.2d 55 (1986); State v. Sidden, 315 N.C. 539, 340 S.E.2d 340 (1986); State v. Boone, 79 N.C. App. 746, 340 S.E.2d 527 (1986); State v. Barts, 316 N.C. 666, 343 S.E.2d 828 (1986); State v. Paige, 316 N.C. 630, 343 S.E.2d 848 (1986); State v. Hillard, 81 N.C. App. 104, 344 S.E.2d 54 (1986); State v. West, 317 N.C. 219, 345 S.E.2d 186 (1986); State v. White, 82 N.C. App. 358, 346 S.E.2d 243 (1986); State v. McKoy, 317 N.C. 519, 347 S.E.2d 374 (1986); State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986); State v. Rasor, 319 N.C. 577, 356 S.E.2d 328 (1987); State v. Clemmons, 319 N.C. 192, 353 S.E.2d 209 (1987); Booe v. Shadrick, 85 N.C. App. 230, 354 S.E.2d 305 (1987); State v. Robbins, 319 N.C. 465, 356 S.E.2d 279 (1987); State v. Poucher, 87 N.C. App. 279, 360 S.E.2d 505 (1987); State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275 (1988); State v. Hogan, 321 N.C. 719, 365 S.E.2d 289 (1988); State v. Martin, 322 N.C. 229, 367 S.E.2d 618 (1988); State v. Harris, 323 N.C. 112, 371 S.E.2d 689 (1988); State v. Chambers, 92 N.C. App. 230, 374 S.E.2d 158 (1988); State v. Agee, 93 N.C. App. 346, 378 S.E.2d 533 (1989); State v. Carter, 326 N.C. 243, 388 S.E.2d 111 (1990); Gregory v. North Carolina, 900 F.2d 705 (4th Cir. 1990); State v. Evans, 99 N.C. App. 88, 392 S.E.2d 441 (1990); State v. Scott, 99 N.C. App. 113, 392 S.E.2d 621 (1990); State v. Wooten, 104 N.C. App. 125, 408 S.E.2d 202 (1991); State v. Crawford, 329 N.C. 466, 406 S.E.2d 579 (1991); State v. Jacobs, 105 N.C. App. 83, 411 S.E.2d 630 (1992); State v. Handy, 331 N.C. 515, 419 S.E.2d 545 (1992); State v. Gibson, 333 N.C. 29, 424 S.E.2d 95 (1992); State v. Holmes, 109 N.C. App. 615, 428 S.E.2d 277 (1993); State v. Baymon, 108 N.C. App. 476, 424 S.E.2d 141 (1993); State v. Mixion, 110 N.C. App. 138, 429 S.E.2d 363 (1993); State v. Davis, 110 N.C. App. 272, 429 S.E.2d 403 (1993); State v. Matheson, 110 N.C. App. 577, 430 S.E.2d 429 (1993); State v. Harris, 111 N.C. App. 445, 432 S.E.2d 415 (1993); State v. Lynch, 337 N.C. 415, 445 S.E.2d 581 (1994); State v. Fisher, 336 N.C. 684, 445 S.E.2d 866 (1994); State v. Johnson, 337 N.C. 212, 446 S.E.2d 92 (1994); Pinckney v. Van Damme, 116 N.C. App. 139, 447 S.E.2d 825 (1994); State v. Reeves, 337 N.C. 700, 448 S.E.2d 802 (1994), cert. denied, 514 U.S. 1114, 115 S. Ct. 1971, 131 L. Ed. 2d 860 (1995); State v. Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994); State v. Hardy, 339 N.C. 207, 451 S.E.2d 600 (1994); State v. Kelly, 118 N.C. App. 589, 456 S.E.2d 861 (1995); State v. Powell, 340 N.C. 674, 459 S.E.2d 219 (1995); State v. Holmes, 120 N.C. App. 54, 460 S.E.2d 915 (1995); State v. Montgomery,
341 N.C. 553, 461 S.E.2d 732 (1995); State v. McAbee, 120 N.C. App. 674, 463 S.E.2d 281 (1995); State v. Bostic, 121 N.C. App. 90, 465 S.E.2d 20 (1995), cert. dismissed, 599 S.E.2d 560 (2004); State v. King, 343 N.C. 29, 468 S.E.2d 232 (1996); State v. Howell, 343 N.C. 229, 470 S.E.2d 38 (1996); State v. Johnston, 344 N.C. 596, 476 S.E.2d 289 (1996); State v. Ocasio, 344 N.C. 568, 476 S.E.2d 281 (1996); State v. Bond, 345 N.C. 1, 478 S.E.2d 163 (1996), reh'g denied, 345 N.C. 355, 479 S.E.2d 210, cert. denied, 521 U.S. 1124, 117 S. Ct. 2521, 138 L. Ed. 2d 1022 (1997); State v. Collins, 345 N.C. 170, 478 S.E.2d 191 (1996); State v. Wilson, 345 N.C. 119, 478 S.E.2d 507 (1996); State v. Dickens, 346 N.C. 26, 484 S.E.2d 553 (1997); State v. Robinson, 346 N.C. 586, 488 S.E.2d 174 (1997), cert. denied, - N.C. - , 502 S.E.2d 611 (1998); State v. Allen, 346 N.C. 731, 488 S.E.2d 188 (1997); State v. Tucker, 347 N.C. 235, 490 S.E.2d 559 (1997), cert. denied, 523 U.S. 1061, 118 S. Ct. 1389, 140 L. Ed. 2d 649 (1998); State v. Wright, 127 N.C. App. 592, 492 S.E.2d 365 (1997), cert. denied, 347 N.C. 584, 502 S.E.2d 616 (1998), cert. dismissed, mot. dismissed, as moot, 842 S.E.2d 598, 2020 N.C. LEXIS 528 (N.C. 2020); State v. Clark, 128 N.C. App. 87, 493 S.E.2d 770 (1997), cert. denied, 348 N.C. 285, 501 S.E.2d 913 (1998); State v. Lee, 348 N.C. 474, 501 S.E.2d 334 (1998); State v. Hines, 131 N.C. App. 457, 508 S.E.2d 310 (1998); State v. Monk, 132 N.C. App. 248, 511 S.E.2d 332 (1999); State v. Roseboro, 351 N.C. 536, 528 S.E.2d 1, cert. denied, 531 U.S. 1019, 121 S. Ct. 582, 148 L. Ed. 2d 498 (2000); State v. Merrill, 138 N.C. App. 215, 530 S.E.2d 608 (2000); State v. Moss, 139 N.C. App. 106, 532 S.E.2d 588 (2000); Carpenter v. Brooks, 139 N.C. App. 745, 534 S.E.2d 641 (2000), cert. denied, 353 N.C. 261, 546 S.E.2d 91 (2000); State v. Anthony, 354 N.C. 372, 555 S.E.2d 557 (2001); State v. Eubanks, 151 N.C. App. 499, 565 S.E.2d 738 (2002); State v. Curry, 153 N.C. App. 260, 569 S.E.2d 691 (2002); State v. Bethea, 156 N.C. App. 167, 575 S.E.2d 831 (2003); State v. Perry, 159 N.C. App. 30, 582 S.E.2d 708 (2003), cert. denied, 357 N.C. 510, 588 S.E.2d 469 (2003); State v. Owens, 160 N.C. App. 494, 586 S.E.2d 519 (2003); State v. Garcia, 358 N.C. 382, 597 S.E.2d 724 (2004), cert. denied, - U.S. - , 125 S. Ct. 1301, 161 L. Ed. 2d 122 (2005); State v. Jacobs, 172 N.C. App. 220, 616 S.E.2d 306 (2005); State v. Campbell, 359 N.C. 644, 617 S.E.2d 1 (2005); State v. Theer, 181 N.C. App. 349, 639 S.E.2d 655 (2007), cert. denied, - U.S. - , 128 S. Ct. 2473, 171 L. Ed. 2d 769 (2008); State v. Reber, 1 82 N.C. App. 250, 641 S.E.2d 742 (2007); State v. Patterson, 185 N.C. App. 67, 648 S.E.2d 250 (2007), review denied, 362 N.C. 242, 660 S.E.2d 538 (2008); State v. Mitchell, 194 N.C. App. 705, 671 S.E.2d 340 (2009), review denied, mot. dismissed, 363 N.C. 586, 683 S.E.2d 380 (2009), cert. denied, 363 N.C. 809, - S.E.2d - (2010);
State v. Ryder, 196 N.C. App. 56, 674 S.E.2d 805 (2009); State v. Mello, 200 N.C. App. 561, 684 S.E.2d 477 (2009); State v. Curry, 203 N.C. App. 375, 692 S.E.2d 129 (2010); State v. LePage, 204 N.C. App. 37, 693 S.E.2d 157 (2010); State v. Ray, 364 N.C. 272, 697 S.E.2d 319 (Aug. 27, 2010); State v. Potts, 208 N.C. App. 451, 702 S.E.2d 360 (2010); State v. Towe, 210 N.C. App. 430, 707 S.E.2d 770 (2011), aff'd and modified 366 N.C. 56, 732 S.E.2d 564, 2012 N.C. LEXIS 420 (N.C. 2012); State v. Brown, 211 N.C. App. 427, 710 S.E.2d 265 (2011), aff'd, review improvidently allowed, 365 N.C. 465, 722 S.E.2d 508, 2012 N.C. LEXIS 123 (2012); State v. De La Sancha Cobos, 211 N.C. App. 536, 711 S.E.2d 464 (2011); State v. Ellerbee, 218 N.C. App. 596, 721 S.E.2d 296 (2012), cert. denied 366 N.C. 421, 736 S.E.2d 182, 2013 N.C. LEXIS 25 (2013), dismissed 366 N.C. 421, 736 S.E.2d 182, 2013 N.C. LEXIS 22 (2013), review denied 366 N.C. 421, 736 S.E.2d 181, 2013 N.C. LEXIS 21 (2013); State v. Towe, 366 N.C. 56, 732 S.E.2d 564 (2012); State v. Jones, 223 N.C. App. 487, 734 S.E.2d 617 (2012), aff'd, 758 S.E.2d 345, 2014 N.C. LEXIS 173 (2014); State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371 (2012); State v. Macon, 227 N.C. App. 152, 741 S.E.2d 688 (2013), review denied 367 N.C. 238, 748 S.E.2d 545, 2013 N.C. LEXIS 1025 (2013); State v. Horskins, 228 N.C. App. 217, 743 S.E.2d 704 (2013), review denied 367 N.C. 273, 752 S.E.2d 481, 2013 N.C. LEXIS 1439 (2013); State v. Summey, 228 N.C. App. 730, 746 S.E.2d 403 (2013), dismissed and review denied 367 N.C. 290, 753 S.E.2d 783, 2014 N.C. LEXIS 93 (2014); State v. Barrett, 228 N.C. App. 655, 746 S.E.2d 413 (2013); State v. Monroe, 230 N.C. App. 70, 748 S.E.2d 179 (2013), review denied 367 N.C. 1418, 752 S.E.2d 477, 2013 N.C. LEXIS 1418 (2013); Schmidt v. Petty, 231 N.C. App. 406, 752 S.E.2d 690 (2013); State v. Goins, 232 N.C. App. 451, 754 S.E.2d 195 (2014); State v. Ruffin, 232 N.C. App. 652, 754 S.E.2d 685 (2014); State v. Blakney, 233 N.C. App. 516, 756 S.E.2d 844 (2014); State v. Dinan, 233 N.C. App. 694, 757 S.E.2d 481 (2014);.

State v. Davis, 239 N.C. App. 522, 768 S.E.2d 903 (2015); State v. Mitchell, 240 N.C. App. 246, 770 S.E.2d 740 (2015); State v. Triplett, 368 N.C. 172, 775 S.E.2d 805 (2015); State v. Matsoake, 243 N.C. App. 651, 777 S.E.2d 810 (2015), review denied, 781 S.E.2d 485, 2016 N.C. LEXIS 77 (2016); State v. Chapman, 244 N.C. App. 699, 781 S.E.2d 320 (2016); State v. Baker, 369 N.C. 586, 799 S.E.2d 816 (2017); State v. Lynch, 254 N.C. App. 334, 803 S.E.2d 190 (2017); State v. Roberts, - N.C. App. - , 836 S.E.2d 287 (2019), review denied, 374 N.C. 269, 839 S.E.2d 350, 2020 N.C. LEXIS 293 (N.C. 2020); State v. Warden, - N.C. App. - , 836 S.E.2d 880 (2019), aff'd, 852 S.E.2d 184, 2020 N.C. LEXIS 1143 (N.C. 2020).

II. CHARACTER EVIDENCE GENERALLY.

Subsection (a) is a general rule of exclusion, prohibiting the introduction of character evidence to prove that a person acted in conformity with that evidence of character. State v. Bogle, 324 N.C. 190, 376 S.E.2d 745 (1989).

Under subdivision (a)(1) of this rule an accused may no longer offer evidence of undifferentiated "good character" as permitted by our previous practice; rather, he must tailor the evidence to a particular trait that is relevant to an issue in the case. State v. Squire, 321 N.C. 541, 364 S.E.2d 354 (1988); State v. Fultz, 92 N.C. App. 80, 373 S.E.2d 445 (1988).

The plain meaning of the "first aggressor" exception is abundantly clear: if a defendant presents evidence that the victim was the first aggressor in the confrontation which led to the victim's death, the State can offer evidence of the victim's peacefulness. State v. Faison, 330 N.C. 347, 411 S.E.2d 143 (1991).

Accused May Introduce Evidence of Specific Traits. - This rule, which became effective on July 1, 1984, is a significant departure from our previous practice under the common law, in that it permits an accused to introduce evidence of specific traits of his character. Under our previous rule, developed under the common law, the only method for introducing evidence of character was by general reputation. State v. Squire, 321 N.C. 541, 364 S.E.2d 354 (1988).

Defendant, who was on trial for murder, was not entitled to an instruction on his general "good reputation" in the community. State v. Fowler, 159 N.C. App. 504, 583 S.E.2d 637 (2003).

As the trial court's preclusion of evidence regarding defendant's peaceful and law-abiding character prevented defendant from offering evidence of two character traits which were both relevant and admissible as to his self-defense claim, and defendant demonstrated a reasonable possibility that, had the trial court not committed the error, the result at trial would have been different; thus, the defendant was prejudiced by the error. State v. Banks, 191 N.C. App. 743, 664 S.E.2d 355 (2008).

When Evidence of Character Traits Is Admissible. - "Pertinent" in the context of subdivision (a)(1) of this rule is tantamount to relevant. Thus, in determining whether evidence of a character trait is admissible under subdivision (a)(1), the trial court must determine whether the trait in question is relevant; i.e., whether it would make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without evidence of the trait. State v. Squire, 321 N.C. 541, 364 S.E.2d 354 (1988).

A criminal defendant will be entitled to an instruction on a good character trait as substantive evidence of his innocence when he satisfies the following four-part test: First, the evidence must be of a "trait of character" and not merely evidence of a fact (e.g., "being 'law-abiding' addresses one's character of abiding by all laws, a lack of convictions addresses only the fact that one has not been convicted of a crime"); second, the evidence of the trait must be competent (i.e., in addition to satisfying all other applicable standards, the evidence must be in the proper form as required by G.S. 8C-1, Rule 405); third, the trait must be pertinent (i.e., relevant in the context of the crime charged in that it bears a special relationship to or is involved in such crime); and fourth, the instruction must be requested by the defendant. State v. Moreno, 98 N.C. App. 642, 391 S.E.2d 860 (1990).

Evidence of criminal activity not related to the crime charged must be relevant to some issue in the case to be admissible; such evidence is inadmissible when introduced to prove defendant's "character in order to show that he acted in conformity therewith." State v. Coffey, 336 N.C. 412, 444 S.E.2d 431 (1994).

Where defendant argues he acted in self-defense, evidence of the victim's character may be admissible for two reasons: to show defendant's fear or apprehension was reasonable, or to show the victim was the aggressor. State v. Ray, 125 N.C. App. 721, 482 S.E.2d 755 (1997).

Where defendant proffered evidence of his good character, trial court did not abuse its discretion in allowing the State to rebut by introducing evidence of his assaultive behavior prior to his 1976 brain injury. Dobson v. Harris, 350 N.C. 776, 517 S.E.2d 605 (1999), cert. denied, 529 U.S. 1006, 120 S. Ct. 1274, 146 L. Ed. 2d 223 (2000).

Trial court did not err in allowing admission of one police officer's testimony that from a confrontation with a young female outside of a residence where defendant had been seen before, that he knew defendant was likely inside the residence, and that he went to the residence to speak with defendant, as the testimony helped to establish the elements of the drug crimes charged against defendant and did not impermissibly place defendant's character at issue even though it tended to show that defendant and the officer knew each other. State v. Moore, 162 N.C. App. 268, 592 S.E.2d 562 (2004).

While the bad acts elicited by the prosecution on redirect of the defendant's girlfriend may have been inadmissible on direct examination under G.S. 8C-1, N.C. R. Evid. 404(b) before the defendant "opened the door" during cross-examination, the prosecution's rebuttal of the defendant's evidence of good character through the use of specific instances of conduct was proper under G.S. 8C-1, N.C. R. Evid. 404(a)(1), (b). State v. Duke, 360 N.C. 110, 623 S.E.2d 11 (2005).

Testimony that defendant became violent when he was drinking was not offered for the purpose of proving that defendant acted in conformity with a violent disposition, but rather served to provide context for the ensuing fight; as such, its admission does not violate G.S. 8C-1-404's prohibition on character evidence. State v. Beal, 181 N.C. App. 100, 638 S.E.2d 541 (2007).

Because defendant placed his character at issue by testifying at length about his positive military service record and acknowledging that he received a general discharge from the United States Army, the State was entitled to examine the circumstances that led to defendant's discharge. State v. Sargent, 233 N.C. App. 96, 755 S.E.2d 91 (2014).

Trait May Be General in Nature. - While under this rule, an accused must tailor his character evidence to a "pertinent" trait, the trait may be general in nature, provided that it is relevant in the context of the crime charged. State v. Squire, 321 N.C. 541, 364 S.E.2d 354 (1988).

Such as Trait of Being Law-Abiding. - An example of a character trait of a general nature which is nearly always relevant in a criminal case is the trait of being law-abiding. State v. Squire, 321 N.C. 541, 364 S.E.2d 354 (1988).

Defendant was entitled to an instruction on his character trait of law-abidingness as substantive evidence of his innocence; it was for the jury to assess the weight of this evidence. State v. Bogle, 324 N.C. 190, 376 S.E.2d 745 (1989).

"Pertinent" Trait to Be Restrictively Construed. - The language of the subsection (a) exception permitting the accused to offer evidence of a "pertinent" trait should be restrictively construed. State v. Bogle, 324 N.C. 190, 376 S.E.2d 745 (1989).

In a prosecution for the murder of a child, in which defendant offered evidence of his appropriate behavior around children, while defendant's allegedly peaceable character was pertinent to the charge of first-degree murder, neither his character nor a trait of his character were essential elements of the charge or his defense, so elicitation of evidence about his character during direct testimony had to be accomplished by opinion or reputation testimony rather than specific opinion testimony, pursuant to G.S. 8C-1-404(a)(1) and G.S. 8C-1-405(a). State v. Murphy, 172 N.C. App. 734, 616 S.E.2d 567 (2005).

Lack of Mental Illness Not Pertinent. - Evidence of the defendant's general "psychological make-up," including evidence of the lack of several mental problems, was not pertinent to the commission of a sexual assault, and, thus, was not admissible under the exception to the general bar against character evidence offered for the purpose of proving conduct in conformity therewith. State v. Wagoner, 131 N.C. App. 285, 506 S.E.2d 738 (1998).

Sexual Orientation Not Pertinent. - Evidence offered by the defendant showing that the victim had a reputation for being a homosexual is not a pertinent character trait within the meaning of subsection (a)(2). State v. Laws, 345 N.C. 585, 481 S.E.2d 641 (1997).

Because an individual's sexual orientation bears no relationship to the likelihood that one would threaten a sexual assault, it therefore can bear no relationship to defendant's claim that he killed in self-defense in response to a threatened sexual assault. State v. Laws, 345 N.C. 585, 481 S.E.2d 641 (1997).

Military Record or Military Service. - A good military record or military service is not relevant to defendant's guilt or innocence in a rape case. State v. Mustafa, 113 N.C. App. 240, 437 S.E.2d 906, cert. denied, 336 N.C. 613, 447 S.E.2d 409 (1994).

Witness' Beliefs About Defendant Not Evidence of Pertinent Trait. - Defense question to rape defendant's employment supervisor of whether he believed defendant was capable of raping anyone was not allowed as evidence of a pertinent character trait under subdivision (a)(1) of this rule. State v. Najewicz, 112 N.C. App. 280, 436 S.E.2d 132 (1993), cert. denied, 335 N.C. 362, 441 S.E.2d 130 (1994).

Violent Character. - Evidence of a victim's violent character is irrelevant in a homicide case when the defense of accident is raised. State v. Goodson, 341 N.C. 619, 461 S.E.2d 740 (1995).

Evidence regarding defendant's alleged prior violent acts against his former girlfriend was not properly admitted under Rule 404(a) because the testimony of defendant and the several other defense witnesses was strictly limited to defendant's actions and state of mind on the night of the alleged murder; while much of the testimony focused on defendant's initial unwillingness to respond belligerently to the victim's taunts, there was no instance where defendant interjected his character into the proceedings by proffering testimony tending to show he possessed a generally peaceful or non-violent disposition. State v. Dennison, 163 N.C. App. 375, 594 S.E.2d 82 (2004).

Testimony from a witness who saw defendant's victim breaking car windows at an automobile dealership should have been admitted during her murder trial, which ended in her conviction for second-degree murder, as an essential element of her assertion of self-defense under G.S. 8C-1-405(b); the evidence was relevant and admissible as evidence of the victim's violent character to show the jury that defendant's apprehension of death and bodily harm was reasonable. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703 (2006).

In defendant's murder trial, defendant was not required to make an offer of proof regarding testimony that her victim had told her former employee that he was going to "shoot up his house" that was excluded when the trial court granted the state's motion to strike the testimony. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703 (2006).

Erroneous exclusion of testimony from a car dealership employee who saw defendant's victim breaking car windows at the dealership, which should have been admitted during defendant's murder trial as evidence of the victim's violent character, was prejudicial even though defendant testified to the same incident on direct and redirect examination. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703 (2006).

Substance of the testimony was apparent from the context within which the questions were asked under G.S. 8C-1-103(a)(2), the grounds for admitting the testimony as evidence of the victim's violent character pertinent to defendant's assertion of self-defense under G.S. 8C-1-404(a)(2) were apparent from the context under N.C. R. App. P. 10(b)(1), and the issue of the testimony's admissibility was properly preserved for appellate review. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703 (2006).

Because the use of specific instances of past conduct was limited to cases in which character was an essential element of the charge, claim, or defense, the trial court correctly excluded testimony regarding specific prior acts of violence by the victim in defendant's trial for assault with a deadly weapon inflicting serious injury. State v. Bass, 371 N.C. 535, 819 S.E.2d 322 (2018).

Same - Irrelevant When Victim Unknown. - Defendant did not know victim nor did he know anything about his reputation prior to altercation; thus, evidence of specific instances of victim's violent character was irrelevant in regards to the reasonableness of defendant's apprehension and need to use force, and the trial court properly denied its admission on this basis. State v. Ray, 125 N.C. App. 721, 482 S.E.2d 755 (1997).

Evidence of deceased's criminal record cannot be received for purpose of establishing his reputation for violence. State v. Adams, 90 N.C. App. 145, 367 S.E.2d 362 (1988).

Drug Addiction Is Not Probative of Truthfulness or Untruthfulness. - Cross-examination concerning defendant's drug addiction was improper under G.S. 8C-1, Rule 608(b), because extrinsic evidence of drug addiction, standing alone, is not probative of defendant's character for truthfulness or untruthfulness. State v. Rowland, 89 N.C. App. 372, 366 S.E.2d 550 (1988).

Drug Use to Show Motive. - In a prosecution for common law burglary and first-degree murder, evidence that defendant had been using cocaine was properly admitted to show her motive to commit the robbery. State v. Stephenson, 144 N.C. App. 465, 551 S.E.2d 858 (2001).

Prosecution May Introduce Character Evidence. - This rule allows the prosecution to introduce evidence of a victim's character only to rebut defendant's evidence calling it into question. State v. Quick, 329 N.C. 1, 405 S.E.2d 179 (1991).

Self-defense Claim Does Not Interject Defendant's Character Into Proceedings. - Evidence of defendant's alleged prior violent acts towards his former girlfriend was not properly admitted in defendant's murder trial under Rule 405(b); defendant had maintained at trial that he used a knife in striking the victim in self-defense, because the victim had just struck him in the head with a beer bottle. Because raising a self-defense claim does not interject a defendant's character into the proceedings, and a defendant's character is not an essential element of a self-defense claim, evidence of defendant's prior assaultive behavior towards a person other than the victim was not justified under Rule 405(b). State v. Dennison, 163 N.C. App. 375, 594 S.E.2d 82 (2004).

Admission of Victim's Character Evidence Not Plain Error. - The admission of the evidence concerning decedent/wife's good character before the defendant offered any evidence of her character was error but not plain error. State v. Jones, 137 N.C. App. 221, 527 S.E.2d 700 (2000).

Exclusion of Evidence of Character Traits Held Error. - In a close case on the issue of whether homicide was committed in self-defense, where defendant demonstrated that the victim was a violent person who had directed his anger toward him in the past, and also offered a plausible explanation for his fear at the time he shot the victim, which was corroborated by two witnesses, evidence of favorable character traits of defendant other than peacefulness and truthfulness, such as, for example, being law-abiding, might have weighed heavily in the jury's determination of whether the defendant acted in self-defense, or might have influenced the jury to return a verdict of voluntary manslaughter or second degree murder rather than first degree murder, and thus trial court's unwarranted general prohibition of evidence of character traits other than peacefulness and truthfulness constituted reversible error entitling defendant to a new trial. State v. Squire, 341 N.C. 541, 364 S.E.2d 354 (1988).

Trial court erred in excluding testimony that defendant was respectful around children and interacted in a positive way with children, because it was relevant to whether defendant committed first degree statutory rape of a child and tended to make the facts central to the charges less probable than they would be without such evidence. State v. Walston, 229 N.C. App. 141, 747 S.E.2d 720 (2013), review denied 753 S.E.2d 666, 2014 N.C. LEXIS 28 (2014), rev'd 367 N.C. 721, 766 S.E.2d 312, 2014 N.C. LEXIS 953 (2014).

Trait of Being Respectful Towards Children Properly Excluded. - Appellate court erred by holding that the trial court should have allowed defendant to introduce evidence of his being respectful towards children under this section because the evidence was not sufficiently tailored to a relevant issue at trial, as defendant provided no evidence that the trait of respectfulness had any bearing on a person's tendency to sexually abuse children. State v. Walston, 367 N.C. 721, 766 S.E.2d 312 (2014).

Evidence Showed More Than Character. - In a first-degree murder case, evidence of defendant's having been charged with driving while impaired explained circumstances under which he was taken into custody, and evidence of defendant's refusal to take a breathalyzer test explained the circumstances under which defendant was kept waiting in the Virginia Public Safety Center where he confessed to the crimes for which he was on trial; all of this evidence tended ultimately to show the circumstances under which that confession was made and was thus relevant on the issues of the confession's voluntariness and credibility. The evidence cast more light on these important questions than it did on defendant's character; therefore, its probative value outweighed its prejudicial effect. State v. Rannels, 333 N.C. 644, 430 S.E.2d 254 (1993).

Medical records and North Carolina Department of Social Services records of the decedent and the decedent's child were admissible in a wrongful death and medical malpractice action because experts for both parties relied on the records to form their own opinions of the case, particularly with regard to the issues of proximate cause and damages. Moreover, the records were not admitted to show character evidence. Clarke v. Mikhail, 243 N.C. App. 677, 779 S.E.2d 150 (2015).

Admission of Evidence Prejudicial Error. - There was no relevancy for the admission of defendant's past violent behavior toward his wife to prove the character of the defendant in relation to motive, opportunity, or intent and the admission of the evidence constituted prejudicial error requiring a new trial. State v. Brooks, 113 N.C. App. 451, 439 S.E.2d 234 (1994).

Witness's statement that defendant was an "asset" to the witness in the witness's drug trafficking was tantamount to identifying defendant as a drug dealer and was improperly admitted; since there was no other conclusive evidence that defendant was a drug trafficker, defendant was granted a new trial on drug trafficking charges. State v. Yancey, 155 N.C. App. 609, 573 S.E.2d 243 (2002), cert. denied, 356 N.C. 694, 579 S.E.2d 99 (2003).

Evidence of defendant's prior incarceration constituted inadmissible character evidence that prejudiced his defense because the State improperly elicited that evidence to show defendant's propensity to commit the drug crimes for which he was on trial; the State could not purport to rebut the testimony of defendant's girlfriend with bad character evidence as she did not testify as to defendant's reputation for being law-abiding; and there was a reasonable possibility that, had the error not been committed, the jury would have reached a different result, as the evidence against defendant was largely circumstantial, and a jury could have reasonably concluded that the marijuana and cocaine were attributable to defendant's roommates. State v. Rios, 251 N.C. App. 318, 795 S.E.2d 234 (2016).

Admission of Evidence Not Prejudicial. - The trial court erred in admitting officer's testimony as a drug dealer; however, as defendant's testimony alone was enough from which a reasonable juror could conclude that defendant possessed the marijuana and cocaine with the intent to sell and deliver, defendant was not prejudiced by the admission of the character evidence against him. State v. Taylor, 117 N.C. App. 644, 453 S.E.2d 225 (1995).

Witnesses' testimony regarding defendant's activities hours before murders occurred explained why witness was found walking away from crime scene and provided evidence confirming state of mind, method of operation, and course of conduct of defendant and his cohorts; thus, the testimony was not inadmissible character evidence. State v. DeCastro, 342 N.C. 667, 467 S.E.2d 653 (1996), cert. denied, 519 U.S. 896, 117 S. Ct. 241, 136 L. Ed. 2d 170 (1996).

Although it was error for the trial court to permit the State to ask defendant a question about his temper, the error was not prejudicial as there was other evidence at trial that was sufficient to support defendant's first-degree felony murder conviction. State v. Stafford, 150 N.C. App. 566, 564 S.E.2d 60 (2002), cert. denied, 357 N.C. 169, 581 S.E.2d 444 (2003).

Evidence of defendant's possession of pornographic magazines and videos was improperly admitted as evidence of defendant's intent to engage in a sexual relationship with the victim, or as evidence of defendant's preparation, plan, knowledge or absence of mistake in defendant's trial for taking indecent liberties with a child and first degree sex offense with a female child under the age of 13; however, the error was not prejudicial under G.S. 15A-1443. State v. Smith, 152 N.C. App. 514, 568 S.E.2d 289 (2002), cert. denied, 356 N.C. 623, 575 S.E.2d 757 (2002).

Although the admission of reputation testimony violated G.S. 8C-1, Rule 404(a), the error was not prejudicial because the evidence regarding one witness's possession of a crack pipe was cumulative and there was ample evidence to convict defendant without the evidence of his brother's reputation as a dealer of drugs. State v. McBride, 173 N.C. App. 101, 618 S.E.2d 754 (2005).

In a case in which defendant appealed his conviction for possession with intent to sell and deliver cocaine and the sale of cocaine, he unsuccessfully argued that he had to receive a new trial because the trial court erred in allowing character evidence regarding defendant being a drug dealer. That claim was subject to plain error review, and, even if the trial court erred in allowing a detective to testify that defendant was a known drug dealer, defendant had failed to show any prejudice, much less that absent the error, the jury probably would have reached a different result. State v. Batchelor, 202 N.C. App. 733, 690 S.E.2d 53 (2010).

Even if the trial court erred by admitting a forensic psychologist's report and testimony, any error was non-prejudicial because the State presented other abundant evidence of defendant's guilt; defendant failed to carry his burden of showing that had the psychologist's report and corresponding testimony not been admitted at trial, a reasonable possibility existed that the jury would have reached a different result; State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636 (2015).

Trial court did not err in admitting evidence about a prior, violent incident in order to prove defendant's identity because of the similarities between the incidents and relatively short time periods between the incidents. State v. Thomas, - N.C. App. - , 834 S.E.2d 654 (2019).

III. OTHER CRIMES AND WRONGS.

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Denial of pre-trial disclosure of G.S. 8C-1, Rule 404(b) evidence did not deprive defendant of a fair trial in violation of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and N.C. Const., Article I, §§ 19 and 23. State v. Parker, (N.C. App. Oct. 3, 2000).

Res Gestae Rationale Survives. - Admission of evidence of a criminal defendant's prior bad acts, received to establish the circumstances of the crime on trial by describing its immediate context, is known variously as the "same transaction" rule, the "complete story" exception, and the "course of conduct" exception. Such evidence is admissible if it "forms part of the history of the event or serves to enhance the natural development of the facts"; and this rationale, established in pre-Rules cases, survives the adoption of the Rules of Evidence. State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990).

Applicability of Subsection (b). - Subsection (b) of this rule has been interpreted as applicable only to parties and, in a criminal case, would usually be applicable only to a defendant. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).

Evidence of defendant's other crimes was not admitted pursuant to G.S. 8C-1-404(b), but was admitted to establish one of the elements of a crime that the State of North Carolina was required to prove - possession of a firearm by a felon. Thus, a limiting instruction regarding evidence of other crimes admitted pursuant to Rule 404(b) was not appropriate and the trial court did not err in failing to give that instruction. State v. Cromartie, 177 N.C. App. 73, 627 S.E.2d 677 (2006).

Admission of a witness's statement that defendant was "a man with a machete riding around" did not implicate G.S. 8C-1, N.C. R. Evid. 404(b), because wielding a machete was not a character trait, and the statement was a description of what the witness saw and his reason for calling for help; the witness was the victim's brother. State v. Sessoms, 226 N.C. App. 381, 741 S.E.2d 449 (2013).

Basis for Exception in Subsection (b). - The exception noted in subsection (b) of this rule is grounded in the logic of inferring from the sequence of events comprising an offense or from its particular features that the same person committed the offense more than once, aware on at least the latter occasion of its consequences. State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Defendant's robbery and kidnapping victim was properly allowed to testify at defendant's trial for the kidnapping, robbery, rape, and murder of two victims as the kidnapping, threatening, and robbing of the witness was particularly similar to the murder allegations, indicating the same person committed the crimes charged. State v. Hyatt, 355 N.C. 642, 566 S.E.2d 61 (2002).

The use of evidence as permitted under subsection (b) of this section is guided by two constraints: similarity and temporal proximity. When the features of the earlier act are dissimilar from those of the offense with which the defendant is currently charged, such evidence lacks probative value. When otherwise similar offenses are distanced by significant stretches of time, commonalties become less striking, and the probative value of the analogy attaches less to the acts than the character of the actor. State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

The list of purposes in the second sentence of subsection (b) of this rule is neither exclusive nor exhaustive. State v. Moseley, 338 N.C. 1, 449 S.E.2d 412 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738 (1995).

The list of permissible purposes for admission of other crimes evidence is not exclusive, and such evidence is admissible as long as it is relevant to any fact or issue other than the defendant's propensity to commit the crime. State v. Hipps, 348 N.C. 377, 501 S.E.2d 625 (1998), cert. denied, 525 U.S. 1180, 119 S. Ct. 1119, 143 L. Ed. 2d 114 (1999).

The statutory list of permissible purposes for other crimes evidence is not exclusive and the fact that evidence cannot be brought within a listed category does not necessarily mean that it is inadmissible. State v. Blackwell, 133 N.C. App. 31, 514 S.E.2d 116 (1999), cert. denied, 350 N.C. 595, 537 S.E.2d 483 (1999).

The list of permissible purposes for admission of "other crimes" evidence is not exclusive; thus, testimony from a police officer that defendant was arrested while driving a vehicle that had been reported stolen was properly admitted to explain defendant's presence in a photographic lineup conducted in a separate armed robbery investigation. State v. McCree, 160 N.C. App. 19, 584 S.E.2d 348 (2003), notice of appeal dismissed, cert. denied, 357 N.C. 661, 590 S.E.2d 855 (2003).

Admissibility. - "Other crimes, wrongs, or acts" evidence is admissible only if offered for a proper purpose. A proper purpose includes, among other things, proof of a defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident. State v. Haskins, 104 N.C. App. 675, 411 S.E.2d 376 (1991), cert. denied, 331 N.C. 287, 417 S.E.2d 256 (1992).

The admissibility of "other crimes, wrongs, or acts" evidence is determined through an application of subsection (b) of this rule, and G.S. 8C-1, Rules 402, 401, 403, 104(b), and 105. State v. Haskins, 104 N.C. App. 675, 411 S.E.2d 376 (1991), cert. denied, 331 N.C. 287, 417 S.E.2d 256 (1992).

For evidence of defendant's prior crimes or bad acts to be admissible to show the identity of the defendant as the perpetrator of the crime for which he is being tried, there must be some unusual facts present in both crimes or particularly similar acts that would indicate that the same person committed both crimes, and while the similarities need not be unique and bizarre, they must tend to support a reasonable inference that the same person committed both the earlier and later acts. State v. Gary, 348 N.C. 510, 501 S.E.2d 57 (1998).

In a prosecution of defendant for possession of a firearm by a felon, the trial court did not err in allowing the State to introduce evidence that defendant's probationary sentence was revoked because it was relevant to prove defendant's status as a convicted felon, and was therefore admissible under G.S. 8C-1, N.C. R. Evid. 404(b). To the extent that the evidence tended to show that defendant committed inadmissible prior bad acts, the trial court's limiting instructions to the jury were sufficient to cure any prejudice against him. State v. Boston, 165 N.C. App. 214, 598 S.E.2d 163 (2004).

Prior acts evidence was properly admitted under G.S. 8C-1, N.C. R. Evid. 404(b); notable similarities existed between defendant's prior drug related acts and the crimes he was charged with, the prior acts were not too remote in time, and the trial court guarded against prejudice by giving a limiting instruction. State v. Stevenson, 169 N.C. App. 797, 611 S.E.2d 206 (2005).

Trial court did not err in admitting evidence that defendant was in a gang and had served time in jail; even though such evidence incidentally touched on his bad character, it was also relevant to establish defendant's identity, and was admissible for that purpose. State v. Medina, 174 N.C. App. 723, 622 S.E.2d 176 (2005), cert. denied, 360 N.C. 366, 630 S.E.2d 448 (2006).

Defendant's statement to officers that he was expected to make a living outside prison showed a motive for the robbery and his statement that he wanted to go back to prison showed a possible motive to commit a crime in order to accomplish that objective; the statements were made by defendant himself shortly after the crime and were distinguishable from other evidence, and as such, the statements were probative of motive and intent, so there was no error in admission of the statements. State v. al-Bayyinah, 359 N.C. 741, 616 S.E.2d 500 (2005), cert. denied, 547 U.S. 1076, 126 S. Ct. 1784, 164 L. Ed. 2d 528 (2006), cert. denied, 700 S.E.2d 925, 2010 N.C. LEXIS 588 (2010), cert. denied 2010 N.C. LEXIS 588 (N.C. 2010).

Trial court properly admitted evidence of the defendant's prior conduct to establish malice on a second-degree murder charge where it was clear that the evidence was admitted to show that he had consumed alcohol with two other members of the rescue squad, he responded to a rescue call despite knowing that the squad's bylaws prohibited members from responding after consuming alcohol, he drove erratically, and the jury was given a limiting instruction that the evidence was received solely for the purpose of establishing malice. State v. Hayes, 183 N.C. App. 602, 644 S.E.2d 655 (2007).

In defendant's criminal trial on a variety of charges, arising from a vehicular incident that resulted in deaths, a trial court properly allowed admission of testimony regarding defendant's prior failure to take a breath test and defendant's conviction for driving while intoxicated, as such was relevant under N.C. R. Evid. 401 and 402 to show defendant's knowledge that the driver's license was suspended and to show malice, which was an element of one of the charged offenses; further, the evidence was properly admitted for the purpose of showing defendant's intent and it was not unfairly prejudicial under N.C. R. Evid. 404(b) and 403. State v. Lloyd, 187 N.C. App. 174, 652 S.E.2d 299 (2007), cert. denied, 363 N.C. 586, 683 S.E.2d 214 (2009).

Trial court did not err in admitting the testimony of a witness that defendant on a previous occasion had sexually touched the witness, who was a minor at the time, without the consent of the witness. The evidence was admitted not to show defendant's character, but, instead was admitted pursuant to G.S. 8C-1, N.C. R. Evid. 404(b) to show absence of mistake of age, specific intent in regard to a kidnapping charge, and an intent for sexual gratification in defendant's current case. State v. Bowman, 188 N.C. App. 635, 656 S.E.2d 638 (2008).

Evidence of defendant's prior conduct was admissible under G.S. 8C-1, N.C. R. Evid. 404(b) to prove motive, intent, knowledge, and absence of mistake, and the appellate court could not say that its admission or the limiting instructions were erroneous or influenced the jury such that, without them, a different verdict would have been reached. State v. Cousar, 190 N.C. App. 750, 660 S.E.2d 902 (2008), review denied, 362 N.C. 684, 670 S.E.2d 568 (2008).

While the trial court erred when it admitted a witness's testimony that defendant was previously incarcerated and used marijuana while living with the witness and the victim, the witness's daughter and the alleged victim of a sexual assault, as the evidence was admitted before defendant placed his credibility at issue by testifying, the error did not rise to the level of plain error. State v. Streater, - N.C. App. - , 673 S.E.2d 365 (2009).

Trial court properly admitted a witness's testimony that she walked in on defendant "whooping the victim with a belt" pursuant to G.S. 8C-1, N.C. R. Evid. 404(b), because the State's evidence tended to show that the victim began "wetting the bed" around the time of the alleged sexual abuse; therefore, the witness's testimony about the "whooping" incident tended to establish defendant's intent to conceal the alleged sexual abuse. State v. Streater, 197 N.C. App. 632, 678 S.E.2d 367 (2009), review dismissed, as moot, 363 N.C. 661, 687 S.E.2d 294 (2009).

Although the trial court erred when it admitted a witness's testimony that defendant was previously incarcerated and used marijuana while living with her and the victim because the evidence was admitted before defendant placed his credibility at issue by testifying, the court of appeals was not convinced that absent the error the jury probably would have reached a different verdict in light of other similar evidence property admitted at trial. State v. Streater, 197 N.C. App. 632, 678 S.E.2d 367 (2009), review dismissed, as moot, 363 N.C. 661, 687 S.E.2d 294 (2009).

In a case in which defendant was convicted by a jury on two counts first-degree murder on the bases of felony murder and of malice, premeditation and deliberation and, after a capital sentencing proceeding, he was sentenced to two consecutive terms of life imprisonment without the possibility of parole, defendant argued unsuccessfully on appeal that the trial court's decision to admit G.S. 8C-1, N.C. R. Evid. 404(b) evidence about his 1995 assault on his estranged wife, one of the murder victims, unfairly prejudiced him in violation of G.S. 8C-1, N.C. R. Evid. 403. The trial court admitted evidence of the 1995 assault for the purposes of showing motive, malice, hatred, ill-will and intent; that evidence had probative value for all of those purposes and was properly admissible. State v. Graham, 200 N.C. App. 204, 683 S.E.2d 437 (2009), review denied, 363 N.C. 857, 694 S.E.2d 766 (2010).

In requiring the exclusion of evidence otherwise admissible pursuant to G.S. 8C-1, N.C. R. Evid. 404(b) under G.S. 8C-1, N.C. R. Evid. 403, where the probative value of such evidence depends upon defendant's 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. This does not bar the admission of testimony relating to other bad acts for which the defendant was acquitted if the other bad acts and the crime charged were part of a single continuous transaction. State v. Ward, 199 N.C. App. 1, 681 S.E.2d 354 (2009), aff'd 2010 N.C. LEXIS 424 (2010).

Trial court erred by admitting evidence seized at the time of his February 10, 2005, arrest for alleged violations of the controlled substance laws similar to those under consideration in the instant case and defendant was entitled to a new trial in the cases with which he was charged with prescription drug-related offenses; each of the reasons listed by the trial court as justifications for the admission of the disputed evidence hinged upon a determination that defendant actually committed an offense for which he was later acquitted. State v. Ward, 199 N.C. App. 1, 681 S.E.2d 354 (2009), aff'd 2010 N.C. LEXIS 424 (2010).

In defendant's indecent liberties with a child case, the court erred by admitting evidence that defendant sexually assaulted a four-year-old boy 18 years before because there was no evidence of an ongoing pattern of crimes between the 1990 offense and the instant case, but only the single prior conviction for an offense over 18 years old. State v. Gray, 210 N.C. App. 493, 709 S.E.2d 477 (2011), review denied, stay denied, 723 S.E.2d 540, 2012 N.C. LEXIS 191 (2012).

Evidence defendant previously assaulted the victim was properly admitted, as it was relevant to whether defendant intended to disable the victim or whether she accidentally struck the victim's finger and did not intend to maim him. State v. Flaugher, 214 N.C. App. 370, 713 S.E.2d 576 (2011).

Evidence regarding defendant's shoplifting was relevant for a material purpose other than propensity since it went to why defendant would engage in a high speed police chase to avoid having the police search the car and the probative value was not outweighed by any unfair prejudice to defendant. State v. Rollins, 220 N.C. App. 443, 725 S.E.2d 456 (2012).

Citations showing that defendant had been repeatedly directed that driving without a license was unlawful but persisted in doing so were relevant to malice which was an essential element of second degree murder, the crime with which defendant was charged; thus, they were admissible. State v. Rollins, 220 N.C. App. 443, 725 S.E.2d 456 (2012).

Where the State's evidence, which suggested defendant was continuing to try to escape regardless of the collision and in callous disregard for the condition of his passengers, supported a finding of malice, the evidence was admissible since malice was an element of second degree murder, the crime with which defendant was charged. State v. Rollins, 220 N.C. App. 443, 725 S.E.2d 456 (2012).

Trial court did not err when it admitted evidence of a previous purse-snatching crime committed by the defendant because common locations, victims, type of crime, and proximity in time were sufficiently similar that it would indicate that the same person committed both crimes. State v. Gordon, 228 N.C. App. 335, 745 S.E.2d 361 (2013), review denied, 749 S.E.2d 859, 2013 N.C. LEXIS 1192 (2013).

Trial court did not err in allowing the testimony of two women pursuant to G.S. 8C-1, N.C. R. Evid. 404(b) (2013), where the testimony revealed numerous unique details of common locations, victims, and type of crime that rose above facts generic to the act of public exposure, the fact that the instant exposure also happened to take place in the presence of a child was not dispositive of the other similarities between the instant event and those described in the 404(b) testimony, and case law did not require that the 404(b) testimony had to be completely identical to the act charged. State v. Waddell, 239 N.C. App. 202, 767 S.E.2d 921 (2015).

Trial court did not err by admitting evidence concerning defendant's altercation with a prior boyfriend during her murder trial where there were strong similarities between the murder and the prior incident, as they both involved defendant and her current boyfriend, escalation of an argument that led to the use of force, defendant's further escalation of the argument, and her deliberate decision to obtain a knife from the kitchen, and the 14-month gab between the incidents was not too remote. State v. Mangum, 242 N.C. App. 202, 773 S.E.2d 555 (2015), review denied 780 S.E.2d 564, 2015 N.C. LEXIS 1230 (2015).

Trial court did not err by admitting into evidence under G.S. 8C-1, N.C. R. Evid. 404 portions of an audiotape and transcript that included a conversation between defendant and an informant while they were incarcerated where the informant's credibility was crucial to the State's case, the trial court gave the jury a limiting instruction. The admission of the evidence did not violate G.S. 8C-1, N.C. R. Evid. 403, because the relevance of the redacted version of the transcript, when combined with the limiting instruction, substantially outweighed any unfair prejudice. State v. Carvalho, 243 N.C. App. 394, 777 S.E.2d 78 (2015), cert. denied, 138 S. Ct. 59, 2017 U.S. LEXIS 4741, 199 L. Ed. 2d 19 (U.S. 2017).

Trial court did not err by admitting testimony from several former high school wrestlers that defendant utilized various hazing techniques against his wrestlers because the evidence tended to show that defendant exerted great physical and psychological power over his students, singled out small and younger wrestlers for particularly harsh treatment, and subjected them to degrading and often quasi-sexual situations and therefore had probative value beyond whether defendant had a propensity for aberrant behavior. State v. Goins, 244 N.C. App. 499, 781 S.E.2d 45 (2015).

Trial court did not err by overruling defendant's objections under this rule to the admission of the consensual sexual activity between defendant and his wife because the wife's testimony was relevant to the victim's allegations as it showed a common scheme or plan and was sufficiently similar to the victim's allegations of sexual abuse. The probative value of the evidence was not outweighed by the danger of undue prejudice because it was of great probative value and was not so sensitive to be potentially inflammatory to the jury. State v. Godbey, 250 N.C. App. 424, 792 S.E.2d 820 (2016).

Trial court did not err by admitting evidence at defendant's trial for arson that defendant had four years earlier committed arson because the evidence was probative of defendant's intent and was sufficiently similar, logically relevant, and not too remote in time. Both the arson for which defendant was tried and the prior arson were set during the nighttime on the exterior of a building at an entrance when defendant was intoxicated, knew the buildings to be occupied, and was angry about a perceived harm against defendant by the occupant. State v. Wilson-Angeles, 251 N.C. App. 886, 795 S.E.2d 657 (2017).

Failure to Request Limiting Instruction - In a sexual abuse prosecution, where defendant failed to request a limiting instruction, under G.S. 8C-1, N.C. R. Evid. 105, as to evidence admitted under G.S. 8C-1, N.C. R. Evid. 404(b), he could not complain that the trial court should have intervened ex mero motu to give such an instruction. State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643 (2002).

Trial Court's Unintentional Misstatement While Giving "Other Crimes" Instruction Was Not Plain Error. - Considered in the context of the entire jury instruction addressing "other crimes" evidence, it was clear that the trial court's misstatement of the law was an unintentional slip of the tongue and did not amount to plain error; the trial court apparently intended to mirror the language of N.C. R. Evid. 404(b), but used the incorrect phrase "but to show," rather than the correct phrase "in order to show." In light of the trial court's previous instruction regarding the only proper use of the evidence, the trial court's subsequent misstatement concerning the purposes for which the jury may have considered the evidence was immaterial, and, when taken as a whole, the jury could not have been misled by the trial court's charge. State v. Hazelwood, 187 N.C. App. 94, 652 S.E.2d 63 (2007), cert. denied, 363 N.C. 133, 673 S.E.2d 867 (2009), cert. denied, 558 U.S. 1013, 130 S. Ct. 553, 175 L. Ed. 2d 385 (2009).

When prior incidents are offered for a proper purpose, the ultimate test of admissibility is whether they are sufficiently similar and not so remote as to run afoul of the balancing test between probative value and prejudicial effect set out in G.S. 8C-1, Rule 403. State v. West, 103 N.C. App. 1, 404 S.E.2d 191 (1991).

A prior act or crime is "similar" if, etc. there are some unusual facts present indicating that the same person committed both the earlier offense and the present one. However, the similarities between the two incidents need not be "unique and bizarre." State v. Sneeden, 108 N.C. App. 506, 424 S.E.2d 449 (1993), aff'd, 336 N.C. 482, 444 S.E.2d 218 (1994).

Evidence of defendant's attempt to burn a second victim's body was admissible where the unusual, unique and bizarre circumstances of the two deaths - the dismemberment of the bodies, the severing of the ears, the saving of those ears, and the building of two bonfires - revealed a contrived, common plan showing the same person committed both crimes. State v. Sokolowski, 351 N.C. 137, 522 S.E.2d 65 (1999).

Evidence presented at a suppression hearing was sufficient to link defendant to a later break-in, including DNA evidence collected at the scene of the second break-in. The crimes were substantially similar in that a window at a convenience store in Charlotte was broken, cigarettes were taken, the crimes occurred a short time apart and at the same time of day, and defendant's blood was found at both scenes; they were therefore admissible under G.S. 8C-1, N.C. R. Evid. 404(b). Also, the evidence was relevant on the issue of whether defendant committed the charged crime, pursuant to G.S. 8C-1, N.C. R. Evid. 401. State v. Matthews, 218 N.C. App. 277, 720 S.E.2d 829 (2012).

Defendant's contention that the perpetrator's lack of a "do-rag" during the second crime prevented the crimes from being substantially similar amounts to requiring facts rising to a level of unique and bizarre, which case law did not require. State v. Gordon, 228 N.C. App. 335, 745 S.E.2d 361 (2013), review denied, 749 S.E.2d 859, 2013 N.C. LEXIS 1192 (2013).

The "acid test" for whether evidence of other crimes properly falls within the identity provision in subsection (b) of this rule and its common law precursor is its logical relevancy to the particular purpose for which it is sought to be introduced. State v. Jeter, 326 N.C. 457, 389 S.E.2d 805 (1990).

The list of purposes in the last sentence of subsection (b) of this rule is not exclusive, and the fact that evidence cannot be brought within a category does not necessarily mean that the evidence is inadmissible. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986).

The list in the second sentence of subsection (b) of this rule contains examples of theories of relevancy under which extrinsic conduct evidence may properly be used as circumstantial proof of a controverted fact at trial (for instance, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, etc.). This list is neither exclusive nor exhaustive. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).

The second sentence of subsection (b) of this rule contains a list of theories of relevancy which is neither exclusive nor exhaustive. State v. Young, 317 N.C. 396, 346 S.E.2d 626 (1986).

The list of other purposes contained within subsection (b) of this rule is nonexclusive, and thus evidence not falling within these categories may be admissible. State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562 (1989).

Challenges Made Pursuant to This Section Must Follow Proper Procedure - The court would not hear the defendant's challenge, pursuant to this section, to the introduction of evidence of past acts of domestic and sexual violence against five women in his trial for the murder and dismemberment of victim where his pretrial motion in limine did not preserve the question for appeal; where he failed to object during trial to the admission of the evidence of prior bad acts; and where he offered no explanation, analysis or specific contention in his appellate brief to support his challenge. State v. Grooms, 353 N.C. 50, 540 S.E.2d 713 (2000), cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54 (2001).

Failure to Object Not Ineffective Assistance of Counsel - In a sexual abuse prosecution, defendant did not show that he was deprived of the effective assistance of counsel due to his attorney's failure to object to the admission of evidence under G.S. 8C-1, N.C. R. Evid. 404(b), because he did not show that, absent this error, the outcome of his trial would have been different. State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643 (2002).

Defense counsel was not ineffective for failing to object to evidence of defendant's involvement in another sexual assault of a different female victim where it was relevant to prove the defendant's identity as the victim's attacker and it explained why officers identified the defendant as a suspect and how they obtained the defendant's DNA, which matched DNA samples collected after the victim's assault. State v. Gates, 248 N.C. App. 732, 789 S.E.2d 880 (2016).

Erroneous Admission Cured by Another Proper Purpose. - Trial court's admission of the testimonies of two prior rape victims to show victim's lack of consent was error but not prejudicial error because the evidence was admissible to show a common plan or purpose. State v. Harris, 140 N.C. App. 208, 535 S.E.2d 614 (2000).

Witness's testimony about defendant's prior DWI was erroneously admitted; however, the error was harmless because defendant took the stand to testify on his own behalf and revealed his arrest record and prior criminal record, including the DWI, on direct examination. State v. McMillian, 169 N.C. App. 160, 609 S.E.2d 265 (2005).

Trial court did not abuse its discretion in deferring a ruling on motion in limine to suppress subsection (b) evidence of the underlying facts of prior convictions. While it may have been preferable for the court to have ruled on this motion earlier, the court's handling of the matter and its basis for deferred ruling were reasonable and did not constitute an abuse of discretion. State v. Barber, 120 N.C. App. 505, 463 S.E.2d 405 (1995).

Improper Admission Must Be Basis for Assignment of Record - In a sexual abuse prosecution, defendant's argument that the trial court improperly admitted victim testimony under G.S. 8C-1, N.C. R. Evid. 404(b) without making specific findings of fact as to "sufficient similarity" and "remoteness in time" could not be considered, under N.C. R. App. P. 10(a), because this was not made the basis of any assignment of error in the record. State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643 (2002).

Court's ruling that defendant's prior drug deals could only come in if he "opened the door" by taking the stand and denying he had ever dealt drugs was upheld where defendant did not show prejudice because he did not make an offer of proof regarding his testimony, and there was no evidence as to what his factual defense would have been had the State revealed to him those acts it intended to prove, under section (b) of this Rule, and those acts it would attempt to elicit, should he testify, under G.S. 8C-1, Rule 608(b). State v. Manning, 139 N.C. App. 454, 534 S.E.2d 219, cert. denied and appeal dismissed, 353 N.C. 273, 546 S.E.2d 385 (2000), aff'd, 353 N.C. 449, 545 S.E.2d 211 (2001).

Testimony of a defendant's alleged prior drug sale in order to show motive and intent to possess cocaine was inadmissible and admission of testimony was prejudicial error requiring that defendant be granted a new trial. State v. Williams, 156 N.C. App. 661, 577 S.E.2d 143 (2003).

Past incidents of drug sales between defendant and the same buyer as in the charged crime were sufficiently similar to the charged crime to be admitted under G.S. 8C-1, Rule 404, because in all occurrences, the buyer called defendant prior to the sale, the parties met at an agreed upon place, defendant and the buyer sat in one of their cars and talked before concluding the sale, and defendant sold a similar amount of cocaine at a similar price. Additionally, all incidents occurred within the prior two years, and the trial court gave a limiting instruction. State v. Hargrave, 198 N.C. App. 579, 680 S.E.2d 254 (2009).

When evidence reasonably tends to prove a material fact in issue in the crime charged, it will not be rejected merely because it also proves defendant guilty of another crime. State v. White, 101 N.C. App. 593, 401 S.E.2d 106, cert. denied and appeal dismissed, 329 N.C. 275, 407 S.E.2d 852 (1991).

Prior Violent Acts of Defendant. - Court did not err in allowing the State to put defendant's character into evidence by presenting specific instances of violent conduct by defendant, where defendant opened the door to the State's subsequent questions by portraying herself as a good mother. State v. Burgess, 134 N.C. App. 632, 518 S.E.2d 209 (1999).

Evidence of defendant's prior assault on another victim was admissible to show common scheme and intent where the prior assault and the current charges were similar in nature; in both instances the victims, similar in age, visited various residences or places in which they were unfamiliar and then were taken by automobile to isolated areas at night, defendant told the victims something was wrong with the automobile, asked the victims to get out of the automobile, and then proceeded to sexually assault them. State v. Chavis, 141 N.C. App. 553, 540 S.E.2d 404 (2000).

Evidence of an assault and attempted robbery involving the defendant that took place two days before murders was admissible where the closeness in both geography and time, the similar nature of the assault, and the connection between the bullets found at both scenes presented sufficient similarities for the evidence's admissibility. State v. Lytch, 142 N.C. App. 576, 544 S.E.2d 570 (2001), aff'd, 355 N.C. 270, 559 S.E.2d 547 (2002).

Evidence of murder defendant's prior assault on the victim, a few months before the act which caused her death, was properly admitted under G.S. 8C-1, Rule 404(b), because it tended to show malice, premeditation, deliberation, intent and ill will on defendant's part, and was thus relevant to an issue other than defendant's character. State v. Harris, 149 N.C. App. 398, 562 S.E.2d 547 (2002).

Trial court did not err in admitting evidence about a prior, violent incident in order to prove defendant's identity because there were common elements of the prior incident with the incidents defendant was being charged with, including that the perpetrator wore a white hockey mask similar to the one seized from defendant, the targets were all suspected drug dealers or living with suspected drug dealers, the attacks all took place at night at the victims' homes, defendant had an accomplice, and the incidents took place within a month or two of each other and within the same city. State v. Thomas, - N.C. App. - , 834 S.E.2d 654 (2019).

Prior Violent Act By Victim. - Where a defendant seeks under subsection (b) to use evidence of a prior violent act by the victim to prove the defendant's state of mind at the time he killed the victim, the defendant must show that he was aware of the prior act and that his awareness somehow was related to the killing. State v. Strickland, 346 N.C. 443, 488 S.E.2d 194 (1997), cert. denied, 522 U.S. 1078, 118 S. Ct. 858, 139 L. Ed. 2d 757 (1998).

Pursuant to subsection (b) of this rule, the trial court properly excluded from the defendant's murder trial the testimony of a man whom the victim had shot earlier because that man admitted that he was the aggressor in the shooting incident, whereas, the defendant was claiming at his trial that the victim was the aggressor in the shooting; thus, the testimony of the prior act was not relevant to the victim's aggressiveness or propensity for violence. State v. Nance, 157 N.C. App. 434, 579 S.E.2d 456 (2003).

Although a trial court erred in excluding under G.S. 8C-1, N.C. R. Evid. 404(b) copies of the victim's convictions because they corroborated testimony about the victim's violent past, defendant failed to meet his burden, pursuant to G.S. 15A-1443(a), of proving that the erroneous exclusion of the evidence was prejudicial. State v. Jacobs, 363 N.C. 815, 689 S.E.2d 859 (2010).

Prior Act of Witness. - The trial court did not err by excluding evidence of witness's prior knife threat on a police officer where the record revealed no unusual facts surrounding the knife threat that were also present in the circumstances surrounding the victim's death. State v. Hamilton, 351 N.C. 14, 519 S.E.2d 514 (1999), cert. denied, 529 U.S. 1102, 120 S. Ct. 1841, 146 L. Ed. 2d 783 (2000).

Evidence of previous threats is admissible in trials for first degree murder to prove premeditation and deliberation, and the remoteness in time of the threat goes to its weight, but does not make it inadmissible. State v. Cox, 344 N.C. 184, 472 S.E.2d 760 (1996).

Where an accident is alleged, evidence of similar acts is more probative than in cases in which an accident is not alleged. State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991).

When an accused contends a victim's death was an accident rather than a homicide, evidence of similar acts may be offered to show that the act in dispute was not inadvertent, accidental, or involuntary. State v. Boczkowski, 130 N.C. App. 702, 504 S.E.2d 796 (1998).

The trial court properly allowed the introduction of defendant's prior driving-related crimes to establish that defendant acted with the malice necessary to convict him of second-degree murder; the defendant's convictions, dating back to 1982, were not too remote in time to be relevant. State v. Miller, 142 N.C. App. 435, 543 S.E.2d 201 (2001).

Trial court properly permitted evidence of defendant's having been convicted of a prior shooting similar to the one with which defendant was accused since the prior crimes evidence showed absence of accident (as defendant claimed), motive, and common plan or scheme for shooting the victim. State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001).

Prior bad acts possessed probative value as they served to rebut the defense of accident, one of the bases for admission of evidence under G.S. 8C-1, Rule 404(b), and were probative of whether or not a shooting was accidental. State v. Taylor, 154 N.C. App. 366, 572 S.E.2d 237 (2002).

This rule includes no requisite that the evidence tending to prove defendant's identity as the perpetrator of another crime be direct evidence exclusively. State v. Moore, 335 N.C. 567, 440 S.E.2d 797, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994).

Chain-of-events evidence leading up to murder was properly admitted to establish defendant's intent and motive for the murders at issue, the evidence was more probative than prejudicial. State v. Rose, 339 N.C. 172, 451 S.E.2d 211 (1994), cert. denied, 515 U.S. 1135, 115 S. Ct. 2565, 132 L. Ed. 2d 818 (1995).

Defendant's wife was properly permitted to testify as to defendant's threatening actions towards defendant's wife before and after the murder, burglary, and robbery of defendant's landlord because it pertained to the chain of events explaining the context, motive, and set-up of the crime. State v. Smith, 152 N.C. App. 29, 566 S.E.2d 793 (2002).

"Course of Conduct" or "Complete Story" Exception. - In a trial for robbery with a dangerous weapon, evidence of a gun store break-in was properly admitted under the "course of conduct" or "complete story" exception, as it was necessary for the jury to understand how defendant was identified as the perpetrator of the offense. State v. Howard, 215 N.C. App. 318, 715 S.E.2d 573 (2011).

Trial court properly convicted defendant, upon a jury verdict, of first-degree murder and possession of a firearm by a felon because evidence of a prior break-in was properly admitted since it tended to show how defendant gained possession of the murder weapon, was necessary for the natural development of the facts and to complete the story of the murder for the jury, allowed the jury to understand how defendant came to possess the murder weapon and how long it had been outside the possession of its original lawful owner, explained why the legal gun owner was not considered a suspect and showed the thoroughness of law enforcement's investigation. State v. Washington, - N.C. App. - , - S.E.2d - (May 18, 2021).

When Evidence of Other Crimes May Be Admitted. - Subsection (b) of this rule allows the use of extrinsic conduct evidence so long as the evidence is relevant for some purpose other than to show that defendant has the propensity of the type of conduct for which he is being tried. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).

Subsection (b) of this rule permits evidence that a defendant committed similar offenses when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission. State v. Morrison, 85 N.C. App. 511, 355 S.E.2d 182, cert. denied, 320 N.C. 796, 361 S.E.2d 84 (1987).

Evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused. State v. Bagley, 321 N.C. 201, 362 S.E.2d 244 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 912 (1988); State v. Rael, 321 N.C. 528, 364 S.E.2d 125 (1988); State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368 (1988).

Even though evidence may tend to show other crimes, wrongs, or acts by the defendant, and his propensity to commit them, it is admissible under subsection (b) of this rule so long as it is also relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried. State v. Bagley, 321 N.C. 201, 362 S.E.2d 244 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 912 (1988).

Evidence of other crimes may distract the fact finders and confuse their consideration of the issues at trial. With these considerations bearing great weight, evidence of prior bad acts, admitted to show a common plan under this rule, must be sufficiently similar and not so remote in time before they can be admitted against a defendant. State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988).

Subsection (b) allows the admission of evidence of other crimes, wrongs or acts to show motive, opportunity, intent, plan or identity. State v. Allen, 92 N.C. App. 168, 374 S.E.2d 119 (1988), cert. denied, 324 N.C. 544, 380 S.E.2d 772 (1989).

Under subsection (b) of this rule there is a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring 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. State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990), cert. denied, 421 S.E.2d 360 (1992); State v. Thomas, 350 N.C. 315, 514 S.E.2d 486 (1999), cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388 (1999).

Under subsection (b) of this rule, it is not the case that evidence of other crimes, wrongs or acts by a defendant falls under a general rule of exclusion subject to certain exceptions. It is clear now that, as a careful reading of subsection (b) clearly shows, evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused. State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990), cert. denied, 421 S.E.2d 360 (1992).

Evidence is admissible under subsection (b) of this rule if it is substantial evidence tending to support a reasonable finding by the jury that the defendant committed a similar act or crime and its probative value is not limited solely to tending to establish the defendant's propensity to commit a crime such as the crime charged. State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991).

Evidence of other crimes committed by a defendant may be admissible under subsection (b) if it establishes the chain of circumstances or context of the charged crime; such evidence is admissible if the evidence of other crimes serves to enhance the natural development of the facts or is necessary to complete the story of the charged crime for the jury. State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995).

Because the unusual injuries inflicted on the victim were particularly similar to those inflicted by defendant upon the victim's mother and because the unusual acts which would have caused the victim's injuries were particularly similar those acts defendant committed against the victim's mother, the evidence of defendant's prior misconduct toward regarding his choking her, bruising her with his hands and fingers, and bending her arms behind her back was relevant and admissible to show identity under subsection (b). State v. Burr, 341 N.C. 263, 461 S.E.2d 602 (1995), cert. denied, 517 U.S. 1123, 116 S. Ct. 1359, 134 L. Ed. 2d 526 (1996).

Evidence of defendant's prior traffic violations - driving 75 mph in a 45 mph zone, 76 mph in a 45 mph zone, 70 mph in a 35 mph zone, and 70 mph in a 55 mph zone - was relevant to establish defendant's "depraved heart" on the night he struck the victims' vehicle while rounding a sharp curve at a speed at least 40 mph over the posted limit. State v. Rich, 351 N.C. 386, 527 S.E.2d 299 (2000).

Repressed memory evidence of a sexual offense previously committed by the defendant was admissible under G.S. 8C-1, Rule 404(b) to show a common plan or scheme. State v. Williamson, 146 N.C. App. 325, 553 S.E.2d 54 (2001).

As a victim's murder could potentially be seen as evidence of defendant's intent to kill or as part of defendant's preparation in or overall plan for his crime spree, the trial court's instruction to the jury on the permissible uses of this evidence conveyed the correct legal standard to the jury and did not constitute error. State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004).

Trial court did not abuse its discretion by ruling that the evidence regarding a second impersonation of a police officer and robbery incident was admissible in a defendant's trial for a similar incident because the prior incident occurred two days after the first, involved the assailants' entry into the victim's residences under the auspices of legitimate law enforcement activity, and each assailant displayed a bogus search warrant and firearms in an effort to gain entry into the respective residences. State v. Jacobs, 174 N.C. App. 1, 620 S.E.2d 204 (2005), vacated in part, rev'd in part, on other grounds, 361 N.C. 565, 648 S.E.2d 841 (2007).

In defendant's prosecution for robbery with a dangerous weapon and first-degree kidnapping, evidence of defendant's prior armed robbery conviction and the facts underlying that conviction were properly admitted under G.S. 8C-1-404(b) and G.S. 8C-1-403 because, inter alia: (1) the evidence of defendant's involvement in another robbery tended to show defendant was one of three men involved in a similar pattern of robberies occurring over a short period of time; and (2) the robbery being prosecuted shared similarities with one of the other robberies defendant was convicted of because, in each of the robberies, a perpetrator brandished a gun at the victims at public establishments, demanded money, fired a shot, stole property of others, and fled the scene. State v. Morgan, 183 N.C. App. 160, 645 S.E.2d 93 (2007), appeal dismissed, review denied, 362 N.C. 241 660 S.E.2d 536 (2008).

Because the admission of defendant's prior felony conviction established an element of the crime charged, it was not inadmissible propensity evidence. State v. Little, 191 N.C. App. 655, 664 S.E.2d 432 (2008), review denied, 362 N.C. 685, 671 S.E.2d 326 (2008).

Because the nearly two-and-a-half-year span between the offenses was not so long as to affect the admissibility of the evidence, but rather went to the weight of the evidence, and the Court of Appeals of North Carolina had upheld the admission of evidence under G.S. 8C-1, N.C. R. Civ. P. 404(b) (2007) where the crimes, wrongs, or acts occurred after the offenses for which a defendant was on trial, the trial court did not err in admitting the evidence of a subsequent rape under Rule 404(b) because the subsequent rape was sufficiently temporally proximate to the charged offenses. State v. Mobley, 200 N.C. App. 570, 684 S.E.2d 508 (2009), review denied, 363 N.C. 809, 692 S.E.2d 393, 2010 N.C. LEXIS 94 (2010).

Testimony of witnesses regarding defendant's prior acts of theft to support defendant's addiction to prescription pills was relevant to show defendant's motive for stealing from a victim; thus, it was permissible under G.S. 8C-1-404(b). State v. Blymyer, 205 N.C. App. 240, 695 S.E.2d 525 (2010).

Evidence that an officer had seen defendant driving with a revoked license after an arrest for driving with a revoked license was properly admitted to show defendant's knowledge, specifically that defendant knowingly drove with a revoked license, under G.S. 8C-1, Rule 404, N.C. R. Evid. 404. The evidence was not unduly prejudicial under G.S. 8C-1, Rule 403, N.C. R. Evid. 403. State v. Hargrave, 198 N.C. App. 579, 680 S.E.2d 254 (2009).

Evidence of Husband's Prior Misconduct Toward His Wife. - Evidence that defendant had beaten his wife numerous times during their marriage was admissible to prove motive, opportunity, intent, preparation, or absence of mistake or accident with regard to the subsequent fatal attack upon her. State v. Murillo, 349 N.C. 573, 509 S.E.2d 752 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 103, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5310, 68 U.S.L.W. 3225 (1999).

Trial court properly allowed evidence of defendant's prior conviction for assault and injury to personal property pursuant to this section to show intent, ill will and malice; ten-year time span affected weight of evidence, not admissibility. State v. Wilds, 130 N.C. App. 195, 515 S.E.2d 466 (1999).

Trial court did not err in admitting evidence of prior and expired domestic violence orders against the defendant and the acts which led to the issuance of those orders to show the defendant's intent to kill his estranged wife; the trial court properly limited the purpose in its instruction to showing the defendant's intent to kill the defendant's estranged wife. State v. Morgan, 156 N.C. App. 523, 577 S.E.2d 380 (2003), cert. denied, 357 N.C. 254, 583 S.E.2d 43 (2003).

North Carolina, to prove the disputed issue of defendant's intent to kill after defendant's forensic psychologist testified that defendant was unable to form the specific intent to kill, elicited testimony on defendant's prior misconduct toward his wife; thus, the psychologist's testimony regarding the statements of defendant's prior bad acts was properly admitted under G.S. 8C-1-404(b). State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, appeal dismissed, cert. denied, 360 N.C. 653, 637 S.E.2d 189 (2006).

Trial court neither erred nor abused its discretion by allowing witnesses to testify to the victim's statements concerning her and defendant's financial situation and defendant's alleged acts of domestic violence against the victim. Furthermore, the evidence of the victim's state of mind was relevant and related directly to the victim's relationship with defendant before she was killed and his motive, intent, plan, or absence of mistake or accident in the victim's death. State v. Petrick, 186 N.C. App. 597, 652 S.E.2d 688 (2007), appeal dismissed, review denied, 362 N.C. 242, 660 S.E.2d 540 (2008).

But Hearsay Rules Apply. - If evidence of a defendant's misconduct toward his wife during the marriage is offered to prove motive, opportunity, intent, preparation, or absence of mistake or accident with regard to a subsequent fatal attack on her, and the evidence is used to prove the truth of the matter asserted, it must be admissible under the rules against hearsay. State v. Murillo, 349 N.C. 573, 509 S.E.2d 752 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 103, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5310, 68 U.S.L.W. 3225 (1999).

The list of permissible purposes for admission of "other crimes" evidence is not exclusive, and such evidence is admissible as long as it is relevant to any fact or issue other than the defendant's propensity to commit the crime. State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995).

Evidence of other crimes must be connected by point of time and circumstance. Through this commonality, proof of one act may reasonably prove a second. However, the passage of time between the commission of the two acts slowly erodes the commonality between them. The probability of an ongoing plan or scheme then becomes tenuous. State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988).

Sufficiently Similar Crimes. - Evidence of robbery of a restaurant committed by defendants one week prior to the attempted robbery in case at issue was sufficiently similar to show intent. State v. Davis, 340 N.C. 1, 455 S.E.2d 627, cert. denied, 516 U.S. 846, 116 S. Ct. 136, 133 L. Ed. 2d 83 (1995).

Defendant's actions against former girlfriend and those against the victim were sufficiently similar that the ten-year span between the crimes charged and the prior bad acts did not render the evidence too remote to be probative on the issue of common plan or scheme. State v. Penland, 343 N.C. 634, 472 S.E.2d 734 (1996), cert. denied, 519 U.S. 1098, 117 S. Ct. 781, 136 L. Ed. 2d 725 (1997).

Where evidence of defendant's prior assaults were sufficiently similar to evidence in case of first degree murder and intent to commit first degree murder, prior bad act evidence was properly admitted for the limited purposes of showing motive, purpose, intent, and opportunity to commit, and if there existed a scheme, system, or design or preparation for the offense as to the charge of first degree murder, and to establish intent to commit murder as to the charge of second degree burglary. State v. White, 343 N.C. 378, 471 S.E.2d 593 (1996).

Evidence of a prior murder was admissible, where the murder the defendant had committed 17 years earlier for which he was convicted of second-degree murder was committed in the same manner, tending to show that the defendant had both knowledge and intent when he committed the new murder, because the evidence was relevant for reasons other than to show defendant's propensity to commit crime. State v. Hipps, 348 N.C. 377, 501 S.E.2d 625 (1998), cert. denied, 525 U.S. 1180, 119 S. Ct. 1119, 143 L. Ed. 2d 114 (1999).

Other crimes evidence was admissible to show the defendant's modus operandi in carrying out another robbery, where both incidents began with a knock at the door at about midnight, two perpetrators were involved, the victims in both cases were told to give up their "stash," and the robberies were committed within ten days of each other. State v. Allred, 131 N.C. App. 11, 505 S.E.2d 153 (1998).

In a rape prosecution, evidence that defendant had been convicted of a rape that occurred six years earlier was properly admitted; the modus operandi in the two rapes was similar and the first rape was not too remote in time as defendant had been paroled after his conviction for the first rape only a few months before the second rape. State v. Barkley, 144 N.C. App. 514, 551 S.E.2d 131 (2001).

Defendant's prior offenses were admissible against him because the ages of the victims, the manner in which he pursued them, and his sexual conduct were similar enough to the current offense to be probative of his intent and common plan or scheme, and as they were continuously performed over 10 years, they were not too remote in time. State v. Curry, 153 N.C. App. 260, 569 S.E.2d 691 (2002).

Joinder of a common law robbery charge with a first degree murder charge was upheld on appeal, despite the two offenses being separated in time by several days and involving different victims, because the offenses were based on a series of acts or transactions that commenced with the robbery of a cell phone from the murder victim's girlfriend and then the subsequent murder of the victim after an argument related to the robbery; the robbery events constituted a critical point in the ongoing dispute between the murder victim and defendant, which resulted in the argument and eventual shooting death of the victim, and therefore, a transactional connection existed between the two offenses. State v. Simmons, 167 N.C. App. 512, 606 S.E.2d 133 (2004).

Evidence of a prior alleged assault on another victim was admissible pursuant to G.S. 8C-1, N.C. R. Evid. 404(b) because the similarities between the events were sufficient to indicate a common plan or design on the part of defendant. State v. Petro, 167 N.C. App. 749, 606 S.E.2d 425 (2005).

Evidence that defendant had an outstanding warrant was admissible under G.S. 8C-1, N.C. R. Evid. 404(b), as a possible motive for his decision to flee from officers after drugs were discovered in a car where he was riding as a passenger; also, evidence of the circumstances surrounding defendant's arrest in another state, where defendant was passenger in a car and attempted to flee in that car after drugs were discovered, was properly admitted under that same rule as the circumstances were sufficiently similar to show defendant's propensity or modus operandi to flee after being caught with drugs. State v. Brewington, 170 N.C. App. 264, 612 S.E.2d 648 (2005), cert. denied, 360 N.C. 67, 621 S.E.2d 881 (2005).

In a rape and kidnapping case, evidence of other sexual attacks or attempted sexual attacks were properly admitted under G.S. 8C-1, Rule 404(b) because they showed modus operandi; the crimes were similar in that defendant lured women that he had known for a long period of time into secluded places with the promise of drugs and alcohol before choking and raping them. State v. Moore, 173 N.C. App. 494, 620 S.E.2d 1 (2005).

The admissibility of evidence of a prior crime must be closely scrutinized since this type of evidence may put before the jury crimes or bad acts allegedly committed by the defendant for which he has neither been indicted nor convicted. State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988).

The use of other crimes evidence under G.S. 8C-1, Rule 404(b) is guided by two constraints: similarity and temporal proximity. State v. Bidgood, 144 N.C. App. 267, 550 S.E.2d 198 (2001).

Certified Copies of Prior Convictions Inadmissible. - In a first-degree murder trial, certified copies of the victim's prior convictions were not admissible under G.S. 8C-1, N.C. R. Evid. 404(b). State v. Jacobs, 195 N.C. App. 599, 673 S.E.2d 724 (2009), aff'd, 363 N.C. 815, 689 S.E.2d 859, 2010 N.C. LEXIS 195 (2010).

Insufficiently Similar Crimes. - The admission of defendant's prior conviction was in error because any similarity between the prior robbery for which defendant was convicted and the subsequent robbery was so slight as to be virtually non-existent. State v. Willis, 136 N.C. App. 820, 526 S.E.2d 191 (2000).

Court did not discern sufficient similarities in the circumstances surrounding a victim's death from knife wounds inflicted by defendant during a fight outside of a bar and those surrounding defendant's violent acts allegedly directed towards his former girlfriend to render evidence regarding the latter admissible for any purpose sanctioned by Rule 404(b). State v. Dennison, 163 N.C. App. 375, 594 S.E.2d 82 (2004).

Defendant's prior conviction for selling cocaine was inadmissible under G.S. 8C-1-404(b) in defendant's prosecution for possession with intent to sell or deliver cocaine; the weight of cocaine rocks and the unpackaged state of the rocks did not make the prior conviction and the current charge similar, the events were eight years apart, and the admission was prejudicial under G.S. 15A-1443(a) when the inference afforded by the amount of drugs in defendant's possession did not outweigh the prejudice caused by the erroneous admission of his prior conviction. State v. Carpenter, 361 N.C. 382, 646 S.E.2d 105 (2007).

When a specific mental intent or state of mind is an essential element of the charged offense, evidence of previous acts of the same kind is admissible to prove the defendant's intent or state of mind. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, cert. denied, 320 N.C. 515, 358 S.E.2d 525 (1987).

Evidence of other misconduct is admissible under the identity exception upon a showing of unusual facts present in both acts, or particularly similar acts which tend to show that the same person committed both. State v. Williams, 82 N.C. App. 281, 346 S.E.2d 315 (1986).

Subsection (b) of this rule must be applied to allow a defendant to introduce evidence of very similar crimes of another person, when such evidence tends to show that the other person committed the crime for which the defendant is on trial. State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987).

Determination by Trial Court Before Extrinsic Conduct Evidence Is Admitted. - Before extrinsic conduct evidence is admissible pursuant to subsection (b) of this rule, the trial court is required, first, to determine whether conduct is being offered pursuant to subsection (b); and second, to make a determination of the evidence's relevancy. If the trial judge makes the initial determination that the evidence is of the type and is offered for a proper purpose under subsection (b), the record should so reflect. State v. Rowland, 89 N.C. App. 372, 366 S.E.2d 550 (1988).

Probative Value Must Be Weighed Against Potential Prejudice. - If evidence of other acts is offered to prove something other than character, the trial court must determine whether the risk of undue prejudice outweighs the probative value of the evidence, in view of the availability of the other means of proof. State v. Bartow, 77 N.C. App. 103, 334 S.E.2d 480 (1985).

Although admissible under subsection (b) of this rule, the probative value of evidence must still outweigh the danger of undue prejudice to the defendant to be admissible under G.S. 8C-1, Rule 403. State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562 (1989), cert. denied, 326 N.C. 52, 389 S.E.2d 99 (1990).

While this rule does not offer a mechanical solution, once it is established that evidence is admissible under subsection (b), a determination must be made as to whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under G.S. 8C-1, Rule 403. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986).

The test for determining whether evidence of crimes, wrongs or acts other than those specifically at issue in the trial is admissible is whether the incidents are sufficiently similar and not too remote in time so as to be more probative than prejudicial under the balancing test of G.S. 8C-1, Rule 403. State v. Shultz, 88 N.C. App. 197, 362 S.E.2d 853 (1987).

The ultimate test for determining whether evidence of other offenses is admissible is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of G.S. 8C-1, Rule 403. State v. Boyd, 321 N.C. 574, 364 S.E.2d 118 (1988).

The admission into evidence of a crack pipe was proper to show motive in a robbery, especially since the defendant failed to argue that its probative value outweighed its prejudice to the defendant. State v. Stevenson, 136 N.C. App. 235, 523 S.E.2d 734 (1999), cert. denied, 351 N.C. 368, 543 S.E.2d 144 (2000).

Defendant was not prejudiced by the trial court admitting into evidence testimony as to defendant's prior acts of being a passenger in a car where an officer smelled marijuana and being found asleep in a car with a bag of marijuana and a scale in plain view to support the case against defendant and his co-defendants for conspiring to possess, manufacture, and distribute marijuana, as the evidence showed that defendant had a propensity to commit the crime. State v. Harrington, 171 N.C. App. 17, 614 S.E.2d 337, cert. denied, sub nom., State v. Rattis, 360 N.C. 70, 623 S.E.2d 36 (2005).

The State does not bear the burden of proving the validity of a plea of guilty in a prior criminal matter before it may be used to impeach the defendant or to aggravate his sentence. State v. Smith, 96 N.C. App. 235, 385 S.E.2d 349 (1989), cert. denied, 326 N.C. 267, 389 S.E.2d 119 (1990).

Conviction of other crimes is not a prerequisite to their admissibility under this rule. Conduct need not be criminal or unlawful if it sheds light on defendant's character and is relevant to something other than criminal propensity. State v. Suggs, 86 N.C. App. 588, 359 S.E.2d 24, cert. denied, 321 N.C. 299, 362 S.E.2d 786 (1987).

Even if evidence is admissible under subsection (b) of this rule, the trial court must still determine whether its probative value outweighs the danger of undue prejudice to the defendant. State v. Frazier, 319 N.C. 388, 354 S.E.2d 475 (1987).

Prior Conviction And Prior Pending Impaired Driving Charge. - The trial court did not err in admitting evidence of the two prior incidents of impaired driving where the 1991 conviction was identical with the one at bar and the 1997 incident was indicative of the defendant's state of mind although the defendant was appealing that decision and awaited a trial de novo, especially where the court's instruction clearly communicated that the defendant had not been convicted and that the evidence was admitted for the limited purpose of showing state of mind or intent. State v. McAllister, 138 N.C. App. 252, 530 S.E.2d 859 (2000).

The doctrine of collateral estoppel, as encompassed by the U.S. Const., Amend. V guarantee against double jeopardy, does not prohibit the introduction of evidence, in a subsequent trial for a different crime, of a crime of which a defendant has previously been acquitted. State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990).

Prior Acts Must Be Sufficiently Similar and Not So Remote in Time as to Be Prejudicial. - To be admissible, evidence of prior sexual abuse must relate to incidents sufficiently similar and not so remote in time that they are more probative than prejudicial under balancing test of G.S. 8C-1, Rule 403. State v. Faircloth, 99 N.C. App. 685, 394 S.E.2d 198 (1990).

Because there were factual dissimilarities between two robberies which occurred one month before a third robbery which defendant was charged with committing, trial court should not have allowed the victim of the first two robberies to testify about them, and the state supreme court ordered a new trial after defendant was convicted of first-degree murder and sentenced to death. State v. al-Bayyinah, 356 N.C. 150, 567 S.E.2d 120 (2002).

Trial court, in a suit between a sublessee and the landlords, did not abuse its discretion in excluding evidence of the revocation of the real estate license of one of the landlords for acts similar to those alleged by the sublessee as the license was revoked 21 years earlier. Di Frega v. Pugliese, 164 N.C. App. 499, 596 S.E.2d 456 (2004).

Remoteness of Other Offense. - While the remoteness of another offense is relevant to its admissibility to show modus operandi or a common scheme or plan, remoteness usually goes to the weight of the evidence, not its admissibility. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, cert. denied, 320 N.C. 515, 358 S.E.2d 525 (1987).

Generally, remoteness in time goes to the weight of the evidence and not to its admissibility. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853 (1987), aff'd, 322 N.C. 467, 368 S.E.2d 386 (1988).

Remoteness in time is most important where evidence of another crime is used to show that both crimes arose out of a common scheme or plan; remoteness in time is less important when the other crime is admitted because its modus operandi is so strikingly similar to the modus operandi of the crime being tried as to permit a reasonable inference that the same person committed both crimes. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853 (1987), aff'd, 322 N.C. 467, 368 S.E.2d 386 (1988).

A process that allows for the passage of time to be weighed in a court's initial decision to admit evidence of other crimes is the better reasoned approach and one that ensures that an accused is tried only for the acts for which he has been indicted. State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988).

Attenuated by time, the pertinence of evidence of prior offenses attaches to the defendant's 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. State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Remoteness in time between evidence of other crimes, wrongs or acts and the charged crime is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident, since remoteness in time generally affects only the weight to be given such evidence, not its admissibility. State v. White, 349 N.C. 535, 508 S.E.2d 253 (1998), cert. denied, 527 U.S. 1026, 119 S. Ct. 2376, 144 L. Ed. 2d 779 (1999).

Temporal remoteness of defendant's prior sexual acts in the presence of children, properly admitted under G.S. 8C-1, Rule 404(b), went to their weight, rather than admissibility. State v. Beckham, 145 N.C. App. 119, 550 S.E.2d 231 (2001).

Defendant's 18- and 19-year-old convictions for driving while impaired were not highly probative of defendant's mental state at the time of defendant's actions in defendant's criminal case; therefore, the admission of evidence concerning these convictions was improper. State v. Davis, 208 N.C. App. 26, 702 S.E.2d 507 (2010).

Testimony Not Too Remote to Be Admissible. - Where defendant was found guilty of taking indecent liberties with a minor, defendant assigned error to the admission of testimony of two witnesses that they were touched by defendant in ways similar to victim in case, and defendant contended evidence of prior acts was inadmissible under G.S. 8C-1, Rule 404(b), because prior acts were both remote in time and dissimilar to the act charged in the indictment, testimony of witnesses was admissible under G.S. 8C-1, Rule 404(b) since lapse of nearly five years between events involving witnesses and those involving victims did not diminish similarities between acts. State v. Roberson, 93 N.C. App. 83, 376 S.E.2d 486, cert. denied, 324 N.C. 435, 379 S.E.2d 247 (1989).

Three instances of similar sexual conduct against same victim within a 28-month span did not make evidence impermissibly remote. State v. Faircloth, 99 N.C. App. 685, 394 S.E.2d 198 (1990).

Evidence that a murder defendant gave the victim defaced photographs of the victim's wife more than four months before the shooting was not too remote to be relevant. The passage of four months did not render this evidence irrelevant. State v. Terry, 329 N.C. 191, 404 S.E.2d 658 (1991).

Remoteness did not bar admission of the defendant's conviction of second-degree murder that occurred 17 years earlier, where the evidence showed that the prior murder was committed in the same manner as the present murder, because the lapse of time went to the evidence's weight rather than its admissibility. State v. Hipps, 348 N.C. 377, 501 S.E.2d 625 (1998), cert. denied, 525 U.S. 1180, 119 S. Ct. 1119, 143 L. Ed. 2d 114 (1999).

Defendant's prior sexual assaults were not too remote in time to prevent their admission to show a similar modus operandi to a new sexual offense, where there was a six-year period between the former offense and present offense, excluding time spent in prison. State v. Blackwell, 133 N.C. App. 31, 514 S.E.2d 116 (1999), cert. denied, 350 N.C. 595, 537 S.E.2d 483 (1999).

Evidence of defendant's prior alleged sexual acts committed on victim when she was five years old, some seven years before the first charged offense, and of sexual acts committed on victim when she was ten years old, some two years before the first charged offense, was admissible pursuant to this rule to show a common plan or ongoing scheme by defendant of sexually abusing her. State v. Thompson, 139 N.C. App. 299, 533 S.E.2d 834 (2000).

Seventeen Year Prior Assault on First Wife, Not Too Remote. - The time between defendant's assault of his first wife and of his second wife was not so remote as to make his first wife's testimony inadmissible where the defendant spent at least half of the seventeen years in prison serving time for the assault; where the defendant attacked both women during a period of marital discord; and where the defendant never denied stabbing his first wife or shooting his second wife to prevent either from leaving him. State v. Brooks, 138 N.C. App. 185, 530 S.E.2d 849 (2000).

Admission of 27-Year-Old Alleged Sexual Offense Was Error. - Twenty-seven year lapse between an earlier alleged instance of sexual abuse and the current alleged instance merited against finding that defendant was engaged in an ongoing plan or scheme of sexual abuse, and thus, admission of evidence of the 27-year-old alleged incident was error; since the State presented no evidence that defendant's possession of pornographic magazines and women's underwear played any part in the alleged offenses, the evidence was not relevant to prove the charges against him, was merely impermissible character evidence, and admission of the evidence was error but not plain error. State v. Delsanto, 172 N.C. App. 42, 615 S.E.2d 870 (2005).

Prior Bad Acts Showing Intent, Plan or Design. - Evidence that an arson defendant had previously solicited or attempted to solicit youths to commit other crimes was admissible under G.S. 8C-1, Rule 404(b) for purpose of showing defendant's intent, plan, design, or mode of operation and that its probative value outweighed its prejudicial effect. State v. Richardson, 100 N.C. App. 240, 395 S.E.2d 143 (1990).

Testimony by witnesses that they had contracted with defendant to move their houses, which defendant never did yet retained their money, was admissible to show the intent or plan of defendant. State v. Barfield, 127 N.C. App. 399, 489 S.E.2d 905 (1997).

The trial court properly allowed the plaintiff in a sexual harassment case to present evidence concerning alleged prior misconduct, where the plaintiff alleged that the defendant cut her wages and forced her to resign when she refused his sexual advances, and she was allowed to testify as to a statement allegedly made by defendant concerning a previous sexual relationship he had with a prior employee, in that this statement could suggest an intent to prey on female subordinates. Russell v. Buchanan, 129 N.C. App. 519, 500 S.E.2d 728 (1998), cert. denied, 348 N.C. 501, 510 S.E.2d 655 (1998).

Testimony of prior crimes or wrongs was properly admitted under this rule in a prosecution for conspiracy to traffic in cocaine, where testimony by a witness who had been a minor at the time in question that he had sold cocaine for the defendant and had been paid by the defendant in drugs and currency was relevant to show the defendant's intent to plan and commit a conspiracy. State v. Love, 131 N.C. App. 350, 507 S.E.2d 577 (1998), aff'd, 350 N.C. 586, 516 S.E.2d 382 (1999).

Past incidents of defendant's failure to provide proper care for the victim, her daughter who had cerebral palsy and died from malnutrition, were relevant and admissible to show intent because the trial court properly balanced its probative value against any unduly prejudicial effect by giving a limiting instruction and granted defendant's other motions in limine to suppress evidence of the pathologist's conclusion that the victim died from the withholding of food, of defendant's lifestyle, of the injury to the victim's brother's eye, and of two investigations by the DSS into unsubstantiated allegations of neglect of other children. State v. Fritsch, 351 N.C. 373, 526 S.E.2d 451 (2000), cert. denied, 531 U.S. 890, 121 S. Ct. 213, 148 L. Ed. 2d 150 (2000).

In defendant's trial in state court for offenses committed during a two-week crime spree, the trial court did not err in permitting testimony of a bank clerk who witnessed defendant's robbery of a bank during the crime spree, even though defendant was charged for this robbery in federal court; the evidence of the bank robbery was not introduced to show defendant's propensity to commit the state court offenses, but to show that his actions were part of a scheme or plan to commit such offenses during the two-week period. State v. Floyd, 148 N.C. App. 290, 558 S.E.2d 237 (2002).

In defendant's trial on charges of maintaining a vehicle to keep and sell a controlled substance, trafficking by possession of oxycodone, trafficking by sale of oxycodone, and trafficking by transportation of oxycodone, the trial court did not abuse its discretion by allowing an informant and other witnesses to testify that they met with defendant at various locations over a five-week period to buy oxycodone because, although the evidence described drug transactions that were not charged, it showed knowledge, plan, scheme, design, opportunity, and absence of mistake or entrapment, and was not so remote that its prejudicial impact outweighed its probative value. State v. McCracken, 157 N.C. App. 524, 579 S.E.2d 492 (2003).

Evidence of prior robberies was admissible to show a common scheme or purpose because each of the prior robberies was sufficiently similar to the subject robbery and occurred within weeks of the subject robbery, and the State proffered testimony that the robberies were all part of a common scheme or plan towards a drug transaction with a Connecticut gang. State v. Alvarez, 168 N.C. App. 487, 608 S.E.2d 371 (2005).

Other crimes evidence was properly admitted under G.S. 8C-1-404(b), as defendant's statement that if someone did not call him back he was going to "burn you all up," was admissible to prove a number of the listed purposes, namely defendant's motive, intent, plan, common scheme, as well as defendant's identity as the arsonist; the trial court guarded against the possibility of prejudice under G.S. 8C-1-403 by instructing the jury to consider the evidence only for the limited purposes of establishing identity, intent, motive, absence of mistake, and common plan. State v. Curmon, 171 N.C. App. 697, 615 S.E.2d 417 (2005).

Confidential police informant's testimony as to prior, uncharged drug transactions with defendant was admitted for a proper purpose under G.S. 8C-1, N.C. R. Evid. 404(b), and the trial court did not act arbitrarily in allowing the testimony under G.S. 8C-1, N.C. R. Evid. 403 because the testimony was offered to show intent, knowledge, and common plan or scheme as well as to explain the relationship between the informant and defendant; additionally, an appropriate limiting instruction to that effect was given to the jury both at the time the informant testified and in the jury instructions. State v. Houston, 169 N.C. App. 367, 610 S.E.2d 777 (2005).

Evidence of defendant's prior sexual relations with his older half-daughter from about nine years before he began to have sexual relations with the victim, his younger daughter, was properly admitted under G.S. 8C-1-404(b) to show a common scheme or plan. State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868 (2006), review denied, 361 N.C. 222, 642 S.E.2d 708 (2007).

DNA evidence showing that defendant was the father of the victim's child, and thus must have had sexual intercourse with her, was admissible to show a common scheme or plan under G.S. 8C-1-404(b). State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868 (2006), review denied, 361 N.C. 222, 642 S.E.2d 708 (2007).

This rule did not bar the admission of evidence of defendant's breaking or entering a house on the same night that he entered the church because it tended to show that defendant's intent in entering the church was to commit a larceny therein and tended to contradict defendant's later testimony that he entered the church for sanctuary. State v. Campbell, 243 N.C. App. 563, 777 S.E.2d 525 (2015).

Prior Convictions Showing Intent or Knowledge. - Trial court did not abuse its discretion in admitting evidence of previously dismissed heroin charges against defendant for purpose of showing guilty knowledge where the trial court gave a limiting instruction to the jury on consideration of the evidence. State v. Woolridge, 147 N.C. App. 685, 557 S.E.2d 158 (2001), cert. granted, - N.C. - , 575 S.E.2d 761 (2002).

In prosecution for possession of cocaine, possession of cocaine with intent to sell and deliver, and sale and delivery of cocaine, evidence of defendant's prior convictions were properly admitted under G.S. 8C-1, Rule 404(b) to show intent and knowledge, because (1) all occurred at the same address, (2) defendant was present at all offenses, (3) all involved cocaine, and (4) the prior convictions occurred within a year of the current charge. State v. Wilkerson, 148 N.C. App. 310, 559 S.E.2d 5 (2002).

Evidence pertaining to defendant's prior convictions for possession with intent to manufacture, sell, and deliver cocaine was properly admitted under G.S. 8C-1, Rule 404(b) to show intent and knowledge, and the trial court properly gave a limiting instruction to the jury; furthermore, while testimony from the deputy clerk was inadmissible under G.S. 8C-1, Rule 404(b), the error was harmless when defendant testified and was properly cross-examined about the convictions. State v. Renfro, 174 N.C. App. 402, 621 S.E.2d 221 (2005), aff'd, 360 N.C. 395, 627 S.E.2d 463 (2006).

Prior Bad Act Showing Intent, Malice, Premeditation, and Deliberation. - Where defendant was convicted of murdering his wife, testimony regarding defendant's frequent arguments with, violent acts toward, separations from, reconciliations with, and threats to his wife were admissible to prove the issues in dispute, lack of intent, malice, premeditation, and deliberation. State v. Scott, 343 N.C. 313, 471 S.E.2d 605 (1996).

The defendant's prior alcohol-related conviction pursuant to G.S. 20-138.3 was relevant, where the impaired defendant caused a death and was charged with second-degree murder, and admissible for the purpose of establishing malice even though the prior offense imposed strict liability based upon defendant's age without regard to the quantity consumed. State v. Gray, 137 N.C. App. 345, 528 S.E.2d 46 (2000).

Evidence of defendant's prior assault on the victim tended to establish not only malice, intent, premeditation and deliberation, all elements of first-degree murder, but more importantly, it tended to establish ill-will against the victim and lack of accident; where defendant contended that he shot her by mistake, this evidence was relevant to an issue other than defendant's character. State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388 (2000), cert denied, 353 N.C. 396, 547 S.E.2d 427 (2001).

Evidence of felonious impaired driving could be used to demonstrate defendant had the requisite state of malice required for second-degree murder. State v. Blackwell, 142 N.C. App. 388, 542 S.E.2d 675 (2001).

Defendant's prior convictions for driving while impaired were admissible into evidence as the State offered the convictions into evidence to establish the malice element in defendant's trial for second-degree murder. State v. Smith, 157 N.C. App. 493, 581 S.E.2d 448 (2003).

Evidence that first-degree murder defendant had robbed drug dealers and hit a drug dealer during a robbery was relevant to refute his contention that he shot a police officer without premeditation and deliberation, while evidence about his illegal acquisition of weapons and his curfew violation was relevant as part of the chain of circumstances leading up to the shooting. State v. Grant, 178 N.C. App. 565, 632 S.E.2d 258 (2006), cert. denied, appeal dismissed, 361 N.C. 223, 642 S.E.2d 712 (2007).

Trial court did not abuse its discretion by permitting testimony of evidence of defendant's financial dealings with other people, depletion of the victim's bank accounts, violent acts toward the victim, and his adulterous relationships because the evidence tended to show defendant's motive, intent, preparation, plan, absence of mistake, and knowledge under N.C. R. Evid. 404(b). Moreover, the relevancy of the evidence outweighed its danger of unfair prejudice under N.C. R. Evid. 403. State v. Petrick, 186 N.C. App. 597, 652 S.E.2d 688 (2007), appeal dismissed, review denied, 362 N.C. 242, 660 S.E.2d 540 (2008).

Admissible for Proof of Malice. - During defendant's trial for second degree murder, the trial court did not err by admitting his prior driving record because it was admissible to show malice, as the vast majority of the charges in the driving record involved the same types of conduct defendant was alleged to have engaged in this case, speeding, illegal passing, and driving while his license was revoked. State v. Schmieder, 265 N.C. App. 95, 827 S.E.2d 322 (2019), review dismissed, 372 N.C. 711, 830 S.E.2d 832, 2019 N.C. LEXIS 730 (2019).

Evidence of Pending DWI Admissible to Show Malice. - The circumstances attendant to the pending DWI charge - defendant was speeding on the wrong side of the road and ran another motorist off the road while impaired - demonstrated that defendant was aware that his conduct leading up to the collision at issue was reckless and inherently dangerous to human life; thus, such evidence tended to show malice on the part of defendant and was properly admitted under this rule. State v. Jones, 353 N.C. 159, 538 S.E.2d 917 (2000).

Evidence of Prior DWI Admissible to Show Malice. - Evidence as to defendant's prior convictions for driving while impaired and driving while license revoked was properly admitted, under G.S. 8C-1, N.C. R. Evid. 404(b), as the evidence was relevant to show malice to support defendant's charge for second degree murder following an auto accident in which defendant was driving while impaired. State v. Edwards, 170 N.C. App. 381, 612 S.E.2d 394 (2005).

Evidence that defendant had a breath alcohol concentration of 0.08 and performed poorly on field sobriety tests after he caused an automobile accident that resulted in the death of a child was sufficient to sustain defendant's conviction for second-degree murder, and the trial court did not err by allowing the State to introduce evidence that defendant was convicted of driving while impaired after he was involved in another accident in 1996, to prove malice. State v. Locklear, 159 N.C. App. 588, 583 S.E.2d 726 (2003), cert. denied, 358 N.C. 157, 593 S.E.2d 394 (2004), aff'd, 359 N.C. 63, 602 S.E.2d 359 (2004).

Intent is a mental attitude seldom provable by direct evidence. Past incidents of mistreatment are admissible to show intent in a child abuse case. State v. West, 103 N.C. App. 1, 404 S.E.2d 191 (1991).

Passage of Time May Prove Existence of Plan. - Where defendant was convicted of first-degree rape of his daughter, prior acts were not too remote to be considered as evidence of defendant's common scheme to abuse the victim sexually; when similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan. State v. Shamsid-Deen, 324 N.C. 437, 379 S.E.2d 842 (1989).

Prior Acts Showing Motive or Conduct. - Evidence that a murder defendant had engaged in homosexual activities with a witness and with two murder victims was relevant to show motive and pattern of conduct. State v. Ross, 100 N.C. App. 207, 395 S.E.2d 148 (1990), aff'd, 329 N.C. 108, 405 S.E.2d 158 (1991).

Trial court's admission of the testimony of kidnapping victim regarding a prior incident during which defendant struck the murder victim in the back of the head with a pole and threatened to cut her throat with a butcher knife was upheld under section (b) of this Rule and under G.S. 8C-1, Rule 403. State v. Kyle, 333 N.C. 687, 430 S.E.2d 412 (1993).

Evidence about drug sales by defendant and his friends on the night of the murder was relevant to show the motive for the shooting and to put the crime in context. Thus, the testimony was admissible under section (b) and the trial court did not err in admitting it. State v. Cook, 334 N.C. 564, 433 S.E.2d 730 (1993).

Testimony of defendant's grandfather concerning defendant's loss of luggage, offered by his brother co-defendant, was relevant as well as admissible, pursuant to this section, to prove his motive for not wanting to return to Richmond by bus (he would ostensibly have to stop over in the town where the police seized his luggage for containing marijuana) and, consequently, his ultimate motive for robbery and car theft. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 1380, 149 L. Ed. 2d 305 (2001), cert. dismissed, without prejudice, 805 S.E.2d 698, 2017 N.C. LEXIS 900 (2017), cert. granted, 370 N.C. 587, 809 S.E.2d 594, 2018 N.C. LEXIS 93 (2018), cert. dismissed, as moot, 847 S.E.2d 415, 2020 N.C. LEXIS 891 (N.C. 2020).

Admission of evidence of defendant's prior arrest on the evening before the alleged murder, where defendant was found with drugs and cash, was not erroneous because the evidence was admissible under the theory that it went to the motive for the later drug-related murder. State v. Davis, 168 N.C. App. 321, 608 S.E.2d 74 (2005), cert. denied, 359 N.C. 412, 612 S.E.2d 324 (2005), cert. dismissed 365 N.C. 87, 706 S.E.2d 471, 2011 N.C. LEXIS 158 (2011), mot. dismissed, 365 N.C. 87, 706 S.E.2d 471 (2011).

Evidence that defendant had an outstanding warrant was admissible under G.S. 8C-1, N.C. R. Evid. 404(b), as a possible motive for his decision to flee from officers after drugs were discovered in a car where he was riding as a passenger; also, evidence of the circumstances surrounding defendant's arrest in another state, where defendant was passenger in a car and attempted to flee in that car after drugs were discovered, was properly admitted under that same rule as the circumstances were sufficiently similar to show defendant's propensity or modus operandi to flee after being caught with drugs. State v. Brewington, 170 N.C. App. 264, 612 S.E.2d 648 (2005), cert. denied, 360 N.C. 67, 621 S.E.2d 881 (2005).

Testimony that the victim of an arson refused to agree to allow defendant to store stolen goods in her home was relevant under G.S. 8C-1, N.C. R. Evid. 401 to show defendant's motive to burn the premises. G.S. 8C-1, N.C. R. Evid. 404(b) did not require exclusion of the victim's testimony as evidence that was probative only of defendant's propensity to commit crimes. State v. Chappelle, 193 N.C. App. 313, 667 S.E.2d 327 (2008), appeal dismissed, review denied, 362 N.C. 684, 670 S.E.2d 568 (2008).

Evidence of defendant's offenses subsequent to burglary, namely, shoplifting, breaking, entering and larceny, and car theft, were admissible to show intent and motive (defendant wanted money for drugs) and was not unfairly prejudicial where the judge gave a limiting instruction. State v. Hutchinson, 139 N.C. App. 132, 532 S.E.2d 569 (2000).

Identity Must Be at Issue. - Before identity evidence is admissible under Rule 404(b), there must be a determination of whether the identity of the perpetrator is at issue. State v. White, 101 N.C. App. 593, 401 S.E.2d 106, cert. denied and appeal dismissed, 329 N.C. 275, 407 S.E.2d 852 (1991).

Where the prior crime was not being offered to show common plan or scheme, but to show identity, the passage of time affected the weight of the evidence rather than its admissibility. State v. Carter, 338 N.C. 569, 451 S.E.2d 157 (1994), cert. denied, 515 U.S. 1107, 115 S. Ct. 2256, 132 L. Ed. 2d 263 (1995).

Application of the identity exception of subsection (b) of this rule requires that some unusual facts or particularly similar acts be present in both crimes indicating that the same person committed both crimes. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853 (1987), aff'd, 322 N.C. 467, 368 S.E.2d 386 (1988).

Evidence of Other Murder - Showing Opportunity and Identity. - Trial court correctly allowed evidence of one murder to show opportunity and identity in support of another murder. State v. Moses, 350 N.C. 741, 517 S.E.2d 853 (1999), cert. denied, 528 U.S. 1124, 120 S. Ct. 951, 145 L. Ed. 2d 826 (2000), cert. denied 706 S.E.2d 246, 2011 N.C. LEXIS 121 (N.C. 2011.

Same - Showing Common Scheme. - Where State used evidence of another victim's death to show that defendant had a common scheme to hurt his former girlfriend for refusing to continue their relationship, and the two killings shared significant similarities, and the court conducted a lengthy pretrial hearing which supported its decision to admit the evidence, appellate court found no abuse of discretion under this rule. State v. Underwood, 134 N.C. App. 533, 518 S.E.2d 231 (1999), cert. dismissed, 352 N.C. 669, 535 S.E.2d 33 (2000).

Other acts evidence was admissible as the testimony by defendant's natural daughter of his sexual assaults against her showed a "common plan or scheme" by defendant of abusing young female family members. State v. Starner, 152 N.C. App. 150, 566 S.E.2d 814 (2002), cert. denied, 356 N.C. 311, 571 S.E.2d 209 (2002).

Where evidence regarding a prior murder had been admitted in petitioner's murder trial to show the existence of a similar modus operandi, intent, and design, there was no reasonable probability that if documents generated in the early phases of the prior murder investigation (which led to the initial identification of other potential suspects) had been produced, there would have been a different G.S. 8C-1, N.C. R. Evid. 404 ruling; given the similarities in the murders, the evidence that the same person murdered both victims, and that petitioner was the murderer, was overwhelming. Moseley v. Branker, 545 F.3d 265 (4th Cir. 2008).

While the trial court properly admitted evidence of a subsequent murder to show a common plan or design, the cumulative effect of the trial court's errors deprived defendant of a fair trial where there was a distinct risk that the jury might have been led to convict based on evidence of an offense not then before it, allowed the second victim's sister to testify about that victim's good character, which evidence was irrelevant to the crime charged, and allowed the prosecution to argue that defense counsel had in effect suborned perjury when, whether or not defendant committed perjury, there was no evidence that he had done so at his attorneys' behest. State v. Hembree, 368 N.C. 2, 770 S.E.2d 77 (2015).

Modus Operandi Need Not Be Unique or Bizarre. - Under subsection (b) of this rule, for similar crimes to be admitted as evidence of identity it is not necessary that the modus operandi of the crime which the state seeks to have admitted rise to the level of the unique or bizarre. Rather, the similarities must support the reasonable inference that the same person committed both the earlier and the later crimes. State v. Green, 321 N.C. 594, 365 S.E.2d 587, cert. denied, 488 U.S. 900, 109 S. Ct. 247, 102 L. Ed. 2d 235 (1988).

Prior Assault. - The evidence of the defendant's prior assault on murder victim tended to establish malice, intent, premeditation and deliberation and the defendant's ill will toward the victim; thus, the evidence was relevant to an issue other than defendant's character. State v. Alston, 341 N.C. 198, 461 S.E.2d 687 (1995), cert. denied, 516 U.S. 1148, 116 S. Ct. 1021, 134 L. Ed. 2d 100 (1996).

The State was allowed to ask the defendant questions about the names of other women he had been convicted of shooting, his relationship with those other women, and type of weapons he had used, to show that he had a history of shooting women with whom he had previously had relationships. State v. Dammons, 128 N.C. App. 16, 493 S.E.2d 480 (1997).

In defendant's conviction for rape and breaking and entering, the trial court properly admitted evidence of past crimes under G.S. 8C-1, N.C. R. Evid. 404(b), as the evidence of defendant's physical abuse towards the victim was not too remote in time to be relevant, and the evidence of defendant's prior abuse of the victim was relevant to prove defendant's pattern of physical intimidation of the victim. State v. Strickland, 153 N.C. App. 581, 570 S.E.2d 898 (2002), cert. denied, 357 N.C. 65, - S.E.2d - (2003), cert. dismissed, - N.C. - , 602 S.E.2d 679 (2004).

In defendant's trial on a charge of murder in the first degree, the trial court properly admitted testimony which showed that defendant assaulted the victim, his girlfriend, on prior occasions and that defendant's girlfriend had asked defendant to leave her residence on the day he shot her, because the testimony was relevant to defendant's claim that he discharged his gun accidentally and the prejudicial effect of the evidence did not outweigh its probative value. State v. Latham, 157 N.C. App. 480, 579 S.E.2d 443 (2003), cert. denied, 357 N.C. 509, 588 S.E.2d 376 (2003).

Although the trial court properly admitted a police officer's testimony about the underlying facts of defendant's prior 1995 conviction for assault inflicting serious injury, the trial court committed reversible error by admitting the state's exhibit of a copy of defendant's criminal conviction for that assault because admitting the bare fact of a non-testifying defendant's prior conviction after testimony had been elicited to establish the factual basis underlying that conviction violated G.S. 8C-1, N.C. R. Evid. 404(b), and 403; the bare fact of the prior conviction was inherently prejudicial. State v. McCoy, 174 N.C. App. 105, 620 S.E.2d 863 (2005).

Testimony concerning the defendant's discipline of the victim, the manner in which she spoke to him, along with testimony describing her as a "pushy person," was properly admitted where the defendant was charged with felony child abuse and her treatment of the victim was at issue and, thus, relevant. State v. Clark, 138 N.C. App. 392, 531 S.E.2d 482 (2000).

Absence of Mistake. - Where defendant was on trial for murdering his 2 1/2 year old niece, evidence that 6 months prior defendant became angry with girlfriend's 4 year old son and shook him and threw him into a chair which then slid and hit the wall was relevant to establish defendant's motive and intent in shaking niece and to show absence of mistake on defendant's part. State v. Pierce, 346 N.C. 471, 488 S.E.2d 576 (1997).

Identity. - Evidence showing that defendant beat his girlfriend in the head with the same pistol used to murder the victim was admissible under subsection (b) for the purpose of identity. State v. Robinson, 346 N.C. 586, 488 S.E.2d 174 (1997), cert. denied, - N.C. - , 502 S.E.2d 611 (1998).

The testimony of a narcotics officer connecting the defendant to an address where clothing worn by the alleged murderer was found did not impermissibly introduce evidence of "crimes, wrongs, or acts" in violation of this section nor was the possibility of the jury's drawing a conclusion from the occupation of the witness as to the defendant's activities prejudicial. State v. Hanton, 140 N.C. App. 679, 540 S.E.2d 376 (2000).

In a first-degree murder, attempted robbery with a dangerous weapon (a knife), and assault with a deadly weapon with intent to kill inflicting serious injury case, the evidence of defendant's prior arrest for carrying a knife was properly admitted at trial pursuant to N.C. R. Evid. 404(b) for the purpose of identifying defendant as the perpetrator, as it showed that defendant was in the habit of carrying a knife, while the other evidence tended to show that his accomplice was not. State v. Sutton, 169 N.C. App. 90, 609 S.E.2d 270 (2005).

Prior Sex Acts by Defendant Showing Intent, Motive or Plan. - Evidence of prior sex acts may have some relevance to the question of defendant's guilt of the crime charged if it tends to show a relevant state of mind such as intent, motive, plan, or opportunity. Such evidence is deemed admissible and not violative of the general rule prohibiting character evidence. State v. Hinson, 102 N.C. App. 29, 401 S.E.2d 371, cert. denied, 329 N.C. 273, 407 S.E.2d 846 (1991).

Trial court did not err in permitting child sex offender's prior child victims to testify to show that defendant had a motive for the commission of the crime charged, that defendant had the necessary intent, and there existed in the mind of defendant a plan, scheme, system or design involved in the crime charged in the case. State v. Carpenter, 147 N.C. App. 386, 556 S.E.2d 316 (2001), cert. denied, 355 N.C. 222, 560 S.E.2d 365 (2002), cert. denied, 536 U.S. 967, 122 S. Ct. 2680, 153 L. Ed. 2d 851 (2002).

Where defendant was accused of meeting teenage girls in a skating rink, inviting them to his home for parties, providing drugs and alcohol to these girls, and photographing them in various stages of undress, evidence that defendant had been convicted in another state of similar crimes 10 to 15 years earlier was admissible as evidence of defendant's motive and intent, and of a common scheme or plan. State v. Patterson, 149 N.C. App. 354, 561 S.E.2d 321 (2002).

At defendant's trial on charges of first degree statutory rape of a female child under 13 years old, statutory sexual offense of a female child under 13 years old, and taking indecent liberties with a child, trial court properly allowed victim's sister to testify that the defendant had touched her vagina and breasts and had masturbated in front of her; this testimony showed a pattern of opportunity as well as a common plan or scheme. State v. Brothers, 151 N.C. App. 71, 564 S.E.2d 603 (2002).

Where defendant had sexually explicit conversations with a 15-year-old former karate student in violation of G.S. 14-202.1, the trial court's admission of evidence of defendant's subsequent conduct with another student where there were certain similarities was not prejudicial under the circumstances. State v. Every, 157 N.C. App. 200, 578 S.E.2d 642 (2003).

Evidence of prior sex acts may have some relevance on the question of defendant's guilt of the crime charged if it tends to show a relevant state of mind such as intent, motive, plan, or opportunity. State v. Boyd, 321 N.C. 574, 364 S.E.2d 118 (1988).

Evidence that perpetrators of sexual offenses have committed other sexual acts with their victims may be relevant and admissible. State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368 (1988).

North Carolina is quite liberal in admitting evidence of other sex offenses when those offenses involve the same victim as the victim in the crime for which the defendant is on trial. State v. Allen, 92 N.C. App. 168, 374 S.E.2d 119 (1988), cert. denied, 324 N.C. 544, 380 S.E.2d 772 (1989).

When the State seeks to introduce evidence of prior, similar sex offenses by a defendant, the Supreme Court of North Carolina has been markedly liberal in admitting such evidence for the purposes cited in subsection (b) of this rule. State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

North Carolina liberally admits evidence of prior similar sex offenses; this is particularly true where the fact sought to be proved is the defendant's intent to commit a similar sexual offense for which the defendant has been charged. State v. Sneeden, 108 N.C. App. 506, 424 S.E.2d 449 (1993), aff'd, 336 N.C. 482, 444 S.E.2d 218 (1994).

The trial court did not err in admitting evidence that defendant had previously sexually assaulted another daughter pursuant to Rule 403 and subsection (b) of this rule. State v. Jacob, 113 N.C. App. 605, 439 S.E.2d 812 (1994).

Where five females testified that defendant looked after them when they were young and began his misconduct by touching them and fondling them, began to touch them more invasively as they grew older, had sexual intercourse with all but one of them and convinced each of them to remain quiet about the abuse by threatening to send them away or by threatening to stop taking care of their financial needs, all of the witnesses testified to similar forms of abuse which demonstrated a distinct pattern over a protracted period. State v. Frazier, 121 N.C. App. 1, 464 S.E.2d 490 (1995), aff'd, 344 N.C. 611, 476 S.E.2d 297 (1996).

While testimony regarding previous rape may have been irrelevant, its admission was not prejudicial where defendant's admission of intercourse on the grounds of consent was effectively a confession. State v. Anthony, 133 N.C. App. 573, 516 S.E.2d 195, appeal dismissed, cert. granted, 351 N.C. 109, 516 S.E.2d 195, aff'd, 528 S.E.2d 321 (2000).

Where testimony of defendant's two daughters gave ample evidence of the types of sexual abuse they suffered to conclude that the same person committed the offenses, admission of prior bad acts as evidence was held appropriate under G.S. 8C-1, Rule 404(b). State v. Patterson, 150 N.C. App. 393, 563 S.E.2d 88 (2002), aff'd, 356 N.C. 606, 572 S.E.2d 780, 2002 N.C. LEXIS 1261 (2002).

Rule allows admission of conduct evidence so long as it is offered for a purpose other than to show that defendant had the propensity to engage in the charged conduct; in a case involving a charge that defendant performed a sex act on a minor girl, the trial court did not err in allowing the girl's mother to testify that defendant had performed a sex act on the mother nearly 20 years before. State v. Love, 152 N.C. App. 608, 568 S.E.2d 320 (2002), cert. denied, 357 N.C. 168, 581 S.E.2d 66 (2003).

Admission of victims' prior consistent statements was permitted at defendant's trial for statutory rape, because the testimony was admitted for proper purposes, namely to show opportunity, a common scheme, and the assailant's identity; the victims' testimony shared similarities and temporal proximity. State v. Thaggard, 168 N.C. App. 263, 608 S.E.2d 774 (2005).

In defendant's prosecution for sexual abuse, trial court properly allowed, under G.S. 8C-1-404(b) the testimony of four witnesses who asserted that defendant had sexually abused them when they were children, as that testimony showed a strikingly similar pattern of sexually abusive behavior by defendant over a period of 31 years. State v. Register, 206 N.C. App. 629, 698 S.E.2d 464 (2010).

Testimony of a victim's half-brother should not have been admitted pursuant to G.S. 8C-1, N.C. R. Evid. 404(b), as events the half-brother testified to lacked similarity with crimes with which defendant was charged; defendant and the half-brother were both minors when they engaged in sexual behavior, but defendant was 27 years old and the victim was 11 years old when the events alleged by the State took place. State v. Beckelheimer, 211 N.C. App. 362, 712 S.E.2d 216 (2011), rev'd 366 N.C. 127, 726 S.E.2d 156, 2012 N.C. LEXIS 409 (2012); rev'd 722 S.E.2d 484, 2012 N.C. LEXIS 125 (2012).

Trial court did not commit plain error by admitting evidence of a prior alleged rape because while defendant's identity was a material fact, it was not necessarily in issue; evidence of the prior rape was, at best, tangential to proving defendant was, in fact, in North Carolina approximately two years later at the time of the rape in the case, and the circumstances of the two rapes were not so particularly similar as to necessarily constitute proof that the same individual committed both. State v. Mack, - N.C. App. - , - S.E.2d - (May 18, 2021).

Trial court did not commit plain error by admitting evidence of a prior alleged rape because in light of the overwhelming evidence of defendant's identity and guilt, defendant had not shown the jury would have reached a different result; the State presented DNA evidence showing 660 sextillion-to-one that defendant's, and not someone else's, DNA was in the victim's sexual assault kit, and the victim affirmatively identified him as her assailant and gave detailed testimony of the incident. State v. Mack, - N.C. App. - , - S.E.2d - (May 18, 2021).

Trial court properly admitted testimony of defendant's prior sexual assaults where (1) the prior assaults were admitted for purposes other than to show defendant had a propensity to commit the crimes charged; (2) the trial court instructed the jury to limit its consideration of the prior assaults to those proper purposes; (3) the trial court found that the assaults bore several similarities; (4) there were sufficient similarities to support a reasonable inference that the defendant committed all three assaults; and (5) the prior assaults were not so temporally remote as to diminish their probative value. State v. Berry, 143 N.C. App. 187, 546 S.E.2d 145 (2001), review denied, 353 N.C. 729, 551 S.E.2d 439 (2001).

Joinder of four sex offense charges against defendant was error, but not prejudicial error, where the record revealed that the crimes charged against defendant occurred over a period of 12 years, from 1984 to 1996, and involved three different victims (one being defendant's daughter, one his niece and the third unrelated), but, although all of the charges alleged sexual crimes against children, the evidence did not show that defendant went about committing them in any special way, or place, and where he neither offered an argument to support his objection to the joinder nor suggested to the court that it would prejudice him, and the evidence of the other crimes would have been admissible under section (b) of this rule. State v. Bowen, 139 N.C. App. 18, 533 S.E.2d 248 (2000).

By attacking the victim's character for marital fidelity, defendant went beyond what was necessary for his defense and opened the door to the rebuttal evidence. State v. Sexton, 336 N.C. 321, 444 S.E.2d 879, cert. denied, 513 U.S. 1006, 115 S. Ct. 525, 130 L. Ed. 2d 429 (1994), 343 N.C. 516, 472 S.E.2d 23 (1996).

In a prosecution for first-degree murder, first-degree rape, and first-degree sexual assault, evidence of defendant's sexual relations with his ex-wife were probative of defendant's state of mind at the time the victim was sexually assaulted and murdered, and was properly admitted. State v. Moseley, 338 N.C. 1, 449 S.E.2d 412 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738 (1995).

The similarity between two crimes, closely connected temporally, clearly supported the admission of a previous rape to prove identity and intent in the attempted rape for which defendant was being tried. State v. Carter, 338 N.C. 569, 451 S.E.2d 157 (1994), cert. denied, 515 U.S. 1107, 115 S. Ct. 2256, 132 L. Ed. 2d 263 (1995).

Evidence of a party's prior driving record is inadmissible in automobile cases. However, where the jury found defendant negligent, admission of defendant's good driving record could not have influenced the jury's verdict to plaintiff's detriment. Wentz v. Unifi, Inc., 89 N.C. App. 33, 365 S.E.2d 198, cert. denied, 322 N.C. 610, 370 S.E.2d 257 (1988).

The court did not commit plain error in admitting defendant's driving offenses where defendant's driving offenses from eight to two years past were sufficiently proximate in time to the offenses charged, including murder in the second degree for causing a fatal automobile accident as a result of fleeing a police officer. State v. Fuller, 138 N.C. App. 481, 531 S.E.2d 861 (2000).

The trial court's instructions properly limited the use of evidence of defendant's prior traffic violations under this rule. State v. Fuller, 138 N.C. App. 481, 531 S.E.2d 861 (2000).

While the trial court erred in admitting defendant's entire driving record because of the remoteness in time of some of the convictions, admission of the entire record did not prejudice defendant to the extent required under a plain error analysis, and defendant's driving convictions were admissible to prove defendant's malice in his trial for second degree murder following an auto accident. State v. Goodman, 149 N.C. App. 57, 560 S.E.2d 196 (2002), cert. granted, 356 N.C. 170, 568 S.E.2d 852 (2002).

Trial court violated G.S. 8C-1, N.C. R. Evid. 404(b) by admitting multiple letters of suspension, with no redaction of the specific offenses for which the driver's license was revoked, including multiple counts of driving while impaired. State v. Scott, 167 N.C. App. 783, 607 S.E.2d 10 (2005).

Evidence of Prior Robberies. - Admission of evidence of defendant's participation in several robberies, to corroborate the accounts of other witnesses or for the purpose of showing defendant's motive, intent or plan to commit the instant crime, presented with limiting jury instructions, could not fairly be characterized as arbitrary and unreasonable and in violation of the principles of G.S. 8C-1, Rule 403. State v. Hall, 134 N.C. App. 417, 517 S.E.2d 907 (1999).

Evidence of a prior robbery and a prior attempted robbery was correctly admitted after the court determined that the evidence was relevant for some purpose other than to show defendant's propensity to commit this type of crime, as required by this rule, and that it was more probative than prejudicial, as required by G.S. 8C-1, Rule 403. State v. Leggett, 135 N.C. App. 168, 519 S.E.2d 328 (1999).

In defendant's trial for robbery with a dangerous weapon, admission of testimony concerning a separate robbery was proper, as the similarities between the two robberies were striking, including the fact that the victims were robbed of their credit or debit cards by one or more handgun-wielding individuals with African accents, which were then used by defendant to purchase gas at the same gas station within a very short period of time; evidence was admissible under G.S. 8C-1-404(b). State v. Mohamed, 205 N.C. App. 470, 696 S.E.2d 724 (2010).

Conversation Regarding Advantages of Committing Armed Robbery. - Evidence of defendant's alleged conversation with witness in which defendant, among other things, discussed the advantages of committing armed robbery over stealing and selling property as well as the manner in which it could be done, constituted Rule 404(b) evidence of another "crime, wrong, or act" on the part of defendant, but was admissible, inter alia, to show defendant had a plan, scheme, system, or design involving the commission of robberies. State v. Wilson, 108 N.C. App. 117, 423 S.E.2d 473 (1992).

Questions About Collateral Misdeeds Must Have Good Faith Basis. - A defendant who takes the stand may be asked about collateral misdeeds that tend to show his criminal conduct, intent or motive in the case being tried. But such questions must have a good faith basis. State v. Flannigan, 78 N.C. App. 629, 338 S.E.2d 109 (1985), cert. denied, 316 N.C. 197, 341 S.E.2d 572 (1986).

Informing Jury of Misdeeds. - The State, by questions put to a defendant during cross-examination, may not inform the jury of purported misdeeds by the defendant that firsthand knowledge of source does not support. State v. Flannigan, 78 N.C. App. 629, 338 S.E.2d 109 (1985), cert. denied, 316 N.C. 197, 341 S.E.2d 572 (1986).

Evidence Inadmissible If Its Only Value Is to Show Defendant's Propensity to Commit an Offense. - Subsection (b) of this rule is one of inclusion of relevant evidence of other crimes subject to but one exception requiring its exclusion if its only probative value is to show that defendant has propensity or disposition to commit an offense of nature of crime charged. State v. Faircloth, 99 N.C. App. 685, 394 S.E.2d 198 (1990).

The trial court's error in allowing evidence of a prior assault by defendant on the victim entitled him to a new trial; evidence of the 1994 assault did not tend to prove a material fact in issue in the crimes charged and demonstrated no connection between the 1994 assault and the 1997 assaults, other than the defendant's propensity for violence, making it inadmissible under this section. State v. Elliott, 137 N.C. App. 282, 528 S.E.2d 32 (2000).

Evidence of Other Crimes Is Not Admissible to Prove Character. - All that subsection (b) of this rule forbids is receiving evidence of other crimes, wrongs or acts to prove the character of a person in order to show that he acted in conformity therewith. State v. Elledge, 80 N.C. App. 714, 343 S.E.2d 549 (1986).

Defendant was prejudiced pursuant to G.S. 15A-1443(a) by the trial court's decision to allow the State to cross-examine defendant regarding two prior criminal charges that had been voluntarily dismissed against him, as the State sought to show that defendant had engaged in violent conduct previously with only slight provocation and that he then claimed self-defense against those charges; however, such evidence of an alleged violent propensity was specifically not allowed under N.C. R. Evid. 404(b), and there was insufficient evidence regarding the factual circumstances of the other incidents to determine whether defendant acted similarly in the charge that defendant was on trial for. State v. Goodwin, 186 N.C. App. 638, 652 S.E.2d 36 (2007).

Evidence of prior wrongs cannot come into show the character of a person and that he acted in conformity with that character; thus, evidence of 14 separate incidents, which was clearly relevant to no other issue than to show that the defendant was a violent man and therefore must have been the aggressor when he shot and killed victim, was indirect contravention of subsection (b) of this rule, and the trial court erred in allowing it. State v. Mills, 83 N.C. App. 606, 351 S.E.2d 130 (1986).

Evidence of a violent disposition to prove that a person was the aggressor in an affray is an impermissible use of evidence of other crimes and not admissible under subsection (b), but even assuming that these acts were relevant and admissible, the probative value is far outweighed by the prejudicial effect of their admissibility and their admission and that they would only serve to show to the jury that the deceased was somewhat less worthy of living than someone who hadn't performed these relevant acts. State v. Smith, 337 N.C. 658, 447 S.E.2d 376 (1994).

Prosecutor May Not Argue Defendant's Bad Character Therefrom. - Where evidence of defendant's past convictions was offered and admitted solely to impeach defendant's credibility, and this was the only legitimate purpose for which the evidence was admissible, it was error for the prosecutor in his argument to use defendant's prior convictions primarily to characterize him as a bad man of a violent, criminal nature and more likely to be guilty of the crime charged. State v. Tucker, 317 N.C. 532, 346 S.E.2d 417 (1986).

Prosecutor's Questions About Prior Crime Exceeded Permissible Purpose. - While, in murder prosecution, evidence that defendant was familiar with the gun and had used it previously might rebut defendant's claim of accident, the State greatly exceeded this purpose and questioned the witness at length about the details of the breaking and entering, details which had no connection with the crime for which defendant was being prosecuted. State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456, cert. denied, 323 N.C. 627, 374 S.E.2d 594 (1988).

Improper Impeachment of Witness's Statement by Extrinsic Evidence. - Defendant was granted a new trial on his convictions involving the sexual abuse of his grandchildren; the trial court committed prejudicial error under G.S. 15A-1443(a) by allowing the State to impeach by extrinsic evidence testimony by defendant's son and two daughters that defendant had never sexually abused them, and the error was so highly prejudicial that it likely affected the verdict, and because the evidence of prior sexual misconduct was not admissible under a hearsay exception, G.S. 8C-1, N.C. R. Crim. P. 404(b). State v. Mitchell, 169 N.C. App. 417, 610 S.E.2d 260 (2005).

Scope of Inquiry on Cross-Examination of Defendant. - By choosing to testify, a defendant is subject to cross-examination as other witnesses; defendant waived his privilege against self-incrimination regarding bad acts when he elected to testify. State v. Artis, 91 N.C. App. 604, 372 S.E.2d 905 (1988).

Where defendant testified on direct examination that he had no intent of selling cocaine until he was approached by the informant, he raised the issue of entrapment, and G.S. 8C-1, Rule 404(b) allowed the State on cross-examination to question defendant concerning the prior sale to undercover police to prove absence of entrapment; defendant's privilege against self-incrimination was not violated by the questions. State v. Artis, 91 N.C. App. 604, 372 S.E.2d 905 (1988).

Evidence of a victim's awareness of prior crimes allegedly committed by the defendant may be admitted to show that the victim's will had been overcome by her fears for her safety, where the offense in question requires proof of lack of consent or that the offense was committed against the will of the victim. State v. Young, 317 N.C. 396, 346 S.E.2d 626 (1986).

Evidence of physical abuse and animal abuse done in victim's presence was admissible pursuant to this rule where it tended to explain victim's fear of defendant and why she never reported all the incidents of sexual abuse, and where defendant specifically made her state of mind relevant; to the extent that evidence of physical and/or animal abuse not done in her presence was admitted, such admission was error, but would not have changed the outcome so as to require a new trial. State v. Thompson, 139 N.C. App. 299, 533 S.E.2d 834 (2000).

Trial court's admission of the victim's testimony from a domestic violence protective order hearing did not violate his right to confront the witness against him, nor did it violate G.S. 8C-1, Rules 403, 404(b), or 803(3) of the North Carolina Rules of Evidence, where the hearsay statements constituted, and were admissible as, statements of declarant's then-existing mental, emotional, or physical condition and where their probative value outweighed their prejudicial effect. State v. Thibodeaux, 352 N.C. 570, 532 S.E.2d 797 (2000), cert denied, 531 U.S. 1155, 121 S. Ct. 1106, 148 L. Ed. 2d 976 (2001).

Evidence of Victim Intimidation Admissible. - Testimony that suggested that defendant intimidated the victim was not admitted in violation of this rule because it was relevant as an explanation for why the victim did not identify the shooter and for why the victim did not testify at trial, and therefore it was admissible for a purpose other than its negative character implications.

Witness' Statement to Officer. - Officer's testimony that a witness said she was afraid to talk to the police did not violate the rule against evidence of "other crimes," as the testimony did not relate to "other crimes" of defendant; it did, however, violate the hearsay rule. State v. Evans, 149 N.C. App. 767, 562 S.E.2d 102 (2002).

Evidence Properly Admitted. - In defendant's trial on charges of first degree murder, first degree burglary, second degree kidnapping, and robbery with a dangerous weapon, the trial court (1) properly admitted the videotaped statement that defendant's wife gave to police, pursuant to G.S. 8C-1, N.C. R. Evid. 804(b)(5), after defendant's wife refused to testify for the State at defendant's trial, (2) properly admitted letters one of defendant's co-conspirators wrote to a girlfriend urging her to lie about her involvement in the co-conspirator's attempt to conceal evidence of the crime, pursuant to G.S. 8C-1, N.C. R. Evid. 804(b)(3), (b)(5), and (3) properly admitted evidence of similar crimes that defendant committed shortly after the murder, pursuant to G.S. 8C-1, N.C. R. Evid. 404(b). State v. Carter, 156 N.C. App. 446, 577 S.E.2d 640 (2003), cert. denied, 358 N.C. 547, - S.E.2d - (2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 868, 160 L. Ed. 2d 784 (2005).

Evidence of two prior assaults defendant committed against an unrelated party was admissible under G.S. 8C-1, N.C. R. Evid. 404(b), because such evidence demonstrated that defendant was aware that striking a person with a beer bottle was a reckless and dangerous act that could cause serious injury. State v. Morgan, 359 N.C. 131, 604 S.E.2d 886 (2004).

In a robbery and murder prosecution, testimony about defendant's past robberies and prior drug dealing provided evidence of his motive, his intent to commit the crimes, and his modus operandi and was properly admitted under G.S. 8C-1, N.C. R. Evid. 404(b). State v. Hightower, 168 N.C. App. 661, 609 S.E.2d 235 (2005).

Trial court properly admitted various evidence in defendant's trial pursuant to G.S. 8C-1, Rule 404(b), because the various evidence was not admitted to prove the character of defendant in order to show that he acted in conformity therewith and was not overly prejudicial. State v. Matthews, 175 N.C. App. 550, 623 S.E.2d 815 (2006).

In defendant's murder trial, the trial court did not err in admitting evidence pursuant to G.S. 8C-1-404(b) regarding an individual close to defendant who 17 years prior to the victim's death was found dead at the bottom of a set of stairs; the trial court found that evidence of the individual's death was probative of defendant's intent, knowledge, and the absence of accident in the victim's death, and the trial court found the evidence to be relevant, finding 17 similarities between the circumstances of the individual's death and that of the victim's. State v. Peterson, 179 N.C. App. 437, 634 S.E.2d 594 (2006).

Trial court did not err in admitting evidence of drug transactions subsequent to the drug transaction for which defendant was charged. The subsequent transaction evidence was not admitted to show defendant's propensity to commit such an offense, but represented a substantial basis upon which a jury could find that defendant had committed a similar act. State v. Mack, 188 N.C. App. 365, 656 S.E.2d 1 (2008).

On appeal from convictions including rape and kidnapping, the trial court did not err or abuse its discretion in admitting into evidence a receipt for pornographic movies that listed the movie titles, and for admitting evidence of defendant's alleged prior acts of domestic violence against the victim, as: (1) defendant failed to state his grounds for objection to the admission of physical evidence; (2) the evidence was relevant; (3) the prior acts evidence was properly admitted to show defendant's motive, intent or purpose, opportunity, and plan; (4) defendant failed to request a limiting instruction at the time of the admission of the receipt, and failed to request that the trial court redact the movie titles from the receipt; and (5) even assuming that defendant's general objection preserved the matter for appellate review, the record revealed that the admission of the receipt into evidence did not prejudice defendant. State v. Daniels, 189 N.C. App. 705, 659 S.E.2d 22 (2008).

Admission of evidence under G.S. 8C-1, N.C. R. Evid. of his prior arrest for the same drug possession offense was not plain error because, inter alia, when the first judge declared a mistrial, his rulings barring this evidence no longer had legal effect, and, thus, neither collateral estoppel nor the one judge overruling another rule applied at the second trial. State v. Harris, 198 N.C. App. 371, 679 S.E.2d 464 (2009), review denied, 363 N.C. 585, 683 S.E.2d 211 (2009).

Admission during defendant's trial on child abuse and first-degree murder charges of evidence of defendant's abuse of all defendant's surviving children was within the trial court's discretion under G.S. 8C-1, N.C. R. Evid. 404(b) due to the similarity of the abuse with the abuse that led to the death of defendant's son. State v. Paddock, 204 N.C. App. 280, 696 S.E.2d 529 (2010), review denied, 364 N.C. 330, 701 S.E.2d 251, 2010 N.C. LEXIS 594 (2010).

Testimony of a victim's friend as to defendant's prior bad acts was properly admitted, as the friend testified that defendant initiated sexual conduct after wrestling or "roughhousing," and both the friend and the victim testified that defendant digitally penetrated their vagina and that defendant forced them to masturbate defendant. State v. Oliver, 210 N.C. App. 609, 709 S.E.2d 503 (2011), review denied 365 N.C. 206, 710 S.E.2d 37, 2011 N.C. LEXIS 495 (N.C. 2011).

Epsom salt taken from defendant along with a police officer's testimony regarding his observations and belief that it could be crack cocaine and as a result field tested the substance, was properly admitted because it was probative of defendant's intent, plan, scheme and modus operandi and thus, it was relevant for some purpose other than to show defendant's propensity for selling his prescription medication. State v. Hanif, 228 N.C. App. 207, 743 S.E.2d 690 (2013).

Trial court did not err in admitting the testimony of a witness as there were significant similarities between the charged offenses and the witness's experience that were not derived from the deceased victim's statement to a police major to admit the witness's testimony because the intoxicated witness was walking in Charlotte at night and accepted a ride from two unknown African-American men; and, once in the car, she was hit on the head with something silver and a cloth was put over her head; thus, even if the prosecutor improperly referred to the location where the deceased victim was released in his argument for admission of the witness's testimony, there was no basis to conclude that the trial court based its ruling on that information. State v. Thompson, 250 N.C. App. 158, 792 S.E.2d 177 (2016), cert. denied, 795 S.E.2d 366, 2017 N.C. LEXIS 74 (2017); review denied, 2017 N.C. LEXIS 74 (2017).

Trial court did not err by admitting an officer's testimony that contained admissions that defendant had embezzled cash receipts from his previous employer because it was relevant to show his intent, plan, or absence of mistake or accident, the crimes and defendant's methods were similar, and the trial court limited the evidence's use in its instructions to the jury. State v. Fink, 252 N.C. App. 379, 798 S.E.2d 537 (2017).

Evidence of Prior Convictions Held Inadmissible and Prejudicial. - In defendant's trial on a charge of felony possession of cocaine, the trial court erred by allowing a deputy clerk to testify regarding defendant's prior convictions for possession with intent to sell and deliver cocaine and sale of cocaine, G.S. 8C-1, N.C. R. Evid. 404(b), without requiring evidence of the underlying facts of the prior convictions to show similarities between the prior convictions and the offense charged; given the conflicting evidence in defendant's case, the error was prejudicial. State v. Hairston, 156 N.C. App. 202, 576 S.E.2d 121 (2003).

During defendant's trial on charges of attempted first-degree rape and first-degree sexual assault of a child, the trial court erred by admitting a witness's testimony concerning defendant's rape of her eight years before under this rule where it was not relevant to show opportunity and it was not relevant to show defendant had a plan given the numerous differences between the crimes, including the ages of the victims and the fact that a weapon was used in the prior rape but not in the instant assault. The error was not harmless because there was a lack of physical evidence of defendant's guilt and the State's case was based largely on credibility. State v. Watts, 246 N.C. App. 737, 783 S.E.2d 266 (2016), modified and aff'd, 802 S.E.2d 905, 2017 N.C. LEXIS 553 (N.C. 2017); appeal dismissed, writ granted, 855 S.E.2d 303, 2021 N.C. App. LEXIS 70 (N.C. Ct. App. 2021).

Evidence Held Improper But Not Prejudicial. - In light of uncontradicted evidence recorded against defendant, the State's line of questioning in connection with defendant's previous criminal record, while improper under subsection (b) of this rule, was not prejudicial. State v. Butler, 90 N.C. App. 463, 368 S.E.2d 887, cert. denied, 323 N.C. 176, 373 S.E.2d 116 (1988).

Testimony regarding defendant's failure to spend time with his sons did not tend to show that the victim was afraid of defendant or that she had no intention of reconciling with him. Rather, the evidence tended to show defendant's bad character and, as such, should not have been admitted. In light of all the evidence that was properly introduced, however, this tangential bit of evidence could not have affected the outcome of the trial; therefore, it was not prejudicial error. State v. Jolly, 332 N.C. 351, 420 S.E.2d 661 (1992).

Trial court did not commit plain error by denying defendant's motion to exclude evidence found at a residence because, even though it was not admissible under this section as he was not charged with any offense in connection with contraband at that residence, defendant was arrested with over 10 pounds of marijuana in his vehicle and therefore the jury could still have concluded that defendant was a high level drug trafficker. State v. McKnight, 239 N.C. App. 108, 767 S.E.2d 689 (2015).

Even though a detective's testimony that he encountered defendant related to a previous narcotics case constituted error under this rule, the error was not plain because the State presented surveillance video of an individual shooting the victim and the detective identified defendant as the individual in the video.

Videotaping of Family Bathroom Not Relevant to Sex Offense Charge. - The admission of evidence indicating that the defendant, who was charged with two counts of first degree statutory sex offense against the twelve-year-old daughter of his girlfriend, installed a camcorder in his girlfriend's bathroom was error, pursuant to this section, since it did not tend to demonstrate a plan or scheme to sexually assault the child; however, its admission was not reversible error since the defendant failed to show it had "a probable impact on the jury's finding of guilt." State v. Doisey, 138 N.C. App. 620, 532 S.E.2d 240 (2000), cert. denied, 352 N.C. 678, 545 S.E.2d 434 (2000), cert. denied, 531 U.S. 1177, 121 S. Ct. 1153, 148 L. Ed. 2d 1015 (2001).

Inadmissible Evidence Admitted but Held Harmless Error. - Although testimony was not relevant to any issue except the defendant's character to show that he had a propensity for bad acts and acted in conformity therewith in killing victim, it was harmless error to admit this testimony. In light of the strong substantive evidence against the defendant, as well as other evidence of bad acts including the ingestion of illegal drugs, the result would not have been different had this testimony been excluded. State v. Willis, 332 N.C. 151, 420 S.E.2d 158 (1992).

Where defendant did not object to the prosecutor cross-examining him as to his alleged prior assaults, the appellate court's review of the record and transcripts satisfied that court that the defendant did not meet the test for finding plain error because the State presented strong evidence of defendant's guilt through the testimony of three eye witnesses who were present when the victim, a police officer, was shot, with all three giving consistent testimony identifying defendant as the shooter; therefore it was not possible for the appellate court to say that the cross-examination amounted to a miscarriage of justice or denied defendant a fundamental right. State v. Augustine, 359 N.C. 709, 616 S.E.2d 515 (2005).

DNA Databank Evidence Properly Admitted. - The admission of testimony regarding the source of the DNA in the DNA data bank which led to the conviction of the defendant for a murder committed 4 years earlier was not plain error under this section. State v. Berry, 143 N.C. App. 187, 546 S.E.2d 145 (2001), review denied, 353 N.C. 729, 551 S.E.2d 439 (2001).

Evidence of Defendant's Gang Membership Properly Admitted. - In a robbery and murder prosecution, testimony that defendant was a gang member was properly admitted under G.S. 8C-1, N.C. R. Evid. 404(b) to show his motive for the robbery and the reason for an accomplice's involvement - as gang-initiation rite. State v. Hightower, 168 N.C. App. 661, 609 S.E.2d 235 (2005).

Failure to Show Admissibility. - When a patient in a medical malpractice case argued that statistical reports dealing with infections would be admissible under G.S. 8C-1, N.C. R. Evid. 404(b), but did not explain to what issue in the case a pattern, practice, plan, or modus operandi would be relevant, the appellate court could not conclude that the trial court's ruling denying her request for the reports was manifestly unreasonable. Diggs v. Novant Health, Inc., 177 N.C. App. 290, 628 S.E.2d 851 (2006), review denied, stay denied, 361 N.C. 426, 648 S.E.2d 209 (2007).

State Bar Disciplinary Hearing. - North Carolina State Bar Disciplinary Hearing Commission (DHC) did not violate the rule in admitting the results of two prior audits because the results of the audits were relevant to the intent of the attorney to commit acts where the harm or potential harm was foreseeable and a pattern of misconduct; the audit results were not used to show the attorney's propensity to mismanage his trust account because the DHC had already determined that he had committed that misconduct. N.C. State Bar v. Adams, 239 N.C. App. 489, 769 S.E.2d 406 (2015).

IV. ILLUSTRATIVE CASES.

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Evidence Held Admissible. - Evidence that on the day prior to robbery the defendant had pleaded guilty to a crime in federal court and that he had been ordered to pay a fine of $2,500 was admissible for the limited purpose of showing that the defendant needed money, and thus had a motive to commit the robbery. State v. Spinks, 77 N.C. App. 657, 335 S.E.2d 786 (1985), aff'd, 316 N.C. 547, 342 S.E.2d 522 (1986).

Photographs depicting defendant in close proximity to marijuana plants or holding or smoking marijuana, which were found in defendant's kitchen, were admissible as evidence that defendant was living at house at which marijuana was found, and to show defendant's knowledge of the marijuana. Photographs of defendant's girlfriend, partially nude, found in an envelope in his bedroom, were also relevant, as evidence that defendant lived in the house. State v. Johnson, 78 N.C. App. 68, 337 S.E.2d 81 (1985).

In a prosecution for false pretenses involving a check cashing scheme, the testimony of certain witnesses, to the effect that defendant had been involved with passing bad checks in the past, was admissible where defendant had maintained in his own defense at trial that he was mistaken about the legitimacy of the checks and had no knowledge that the fake janitorial service in whose name the checks were written was a sham. State v. Freeman, 79 N.C. App. 177, 339 S.E.2d 56, cert. denied, 317 N.C. 338, 346 S.E.2d 144 (1986), rehearing denied, 318 N.C. 509, 349 S.E.2d 868 (1986), overruled in part by State v. Rogers, 346 N.C. 262, 485 S.E.2d 619 (1997).

In trial charging defendant with first-degree sexual offense involving his two sons, evidence relating to sexual activity involving defendant's three-year-old daughter was properly admitted under this rule. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986).

In light of the unusual modus operandi involved in the offense at issue, as well as prior sexual assault, the court did not abuse its discretion in admitting evidence of the earlier incident, the "signature" value of which was high. State v. Wortham, 80 N.C. App. 54, 341 S.E.2d 76 (1986), rev'd in part, 318 N.C. 669, 351 S.E.2d 294 (1987).

Testimony that murder and assault victims had a bad reputation as violent people who were prone to fight, especially when drunk, was permissible under subdivision (a)(2) of this rule and G.S. 8C-1, Rule 405(a). State v. Shoemaker, 80 N.C. App. 95, 341 S.E.2d 603, cert. denied, 317 N.C. 340, 346 S.E.2d 145 (1986).

In prosecution for obtaining property by false pretense, involving false representations to homeowners of termite infestation, evidence with respect to other similar transactions in which defendant had engaged was relevant to show motive, intent, plan and knowledge and was a generally permissible inquiry pursuant to subsection (b) of this rule. State v. Childers, 80 N.C. App. 236, 341 S.E.2d 760, cert. denied, 317 N.C. 337, 346 S.E.2d 142 (1986).

Where defendant was being tried for the rape of his five-year-old stepdaughter, testimony of a prison inmate that the defendant had admitted engaging in sexual intercourse with his three-year-old daughter tended to show a common scheme or plan by the defendant to take sexual advantage of the availability and susceptibility of his young daughters. The testimony was therefore admissible under subsection (b) of this rule. State v. Gordon, 316 N.C. 497, 342 S.E.2d 509 (1986).

In a prosecution for robbery of a New Bern bank, the court did not err in permitting a teller at another New Bern bank to testify that one of the defendants came into that bank on the day of the robbery and got change for a one hundred dollar bill, where this testimony was offered and received for the limited but proper purpose of showing that the defendants were in New Bern on the day of the robbery and to corroborate the testimony of a confessed participant in the robbery. State v. Alston, 80 N.C. App. 540, 342 S.E.2d 573, cert. denied, 317 N.C. 707, 347 S.E.2d 441 (1986).

In prosecution for rape and other offenses where the State produced evidence that one of the defendants had threatened victim with a knife when they abducted her and that one of the three assailants had told her that he would be back for her and that she would be shot if she reported the crimes, trial court did not err in admitting knives and razor found in defendants' car five nights later when defendants came to victim's apartment around 1:00 a.m., beat on the door and attempted to open it, before leaving when a neighbor stepped outside his apartment, as by entering pleas of not guilty and denying that they were the assailants, defendants made identity an issue in the case, and this evidence clearly bore on the issue of identity. State v. Gilliam, 317 N.C. 293, 344 S.E.2d 783 (1986).

Evidence that on earlier occasions defendant had broken into his wife's house and assaulted her tended to prove these two elements of the offense under G.S. 14-277.1 and its receipt did not violate subsection (b) of this rule. State v. Elledge, 80 N.C. App. 714, 343 S.E.2d 549 (1986).

In a prosecution for felonious larceny of certain tools, evidence of previous dealings between defendant and State's witness involving the sale of tools was admissible as tending to show a plan or scheme to steal tools and sell them to the witness. State v. Weaver, 318 N.C. 400, 348 S.E.2d 791 (1986).

In prosecution for incest, evidence tending to show that defendant had had prior sexual contact with the prosecuting witness was reasonably probative of defendant's knowledge, opportunity, intent, and plan, and was not so prejudicial as to outweigh its probative value and render it inadmissible; moreover, even if there was error in the admission of such evidence, absent a showing of a reasonable possibility that a different result would have been reached had the evidence been excluded, any possible error would be considered harmless. State v. Cameron, 83 N.C. App. 69, 349 S.E.2d 327 (1986).

In trial for rape and incest involving defendant's minor daughter, evidence that defendant had taken his daughter to an X-Rated movie and told her to look at graphic sexual scenes was admissible to show defendant's preparation and plan to engage in sexual intercourse with his daughter and to assist in that preparation and plan by making her aware of such sexual conduct and arousing her. State v. Williams, 318 N.C. 624, 350 S.E.2d 353 (1986).

In a proceeding before the trial court in which the respondent attorney was found guilty of criminal contempt upon the court's finding that he "did solicit, encourage and cause" a certain individual to disrupt court, the trial court did not err in admitting into evidence testimony that the respondent violated a court order by making certain public statements. In re Paul, 84 N.C. App. 491, 353 S.E.2d 254, cert. denied, 319 N.C. 673, 356 S.E.2d 779 (1987), 484 U.S. 1004, 108 S. Ct. 694, 98 L. Ed. 2d 646 (1988).

Where defendant's identity as the gunman was the key issue in case involving kidnapping, attempted armed robbery, and unauthorized use of a motor vehicle, the fact that witness had received a telephone call from the defendant a month before the attempted robbery tended to support the witness's claim that he recognized defendant's voice and thus was admissible, even though the call also concerned a stolen TV set not involved in the charges he was being tried for. State v. Harlee, 85 N.C. App. 159, 354 S.E.2d 348, cert. denied, 320 N.C. 173, 358 S.E.2d 60 (1987).

Where defendant, on cross-examination of a State's witness, injected the theory that visitor from Florida, rather than defendant, was the perpetrator of the sexual offenses described by the victim, evidence of a continuing scheme to commit sexual acts against the victim was relevant to show that defendant was the perpetrator of the offense allegedly committed. State v. Frazier, 319 N.C. 388, 354 S.E.2d 475 (1987).

Where the testimony of the prosecuting witness tended to establish a common plan or scheme on the part of defendant to sexually abuse her child, the testimony of the prosecuting witness regarding other acts of sexual abuse was properly admitted. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, cert. denied, 320 N.C. 174, 358 S.E.2d 64 (1987).

In a rape trial, the trial court did not err in allowing a witness to testify that defendant had also attempted to rape her, where in both cases defendant lured the women into his apartment on the pretext that he needed to change clothes before their dates, and once inside, defendant's pattern of behavior was nearly identical. State v. Morrison, 85 N.C. App. 511, 355 S.E.2d 182, cert. denied, 320 N.C. 796, 361 S.E.2d 84 (1987).

Evidence of defendant's prior conviction in 1977 for assault with intent to rape, as well as his recent release from prison, which was offered to prove that his intent in assaulting and kidnapping his victim was to rape her, was properly admitted for that purpose in trial for kidnapping and attempted rape. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, cert. denied, 320 N.C. 515, 358 S.E.2d 525 (1987).

In prosecution in which defendant was convicted of second degree rape of mentally retarded adult, testimony of five other mentally retarded females which tended to prove a continuing and ongoing course of sexual molestation by defendant of mentally retarded young women employed under his supervision, and a common plan or scheme to take sexual advantage of his relationship of authority over these women, was relevant and admissible under subsection (b) of this rule. State v. Teeter, 85 N.C. App. 624, 355 S.E.2d 804, writ dismissed, 320 N.C. 175, 358 S.E.2d 66, appeal dismissed and cert. denied, 320 N.C. 175, 358 S.E.2d 67 (1987).

In action against car dealership, alleging breach of contract, malicious prosecution, and unfair and deceptive trade practices, similar occurrence evidence was probative of defendant's motive, intent, absence of mistake and possible bad faith in its dealings with plaintiff, and thus was properly admitted under subsection (b) of this rule. Medina v. Town & Country Ford, Inc., 85 N.C. App. 650, 355 S.E.2d 831, appeal of right allowed pursuant to Rule 16(b) and petition allowed as to additional issues, 320 N.C. 513, 358 S.E.2d 521 (1987), aff'd, State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988).

In murder trial, evidence that defendant came into possession of a large quantity of dynamite the day before the shooting was admissible under this rule to show "preparation" and "plan." However, the criminal manner by which defendant came to possess the dynamite was not. State v. Sullivan, 86 N.C. App. 316, 357 S.E.2d 414, cert. denied, 321 N.C. 123, 361 S.E.2d 602 (1987), holding, however, that the error was harmless.

Prosecutor's comment in murder trial on defendant's failure to present evidence of the victim's character which might have shown that the victim was the aggressor was permissible. State v. Hager, 320 N.C. 77, 357 S.E.2d 615 (1987).

Where defendant put his character in issue by having witnesses testify concerning his reputation for peacefulness, and only then did the prosecutor cross-examine the witnesses about specific instances of conduct by defendant in an effort to rebut their prior testimony as to defendant's character for peacefulness, the answers to the prosecutor's questions were properly admitted. State v. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987).

Where the testimony of the three State's witnesses showed only that each of them had seen defendant in possession of a firearm on some unspecified occasions over a period of years prior to the events giving rise to the present murder charge, and the evidence did not suggest that defendant's possession of a firearm at any previous time was unlawful, nor did it attribute to him a criminal disposition or a character prone to violence, the admission of such testimony did not violate this rule. State v. Knight, 87 N.C. App. 125, 360 S.E.2d 125 (1987), cert. denied, 321 N.C. 476, 364 S.E.2d 662 (1988).

In murder trial, evidence that defendant on previous occasions had assaulted victim was competent to prove his malice toward her and was admissible. State v. Spruill, 320 N.C. 688, 360 S.E.2d 667 (1987), cert. denied, 486 U.S. 1061, 108 S. Ct. 2833, 100 L. Ed. 2d 934 (1988).

In a civil action for malicious prosecution and intentional infliction of emotional distress, evidence of plaintiff's attempt in earlier action to bribe witness and subordinate perjury could not accurately be classified as character evidence at all. This testimony on the alleged offense arose out of the particular facts of the case. Lay v. Mangum, 87 N.C. App. 251, 360 S.E.2d 481 (1987).

Admission of defendant's 1982 fingerprint identification card and testimony regarding same, for the sole purpose of identifying latent fingerprints taken from credit application completed by individual suspected of larceny, did not violate the longstanding general rule of practice in this State, now codified in subsection (b) of this rule and thus did not unduly influence the jury or prejudice defendant. State v. McKnight, 87 N.C. App. 458, 361 S.E.2d 429 (1987), cert. denied, 321 N.C. 476, 364 S.E.2d 663 (1988).

In a first degree sexual offense case, evidence that defendant attempted a remarkable, odd and strikingly similar modus operandi some ten weeks after his attack on victim was relevant and admissible as tending to prove defendant's modus operandi, motive, intent, preparation and plan. State v. Bagley, 321 N.C. 201, 362 S.E.2d 244 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 912 (1988).

In trial for possession with intent to sell and deliver cocaine and marijuana, and the sale and delivery thereof, admission of evidence that on a previous occasion, when officers went to defendant's admitted residence to purchase controlled substances from another person, an officer saw defendant inside the apartment did not constitute prejudicial error. State v. Fielder, 88 N.C. App. 463, 363 S.E.2d 662 (1988).

Where defendant was charged with raping his stepdaughter in her bunk-bed while her mother was working late at night, mother's testimony tending to show that defendant similarly took advantage of her cousin when the child was left in his custody, while in his stepdaughter's bunk-bed, while she was working late at night was admissible under the exception of subsection (b) of this rule, and there was no abuse of discretion by the trial court in failing to exclude this testimony under the balancing test of G.S. 8C-1, Rule 403, since the alleged incident was sufficiently similar to the act charged and not too remote in time. State v. Boyd, 321 N.C. 574, 364 S.E.2d 118 (1988).

Videotape and magazines and detective's testimony concerning them were relevant to corroborate child victim's testimony that defendant had shown him such materials at the time he committed the crimes for which he was on trial, and since the exhibits and testimony were relevant to a fact or issue other than the character of the accused, subsection (b) of this rule did not require that they be excluded from the evidence at trial. State v. Rael, 321 N.C. 528, 364 S.E.2d 125 (1988).

Where victim's testimony clearly tended to establish the relevant fact that defendant took sexual advantage of the availability and susceptibility of his young victim at times when she was left in his care, victim's testimony concerning her father's other acts of sexual intercourse with her was admissible under this rule, and moreover, the trial court did not abuse its discretion in failing to exclude this testimony under G.S. 8C-1, Rule 403. State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368 (1988).

Evidence that defendant committed another sex offense against the same child, his young son, on the day after the offense for which he was being tried was admissible under subsection (b) of this rule. State v. Miller, 321 N.C. 445, 364 S.E.2d 387 (1988).

In trial for murder and other crimes, testimony of jailer who was assaulted during defendant's escape and of individual from whom defendant and his confederate stole a truck and rifle was admissible to show intent and motive, in that it tended to show that defendant and his confederate intended to escape from jail, and then do whatever was necessary to avoid capture, and therefore that they had a motive for killing state trooper. State v. Bray, 321 N.C. 663, 365 S.E.2d 571 (1988).

Shooting incident in tavern some two weeks prior to three barroom shootings for which defendant was on trial was sufficiently similar to subsequent killings to be probative of defendant's guilt, not because of the bizarre or unique nature of the elements, but because of the repetition or reenactment in the barroom of so many of the elements played out in the tavern. State v. Green, 321 N.C. 594, 365 S.E.2d 587, cert. denied, 488 U.S. 900, 109 S. Ct. 247, 102 L. Ed. 2d 235 (1988).

Where evidence of a different sex offense tended to establish a common plan or scheme on the part of defendant to sexually abuse the victim, his stepgranddaughter, such evidence, relating to defendant's other sexual activity with the victim was properly admitted under this rule. State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139 (1988).

In a prosecution for second-degree murder, evidence concerning defendant's sale of marijuana to the victim was relevant in showing the relationship between the victim and defendant, and given the evidence defendant once questioned the witness about whether the victim was a "nark," the evidence that defendant sold marijuana was admissible since it had some probative value concerning defendant's possible motive in the shooting. State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456, cert. denied, 323 N.C. 627, 374 S.E.2d 594 (1988).

Where, in a prosecution for first degree sexual offense, the other incidents for which evidence was admitted occurred within three months of the incident for which the defendant was tried, and they were similar to the incident for which the defendant was tried, they were properly admitted to show a common scheme or plan out of which the crime for which the defendant was tried arose. State v. Rosier, 322 N.C. 826, 370 S.E.2d 359 (1988).

Where the challenged testimony of the victim, her attending physician, and the investigating police officer tended to establish a plan or scheme by defendant to sexually abuse the victim when the victim's mother went to work, and where the alleged prior incidents occurred within twelve months prior to the incident for which defendant was charged, proof of the incidents was not so remote in time as to outweigh its probative force; therefore, the trial court did not err in allowing evidence of these prior incidents. State v. Summers, 92 N.C. App. 453, 374 S.E.2d 631 (1988), cert. denied, 324 N.C. 341, 378 S.E.2d 806 (1989).

Trial judge did not abuse his discretion by allowing evidence of prior sexual crimes allegedly committed by defendant upon his children; children's testimony concerning prior episodes of abuse would show that defendant engaged in scheme whereby he took sexual advantage of the availability and susceptibility of his young daughters at times they were left in his custody, and the probative value of evidence of other sexual acts outweighed any unfair prejudice to defendant. State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467 (1989).

Judge correctly permitted the State to introduce evidence of second robbery; defendant's defense of alibi put in issue whether he participated in the crimes at victim's house, and the evidence of the second robbery, when coupled with the evidence of the victims, tended to show that both burglaries were committed by the same people, and that defendant was one of the people involved. State v. McDowell, 93 N.C. 289, 378 S.E.2d 48 (1989).

Where evidence consisted of first witness's testimony concerning defendant's selling and using cocaine in the house and second witness's testimony that he had previously sold cocaine for defendant, the evidence was not inadmissible character evidence under subsection (b) of this rule; first witness's testimony was clearly relevant to the charge of maintaining a dwelling for the purpose of keeping and selling a controlled substance and, therefore, its admissibility was not governed by subsection (b); the admissibility of second witness's testimony was governed by this rule and the testimony was properly admitted to show a defendant's intent and plan to commit a conspiracy. State v. Rosario, 93 N.C. App. 627, 379 S.E.2d 434, cert. denied, 325 N.C. 275, 384 S.E.2d 527 (1989).

In a case where defendant was convicted of raping his daughter, sexual misconduct by defendant toward Sister A or Sister B was not too remote in time from the rape in question to be admitted properly for the purpose of showing a systematic plan; the facts demonstrated sufficient similarity between the prior acts and the crime specified in the indictment to justify the trial court's admission of evidence of defendant's prior sexual misconduct; the evidence revealed defendant's pattern of forcing his daughters to submit to intercourse as they reached puberty and continuing to assault them, using whatever force necessary, into their adulthood and after they had left home. State v. Shamsid-Deen, 324 N.C. 437, 379 S.E.2d 842 (1989).

Where defendant was convicted of first-degree rape, the circumstances of the other crime were sufficiently similar to the crimes charged to be admissible under subsection (b) of this rule; although there were no strikingly peculiar similarities in the manner of their commission, nevertheless, in both crimes the perpetrator forcibly entered motel rooms at night occupied by women who were alone, raped the women with accompanying threats of physical harm and the crimes occurred only two weeks apart at the same motel. State v. Moore, 94 N.C. App. 55, 379 S.E.2d 858, cert. denied, 325 N.C. 435, 384 S.E.2d 544 (1989).

The strikingly similar behavior attributed to defendant by all three women - befriending the women; luring them into a dating relationship; and then, after gaining their trust, using physical violence and/or the threat of a deadly weapon to force each woman to engage in vaginal intercourse, anal intercourse, cunnilingus, and fellatio - rendered the testimony of defendant's former lovers admissible to prove defendant's modus operandi, plan, motive and intent. State v. Pruitt, 94 N.C. App. 261, 380 S.E.2d 383, cert. denied, 325 N.C. 435, 384 S.E.2d 545 (1989).

Where defendant was convicted of second degree rape of the 13-year-old daughter of his girlfriend, trial court did not err by allowing the victim to testify concerning prior acts of sexual conduct between the victim and defendant; the testimony tended to illustrate defendant's opportunity to commit these acts, and a plan to molest the girl in her mother's absence. State v. Morrison, 94 N.C. App. 517, 380 S.E.2d 608, cert. denied, 325 N.C. 549, 385 S.E.2d 507 (1989).

Evidence of separate offense was admissible both to show identity and under the common plan exception; even though defendant presented no evidence, the identity exception applied since defendant's plea of not guilty put into issue every material element of the State's charges against him, including defendant's identity. State v. Bullock, 95 N.C. App. 524, 383 S.E.2d 431 (1989).

Trial court's allowance of testimony by the eight-year-old victim regarding prior acts of sexual misconduct was not error; testimony was admissible to establish a common plan or scheme on the part of defendant to sexually molest his niece. State v. Hoffman, 95 N.C. App. 647, 383 S.E.2d 458 (1989), cert. denied, 326 N.C. 52, 389 S.E.2d 101 (1990).

Evidence of prior assaults by a husband upon his wife was admissible to explain the wife's failure to move out and to prove that because of her fear arising from earlier abuse, her failure to leave her husband's home should not be construed as consent to his abuse. State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562 (1989).

In a prosecution for felonious possession of stolen property, testimony of son of property owner, who allegedly furnished defendant with the property, that he was indebted to defendant (for purchase of cocaine) was properly admitted to illustrate a possible motive, and its probative value substantially out-weighed the danger of unfair prejudice against defendant. State v. Martin, 97 N.C. App. 19, 387 S.E.2d 211 (1990).

In capital murder trial for the murder of a 10-year-old girl, G.S. 8C-1, Rule 403 and subsection (b) of this rule did not require the exclusion of evidence concerning an earlier incident when defendant had masturbated in the presence of a three-year-old girl. State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990), cert. denied, 421 S.E.2d 360 (1992).

Despite severance of defendant's trials for murder of two sisters two years apart, under subsection (b) of this rule, trial court properly allowed evidence of defendant's attitude towards first victim prior to her disappearance, the facts of her disappearance, the discovery of her remains near the site where her sister, the second victim's, body was discovered, and a description of her remains in trial for the second murder. State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

In a prosecution for sale of LSD and cocaine under G.S. 90-95, the State's introduction of evidence of defendant's marijuana use and possession was properly introduced in an attempt to show that defendant had a predisposition to commit these crimes and was, therefore, not entrapped. State v. Goldman, 97 N.C. App. 589, 389 S.E.2d 281, cert. denied, 327 N.C. 434, 395 S.E.2d 691 (1990).

In trial for first degree burglary and first degree rape, circumstantial evidence that defendant was the perpetrator of a rape committed five months earlier, which included both fingerprint evidence and pattern of perpetration similar to those of the crime charged demonstrated a potent, logical pertinence to the question of the assailant's identity in the offense on trial; thus, under the circumstances of the crime charged and those of the offense admitted, for the purpose of proving identity under subsection (b) of this rule, the trial court did not err in admitting evidence of the other, similar offense, which shared strong circumstantial indicia that defendant had been the perpetrator. State v. Jeter, 326 N.C. 457, 389 S.E.2d 805 (1990).

Evidence of prior sex offenses held admissible in trial for second-degree rape and sexual activity by a substitute parent, see State v. Hall, 98 N.C. App. 1, 390 S.E.2d 169, rev'd on other grounds, 330 N.C. 808, 412 S.E.2d 883 (1990).

Where police found defendant in possession of both marijuana and LSD at the time of arrest, but defendant was acquitted on charges of misdemeanor possession of marijuana, evidence introduced at trial for possession of LSD of defendant's marijuana possession served the purpose of establishing the chain of circumstances leading up to his arrest for possession of LSD, and section (b) of this rule did not require its exclusion as evidence probative only of defendant's propensity to possess illegal drugs. State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990).

The court did not err in allowing testimony that a murder defendant had given drugs to a third person who suffered an overdose from those drugs, even though the testimony presented evidence of other crimes; the testimony showed that defendant knew that the drugs he gave to the victim were extremely dangerous. State v. Liner, 98 N.C. App. 600, 391 S.E.2d 820 (1990).

The court properly admitted evidence that a defendant accused of soliciting the murder of his wife had solicited an undercover agent to murder his wife 11 months after the solicitation for which he was on trial; the evidence of the subsequent solicitation showed knowledge, modus operandi or common scheme or plan, and continuing offense. State v. Strickland, 98 N.C. App. 693, 391 S.E.2d 829 (1990).

In trial for obtaining money by false pretenses in which insurance agent was charged with turning in fictitious applications to receive commissions, admission into evidence of information contained in defendant's confession concerning other allegedly false applications submitted by defendant and trial court's instruction to jury on these prior bad acts did not constitute error. State v. Melvin, 99 N.C. App. 16, 392 S.E.2d 740 (1990).

Defendant's prior sex offenses were sufficiently similar to the crimes charged to be admitted for the purpose of showing defendant's plan, scheme, system, or design of forcing unconsenting female acquaintances into his basement for the purpose of gratifying his sexual desires. State v. Davis, 101 N.C. App. 12, 398 S.E.2d 645 (1990), discretionary review denied and appeal dismissed, 328 N.C. 573, 403 S.E.2d 516 (1991).

During murder prosecution, where victim was a young woman, rebuttal testimony by a woman previously assaulted by defendant, concerning the prior assault, was admissible to clarify defendant's admission that he "beat this girl," as the jury reasonably could infer in light of the witness' testimony, that defendant, in a "hysterical state" shortly after an aggressive sexual encounter with the victim, was referring to the victim rather than the witness when he made his admission. State v. McKinnon, 328 N.C. 668, 403 S.E.2d 474 (1991).

Evidence concerning two previous insurance claims made by defendant on other stores owned by her after purchasing theft policies are relevant insofar as they tend to show intent, absence of mistake and a pattern by which defendant made and then exaggerated claims resulting from commercial burglary under former G.S. 14-214 (repealed). These prior instances are within five years of the present claim, exhibit a distinctive modus operandi, and are relevant under Rule 404(b). State v. Carroll, 101 N.C. App. 691, 401 S.E.2d 114, cert. denied, 329 N.C. 501, 407 S.E.2d 543 (1991).

In case in which defendant was convicted of second degree sexual offense and first degree burglary, evidence that defendant committed a similar break-in and sexual offense approximately one month earlier, about two blocks from victim's house was admissible under subsection (b) of this rule, to show intent, identity, common scheme, plan or design, and under G.S. 8C-1, Rule 403 in that the probative value of the evidence substantially outweighed the danger of unfair prejudice to defendant's case and the court's charge to the jury correctly stated the limited purpose of the evidence. State v. Whitaker, 103 N.C. App. 386, 405 S.E.2d 911 (1991).

In a trial for assault with a deadly weapon in which defendant claimed self-defense, the trial court did not err in admitting evidence that prior to wounding the victim, defendant placed a gun to the head of a fourteen year old boy and questioned him regarding stolen cocaine. State v. Jones, 104 N.C. App. 251, 409 S.E.2d 322 (1991).

Where evidence of defendant's pending driving while impaired charge was evidence of malice to support a second degree murder charge, the trial court properly admitted such evidence pursuant to subsection (b) of this rule, since the evidence was not submitted to show defendant's propensity to commit the crime, but to show the requisite mental state for a conviction of second degree murder. State v. Byers, 105 N.C. App. 377, 413 S.E.2d 586 (1992).

In a trial for sexual abuse of a child, the trial court did not abuse its discretion by allowing the State to introduce the defendant's statements to the Department of Social Services (DSS) about his prior acts of sexual abuse of a different child in an unrelated case where the defendant "opened the door" to the matter by cross-examining the DSS witness about DSS files containing the statement. Although the State did not reveal the statement in response to the defendant's motion under G.S. 15A-903, neither did the State attempt to use the statement prior to defendant's questions of the DSS witness. State v. Moore, 103 N.C. App. 87, 404 S.E.2d 695 (1991).

Evidence of the circumstances surrounding the death of defendant's first husband 10 years previously was admissible under this rule as evidence of intent, plan, preparation, or absence of accident in capital murder trial for the death of her second husband. State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991).

In malpractice action brought against therapist who had sexual relationship with plaintiff client, testimony of three prior relationships between defendant and his patients was admissible under subsection (b) of this rule. MacClements v. LaFone, 104 N.C. App. 179, 408 S.E.2d 878 (1991), cert. denied, 330 N.C. 613, 412 S.E.2d 87 (1992).

Testimony about defendant's frequent arguments with, violent acts toward, separations from, reconciliations with, and threats to, his wife were admissible under subsection (b) of this rule to prove issues defendant disputed in a trial for her murder, namely, lack of accident, intent, malice, premeditation and deliberation - notwithstanding that some of the incidents dated back to the beginning of the marriage. State v. Syriani, 333 N.C. 350, 428 S.E.2d 118 (1993), cert. denied, 510 U.S. 948, 114 S. Ct. 392, 126 L. Ed. 2d 341 (1993), reh'g denied, 510 U.S. 1066, 114 S. Ct. 745, 126 L. Ed. 2d 707 (1994).

Where defendant was tried for the first-degree murder of her husband, evidence of her affair with a co-conspirator was highly probative of her motive for wanting her husband murdered, and evidence of the defendant's theft of money and credit cards, coupled with evidence of her drug problems, tended to show that the defendant needed money which she stood to gain from the insurance proceeds due upon her husband's death; therefore, the trial court did not err in admitting the evidence. State v. Mahaley, 332 N.C. 583, 423 S.E.2d 58 (1992), cert. denied, 513 U.S. 1089, 115 S. Ct. 749, 130 L. Ed. 2d 649 (1995).

Where a statement regarding a prior sex act, rather than pertaining exclusively to defendant's character, was relevant to lend credibility to the State's confession, the evidence was admissible under section (b) of this rule. State v. Gibson, 333 N.C. 29, 424 S.E.2d 95 (1992).

Where the State's evidence showed that in both 1967 and in 1990 defendant gained the trust of his victims, lured them into an automobile and then took them to a different location where they were sexually assaulted, the similarities justified admitting the evidence of prior crimes to prove modus operandi and intent; furthermore, since the 1967 rape was also admissible on the question of consent, it was not so remote as to have lost its probative value. State v. Sneeden, 108 N.C. App. 506, 424 S.E.2d 449 (1993), aff'd, 336 N.C. 482, 444 S.E.2d 218 (1994).

Where defendant had poisoned two other men with arsenic, given the similarities between the crime charged and the other crimes presented by the State, the evidence of the other offenses was relevant as evidence tending to prove modus operandi, motive, opportunity, intent and identity of defendant as the perpetrator. State v. Moore, 335 N.C. 567, 440 S.E.2d 797, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994).

Evidence that one month prior to the alleged rape, defendant failed to return the victim's car, stole some money, broke into her home, and was arrested was admissible as a part of the history of the event which served to enhance the natural development of the facts. State v. Jenkins, 115 N.C. App. 520, 445 S.E.2d 622, stay granted pending appeal, 336 N.C. 784, 447 S.E.2d 435, cert. denied, temporary stay dissolved, 337 N.C. 804, 449 S.E.2d 752 (1994).

Testimony regarding prior conviction was admissible under subsection (b) and was not precluded under Rule 609; therefore, the trial court did not err in admitting it and there was no plain error. State v. Sexton, 336 N.C. 321, 444 S.E.2d 879, cert. denied, 513 U.S. 1006, 115 S. Ct. 525, 130 L. Ed. 2d 429 (1994), 343 N.C. 516, 472 S.E.2d 23 (1996).

Where evidence of defendant's prior assault on the victim tended to show malice, the evidence was thus relevant to an issue other than defendant's character and was properly admitted. State v. Bryant, 337 N.C. 298, 446 S.E.2d 71 (1994).

In a prosecution for first-degree murder, first-degree rape, and first-degree sexual assault, evidence of an attack on a prior victim was properly admitted. State v. Moseley, 338 N.C. 1, 449 S.E.2d 412 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738 (1995).

Testimony was allowed to show that defendant had a metal pipe in his bedroom approximately one month prior to the death of the victim since the evidence tended to show that the victim was killed by the use of a blunt object, such as a pipe, and since defendant's confession indicated that he had thrown a pipe away prior to the victim's death. State v. Weathers, 339 N.C. 441, 451 S.E.2d 266 (1994).

In a prosecution for murder, testimony that a witness saw defendant dancing with the victim and that the witness called the police was relevant and properly admitted as evidence of defendant's character. Also, evidence that witness called the police because he recognized defendant as being with the victim only after seeing on television that defendant had been charged with another murder was not irrelevant, inflammatory, and improperly prejudicial. State v. Moseley, 338 N.C. 1, 449 S.E.2d 412 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738 (1995).

In a murder prosecution, evidence of a prior murder was properly admitted by the trial court to show identity, plan, and the existence of a common modus operandi between the two murders. State v. Moseley, 338 N.C. 1, 449 S.E.2d 412 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738 (1995).

Where in both robbery and the crime committed against the victims, there were at least two individuals involved who incapacitated the victims by pulling their clothing down around their elbows and hands, and at least one person was robbed during both events and the evidence tended to show that defendant punched robbery victim in the eye during the robbery and that victim's body was found to have areas of abrasion and bruising on his face, that the similar acts and the close proximity of time in both the robbery and the murders tend to indicate that the same person was involved in both crimes. State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995).

Proffered testimony of defense witness that would have taken the form of an opinion, because it illuminated a pertinent trait of defendant's character, should have been admitted; the testimony did not constitute hearsay and would have revealed a character trait of defendant that was relevant to rebut the State's evidence which raised the implication that defendant declined to swear to his innocence because he knew he was guilty. State v. Powell, 340 N.C. 674, 459 S.E.2d 219 (1995).

Evidence that defendant was arrested for carrying a concealed weapon in connection with the seizure of handgun was relevant to show defendant's possession of the murder weapon and the circumstances under which the police obtained this weapon, and the trial court did not err in overruling defendant's objection to the admission of evidence that defendant was arrested for carrying a concealed weapon at trial of defendant for murder. State v. Williams, 341 N.C. 1, 459 S.E.2d 208 (1995), cert. denied, 516 U.S. 1128, 116 S. Ct. 945, 133 L. Ed. 2d 870 (1996).

Evidence that defendant was firing the gun in question shortly before events at mobile home park where four-year-old girl was killed was admissible to prove defendant's identity as the person who fired the stray 9mm bullet that killed her. State v. Burton, 119 N.C. App. 625, 460 S.E.2d 181 (1995).

Evidence that four-year-old victim, who died from strangulation on a plastic bag, suffered from a severe skull fracture and serious burns shortly before his death was relevant to the jury's determination of whether defendant was criminally negligent; evidence that during the time victim was home under defendant's sole supervision, he obtained matches and ignited a can of gasoline, resulting in severe burns on his leg and ankle, was relevant to the determination of whether defendant had a pattern of reckless or careless supervision of the child. The fact that the child suffered a severe skull fracture during the same time period and the fact that defendant wrapped the child's burns in plastic wrap, in spite of his alleged habit of putting the plastic in his mouth and her knowledge that the plastic could hurt him, were likewise relevant to the issue of defendant's criminal negligence. State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995).

From evidence that defendant continued to cover four-year-old victim's burns with plastic wrap even though she told a neighbor she knew he liked to chew on it and it could hurt him, the jury could reasonably infer that defendant was setting the stage for the victim to strangle to death on a piece of plastic, either by accident or with her assistance; this evidence was relevant and admissible as proof of defendant's preparation and planning for the commission of this crime and that the victim's death was not accidental. State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995).

Evidence that property owners made renovations in bad faith and for the purpose of enhancing their damages was relevant and competent evidence for a jury to consider in the determination of the value of the property at the time of the taking. DOT v. Coleman, 127 N.C. App. 342, 489 S.E.2d 187 (1997).

Where defendant and his stepson kidnapped two boys and put them in the trunk of a car while they murdered the boys father and then murdered the two boys, evidence regarding the murder of the father was so intertwined with evidence of the murder of the boys that it was admissible and was not an abuse of discretion. State v. Sidden, 347 N.C. 218, 491 S.E.2d 225 (1997), cert. denied, 523 U.S. 1097, 118 S. Ct. 1583, 140 L. Ed. 2d 797 (1998).

Convictions for driving under the influence that were more than 10 years old were admissible in a second degree murder prosecution, where the evidence was relevant to show malice in that the defendant was driving under the influence, was without a license, and was speeding when he struck another car, killing the driver and injuring her daughters, and the court gave the jury a limiting instruction concerning the purpose for which contested evidence could be considered. State v. Grice, 131 N.C. App. 48, 505 S.E.2d 166 (1998).

Evidence of the defendant's acts of violence toward his former girlfriend were admissible in his prosecution for the murder of the girlfriend's grandmother and the grandmother's friend, where evidence showing that the defendant tried to control the girlfriend to the point of assaulting her, kidnapping her, tying her to the bed, and threatening to kill her family members pertained to the chain of events explaining the context, motive, and set-up of the crime. State v. White, 349 N.C. 535, 508 S.E.2d 253 (1998), cert. denied, 527 U.S. 1026, 119 S. Ct. 2376, 144 L. Ed. 2d 779 (1999).

Other crimes evidence was admissible on the issue of identity in a capital murder trial, where a witness testified that the defendant had participated in two bank robberies with the witness during the two months before the robbery urder for which the defendant was being tried, and the testimony established that the defendant drove his white car in bank robberies and a white car was seen outside the jewelry store on the day of the murder, the defendant's sawed-off shotgun and ski mask were used in the prior bank robberies and the murderer wore a ski mask and carried a sawed off shotgun, and all the robberies were during business hours in small towns surrounding a larger city. State v. Hoffman, 349 N.C. 167, 505 S.E.2d 80 (1998), cert. denied, 526 U.S. 1053, 119 S. Ct. 1362, 143 L. Ed. 2d 522 (1999).

In a prosecution for murder, the trial court did not err when it allowed the admission of evidence relating to the defendant's prejudice against Jewish people and homosexuals since such evidence showed the defendant's skinhead beliefs and was relevant to show the defendant's motive and intent when he killed two black people. State v. Burmeister, 131 N.C. App. 190, 506 S.E.2d 278 (1998).

Photographs were admissible in a capital murder case over an irrelevancy objection, where the photographs showing empty beer cans and cigarette butts in a corn field supported the testimony of a companion of the murder victim that the defendant lured him to the cornfield and tried to kill him after they drank beer and smoked cigarettes, as the photographs supported the inference that this also happened to the murder victim. State v. Call, 349 N.C. 382, 508 S.E.2d 496 (1998).

Evidence that the capital murder defendant took his former girlfriend away from a cookout and fired a shotgun when members of her family came to check on her safety was admissible to show identity and the motive of retaliation for the girlfriend's resistance to his forceful control in the defendant's prosecution for the murder of the girlfriend's grandmother and the grandmother's companion. State v. White, 349 N.C. 535, 508 S.E.2d 253 (1998), cert. denied, 527 U.S. 1026, 119 S. Ct. 2376, 144 L. Ed. 2d 779 (1999).

Evidence of similar circumstances surrounding the death of the defendant's second wife were admissible in his prosecution for the murder of his first wife to show that the death was a homicide and not an accident, where the evidence was that both alleged victims were married to the defendant, that both died in the home they shared with the defendant and he was home at the time, that the defendant was the last person to see the victims alive and was performing CPR on the victim when emergency personnel arrived, that one victim died in or around a bathtub and the other in a hot tub, that the defendant stated in both cases that the dead women had drinking problems and had been drinking, that both had similar marks and injuries, and that insurance money was involved in both incidents. State v. Boczkowski, 130 N.C. App. 702, 504 S.E.2d 796 (1998).

Evidence that defendant had been convicted in the shooting death of his first wife was properly argued to the jury as making more incredulous his claim of accident in the shooting death of his second wife, particularly as defendant had made incriminating remarks regarding his role in the death of his first wife to threaten his second one. State v. Murillo, 349 N.C. 573, 509 S.E.2d 752 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 103, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5310, 68 U.S.L.W. 3225 (1999).

The defendant's previous traffic violations were relevant and admissible in his second-degree murder prosecution arising from a traffic accident to show malice based on defendant's "depraved heart" on the night that he struck the two victims' vehicle while intoxicated and while rounding a sharp curve at a speed at least 40 mph over the speed limit. State v. Rich, 132 N.C. App. 440, 512 S.E.2d 441 (1999), aff'd, 351 N.C. 386, 527 S.E.2d 299 (2000).

The murder defendant's statement that he was going to have to "cap someone" if his employer did not stop garnishing his wages was not excludable as evidence of a prior bad act. State v. White, 131 N.C. App. 734, 509 S.E.2d 462 (1998).

Evidence of a prior crime was similar to the charged crime so as to be admissible to prove identity, where both crimes involved cutting a hole in the roof of a department store and removing large amounts of jewelry from display counters, and the previous crime had occurred fewer than three years earlier. State v. Hamilton, 132 N.C. App. 316, 512 S.E.2d 80 (1999).

Evidence that the defendant previously had punished her children by beating them with a belt and/or biting them was admissible in her prosecution for the murder of a two-year old child and felonious child abuse to establish the identity of the person who committed the crime, a plan, and the absence of accident. In re Eldridge, 350 N.C. 152, 513 S.E.2d 296 (1999), cert. denied, 528 U.S. 973, 120 S. Ct. 417, 145 L. Ed. 2d 326 (1999).

The defendant's comment to witness about having gotten in trouble was admissible where it was not presented in a vacuum, but was part of a narrative that justified a police officer's initial contact with defendant, clarified the witness' identification of defendant after the shooting, and explained why an incorrect name was placed on certain documentation in the case. State v. Riley, 137 N.C. App. 403, 528 S.E.2d 590 (2000), cert. denied, 352 N.C. 596, 545 S.E.2d 218 (2000).

Exception under subsection (b) of this rule applied to witnesses' repetition of defendant's statements relating to recent burglaries at home in question, showing proof of opportunity, preparation, knowledge, identity, and absence of mistake, entrapment, or accident, proximate time, as well as statements regarding victim's demeanor after rape. State v. Campbell, 133 N.C. App. 531, 515 S.E.2d 732 (1999), cert. denied, 351 N.C. 111, 540 S.E.2d 370 (1999).

Where evidence surrounding two robberies, as well as the circumstances immediately preceding and following those robberies, was relevant to facts other than the defendant's propensity to commit the robbery and murder at issue, the trial court correctly allowed its inclusion. State v. Cheek, 351 N.C. 48, 520 S.E.2d 545 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2694, 147 L. Ed. 2d 965 (2000).

Testimony of fourth sister regarding sexual molestation by defendant was admissible in case involving sexual molestation of three other sisters to show a common plan or scheme. State v. Owens, 135 N.C. App. 456, 520 S.E.2d 590 (1999).

The admission of statements in a letter in which defendant urged his girlfriend to divorce her estranged husband and made threatening statements towards him were clearly relevant as an admission with respect to victim's death and also to show defendant's deliberate intent to kill. State v. Perez, 135 N.C. App. 543, 522 S.E.2d 102 (1999).

Evidence that defendant lied in order to have child support for his three children terminated and that the Department of Social Services planned to have said support reinstated was not admitted to show bad character but was relevant to show motive for murder and attempted murders, and to show the particular circumstances leading up to them. State v. Smith, 351 N.C. 251, 524 S.E.2d 28, cert. denied, 531 U.S. 862, 121 S. Ct. 151, 148 L. Ed. 2d 100 (2000).

Evidence that defendant complained to a co-worker about having the Department of Social Services take over half his paycheck for child support was admissible to show motive and plan for first-degree murder of defendant's daughter and attempted murder of defendant's two children and their mother. State v. Smith, 351 N.C. 251, 524 S.E.2d 28, cert. denied, 531 U.S. 862, 121 S. Ct. 151, 148 L. Ed. 2d 100 (2000).

Admission of testimony revealing that police informant became informant as a result of being arrested for buying cocaine from defendant and promising to help catch the seller, i.e. the defendant, was proper to prove intent, a common plan or scheme, and to identify defendant. State v. Montford, 137 N.C. App. 495, 529 S.E.2d 247 (2000).

Witness testimony that defendant fled when approached by law enforcement officers, including the details of the flight such as the fact that the defendant fired a weapon at the officers and was then hit with a bullet fired by one of them, was admissible to show his consciousness of guilt. State v. McCord, 140 N.C. App. 634, 538 S.E.2d 633 (2000), review denied, 353 N.C. 392 (2001).

Evidence that approximately one week before the victim's death, defendant (1) pointed and shot a gun over his mother's head and (2) pointed a gun at his brother and threatened to kill him was admissible to establish the "chain of circumstances" of the crime charged; these prior acts revealed not only defendant's intensifying display of violent behavior toward his family, but also tended to show the possibility that defendant was angry with the victim for confronting him about the treatment of his family. State v. Allen, 141 N.C. App. 610, 541 S.E.2d 490 (2000), cert. denied, 353 N.C. 382, 547 S.E.2d 816 (2001).

Testimony of defendant's two former wives concerning his behavior towards them during their marriages, which tended to show that as the marriages deteriorated, defendant responded violently, was admissible at his trial for the murder of his wife. State v. Aldridge, 139 N.C. App. 706, 534 S.E.2d 629 (2000), cert. denied, 353 N.C. 269, 546 S.E.2d 114 (2000).

Court rejected defendant state trooper's argument that evidence of his alleged crimes, wrongs, and acts was admitted in violation of the Rules of Evidence and his due process rights; testimony that defendant asked one witness to ride in the floor of his patrol car before the shooting, that another witness and defendant had violated or circumvented numerous automobile title transfer procedures, and that, upon searching the defendant's patrol car, a third witness had found licenses and registrations that should have been turned over to a magistrate under highway patrol policy, was admissible to chronicle the murder and its probative value was not outweighed by the danger of prejudice. State v. Parker, (N.C. App. Oct. 3, 2000).

Where two defendants were convicted of armed robbery with a dangerous weapon and assault with a deadly weapon inflicting serious injury, the trial court did not commit error in admitting testimony about the first defendant's drug transaction, which had occurred four years before the instant crimes. State v. Holadia, 149 N.C. App. 248, 561 S.E.2d 514 (2002), cert. denied, 355 N.C. 497, 562 S.E.2d 432 (2002).

Evidence of violence against child's mother was admissible to show why the mother did not take any action against defendant when he first began assaulting her son, to identify defendant, rather than the mother, as the perpetrator, and to dispel defendant's contention that the child's injuries were accidentally inflicted; because the evidence of prior acts of domestic violence toward the mother was offered for a purpose other than to show the propensity of defendant to commit the crime for which he was being tried, the trial court did not abuse its discretion in admitting the evidence. State v. Carrilo, 149 N.C. App. 543, 562 S.E.2d 47 (2002).

Evidence of defendant's conviction for second-degree murder 27 years earlier was properly admitted in defendant's murder trial where the trial court found similarities between the two murders, and the 18 years defendant spent in prison were excluded when the trial court ruled on whether the previous crime was too remote; the probative value of the previous conviction upon the issues for which it was offered, defendant's intent to kill and his identity as the perpetrator, far outweighed the possibility of unfair prejudice. State v. Castor, 150 N.C. App. 17, 562 S.E.2d 574 (2002), cert. denied, 357 N.C. 508, 587 S.E.2d 885 (2003).

Although defendant's motion to suppress evidence of his prior conviction for assault with a deadly weapon was granted, the trial court did not abuse its discretion by permitting the evidence to be admitted where defendant put his character at issue by offering the testimony of two witnesses as to his peaceful nature during the time frame of the conviction. State v. Rhue, 150 N.C. App. 280, 563 S.E.2d 72 (2002).

When defense counsel revealed that a police detective falsely told defendant he had been caught on videotape committing two robberies, the prosecutor's question of the detective as to whether defendant had been caught on videotape committing other robberies was not inadmissible under G.S. 8C-1, Rule 404(b). State v. Fleming, 148 N.C. App. 16, 557 S.E.2d 560 (2001).

Where defendant was tried for multiple sexual assaults and two murders by strangulation, the trial court did not err in permitting defendant's former girlfriend to testify concerning choking incidents between herself and defendant in order to show motive, plan, common scheme, and intent. State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808 (2003).

Defendant's conduct with two women was sufficiently similar and proximate in time to support its admission under G.S. 8C-1, N.C. R. Evid. 404(b) where defendant was charged with sexual misconduct with a 12-year-old which consisted of rubbing her breast and digitally penetrating her vagina, and a witness testified that, when she was 15 years old, defendant had sexual intercourse and performed oral sex on her without her consent. State v. Smith, 152 N.C. App. 514, 568 S.E.2d 289 (2002), cert. denied, 356 N.C. 623, 575 S.E.2d 757 (2002).

Evidence that defendant assaulted a jail officer while incarcerated pending trial was properly admitted in defendant's trial for first degree murder of a police officer to rebut defendant's assertion that defendant was not aware of the police officer's identity and would not knowingly harm a police officer. State v. Mays, 158 N.C. App. 563, 582 S.E.2d 360 (2003), cert. denied, 357 N.C. 510, 588 S.E.2d 379 (2003), cert. denied, 358 N.C. 547, 599 S.E.2d 913 (2004).

Evidence of events occurring after defendant left a patrol car was not inadmissible under G.S. 8C-1, N.C. R. Evid. 403 and 404(b) as the evidence was part of a single, continuing transaction beginning with defendant's insertion of herself into the events at a school and continuing through her arrest; evidence of what occurred after she left the patrol car was part of the chain of events leading to defendant's arrest and, therefore, was admissible, and the evidence of events occurring after defendant left the patrol car provided added evidentiary support for the charge of obstructing and delaying an officer. State v. Bell, 164 N.C. App. 83, 594 S.E.2d 824 (2004).

Admission of testimony that defendant viewed sexually explicit photos on his home computer was relevant, and any prejudice that might have been caused by allowing the jury to see the photos was addressed by the trial court's decision not to show the photos to the jury. State v. Quinn, 166 N.C. App. 733, 603 S.E.2d 886 (2004).

When defendant was charged with second-degree murder for causing another's death by his drunk driving, his nine-year-old conviction for driving while impaired was properly admitted, under G.S. 8C-1, N.C. R. Evid. 404(b), because it showed malice, which was a proper purpose for admitting it, and the fact that it was nine years old did not render it too remote to be relevant. State v. Westbrook, 175 N.C. App. 128, 623 S.E.2d 73 (2005).

Trial court did not abuse its discretion when it admitted evidence consisting of defendant's post-Miranda statements to an officer that, inter alia, the defendant gave persons meth in exchange for work. A similar transaction with the victim was a sale under G.S. 90-95. State v. Yelton, 175 N.C. App. 349, 623 S.E.2d 594 (2006).

In a drug case, the testimony of a probation officer regarding defendant's residence was admissible under G.S. 8C-1, Rule 404(b) because they evidence was only used to establish that defendant occupied a dwelling where drugs were located; moreover, the danger of unfair prejudice was outweighed by the probative value of the evidence. State v. Shine, 173 N.C. App. 699, 619 S.E.2d 895 (2005).

Trial court did not abuse its discretion in admitting evidence of a prior robbery under G.S. 8C-1-404(b) because the similarities between the prior robbery and the current offense, which occurred within one week of each other, were sufficient to support a finding that the probative value of the evidence of the prior robbery was not substantially outweighed by the danger of unfair prejudice. State v. Hagans, 177 N.C. App. 17, 628 S.E.2d 776 (2006).

Testimony of a detective regarding defendant's involvement in a second robbery was admissible under G.S. 8C-1-404(b), because the second robbery was sufficiently similar. State v. Jones, 176 N.C. App. 678, 627 S.E.2d 265 (2006).

Testimony of a State witness, made after the trial judge conducted voir dire of the witness, was properly admitted as it was relevant to show plan, modus operandi, and identity. Among other things, the testimony of the witness included a positive identification of defendant as the perpetrator of the crime against her, that the offense against her occurred within three miles of the offense against the victim, that both attacks occurred in the evening and during the hours of darkness, that the attacker was armed on each occurrence, and that the victims were similar in age and were both white females. State v. Summers, 177 N.C. App. 691, 629 S.E.2d 902, appeal dismissed, cert. denied, 637 S.E.2d 192 (N.C. 2006).

Admission of evidence of other crimes was not prejudicial where the trial court instructed the jury that the evidence was being received for limited purpose of showing defendant's motive, opportunity, intent, and knowledge. State v. Calvino, 179 N.C. App. 219, 632 S.E.2d 839 (2006).

Admission of photographs of nude women was not erroneous because they were admitted for a permissible purpose other than to show defendant's character in conformity therewith; the photographs served to corroborate the victim's testimony and provided evidence of a plan and preparation to engage in sexual activities with the victim. State v. Brown, 178 N.C. App. 189, 631 S.E.2d 49 (2006).

In light of uncontested evidence of defendant's prior convictions, defendant failed to show that the state's cross-examination of defendant regarding the prior convictions as improper under G.S. 8C-1-404. State v. Mewborn, 178 N.C. App. 281, 631 S.E.2d 224, appeal dismissed, cert. denied, 637 S.E.2d 187 (N.C. 2006).

Admission of evidence of a power of attorney defendant obtained naming her as attorney in fact, personal papers and identification belonging to the victims, and the purchase of a vehicle with the power of attorney, did not violate G.S. 8C-1-404(b), as it was relevant and offered to show a common plan or scheme and the absence of mistake, and defendant failed to show that the admission of the evidence was manifestly unsupported by reason and was so arbitrary that it could not have been the result of a reasoned decision. State v. King, 178 N.C. App. 122, 630 S.E.2d 719 (2006).

Contrary to defendant's contention, testimony by the victim's grandmother concerning the relationship between defendant and the victim's mother was not impermissible character evidence but was relevant, factual information dealing with the dynamics of the two personalities involved; given the defense's attempts to suggest that the mother might have been the perpetrator or that the child died from an accidental fall, the evidence was probative for a purpose other than defendant's character. State v. Faulkner, 180 N.C. App. 499, 638 S.E.2d 18 (2006).

Prior bad act evidence was properly admitted where it was relevant to show defendant's intent because the State contended defendant shot at the car either intending to shoot the victim's friend of believing the victim to be the passenger. State v. Christian, 180 N.C. App. 621, 638 S.E.2d 470 (2006), cert. denied, 362 N.C. 178, 658 S.E.2d 658 (2008).

Defendant's desire to avoid returning to prison constituted evidence of defendant's motive for the traffic violations committed while fleeing the police, and thus was relevant and admissible. State v. Locklear, 180 N.C. App. 115, 636 S.E.2d 284 (2006).

Testimony of the second of the victim's daughters that defendant had thrown a record player at the victim during an argument that occurred 14 years prior to the murder was admissible because defendant opened the door to the testimony; any remoteness in time went to weight not admissibility. State v. Parmaei, 180 N.C. App. 179, 636 S.E.2d 322 (2006), review denied, 361 N.C. 366, 646 S.E.2d 537 (2007).

Testimony of one of the victim's daughters regarding two prior acts of violence of defendant toward the victim, one involving defendant allegedly pushing the victim in front of a moving vehicle and the other involved an attempt to strike the victim with a piece of firewood, was admissible to prove either intent to harm or an absence of mistake. State v. Parmaei, 180 N.C. App. 179, 636 S.E.2d 322 (2006), review denied, 361 N.C. 366, 646 S.E.2d 537 (2007).

In defendant's murder trial, the trial court did not err in admitting evidence of defendant's bisexuality pursuant to G.S. 8C-1-404(b), as defense counsel, in the opening statement, extensively discussed defendant and the victim's relationship and portrayed their marriage as a happy and loving one; the trial court properly found that evidence of defendant's attempts to have sexual relations with a male escort and interest in homosexual pornography were relevant to rebut defense counsel's opening statement. State v. Peterson, 179 N.C. App. 437, 634 S.E.2d 594 (2006).

Where a victim testified in defendant's kidnapping and assault trial only after being arrested and jailed as a material witness and he stated that defendant did not threaten him personally even though others had shot up his "momma's house" after he testified in a co-defendant's trial, the court failed to see how such testimony constituted evidence of a prior bad act by defendant under G.S. 8C-1-404(b) and was not persuaded that even presuming error, such error would have prejudiced defendant, given other evidence presented in the case. State v. Johnson, 181 N.C. App. 287, 639 S.E.2d 78, cert. denied, appeal dismissed, 361 N.C. 364, 644 S.E.2d 555 (2007).

Admission of evidence that defendant hid from police under a pile of clothing was not an abuse of discretion because it showed defendant's guilty conscience. State v. Bagley, 183 N.C. App. 514, 644 S.E.2d 615 (2007).

Evidence related to a prior killing was admissible because it satisfied both the similarity and temporal requirements of G.S. 8C-1-404(b); both crimes involved fatal stab wound to unarmed victim's neck with a folding pocketknife, which occurred during an argument in the victim's home and the relevant time between the two crimes, which actually occurred 10 years apart, was only five years because defendant was incarcerated for five of the ten years. State v. Badgett, 361 N.C. 234, 644 S.E.2d 206 (2007).

Admission into evidence of a receipt for an attempted credit card transaction and a statement made by defendant and written by a detective was proper where a limiting instruction was given to the jury to consider the evidence as tending to show a common scheme or plan. State v. Combs, 182 N.C. App. 365, 642 S.E.2d 491 (2007).

In a trial in which the State sought to show that defendant pressured her daughter to shoot defendant's husband so that defendant could be with a boyfriend she met at a swingers party, the admission of sexually suggestive photographs of defendant and the boyfriend was proper under G.S. 8C-1-401, G.S. 8C-1-403, and G.S. 8C-1-404(b) because the photographs corroborated the existence of a sexual relationship between defendant and the boyfriend, the photographs illustrated the chain of events leading up to the murder, and the probative value of the photographs was not substantially outweighed by the danger of unfair prejudice. State v. Shannon, 182 N.C. App. 350, 642 S.E.2d 516 (2007), review denied, 361 N.C. 436, 649 S.E.2d 893 (2007).

Police officer's testimony that defendant provided fake names and possessed a fictitious identification card was admissible under G.S. 8C-1-404(b) because it was probative of defendant's guilty knowledge and established the chain of circumstances culminating in defendant's arrest. State v. Freeman, 185 N.C. App. 408, 648 S.E.2d 876 (2007), appeal dismissed, 362 N.C. 178, 657 S.E.2d 663 (2008).

Trial court did not abuse its discretion in admitting defendant's prior conviction into evidence as under the North Carolina Felony Firearms Act, specifically G.S. 14-415.1(b), records of prior convictions of any offense were admissible in evidence for the purpose of proving a violation of G.S. 14-415.1; as there was no indication that defendant agreed to stipulate to defendant's prior felony conviction, the State had no choice but to introduce evidence of defendant's conviction in order to prove its case as to the charge of possession of a firearm by a felon. State v. Wood, 185 N.C. App. 227, 647 S.E.2d 679, review denied, 361 N.C. 703, 655 S.E.2d 402 (2007).

Evidence of defendant's participation in three armed robberies two months before the subject event was admissible under G.S. 8C-1-404(b) because the fact that the firearm used by defendant in the subject offense was the same as that used during the three robberies was relevant to prove identity and supported an inference that the same person committed the earlier and the later acts. State v. Brockett, 185 N.C. App. 18, 647 S.E.2d 628 (2007).

Even assuming that the prosecutor's closing argument, which contained statements that defendant alleged were made to prove defendant's bad character, was grossly improper, any prejudice to defendant was cured by the trial court's instructions to the jury stating, inter alia, that the testimony of defendant's cell mate could only be considered for the limited purpose of showing defendant's consciousness of guilt. State v. Goss, 361 N.C. 610, 651 S.E.2d 867 (2007), cert. denied, - U.S. - , 129 S. Ct. 59, 172 L. Ed. 2d 58 (2008).

Admission of evidence concerning the death of an old neighbor of defendant was proper because there were significant similarities between the death of the old neighbor and defendant's wife, the victim in the instant action, and there was sufficient circumstantial evidence that defendant was involved in the prior death; the prosecution was not required to present direct evidence of defendant's involvement in the prior death, but could present circumstantial evidence tending to support a reasonable inference that the same person committed both the earlier and later acts. State v. Peterson, 361 N.C. 587, 652 S.E.2d 216 (2007), cert. denied, 552 U.S. 1271, 128 S. Ct. 1682, 170 L. Ed. 2d. 377 (2008).

Evidence of a later incident between defendant and a witness was properly admitted under G.S. 8C-1, N.C. R. Evid. 404(b) and 403 as: (1) the later incident occurred 20 days after the incident with a victim, (2) the two incidents occurred in the early morning hours, (3) defendant told both victims that defendant's vehicle would not start, (4) defendant told the victim defendant would let the victim live if the victim stopped struggling, and told the witness that the defendant would kill the witness if the witness made any noise, and (5) defendant tried to restrain and silence the victim and the witness, and defendant ceased defendant's efforts when the victim and the witness forcefully resisted defendant's advances; the prejudicial effect of the witness's testimony did not substantially outweigh its probative value. State v. Simpson, 187 N.C. App. 424, 653 S.E.2d 249 (2007).

Admission of the testimony of three witnesses that the alleged assault against each witness took place within one year of the attack on a victim, and that defendant used substantially the same method of restraining each witness during the attack, employing defendant's greater size and strength, limiting the witness's breathing, and making dire threats against the witness, and called each witness after the attack was not plain error under N.C. R. App. P. 10(c)(4), and was proper under G.S. 8C-1, N.C. R. Evid. 403 and 404(b). State v. Simmons, 191 N.C. App. 224, 662 S.E.2d 559 (2008).

Testimony about prior acts against defendant committed against the victim was admissible, where the testimony was relevant because it made it more probable than not that defendant committed the charged crimes against the victim given defendant's belief that the victim was cheating on defendant again, and the prior action, which also involved incidents where defendant believed the victim was cheating on defendant and which occurred less than a year earlier, were also sufficiently similar and close in time to be admitted. State v. Lofton, 193 N.C. App. 364, 667 S.E.2d 317 (2008).

Evidence of prior drug sales was admissible under G.S. 8C-1, N.C. R. Evid. 403 and 404(b), as the drive-by, street-level drug sale that occurred between defendant and an undercover female officer was not a general substantive crime in and of itself, but was a modus operandi by which defendant carried out the sale or distribution of drugs. State v. Welch, 193 N.C. App. 186, 666 S.E.2d 826 (2008).

Denial of defendant's motion in limine was not plain error as there was no G.S. 8C-1, N.C. R. Evid. 404(b) violation in a witness's testimony that a digital camera was stolen during a breaking and entering from the witness's employer, and that the digital camera found in defendant's camper was that camera as the testimony only tended to show that defendant possessed stolen items, not that defendant was acting in conformity with a propensity to steal, and the fact that defendant had multiple stolen items in the camper was relevant to the felonious possession of stolen goods charge under G.S. 14-72(c). State v. Patterson, 194 N.C. App. 608, 671 S.E.2d 357 (2009), review denied, 363 N.C. 587, 683 S.E.2d 383 (2009).

Testimony by defendant's sister and the sister's boyfriend that they were feared defendant was admissible because it was not offered as mere character evidence, but was relevant in that the fear was a product of their belief in defendant's guilt and explained by the sister did not contact law enforcement directly or more immediately after a codefendant confessed; as such, the testimony had some tendency as circumstantial evidence to make the existence of defendant's guilt more probable. State v. Garcell, 363 N.C. 10, 678 S.E.2d 618 (2009).

Evidence of defendant's prior driving while intoxicated (DWI) convictions was admissible where defendant had been convicted of DWI four times in the 16 years leading up to the subject incident, defendant had been convicted of DWI six months earlier, and thus, defendant's driving record demonstrated a consistent and probative pattern of criminal behavior. State v. Maready, 362 N.C. 614, 669 S.E.2d 564 (2008).

Testimony concerning a prior assault on another victim was a major identity piece of evidence, relevant to showing that defendant was in possession of and fired a gun that was used in the subject murder less than 48 hours before the murder. State v. Dean, 196 N.C. App. 180, 674 S.E.2d 453 (2009), appeal dismissed, review denied, 363 N.C. 376, 679 S.E.2d 139 (N.C. 2009).

Admission of evidence that a deputy had responded to a prior domestic disturbance at defendant's residence and went there after defendant's mother called the deputy but was unable to be reached to return the call did not violate G.S. 8C-1, N.C. R. Evid. 404(b), because the evidence completed the picture for the jury. State v. Madures, 197 N.C. App. 682, 678 S.E.2d 361 (2009).

Because, although two offenses charged as first-degree murder may have been sufficiently connected such that joinder would be permissible, pursuant to G.S. 15A-926(a) the trial court could properly decline to consolidate them for trial. Therefore, failure to consolidate the two alleged murders did not required exclusion of all evidence of the first murder, under G.S. 8C-1, N.C. R. Evid. 404(b), at defendant's trial for the second murder. State v. Locklear, 363 N.C. 438, 681 S.E.2d 293 (Aug. 28, 2009).

Evidence of a fight in which defendant took the victim with others to an isolated location and beat him until he was lying down injured and that he attempted to intimidate a witness by angrily crushing a beer can was sufficiently similar to the charged beating and robbery, which occurred less than six months later, for admission under G.S. 8C-1, Rule 404(b). State v. Rainey, 198 N.C. App. 427, 680 S.E.2d 760 (2009).

In defendant's prosecution on a charge of obtaining by false pretenses, involving an incident where defendant told a false story to obtain money from church members, the trial court did not abuse its discretion under G.S. 8C-1, N.C. R. Evid. 404(b) by admitting evidence that defendant had done something similar at other area churches. State v. Twitty, 212 N.C. App. 100, 710 S.E.2d 421 (2011).

Evidence showing of defendant's prior flight from police pursuit in which defendant's accomplice was killed by police officers was properly admitted under G.S. 8C-1, N.C. R. Evid. 404(b) as evidence of implied malice for a second-degree murder charge; the evidence showed defendant's knowledge that flight from police could result in death, and Rule 404(b) specifically allowed evidence of prior acts to show knowledge. State v. Pierce, 216 N.C. App. 377, 718 S.E.2d 648 (2011), dismissed and review denied 365 N.C. 560, 723 S.E.2d 769, 2012 N.C. LEXIS 209 (N.C. 2012).

Evidence that defendant and the two other occupants of his vehicle stole several pounds of marijuana just before defendant fled from a corporal was properly admitted under G.S. 8C-1, N.C. R. Evid. 404(b) to show defendant's motive in fleeing to elude arrest - to avoid being pulled over with several one-pound bags of marijuana in his vehicle. State v. Pierce, 216 N.C. App. 377, 718 S.E.2d 648 (2011), dismissed and review denied 365 N.C. 560, 723 S.E.2d 769, 2012 N.C. LEXIS 209 (N.C. 2012).

Evidence of defendant's financial hardship and misconduct in the years prior to the death of the victim, defendant's wife, was properly admitted to show motive. State v. Britt, 217 N.C. App. 309, 718 S.E.2d 725 (2011).

Testimony concerning the hierarchy of gang structure and tending to show second defendant's position in the local gang hierarchy was relevant to the extortion-related charges, as it helped explain second defendant's reason for believing he could induce another individual to confess to a robbery and explained why the other individual turned himself in and confess when he was not a suspect in the crime. State v. Privette, 218 N.C. App. 459, 721 S.E.2d 299 (2012), review denied, 365 N.C. 566, 724 S.E.2d 532, 2012 N.C. LEXIS 290 (N.C. 2012).

Evidence defendant was seen outside a house where the gun, socks, and tire tool were found following a break-in was admissible to corroborate the testimony of several other witnesses who testified to defendant's actions and was relevant to show defendant's motive, opportunity, and knowledge; specifically that it gave defendant motive to aid another in hiding the murder weapon because the other had incriminating evidence against defendant in having been involved in a break-in. State v. Schiro, 219 N.C. App. 105, 723 S.E.2d 134 (2012), review denied, 735 S.E.2d 179, 2012 N.C. LEXIS 1027 (2012).

Evidence of defendant's conduct with another young female, occurring around same time as alleged offenses, was admissible under G.S. 8C-1, N.C. R. Evid. 404(b), because it was relevant to crucial elements in the charged offenses, the ages of the victim and of defendant, and its probative value was not outweighed by the danger of unfair prejudice. State v. Houseright, 220 N.C. App. 495, 725 S.E.2d 445 (2012).

Evidence of out-of-state break-in at the victim's apartment, for which defendant was not investigated, was admissible under G.S. 8C-1, N.C. R. Evid. 404(b), because the subject evidence established a connection between the three incidents, including the victim as the intended victim in all three incidents, furniture was destroyed, liquid was poured on the floors and the victim's personal items, and the items stolen were personal items, and the evidence was admitted as proof of defendant's common plan or scheme, his identity, and his motive. State v. Adams, 220 N.C. App. 319, 727 S.E.2d 577 (2012).

Admission of evidence of a prior altercation involving defendant and a prior name-calling incident involving defendant and the victim did not amount to plain error, because the prior incidents supported the victim's testimony that she did not report the rape because she was afraid of defendant, and the alleged "name-calling," where the State argued that the situation was no different that a hunter in a field, a beast in the field stalking a prey, was not name-calling but merely an analogy used by the State to explain its theory of the crime. State v. Foust, 220 N.C. App. 63, 724 S.E.2d 154 (2012).

In a prosecution for indecent liberties with a child and first-degree sexual offense, evidence of defendant's prior sexual acts with a minor was admissible because (1) the acts were admitted for the permissible purpose of showing modus operandi, and (2) the acts had key similarities to the crimes charged, as the acts' victim's age was similar to the crimes' victim, the acts' location was similar to that of the crimes, and the acts were committed in a manner similar to that alleged for the crimes. State v. Beckelheimer, 366 N.C. 127, 726 S.E.2d 156 (2012).

In a prosecution for indecent liberties with a child and first-degree sexual offense, temporal remoteness did not bar the admission of evidence of defendant's prior sexual acts with a minor because the remoteness was not so significant as to make the prior acts irrelevant as to the State's theory of modus operandi, which the prior acts were offered to support, so temporal proximity was a question of evidentiary weight for the jury to decide. State v. Beckelheimer, 366 N.C. 127, 726 S.E.2d 156 (2012).

The trial court did not err in admitting evidence of defendant's prior bad acts under G.S. 8C-1, N.C. R. Evid. 404(b), because the prior acts were sufficiently similar to the charged offense in that they showed a progression from inappropriate touching to sexual intercourse, occurred where defendant was living at the time, involved prepubescent girls, and also involved members of defendant's family. The appellate court also concluded that the prior acts were not too remote in time, noting that the gaps in time were reasonably explained. State v. Barnett, 223 N.C. App. 450, 734 S.E.2d 130 (2012).

Defendant's statement that he touched 5 to 10 other boys was an admission under G.S. 8C-1, N.C. R. Evid. 801(d)(A) and 404(b) to show his identity as the perpetrator and his intent as the facts were similar to the charges of touching two young boys here; defendant connected the acts as a continuous pattern by stating that he had a problem with touching young boys, and had had this problem since he was young, and the evidence was properly allowed under G.S. 8C-1, N.C. R. Evid. 403. State v. Graham, 223 N.C. App. 150, 733 S.E.2d 100 (2012).

Testimony by a witness for the State that police searched for defendant at a particular location because he was involved in a previous domestic incident there did not violate G.S. 8C-1, N.C. R. Evid. 404, because the testimony was not admitted to prove conformity but to explain why officers searched for defendant at the particular location. State v. Anderson, 222 N.C. App. 138, 730 S.E.2d 262 (2012).

In a prosecution for uttering a forged instrument (G.S. 14-120) and attempting to obtain property by false pretenses (G.S. 14-100), the trial court did not err in admitting a second forged check under G.S. 8C-1, N.C. R. Evid. 404(b), as it was relevant to undercut defendant's explanations for possessing the check at issue and establish his intent to defraud, and the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury under G.S. 8C-1, N.C. R. Evid. 403. State v. Conley, 220 N.C. App. 50, 724 S.E.2d 163 (2012).

Evidence of defendant's prior acts against his estranged wife were properly admitted under G.S. 8C-1, N.C. R. Evid. 404(b), because they showed defendant's intent to perpetrate a hoax by use of a false bomb and because those incidents were part of the chain of events leading up to the crime, necessary to complete the story of the crime for the jury. The challenged evidence tended to show that defendant had an ongoing objective of scaring his estranged wife by suggesting he would physically harm her and others around her. State v. Golden, 224 N.C. App. 136, 735 S.E.2d 425 (2012).

Opinion evidence of defendant's friend as to defendant's character trait of being trusting of others was improperly excluded since the evidence was pertinent to whether she willfully attempted to evade paying taxes where she claimed that she believed the representations made to her by the sellers on a form that the purported tax exemption was legal and thus she had a good faith belief that she was exempt from having to pay State income tax, and the State claimed that her actions were undertaken as a tax protestor. State v. Tatum-Wade, 229 N.C. App. 83, 747 S.E.2d 382 (2013).

Admission of evidence of uncharged allegedly sexual conduct involving the victim and her sister was not error, as it established the time period during which defendant lived with the family and the circumstances surrounding defendant's move. State v. May, 230 N.C. App. 366, 749 S.E.2d 483 (2013).

Trial court did not abuse its discretion in admitting prior bad acts evidence, as the prior acts and offenses charged were similar in that defendant had access to the girls, the girls were all relatively young, and the touchings occurred while defendant was alone with the girls. State v. Walston, 229 N.C. App. 141, 747 S.E.2d 720 (2013), review denied 753 S.E.2d 666, 2014 N.C. LEXIS 28 (2014), rev'd 367 N.C. 721, 766 S.E.2d 312, 2014 N.C. LEXIS 953 (2014).

Trial court properly admitted as evidence of malice testimony regarding an incident two months earlier on the same road in which defendant's impaired driving badly frightened his female passenger who forced him to pull over his car and who expressed substantial concern about his driving while impaired. State v. Grooms, 230 N.C. App. 56, 748 S.E.2d 162 (2013), review denied 367 N.C. 281, 752 S.E.2d 148, 2013 N.C. LEXIS 1397 (2013).

Admission of testimony by a teenager who willing had sex with defendant was not an abuse of discretion, as defendant sexually assaulted the teen, each in the same car, defendant took both to a motel, and defendant asked both to have photos and videos made, making the teen's interaction with defendant sufficiently similar. State v. Rayfield, 231 N.C. App. 632, 752 S.E.2d 745 (2014), review denied 758 S.E.2d 871, 2014 N.C. LEXIS 440 (2014), review denied 758 S.E.2d 871, 2014 N.C. LEXIS 435 (2014).

Evidence defendant set up a webcam in the bedroom of a teenage neighbor and videotaped her dancing in her pajamas was similar in nature to the charges and served to demonstrate defendant's intent to obtain sexual images of minors and an absence of mistake or accident. State v. Williams, 232 N.C. App. 152, 754 S.E.2d 418 (2014).

Evidence of defendant's misappropriation of funds from a church was properly admitted, as it occurred at about the same time and defendant held a similar position of trust in each setting which allowed her access to funds. State v. Parker, 233 N.C. App. 577, 756 S.E.2d 122 (2014).

Trial court did not err by admitting a forensic psychologist's report and testimony because the probative value of the report and testimony substantially outweighed the potential prejudicial effect to defendant; the psychologist's reflections of defendant's character, which comprised a small portion of the report, were not admitted for the truth of the matters asserted but were offered to demonstrate how the resulting recommendations were relevant to defendant's state of mind; State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636 (2015).

Evidence of previous instances of sexual abuse was properly admitted under this section, despite the fact that the prior instances occurred 10 to 20 years prior to trial, because the time lapse between the instances of sexual misconduct could be explained by defendant's incarceration and lack of access to a victim. State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860 (2014).

Testimony by others offered to show that defendant would stop and approach an elderly victim at his or her house, claim the victim needed roof repairs, inspect the roof and claim that it needed extensive repairs, and request immediate payment before beginning the repairs was admissible. State v. Barker, 240 N.C. App. 224, 770 S.E.2d 142 (2015).

Trial court did not abuse its discretion in admitting testimony from a child witness about prior conduct, because it tended to prove defendant had a common scheme or plan to have intercourse with young female children who were asleep at night, while he was a guest in a home, and he offered a bribe to his victims to buy their silence. State v. Spinks, 256 N.C. App. 596, 808 S.E.2d 350 (2017), review denied, 2018 N.C. LEXIS 248 (2018) review denied, 811 S.E.2d 589, 2018 N.C. LEXIS 248 (2018).

Officer's testimony that the officer observed defendant leaving a house being investigated for drugs and defendant had a bad reputation in the neighborhood was admissible because (1) the testimony showed the officer's familiarity with defendant and explained why the officer paid attention to defendant, which was relevant to the officer's identification of defendant, (2) the unnecessary drug reference did not affect the jury's verdict, and (3) the probative value of the identification outweighed any undue prejudice. State v. Weldon, 258 N.C. App. 150, 811 S.E.2d 683 (2018).

Defendant failed to show that the trial court plainly erred in defendant's trial for misdemeanor stalking by admitting challenged portions of the testimony of defendant's ex-paramour that defendant had assaulted the ex-paramour in the past and that the ex-paramour was afraid of defendant because the challenged portions of the ex-paramour's testimony were relevant not only to show defendant's propensity to commit the offense of stalking, but also established that the victim was in reasonable fear of defendant. State v. Hobson, 261 N.C. App. 60, 819 S.E.2d 397 (2018), review denied, 371 N.C. 793, 821 S.E.2d 173, 2018 N.C. LEXIS 1082 (2018).

During defendant's first-degree murder trial, the trial court did not err by admitting the testimony of two witnesses' regarding prior abusive relationships they had with defendant because the assaults on the witnesses were similar to the ones perpetrated on the victim, including comparative location similarities and defendant stabbed them. State v. Enoch, 261 N.C. App. 474, 820 S.E.2d 543 (2018), review denied, 824 S.E.2d 422, 2019 N.C. LEXIS 261 (2019).

Trial court did not err by admitting photos obtained from defendant's cell phone because the photos of guns were not indicative of bad acts or bad character and hand signals by two men in the photo with car did not indicate gang affiliation in any way. State v. Dixon, 261 N.C. App. 676, 821 S.E.2d 232 (2018).

During defendant's trial for first-degree sex offense with a child, the trial court did not err by admitting evidence of two prior incidents because those incidents and the instant offense each involved the same victim, the same specific alleged mode of penetration, and occurred while the victim was under defendant's supervision, and therefore the prior incidents were relevant to show that the instant offense was part of a common scheme or plan. The trial court did not err by finding that the prior incidents were more probative than prejudicial, it gave a limiting instruction, and the evidence was not cumulative or likely to mislead the jury. State v. Godfrey, 263 N.C. App. 264, 822 S.E.2d 894 (2018).

Temporal proximity requirement was met despite the 10-year and 8-year attenuation between prior sexual assaults and instant offense, because the acts were performed continuously over a period of years and thus, they were not too remote to be considered. State v. Pabon, - N.C. App. - , - S.E.2d - (Oct. 6, 2020), review granted and denied, in part, 851 S.E.2d 43, 2020 N.C. LEXIS 1074 (N.C. 2020).

Drugs Found at Defendant's Home Inadmissible. - Evidence of substantial amounts of drugs belonging to others and seized at the trailer where the defendant lived was irrelevant, prejudicial and inadmissible to show his knowledge that the substance in a van he was driving was cocaine; the defendant was not charged with any offense in connection with the drugs seized at the trailer and the circumstantial evidence presented at trial - the fact that drugs belonging to other people were discovered at the trailer defendant shared with others - was too weak to support an inference of knowledge on his part. State v. Moctezuma, 141 N.C. App. 90, 539 S.E.2d 52 (2000).

Evidence that a defendant used drugs shortly before a fire he was accused of starting was not excluded under G.S. 8C-1, Rule 404(b) because it served the purpose of establishing the chain of events and circumstances leading to the fire. State v. Sexton, 153 N.C. App. 641, 571 S.E.2d 41 (2002), cert. granted, 356 N.C. 622, 575 S.E.2d 756 (2002).

Evidence Held Inadmissible. - Where five year old child, whom the court ruled was incompetent to testify, herself was incapable of informing the jury firsthand of the events that the State claimed she had participated in, it was not proper for the prosecutor to advise the jury of these purported events based on his secondhand understanding of what the child knew and had said. State v. Flannigan, 78 N.C. App. 629, 338 S.E.2d 109 (1985), cert. denied, 316 N.C. 197, 341 S.E.2d 572 (1986).

In a prosecution for armed robbery, evidence elicited from defendant's girlfriend regarding another crime, namely, the shooting of her former boyfriend, constituted prejudicial error. State v. Monroe, 78 N.C. App. 661, 338 S.E.2d 137 (1986).

It was error for the trial court to allow, over defendant's objection, the prosecutor's cross-examination of defendant regarding alleged extrinsic acts of misconduct in order to circumstantially prove defendant's character for violence as the basis for an inference that defendant was the aggressor in the affray at issue and could not have acted in self-defense. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986), holding, however, that the error was harmless in light of other evidence properly admitted at trial.

In a prosecution for first degree sexual offense involving three and four year old victims, defendant's alleged sexual contacts with his sister nine years before trial, when defendant was thirteen years old, were too remote in time to be probative or relevant. State v. Scott, 317 N.C. 689, 347 S.E.2d 414 (1986).

Evidence of defendant's involvement in other crimes, offered by the State to prove the crime for which defendant was being tried, was not admissible where the only relation between the other crimes and the crime charged was that they were similar and were committed within a time not too far removed from the crime charged. State v. Hamrick, 81 N.C. App. 508, 344 S.E.2d 316 (1986).

In prosecution for rape, sexual offense and crime against nature, cross-examination of defendant with regard to other nonconsensual sexual activity with another woman was not relevant on the question of the victim's consent, and where defendant's only defense was consent, this cross-examination inquiry was clearly prejudicial and required a new trial. State v. Bailey, 80 N.C. App. 678, 343 S.E.2d 434, petition for cert. improvidently allowed, 318 N.C. 652, 350 S.E.2d 94 (1986).

The fact that the defendant pointed his gun at victim three years previously and that both men laughed afterward did not indicate that three years later defendant did not fear victim or make the apparent necessity to defend himself more or less probable than it would be without the evidence; thus, it was error to allow testimony of this extrinsic act of misconduct in order to show defendant's character for violence and that therefore he must have acted in conformity with that character, and not in self defense, when he fatally shot the victim. State v. Mills, 83 N.C. App. 606, 351 S.E.2d 130 (1986).

In trial for murder of defendant's husband, specific instances of conduct regarding defendant's alleged participation in three previous unrelated murders were not probative of defendant's character for truthfulness under G.S. 8C-1, Rule 608(b), and were not admissible to prove motive under subsection (b) of this rule. Thus the trial court committed prejudicial error in denying defendant's motion in limine to prevent the district attorney from using the inadmissible evidence to impeach defendant. State v. Lamb, 84 N.C. App. 569, 353 S.E.2d 857 (1987), aff'd, 321 N.C. 633, 365 S.E.2d 600 (1988).

The trial court erred by admitting testimony elicited by the prosecutor from witness that she was "still afraid" of defendant on the day she testified, as this was inadmissible character evidence. State v. Bell, 87 N.C. App. 626, 362 S.E.2d 288 (1987).

Where it was clear at trial who was being tried and witnesses specifically identified defendant, and there was no evidence that defendant ever gave anyone a different name, testimony by police officer that he knew defendant by an alias inferred that defendant had been involved in some other crime or had used other names for some illegal purpose, and such testimony was, therefore, not admissible as an identity exception under subsection (b) of this section. State v. General, 91 N.C. App. 375, 371 S.E.2d 784 (1988).

In a prosecution for second-degree murder, testimony that the defendant was in the business of selling marijuana to high school age persons had no tendency to make any fact of consequence more or less probable, nor was the evidence about how defendant procured his automobile and the evidence concerning the details of how the marijuana was packaged and sold relevant to any material fact in issue. Equally irrelevant was evidence concerning the victim's citation for possession of marijuana. State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456, cert. denied, 323 N.C. 627, 374 S.E.2d 594 (1988).

Evidence of prior, noncriminal unrelated fire was held inadmissible because of its prejudicial character since such evidence was irrelevant in that it neither confirmed nor suggested a relationship between two defendants charged with burning down a food market. Moreover, the State failed to show defendants had had any connection with the previous fire, the exception for the admission of prior bail acts set out by this rule. State v. Clark, 90 N.C. App. 489, 369 S.E.2d 607 (1988).

Testimony of cellmate and detective that defendant was in jail on a charge of attempted murder of his girlfriend was not relevant where defendant was on trial for an unrelated crime of murder, since the court determined that this testimony was not relevant to any fact or issue other than the character of the accused. State v. Cashwell, 322 N.C. 574, 369 S.E.2d 566 (1988).

Where, in an attempt to undercut defendant's testimony about her abuse by her first husband, who was a drug addict, and by her second, who was an alcoholic, district attorney asked, "Well, you sort of enjoyed smoking marijuana, didn't you?" and defendant responded, "I did on occasion sir," the question was error; defendant's admission to having smoked marijuana had no conceivable tendency to prove or disprove her truthfulness and subsection (b) of this rule prohibits evidence of other crimes, wrongs, or acts to prove the defendant acted in conformity with a character trait those acts exhibit. State v. Clark, 324 N.C. 146, 377 S.E.2d 54 (1989).

In trial for first degree arson, court erred in admitting evidence of an earlier fire in another house where there was no evidence that defendant had performed any act with respect to the 1982 fire, and no evidence placing defendant at the scene or in its vicinity at the time of that fire; there was no nexus between the defendant and the act sought against him; therefore, the evidence did not support the inference that defendant committed both the earlier and the later acts. State v. English, 95 N.C. App. 611, 383 S.E.2d 436 (1989).

Where defendant was charged with two counts of burglary, two counts of rape and two counts of sex offense, his employment record had no relevance to any of those offenses; thus, neither defendant's evidence that he was a good employee nor State's rebuttal evidence of his bad conduct toward fellow employees was admissible under subdivision (a)(1) of this rule. State v. Cotton, 99 N.C. App. 615, 394 S.E.2d 456 (1990), aff'd, 329 N.C. 764, 407 S.E.2d 514 (1991).

Court's refusal to permit defendant to cross-examine detective about police department's having used defendant as an informant was proper. Defendant's purpose was to show that he had credibility with the police department, but at that time only the State had presented evidence, defendant's credibility had not been attacked, and he was not entitled to bolster it in advance. State v. Burge, 100 N.C. App. 671, 397 S.E.2d 760 (1990).

Proffered testimony as to the victim's alcohol consumption with other people in party settings had no tendency to prove that the victim consented to sexual activity with the defendant on the day in question. State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762 (1990), discretionary review denied and appeal dismissed, 328 N.C. 573, 403 S.E.2d 516 (1991).

Where defendant was arrested after a bag of cocaine was found under the seat of the truck he was operating, and at trial he offered the criminal record of the owner of the truck to show that the owner acted in conformity with a prior conviction by placing cocaine under the seat, the court properly excluded the criminal record under section (b) of this rule. Such evidence created only an inference or conjecture. State v. Chandler, 100 N.C. App. 706, 398 S.E.2d 337 (1990).

Where defendant sought unsuccessfully to introduce evidence that another victim was attacked in the hospital basement by a black male attired similarly to the suspect the hospital employee described and where defendant contended that the evidence should have been admitted to show that someone else committed the crime, trial court did not err in excluding this evidence. The crimes were not similar; other victim was not raped and there was no indication that her attacker attempted to rape her; the attacker's identity was not known; and there was no evidence to indicate that the man who grabbed other victim also committed the offense against the victim two months later. State v. Richardson, 328 N.C. 505, 402 S.E.2d 401 (1991).

Prosecutor's questioning of capital murder defendant's mother about locks placed on the outside of defendant's bedroom door was highly prejudicial and of no probative value; however, such error was harmless where the question of defendant's guilt was strong, the trial court properly sustained defendant's objections to the questions and the mother testified she was not afraid of her son. State v. Payne, 328 N.C. 377, 402 S.E.2d 582 (1991).

It was proper for the prosecution to refer to the defendant's illegal adulterous affair only in order to rebut the defendant's contention that he was a law-abiding citizen. Therefore, the trial court erred in allowing the prosecution to cross-examine the defendant concerning the adulterous affair and to require the defendant to read the love letters concerning the affair on cross-examination. State v. Woodard, 102 N.C. App. 687, 404 S.E.2d 6 (1990), cert. denied and appeal dismissed, 329 N.C. 504, 407 S.E.2d 550 (1991).

Where the prosecution cross-examined the defendant concerning his affair before the defendant put character witnesses on the stand to testify as to his law-abidingness, the trial court erred in allowing the prosecution to ask the defendant about his adultery before the defendant put his witness on the stand. State v. Woodard, 102 N.C. App. 687, 404 S.E.2d 6 (1990), cert. denied and appeal dismissed, 329 N.C. 504, 407 S.E.2d 550 (1991).

In trial for sexual offenses against 3 minor teenage boys, testimony of a 24 year old man that he had been sexually assaulted by the defendant approximately seven years before was error, but the error was not prejudicial in light of the other evidence. State v. Gross, 104 N.C. App. 97, 408 S.E.2d 531, cert. denied, 330 N.C. 444, 412 S.E.2d 78 (1991).

Evidence that thirteen and one-half years prior to trial defendant had been convicted of armed robbery was admissible where the evidence presented by the State of the earlier armed robbery was sufficiently similar to the crimes charged to be admitted for the purpose of showing a modus operandi, motive and even identity, and where the evidence was not too remote in time to be probative of any fact at issue. State v. Wilson, 106 N.C. App. 342, 416 S.E.2d 603 (1992).

Trial judge did not err by allowing testimony about defendant's drug dealings; the disputed evidence was relevant to show defendant's motive for murder. State v. Ligon, 332 N.C. 224, 420 S.E.2d 136 (1992).

The trial court erred in allowing cross-examination of defendant about details of his prior convictions in that it bore no logical relevance to the crimes charged that would render it admissible under section (b), and it was not admissible to refute any inaccurate or misleading testimony or inferences raised by defendant. State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993).

Where defendant was convicted of second degree murder, evidence that defendant had previously shot over a truck was irrelevant and inadmissible and could not be deemed harmless error so that defendant was entitled to a new trial. State v. Irby, 113 N.C. App. 427, 439 S.E.2d 226 (1994).

Court properly excluded from evidence the fact that the victim had twice been convicted of murder. State v. Leazer, 337 N.C. 454, 446 S.E.2d 54 (1994).

The trial court erred in allowing the introduction of evidence of plaintiff's prior use of illegal drugs in sexual molestation case, such information was highly prejudicial and defendants proffered no permissible use of such information. Johnson v. Amethyst Corp., 120 N.C. App. 529, 463 S.E.2d 397 (1995), cert. granted, 467 S.E.2d 713 (1996).

Evidence of witness's juvenile adjudication of guilt of involuntary manslaughter was not relevant; admission of the evidence was not necessary to a fair determination of defendant's guilt or innocence. State v. Deese, 136 N.C. App. 413, 524 S.E.2d 381 (2000), cert. denied, 351 N.C. 476, 543 S.E.2d 499 (2000).

Evidence of a prior detainment incident at another department store was inadmissible in defendant's shoplifting case where she did not claim to have made a mistake in either incident and where defendant was judicially acquitted of the crime for which she was charged in the prior incident. State v. Fluker, 139 N.C. App. 768, 535 S.E.2d 68 (2000).

Testimony by a witness as to defendant's having lied to the witness about an unrelated matter was not admissible under G.S. 8C-1, N.C. R. Evid. 404 because the testimony was not to establish defendant's intent or motive, but was to attack defendant's credibility. State v. Lee, 189 N.C. App. 474, 658 S.E.2d 294 (2008).

State should not have been allowed to introduce evidence in its case-in-chief about the victim's good character merely because defense counsel forecasted during opening statements the introduction of evidence of the victim's bad character. Since defendant offered no evidence in his case-in-chief of the victim's bad character, the admission of character evidence as to the victim was in error; however, the error was harmless under G.S. 15A-1443(a) because there was sufficient evidence to refute defendant's claim that, but for the admission of the character evidence, the jury would have reached a different verdict. State v. Buie, 194 N.C. App. 725, 671 S.E.2d 351 (2009), review denied, 363 N.C. 375, 679 S.E.2d 135 (2009).

Trial court erred in allowing the State to cross-examine defendant about instances of domestic violence that occurred between defendant and a former girlfriend more than 10 years earlier, because the two incidents did not contain similarities supporting an inference that the same person committed both acts; the prior event involved defendant's former adult girlfriend, while the event that was the subject of the trial, involved a child who defendant barely knew. State v. Ray, 197 N.C. App. 662, 678 S.E.2d 378 (2009), rev'd in part 697 S.E.2d 319, 2010 N.C. LEXIS 583 (2010).

Evidence of specific instance of conduct by the victim that led to defendant imposing military discipline on the victim immediately prior to the victim's accusation of rape was properly excluded, because they were not relevant to the issues before the jury in defendant's trial for first-degree murder. State v. Laurean, 220 N.C. App. 342, 724 S.E.2d 657 (2012).

Evidence of a prior shooting was erroneously admitted at defendant's trial for, inter alia, murder, because there were too many dissimilarities between the two incidents. Among other things, the offenses occurred 13 years apart, the prior incident occurred in New Jersey while the subject incident occurred in North Carolina, the prior shooting was a crime of passion while the victim in the instant action had contacted defendant for the purpose of obtaining drugs in the past. State v. Flood, 221 N.C. App. 247, 726 S.E.2d 908 (2012), review denied 366 N.C. 427, 736 S.E.2d 488, 2013 N.C. LEXIS 60 (2013).

Defendant was entitled to a new trial after the trial court erred under G.S. 8C-1, N. C. R. Evid. 404(b), in admitting evidence of defendant's writings about forcible, non-consensual anal sex with an adult female acquaintance, because the charged crime involved defendant's very young son and the only similarity in the how crime occurred was that it involved anal intercourse. State v. Davis, 222 N.C. App. 562, 731 S.E.2d 236 (2012).

Trial court did not err by excluding the testimony of a doctor because his testimony did not constitute evidence of the decedent's character for violence, but rather testified that the decedent was an angry person who had thoughts of violence. Because the trial court's exclusion of the expert's testimony was within the bounds of the rules of evidence, defendant's right to present a defense under U.S. Const. amend. VI and N.C. Const. Art. I, § 23 was not violated. State v. McGrady, 232 N.C. App. 95, 753 S.E.2d 361 (2014).

Even though the trial court erred by admitting testimony about the good character of the victim because defendant did not offer any evidence that the victim was the first aggressor, that defendant's brother acted in self-defense, or that the brother was in any way justified in shooting and killing the victim, the error was not plain because the State provided circumstantial evidence that defendant assisted in planning and carrying out the ambush. State v. Mitchell, - N.C. App. - , 840 S.E.2d 276 (2020).

Even assuming the alleged acts were substantially similar, plaintiff's sole purpose in proffering evidence of an alleged prior assault was to establish defendant's propensity to engage in that kind of conduct, and the rule explicitly required the exclusion of evidence of other crimes or acts under these circumstances and the trial court did not abuse its discretion in excluding evidence of an alleged prior assault. Keller v. Deerfield Episcopal Ret. Cmty., Inc., - N.C. App. - , 845 S.E.2d 156 (2020), review denied, 851 S.E.2d 372, 2020 N.C. LEXIS 1179 (N.C. 2020).

Evidence Improperly Admitted. - Defendant's conviction of indecent liberties with a child under G.S. 14-202.1 was reversed as a composition book entry relating to defendant's forced anal intercourse with an adult woman was inadmissible under G.S. 8C-1, N.C. R. Evid. 401 and 404(b) to prove intent and sexual gratification since the actual force used in the composition book was not analogous to the constructive force theory between a parent and a child; the writings did not give rise to any inference that defendant was desirous of or obtained sexual gratification from anal intercourse with his four- or six-year-old son. State v. Davis, - N.C. App. - , 726 S.E.2d 900 (2012).

Possession of Pornographic Videos and Magazines. - As a general rule, evidence of a defendant's prior conduct, such as the possession of pornographic videos and magazines, is not admissible to prove the character of the defendant in order to show that the defendant acted in conformity therewith on a particular occasion. State v. Smith, 152 N.C. App. 514, 568 S.E.2d 289 (2002), cert. denied, 356 N.C. 623, 575 S.E.2d 757 (2002).

Admission that Defendant was "B and E Guy" - Even if the admission of defendant's statement that he was a "B and E guy" was error as it was evidence of defendant's character, defendant was not entitled to relief because defendant could not show that it changed the result of the case and, thus, the admission of said testimony did not prejudice defendant. State v. Speight, 213 N.C. App. 38, 711 S.E.2d 808 (2011).

Evidence That Defendant Enjoyed Consensual Anal Sex With His Wife Improperly Admitted. - Defendant was granted a new trial on his convictions of first degree sex offense with a child, G.S. 14-27.4, and taking indecent liberties with a child, G.S. 14-202.1, because the trial court erred, pursuant to G.S. 8C-1, N.C. R. Evid. 404(b), in admitting testimony by defendant's wife that defendant enjoyed anal sex; the fact that defendant engaged in and liked consensual anal sex with his wife was not by itself sufficiently similar to engaging in anal sex with an underage victim beyond the characteristics inherent to both to be admissible under rule 404(b). State v. Dunston, 161 N.C. App. 468, 588 S.E.2d 540 (2003).

Evidence of Another Child's Death. - Three reasons enumerated by the trial court were proper reasons to allow in the evidence of another child's death while under defendant's care in defendant's trial for misdemeanor child abuse and contributing to the delinquency of a minor, and it could not be said that the ruling was so arbitrary that it was not the result of a reasoned decision; however, the State's use of the evidence regarding the other child went beyond the purposes for which the trial court admitted the evidence and the State improperly argued that defendant had the propensity to leave young children unattended, resulting in death by drowning.

Evidence of Prior Abuse Toward Other Child. - Admission of testimony by the victim's sister regarding defendant's prior abuse toward her was not erroneous because the testimony concerned defendant's actions towards the sister when she was approximately the same age, illustrating a continuing pattern of sexual abuse and an intent to commit incest. State v. Locklear, 172 N.C. App. 249, 616 S.E.2d 334 (2005).

Where defendant was charged with indecent liberties with a child and with statutory sex offense, it was proper to admit testimony by three witnesses about other acts allegedly committed by defendant, in light of the similarity between the ages of the girls at the time of the acts, their placement with defendant because of familial or quasi-familial relationships, defendant's purported modus operandi in each instance, and the warning he allegedly gave each girl. State v. Bradley, 179 N.C. App. 551, 634 S.E.2d 258 (2006).

Defendant's sexual acts against the victim's cousin were sufficiently similar to be admissible. Both victims were defendant's granddaughters, both were around the same age when defendant initiated his conduct, both occurred more than one time, and defendant asked both of them if they were old enough for him to touch their private parts. Although the acts against the cousin occurred in plain view, while they were watching television, and the acts with the victim took place in private, the trial court did not err in admitting the evidence. State v. Khouri, 214 N.C. App. 389, 716 S.E.2d 1 (2011).

Evidence Held Prejudicial. - Where the challenged evidence that defendant was in custody for assault with a deadly weapon with intent to kill his girlfriend was especially prejudicial because of its similarity to the charge at issue, which was murder and assault with a deadly weapon with intent to kill, and the similarity of the charges was compounded by the additional "verification" evidence of a detective, such admissions constituted prejudicial error and defendant was entitled to a new trial. State v. Cashwell, 322 N.C. 574, 369 S.E.2d 566 (1988).

Evidence of prior sexual assaults against a witness, which happened seven years before a similar sexual assault for which defendant was charged was prejudicial to defendant's fundamental right to a fair trial because the prior acts were too remote in time. State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988).

Where defendant was accused of sexually abusing his 14-year-old adopted daughter, the trial court erred in admitting testimony of alleged prior bad acts committed by defendant; namely, defendant's alleged frequent nudity, his alleged frequent fondling of himself, and an adulterous affair in which he was allegedly involved, as under the circumstances of this case, the admission of such evidence was highly prejudicial and of questionable relevance. State v. Maxwell, 96 N.C. App. 19, 384 S.E.2d 553 (1989), cert. denied, 326 N.C. 53, 389 S.E.2d 83 (1990).

The appellate court agreed with 14-year-old defendant that allegations of a subsequent sexual assault on a four-year-old were not admissible since the incident was not sufficiently similar to the one at issue involving a nine-year-old; the admission of such evidence tended only to show the propensity of the defendant to commit sexual acts against young female children, an improper purpose, and therefore entitled defendant to a new trial. State v. White, 135 N.C. App. 349, 520 S.E.2d 70 (1999).

Refusal to Exclude Evidence of Other Killings Held Prejudicial. - In trial for murder of defendant's husband, rulings of the trial judge denying defendant's motion in limine to exclude evidence implicating her in other killings held to have impermissibly chilled her right to testify in her own defense. State v. Lamb, 321 N.C. 633, 365 S.E.2d 600 (1988).

Cumulative Effect of Admitted Evidence Held Prejudicial. - Where, in a murder prosecution, the State spent a great deal of time focusing on the details of defendant's alleged prior offenses of selling marijuana to high school students, citation for possession of marijuana, and breaking and entering, the cumulative effect of the admission of the evidence was prejudicial error entitling the defendant to a new trial. State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456, cert. denied, 323 N.C. 627, 374 S.E.2d 594 (1988).

Admission of Evidence Not Prejudicial. - Even of the trial court erred in admitting evidence of a prior robbery, the error was harmless given the victim's identification of defendant and evidence that not only did defendant know the victim's brother hid money at her house, but when the victim told the men the money was her mother's house the men left and shortly thereafter someone attempted to break into the victim' smother's house, supporting an inference that defendant was the perpetrator. State v. Green, 229 N.C. App. 121, 746 S.E.2d 457 (2013).

Admission of Irrelevant Evidence Not Prejudicial. - In the light of the direct evidence against defendant and the utter irrelevance of marijuana possession to the charges on which defendant was ultimately convicted, no prejudicial error occurred by virtue of admission of evidence that marijuana was found in defendant's basement. State v. Fie, 80 N.C. App. 577, 343 S.E.2d 248 (1986), rev'd on other grounds, 320 N.C. 626, 359 S.E.2d 774 (1987).

Although a detective's testimony concerning defendant's statement concerning an unrelated robbery was inadmissible under G.S. 8C-1, N.C. R. Evid. 404, defendant was not entitled to a mistrial because the curative instruction given was sufficient to cure the error, and there was no evidence that the statement had any impact on the trial, particularly in light of the fact that defendant admitted participating in the charged robberies. State v. McCallum, 187 N.C. App. 628, 653 S.E.2d 915 (2007).

Erroneous Admission of Testimony Held Harmless Error. - Admission of testimony as to the victim's character was erroneous; however, the error was harmless given the overwhelming evidence of defendant's guilt presented by the State and defendant's failure to show that the exclusion of the character testimony would have impacted the jury. State v. Allen, 162 N.C. App. 587, 592 S.E.2d 31 (2004).

Admission of Evidence Not Plain Error. - Admission of evidence as to defendant's pornography business and a confidential informant's testimony that defendant handed him pornographic tapes was not impermissible evidence of defendant's character under a plain error analysis as its admission was not an error that was so fundamental as to result in a miscarriage of justice or that had a likely impact on the outcome of the trial as there was substantial evidence establishing defendant's commission of trafficking in cocaine by possession. State v. Williams, 177 N.C. App. 725, 630 S.E.2d 216 (2006), review dismissed, - N.C. - , 651 S.E.2d 561 (2007).

Trial court did not commit plain error in allowing various witnesses to reference defendant's criminal record, as the evidence was not offered to prove defendant's character in order to show that he acted in conformity with that character, but instead the evidence simply emerged as part of the witnesses' narrative; without an objection, neither the trial court nor the jury had any reason to focus on the information, and the likelihood of any resulting prejudice was minimal. State v. Cole, 209 N.C. App. 84, 703 S.E.2d 842 (2011), dismissed and review denied 365 N.C. 197, 709 S.E.2d 922, 2011 N.C. LEXIS 539 (N.C. 2011).

Exclusion of Evidence Was Not Prejudicial Error. - Error in excluding opinion evidence by defendant's friend as to defendant's character for trustworthiness was not prejudicial since the jury was not limited to assessing the believability of defendant's story based solely on her own testimony, but heard from several witnesses whose testimony arguably had greater probative force regarding defendant's state of mind than the excluded testimony would have had; had the opinion evidence been heard, evidence that defendant was not gullible, which could have diminished her defense, would also have been heard. State v. Tatum-Wade, 229 N.C. App. 83, 747 S.E.2d 382 (2013).

Failure to Preserve Challenge for Appellate Review. - Defendant failed to preserve a challenge to the admission of evidence under G.S. 8C-1, N.C. R. Evid. 404, because defendant failed to object when the evidence was offered at trial and made no attempt to introduce evidence that the charges relating to the Rule 404(b) evidence were dismissed. State v. Reaves, 196 N.C. App. 683, 676 S.E.2d 74 (2009), review denied, 363 N.C. 587, 683 S.E.2d 705 (2009).

Prosecutorial Questioning Harmless. - Assuming, arguendo, the trial court erred by allowing the prosecutor to cross-examine defendant for impeachment purposes about an alleged prior sexual assault of defendant's then-minor daughter at defendant's trial for taking or attempting to take indecent liberties with a child and solicitation of a child by computer, defendant's conclusive denials that the incident ever occurred rendered that questioning harmless. State v. Heelan, 263 N.C. App. 275, 823 S.E.2d 106 (2018), review denied, 373 N.C. 170, 2019 N.C. LEXIS 1299 (2019).


Rule 405. Methods of proving character.

  1. Reputation or opinion. - In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. Expert testimony on character or a trait of character is not admissible as circumstantial evidence of behavior.
  2. Specific instances of conduct. - In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 405 except for the addition of the last sentence to subdivision (a).

The Advisory Committee's Note states:

"The rule deals only with allowable methods of proving character, not with admissibility of character evidence, which is covered by Rule 404.

Of the three methods of proving character provided by the rule, evidence of specific instances of conduct is the most convincing. At the same time it possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time. Consequently the rule confines the use of evidence of this kind to cases in which character is, in the strict sense, in issue and hence deserving of a searching inquiry. When character is used circumstantially and hence occupies a lesser status in the case, proof may be only by reputation and opinion. These latter methods are also available when character is in issue."

With respect to specific instances of conduct and reputation, this treatment is consistent with North Carolina practice. See Brandis on North Carolina Evidence § 110 (1982).

With respect to opinion evidence, the Advisory Committee's Note states:

"In recognizing opinion as a means of proving character, the rule departs from usual contemporary practice in favor of that of an earlier day. See 7 Wigmore § 1986, pointing out that the earlier practice permitted opinion and arguing strongly for evidence based on personal knowledge and belief as contrasted with 'the secondhand, irresponsible product of multiplied guesses and gossip which we term "reputation".' It seems likely that the persistence of reputation evidence is due to its largely being opinion in disguise. Traditionally character has been regarded primarily in moral overtones of good and bad: chaste, peaceable, truthful, honest. Nevertheless, on occasion nonmoral considerations crop up, as in the case of the incompetent driver, and this seems bound to happen increasingly. If character is defined as the kind of person one is, then account must be taken of varying ways of arriving at the estimate. * * * No effective dividing line exists between character and mental capacity, and the latter traditionally has been provable by opinion."

In permitting opinion evidence as a means of proving character, the rule departs from current North Carolina practice. The general practice in this state is to frame questions in terms of reputation. However, if the witness is questioned concerning the "general character" or the "reputation and character" of another person, it is understood that the real subject of inquiry is reputation. State v. King, 224 N.C. 329 (1944); State v. Hicks, 200 N.C. 539 (1933); State v. Cathey, 170 N.C. 794 (1916). Professor Brandis points out that:

"If as e.g., in the initial question in State v. Cathey . . . 'reputation' is entirely omitted from the question, or if the question refers, as in State v. Hicks . . . to 'reputation and character,' the judge and counsel may know that the witness should confine himself to reputation, but, in the absence of further enlightenment, it seems most doubtful that the witness is so legally learned. Therefore, the practical result may well be to admit opinion evidence while giving lip service to the prohibition against it. Since, additionally, as a practical matter, many witnesses will in fact give opinion in answering a question ostensibly calling only for reputation, it seems to the author of this edition that it would be much more realistic for the Court to scrap the present stated rule and frankly admit either opinion or reputation testimony." Stansbury's North Carolina Evidence (Brandis ed.) § 110, at 338, n. 99.

Since Fed. R. Evid. 405 opens up the possibility of proving character by means of expert witnesses, the last sentence was added to subdivision (a) to prohibit expert testimony on character as it relates to the likelihood of whether or not the defendant committed the act he is accused of. This sentence is not intended to exclude expert testimony of a personality or character change as it relates to the issue of damages.

The second sentence of subdivision (a) permits inquiry on cross-examination into relevant specific instances of conduct. The Advisory Committee's Note states:

"According to the great majority of cases, on cross-examination inquiry is allowable as to whether the reputation witness has heard of particular instances of conduct pertinent to the trait in question. * * * The theory is that, since the reputation witness relates what he has heard, the inquiry tends to shed light on the accuracy of his hearing and reporting. Accordingly, the opinion witness would be asked whether he knew, as well as whether he had heard. The fact is, of course, that these distinctions are of slight if any practical significance, and the second sentence of subdivision (a) eliminates them as a factor in formulating questions. This recognition of the propriety of inquiring into specific instances of conduct does not circumscribe inquiry otherwise into the bases of opinion and reputation testimony."

Under current North Carolina practice, inquiry into specific instances of conduct on cross-examination is available only on the cross-examination of the person whose character is in question. Brandis on North Carolina Evidence §§ 111, 115 (1982). It is not permissible in North Carolina to ask a character witness whether he has heard of the person in question having committed a particular act. Id. § 115. However, to some extent the North Carolina rule may be circumvented by cross-examination as to specific traits. Id.

Also, the Advisory Committee's Note states:

"The express allowance of inquiry into specific instances of conduct on cross-examination in subdivision (a) and the express allowance of it as part of a case in chief when character is actually in issue in subdivision (b) contemplate that testimony of specific instances is not generally permissible on the direct examination of an ordinary opinion witness to character. Similarly as to witnesses to the character of witnesses under Rule 608(b). Opinion testimony on direct in these situations ought in general to correspond to reputation testimony as now given, i.e., be confined to the nature and extent of observation and acquaintance upon which the opinion is based. See Rule 701."

Legal Periodicals. - For article, "Issues Once Moot: The Other Evidentiary Objections to the Admission of Exculpatory Polygraph Examinations," see 32 Wake Forest L. Rev. 1045 (1997).

For article, "The Emotional Woman,” see 99 N.C.L. Rev. 1027 (2021).

CASE NOTES

This rule effects a change in the permissible methods of proving character. Subsection (a) of this rule provides that proof of character may be made by testimony as to reputation or by testimony in the form of an opinion. State v. Sidden, 315 N.C. 539, 340 S.E.2d 340 (1986).

Rule 404 Compared. - A criminal defendant is entitled to introduce evidence of his good character, thereby placing his character at issue, and the State in rebuttal can then introduce evidence of defendant's bad character; unlike evidence of prior bad acts being offered under G.S. 8C-1, Rule 404(b), G.S. 8C-1, Rule 405(a) does not contain any time limit or rule regarding remoteness, and the North Carolina Supreme Court has explicitly refused to impose one. State v. Rhue, 150 N.C. App. 280, 563 S.E.2d 72 (2002).

Unlike evidence of prior bad acts being offered under G.S. 8C-1, Rule 404(b), subsection (a) of this rule does not contain any time limit or rule regarding remoteness, and the North Carolina Supreme Court has explicitly refused to impose one; rather, a "relevant" specific instance of conduct under subsection (a) of this rule would be any conduct that rebuts the earlier reputation or opinion testimony offered by the defendant. State v. Hargett, 157 N.C. App. 90, 577 S.E.2d 703 (2003).

Violent Reputation of Victims. - Testimony that murder and assault victims had a bad reputation as violent people who were prone to fight, especially when drunk, was permissible under subsection (a) of this rule and G.S. 8C-1, Rule 404 (a)(2). State v. Shoemaker, 80 N.C. App. 95, 341 S.E.2d 603, cert. denied, 317 N.C. 340, 346 S.E.2d 145 (1986).

Trial court erred by excluding the testimony of three character witnesses pertaining to the victim's past specific instances of violent conduct because the testimony was permitted under this section as defendant claimed he acted in self-defense, and the exclusion of the evidence denied defendant his constitutional right to present a complete defense. State v. Bass, 253 N.C. App. 754, 802 S.E.2d 477 (2017), rev'd on other grounds, 371 N.C. 535, 819 S.E.2d 322 (2018).

Because the use of specific instances of past conduct was limited to cases in which character was an essential element of the charge, claim, or defense, the trial court correctly excluded testimony regarding specific prior acts of violence by the victim in defendant's trial for assault with a deadly weapon inflicting serious injury. State v. Bass, 371 N.C. 535, 819 S.E.2d 322 (2018).

Same - Not Relevant Where Victim Unknown. - Defendant did not know victim nor did he know anything about his reputation prior to altercation; thus, evidence of specific instances of victim's violent character was irrelevant in regards to the reasonableness of defendant's apprehension and need to use force, and the trial court properly denied its admission on this basis. State v. Ray, 125 N.C. App. 721, 482 S.E.2d 755 (1997).

In self-defense cases, the victim's character for violence is relevant only as it bears upon the reasonableness of defendant's apprehension and use of force, which are essential elements of the defense of self-defense. Thus, the conduct becomes relevant only if defendant knew about it at the time of the shooting. State v. Shoemaker, 80 N.C. App. 95, 341 S.E.2d 603, cert. denied, 317 N.C. 340, 346 S.E.2d 145 (1986).

In self-defense cases, the victim's violent character is relevant only as it relates to the reasonableness of defendant's apprehension and use of force, which are essential elements of self-defense. Thus, the victim's conduct in his relationship with ex-girlfriend became relevant only if defendant knew about it at the time of the shooting. State v. Brown, 120 N.C. App. 276, 462 S.E.2d 655 (1995).

Where defendant argues he acted in self-defense, evidence of the victim's character may be admissible for two reasons: to show defendant's fear or apprehension was reasonable or to show the victim was the aggressor. State v. Ray, 125 N.C. App. 721, 482 S.E.2d 755 (1997).

Cross-Examination as to Specific Instances of Defendant's Conduct. - The second sentence of subsection (a) of this rule represents a departure from prior case law, in that it allows a witness who has given character evidence for the defendant to be cross-examined by the State about relevant specific instances of the defendant's conduct. By enacting this sentence, the legislature adopted the practice applied in most jurisdictions. Prior case law applying the former rule that prohibited the use of specific instances of misconduct to test a character witness' knowledge of the character and reputation of the person about whom he was testifying is no longer authoritative or binding in this regard. State v. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987).

Subsection (a) of this rule allows questions of a character witness on cross-examination concerning specific instances of conduct of the person whose character is in issue. This changes the rule in this State as it existed before the adoption of the Evidence Code. State v. Martin, 322 N.C. 229, 367 S.E.2d 618 (1988).

Although evidence of other acts is not permissible under G.S. 8C-1, N.C. R. Evid. 404(b) to show a propensity for violence solely because a defendant raised the claim of self-defense, such evidence may be used to refute specific evidence of a defendant's credibility under G.S. 8C-1, N.C. R. Evid. 608, when such credibility is at issue (such as when a criminal defendant introduces evidence of his good character, thereby placing his character at issue); when the criminal defendant introduces such evidence, the State in rebuttal can then introduce evidence of defendant's bad character, and under G.S. 8C-1, N.C. R. Evid. 405(a), and the State may do so by cross-examining a defendant's character witnesses as to relevant specific instances of conduct. State v. Ammons, 167 N.C. App. 721, 606 S.E.2d 400 (2005).

Since the defendant's sister gave her opinion as to the character of the defendant, under G.S. 8C-1, N.C. R. Evid. 405(a), the cross-examiner could test that opinion with questioning on specific acts of conduct, such as his threats against the life of the sister, a person with whom he alleged a deep emotional bond; also, since the examination was in the death penalty phase, the State was allowed to present, by competent relevant evidence, any aspect of the defendant's character or record and any of the circumstances of the offense that could substantially support the imposition of the death penalty or that was contrary to the assertion of one of the defendant's proposed mitigating circumstances. State v. Duke, 360 N.C. 110, 623 S.E.2d 11 (2005).

It was not error for witnesses to be cross-examined about whether they knew that defendant had hit or been violent toward his wife where defendant placed his character at issue by having members of his family testify about his reputation for nonviolence or peacefulness. State v. Roseboro, 351 N.C. 536, 528 S.E.2d 1, cert. denied, 531 U.S. 1019, 121 S. Ct. 582, 148 L. Ed. 2d 498 (2000).

When Character Evidence May Be Admitted. - A criminal defendant will be entitled to an instruction on a good character trait as substantive evidence of his innocence when he satisfies the following four-part test: First, the evidence must be of a "trait of character" and not merely evidence of a fact (e.g., "being 'law-abiding' addresses one's character of abiding by all laws, a lack of convictions addresses only the fact that one has not been convicted of a crime"); second, the evidence of the trait must be competent (i.e., in addition to satisfying all other applicable standards, the evidence must be in the proper form as required by this rule); third, the trait must be pertinent (i.e., relevant in the context of the crime charged in that it bears a special relationship to or is involved in such crime); and fourth, the instruction must be requested by the defendant. State v. Moreno, 98 N.C. App. 642, 391 S.E.2d 860 (1990).

Consideration of Defendant's Character Evidence. - When a defendant testifies and also offers evidence of his good character, he is entitled to have the jury consider his character evidence both as bearing upon his credibility as a witness and as substantive evidence bearing directly upon the issue of his guilt or innocence. A court is not required to charge on this feature of the case, however, unless the defendant requests it. State v. Martin, 322 N.C. 229, 367 S.E.2d 618 (1988).

Proffered testimony of defense witness that would have taken the form of an opinion, because it illuminated a pertinent trait of defendant's character, should have been admitted; the testimony did not constitute hearsay and would have revealed a character trait of defendant that was relevant to rebut the State's evidence which raised the implication that defendant declined to swear to his innocence because he knew he was guilty. State v. Powell, 340 N.C. 674, 459 S.E.2d 219 (1995).

In a prosecution for the murder of a child, in which defendant offered evidence of his appropriate behavior around children, while defendant's allegedly peaceable character was pertinent to the charge of first-degree murder, neither his character nor a trait of his character were essential elements of the charge or his defense, so elicitation of evidence about his character during direct testimony had to be accomplished by opinion or reputation testimony rather than specific opinion testimony, pursuant to G.S. 8C-1-404(a)(1) and G.S. 8C-1-405(a). State v. Murphy, 172 N.C. App. 734, 616 S.E.2d 567 (2005).

Indictment May Not Be Used to Impeach. - An indictment's function is not to determine whether a person is guilty of a crime, but rather, to show only that the state's evidence is sufficient to try the defendant. For this reason, it may not be used to impeach a witness. The same considerations apply during the cross-examination of a character witness. State v. Martin, 322 N.C. 229, 367 S.E.2d 618 (1988).

It was error for character witness to be cross-examined about whether he knew that defendant had been charged with selling marijuana in jail. However, the error was not prejudicial where defendant had previously testified that he had grown marijuana. State v. Martin, 322 N.C. 229, 367 S.E.2d 618 (1988).

Rebuttal of Evidence as to Defendant's Character. - Where defendant put his character in issue by having witnesses testify concerning his reputation for peacefulness, and only then did the prosecutor cross-examine the witnesses about specific instances of conduct by defendant in an effort to rebut their prior testimony as to defendant's character for peacefulness, the answers to the prosecutor's questions were properly admitted. State v. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987).

Evidence of a prior alleged rape was offered for impeachment purposes and was admissible to show character witnesses' knowledge of specific instances of defendant's conduct to rebut the witnesses' prior testimony as to defendant's good character. State v. Roper, 328 N.C. 337, 402 S.E.2d 600, cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991).

Although defendant's motion to suppress evidence of his prior conviction for assault with a deadly weapon had been granted, the trial court did not abuse its discretion by permitting the evidence to be admitted where defendant put his character at issue by offering the testimony of two witnesses as to his peaceful nature during the time frame of the conviction. State v. Rhue, 150 N.C. App. 280, 563 S.E.2d 72 (2002).

Cross-examination, which revealed defendant's prior similar crime, was proper under where defendant placed his character at issue; the possibility of prejudice did not substantially outweigh the probative value of the evidence. State v. Hargett, 157 N.C. App. 90, 577 S.E.2d 703 (2003).

Criminal defendant is entitled to introduce evidence of his good character, thereby placing his character at issue, and the State in rebuttal can then introduce evidence of defendant's bad character; under subsection (a) of this rule, the State may do so by cross-examining a defendant's character witnesses as to "relevant specific instances of conduct." State v. Hargett, 157 N.C. App. 90, 577 S.E.2d 703 (2003).

Evidence of Plaintiff's Character in Civil Suit. - In a civil suit for assault and battery, where in addition to pleading self defense and alleging that plaintiff assaulted defendant, defendant sought to cast doubt on plaintiff's truthfulness by rigorously cross-examining him about his version of the incident as well as about specific misdeeds that tended to sully plaintiff's character, plaintiff had a right to attempt to counteract these reflections upon his veracity and character with evidence as to his reputation for truthfulness, and as to his general character. McNeill v. Durham County ABC Bd., 87 N.C. App. 50, 359 S.E.2d 500 (1987), modified on other grounds, 322 N.C. 425, 368 S.E.2d 619, rehearing denied, 322 N.C. 838, 371 S.E.2d 278 (1988).

Character Evidence in Defamation Action. - Because evidence of the "character" of a plaintiff in a defamation action is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. Raymond U v. Duke Univ., 91 N.C. App. 171, 371 S.E.2d 701, cert. denied, 323 N.C. 629, 374 S.E.2d 590 (1988).

Expert Opinion on Credibility. - Subsection (a) of this rule and G.S. 8C-1, Rule 608, read together, forbid an expert's opinion as to the credibility of a witness. State v. Heath, 316 N.C. 337, 341 S.E.2d 565 (1986).

In a prosecution for taking indecent liberties with a child, testimony of two witnesses for the State, a pediatrician and a child psychologist, that in their opinion the child had testified truthfully, did not meet the requirements for expert testimony, as it concerned the credibility of a witness, a field in which jurors are supreme and require no assistance, rather than some fact involving scientific, technical or other specialized knowledge, and as character evidence the testimony violated the provisions of subsection (a) of this rule and G.S. 8C-1, Rule 608. State v. Holloway, 82 N.C. App. 586, 347 S.E.2d 72 (1986).

Testimony of pediatrician that in her opinion the victim of alleged sexual abuse was "believable" was inadmissible under this rule and G.S. 8C-1, Rule 608. State v. Aguallo, 318 N.C. 590, 350 S.E.2d 76 (1986).

Subsection (a) of this rule and G.S. 8C-1, Rule 608, read together, forbid an expert's opinion testimony as to the credibility of a witness. State v. Chul Yun Kim, 318 N.C. 614, 350 S.E.2d 347 (1986); State v. Jenkins, 83 N.C. App. 616, 351 S.E.2d 299 (1986), cert. denied, 319 N.C. 675, 356 S.E.2d 791 (1987).

Testimony of child psychologist as to child rape victim's truthfulness during her evaluation and treatment was not admissible, where her sessions with the child began as a result of the acts which resulted in charges against the defendant and involved psychotherapy to assist the victim in overcoming her negative responses to the incidents, as the question posed by the prosecutor to which this testimony was responsive clearly invoked the psychologist's status as an expert and sought to establish the credibility of the victim as a witness. State v. Chul Yun Kim, 318 N.C. 614, 350 S.E.2d 347 (1986).

In prosecution for taking indecent liberties with children, the trial court committed prejudicial error in allowing a child psychologist to give his expert opinion as to whether children lie about sexual abuse, where his testimony referred in part to the individual witnesses and not just to children in general. State v. Jenkins, 83 N.C. App. 616, 351 S.E.2d 299 (1986), cert. denied, 319 N.C. 675, 356 S.E.2d 791 (1987).

Subsection (a) of this rule and G.S. 8C-1, Rule 608 prohibit the admission of expert testimony on the issue of credibility of a witness. State v. Teeter, 85 N.C. App. 624, 355 S.E.2d 804, writ denied, 320 N.C. 175, 358 S.E.2d 66, appeal dismissed and cert. denied, 320 N.C. 175, 358 S.E.2d 67 (1987), holding, however, that erroneous admission of testimony did not entitle defendant to a new trial absent prejudice.

Expert witness' answer on cross examination that his opinion about "improbability" of hair originating from a source other than defendant was based on nonscientific considerations, addressed credibility of other witnesses and was an expression of opinion as to defendant's guilt and thus violated the Rules of Evidence. State v. Faircloth, 99 N.C. App. 685, 394 S.E.2d 198 (1990).

Expert testimony of credibility of a witness is not admissible. State v. Huang, 99 N.C. App. 658, 394 S.E.2d 279 (1990), vacated in part, 107 N.C. App. 710, 421 S.E.2d 812 (1992).

While it is true that in North Carolina expert testimony on the credibility of a witness is inadmissible, the defendant must show prejudicial error. State v. Davis, 106 N.C. App. 596, 418 S.E.2d 263 (1992), cert. denied, 333 N.C. 347, 426 S.E.2d 710 (1993).

Although Rules 405 and 608, when read together, prohibit an expert witness from commenting on the credibility of another witness, Rule 702 allows expert testimony where the expert's testimony goes to the reliability of a diagnosis and not to the credibility of a victim. State v. Marine, 135 N.C. App. 279, 520 S.E.2d 65 (1999).

Trial court committed plain error in distributing to the jury an expert witness' report prepared following an evaluation of an alleged sexual assault victim, wherein the expert gave the opinion that the victim's disclosure of the alleged sexual assault was credible; the admission of that portion of the report constituted impermissible expert testimony on the credibility of the alleged sexual assault victim's testimony; moreover, because there was no physical evidence of abuse and the State's case was almost entirely dependent on the alleged victim's credibility with the jury, the admission of the statement was plain error. State v. O'Connor, 150 N.C. App. 710, 564 S.E.2d 296 (2002).

Trial court did not err under G.S. 8C-1, N.C. R. Evid. 405 and G.S. 8C-1, N.C. R. Evid. 608 in allowing an expert witness to testify as to the credibility of a minor victim because defendant's cross-examination was designed to elicit the type of response which the expert provided. Therefore, defendant could not contend that the expert's response, which might have rightfully been excluded had it been offered by the State of North Carolina, unfairly prejudiced defendant and warranted a new trial. State v. Crocker, 197 N.C. App. 358, 676 S.E.2d 658 (2009).

Trial court did not plainly err by admitting an expert witness's testimony opining that the victim's disclosure of sexual abuse by defendant supported the physical findings because the witness did not vouch for the victim's credibility, as she testified that her findings were consistent with blunt force trauma but refused to make a more specific characterization of the victim's injuries and acknowledged that blunt force trauma could have come from a number of sources. State v. Watts, 246 N.C. App. 737, 783 S.E.2d 266 (2016), modified and aff'd, 802 S.E.2d 905, 2017 N.C. LEXIS 553 (N.C. 2017); appeal dismissed, writ granted, 855 S.E.2d 303, 2021 N.C. App. LEXIS 70 (N.C. Ct. App. 2021).

Expert Opinion on Witness's Procedures. - The court rightfully refused the testimony of defendant's expert, a private detective and retired police officer of 30 years, where the jury was perfectly capable of judging the improper methods and procedures used by the undercover narcotics officer without the assistance of the expert; the testimony was irrelevant, had insufficient probative value on the facts to be proved, and violated the rule prohibiting expert testimony as to witness credibility, G.S. 8C-1, Rules 405(a) and 608, as read together. State v. Mackey, 352 N.C. 650, 535 S.E.2d 555 (2000).

Expert Testimony Held Not Expression of Opinion. - In trial on first-degree rape charges where, when asked to "describe the victim emotionally" during counseling sessions, the victim's counselor, who was qualified as an expert, responded, "Genuine," the witness was testifying that the emotions of the victim during the counseling session were genuine emotions, and was not testifying that she believed what the victim told her was true, nor was she giving her opinion as to the victim's character for truthfulness in general; therefore, such a response was proper. State v. Wise, 326 N.C. 421, 390 S.E.2d 142, cert. denied, 498 U.S. 853, 111 S. Ct. 146, 112 L. Ed. 2d 113 (1990).

Expert's Opinion Held Not Character Evidence. - Expert's opinions related to the state of defendant's marriage, and defendant's attitude toward her husband and marriage did not meet the definition of character evidence. State v. Theer, 181 N.C. App. 349, 639 S.E.2d 655 (2007), cert. denied, - U.S. - , 128 S. Ct. 2473, 171 L. Ed. 2d 769 (2008).

Opinion and Reputation Evidence on Credibility. - Both opinion and reputation evidence are admissible as evidence pertaining to a witness's credibility under this rule and G.S. 8C-1, Rule 608. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, cert. denied, 320 N.C. 174, 358 S.E.2d 64 (1987).

It was error to exclude opinion testimony of three defense witnesses as to a victim's character for untruthfulness under G.S. 8C-1-405(a) and G.S. 8C-1-608(a) as: (1) a foundation was not required for opinion testimony as to a witness's character for truthfulness or untruthfulness, nor did the victim have to have been shown to have been untruthful on a particular occasion; (2) defendant established that each of the three defense witnesses had personal knowledge of the victim and that each of the them had formed an opinion as to her character for truthfulness or untruthfulness; and (3) the defense witnesses testified to having personal knowledge of the victim and to having formed an opinion as to the victim's character for untruthfulness. State v. Valdez-Hernendez, 184 N.C. App. 344, 646 S.E.2d 579 (2007).

Defendant was entitled to a new trial due to the improper exclusion of opinion testimony as to the truthfulness or untruthfulness of a victim under G.S. 8C-1-405(a) and G.S. 8C-1-608(a) as defendant was prejudiced under G.S. 15A-1443(a) since: (1) the state's case rested almost exclusively on the victim's testimony; (2) because the victim did not report the alleged rape until over two weeks after the night of the incident, and defendant admitted to having consensual sexual intercourse with the victim; and (3) the credibility of the victim was of significant probative value. State v. Valdez-Hernendez, 184 N.C. App. 344, 646 S.E.2d 579 (2007).

Admission of Expert Opinion, Although Error, Not Prejudicial. - In trial of defendant accused of his wife's murder, trial court erred, under section (a) of this rule, in admitting expert psychiatrist's opinion that victim was not homicidal; however, defendant did not show that this amounted to prejudicial error under G.S. 15A-1443(a). State v. Mixion, 110 N.C. App. 138, 429 S.E.2d 363, cert. denied, 334 N.C. 437, 433 S.E.2d 183 (1993).

Testimony Relating to Defendant's Mental Condition Not Character Evidence. - Court erred in excluding doctor's testimony that related to psychological factors affecting the defendant's mental condition on the basis that it was testimony on character. State v. Baldwin, 125 N.C. App. 530, 482 S.E.2d 1 (1997), cert. granted, 345 N.C. 756, 485 S.E.2d 299 (1997), discretionary review improvidently allowed, 347 N.C. 348, 492 S.E.2d 354 (1997).

Credibility of Children Who Report Abuse. - In trial for sexual offenses committed against mentally retarded victim who functioned at an eight to ten year old level, expert testimony as to the general credibility of children who report sexual abuse was not excluded by this rule. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, cert. denied, 320 N.C. 174, 358 S.E.2d 64 (1987).

Psychologist's testimony that child victim responded to test questions in an "honest fashion . . . admitting that she was in a fair amount of emotional distress" did not constitute an expert opinion as to her character or credibility, but was merely a statement of opinion by a trained professional, based upon personal knowledge and professional expertise, that the test results were reliable because the victim seemed to respond to the questions in an honest fashion. State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987).

Continued Cooperation of Child with Abuser. - In a prosecution in which defendant was convicted of taking indecent liberties with a minor, testimony of social worker and pediatrician as to a child's continued cooperation with a person whom the child has accused of sexual abuse was specialized knowledge, helpful to the jury and well within the fields of expertise of the two witnesses, and as defendant had "opened the door" for this evidence by cross-examining child victim about going to barn alone with defendant after she admitted she was afraid of defendant and did not like to be alone with him, it was also admissible expert testimony that corroborated the testimony of the state's prosecuting witness. State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651 (1988).

History of Fantasizing or Fabricating. - In prosecution for second-degree rape and sexual offense, the trial court erred in permitting the prosecutor to pose a question to an expert in clinical psychology regarding whether the 13-year-old victim had a mental condition which would cause her to fabricate a story about the sexual assault. State v. Heath, 316 N.C. 337, 341 S.E.2d 565 (1986).

Question asked of expert as to whether or not mentally retarded adult who had been sexually assaulted had any mental condition which would generally affect her ability to distinguish reality from fantasy was within the scope of the expert witness' expertise and did not amount to an impermissible opinion with respect to defendant's guilt or innocence. State v. Teeter, 85 N.C. App. 624, 355 S.E.2d 804, writ denied, 320 N.C. 175, 358 S.E.2d 66, appeal dismissed and cert. denied, 320 N.C. 175, 358 S.E.2d 67 (1987).

Failure to Object to Expert Opinion on Credibility. - Defense counsel's failure to object to a social worker's testimony that child/victim's statements were believable did not constitute ineffective assistance of counsel, where testimony was elicited by defense counsel in an effort to show that child's sexual knowledge resulted from a prior incident of sexual abuse. State v. Pretty, 134 N.C. App. 379, 517 S.E.2d 677, cert. denied, appeal dismissed, 351 N.C. 117, 540 S.E.2d 745 (1999).

Prostitution Cases. - Under North Carolina common law, evidence of other crimes is generally inadmissible, subject to certain well-defined exceptions. Section 14-206, pertaining to reputation and prior convictions in prosecutions for prostitution, represents a legitimate legislative decision to broaden such rules. The statute does not, of course, relieve the State of its burden of coming forward and proving its case beyond a reasonable doubt. Nor does the statute provide an "open door" for any evidence of other crimes or reputation. The legislature did not intend thereby to remove entirely the trial judge's discretion to exclude irrelevant evidence. Evidence proffered on the State's case in chief under G.S. 14-206 must remain relevant to the issues at hand. State v. Evans, 73 N.C. App. 214, 326 S.E.2d 303 (1985).

Statement Not Admissible. - Witness's statement that defendant had been in trouble with the law from the time that he was twelve years old was not admissible under either subsection (a) of this rule or Rule 608(a). State v. Hunt, 339 N.C. 622, 457 S.E.2d 276 (1994).

Certified Copies of Prior Convictions Inadmissible. - In a murder action, certified copies of the victim's prior convictions were not admissible under G.S. 8C-1, N.C. R. Evid. 405, because defendant failed to demonstrate that the victim's dangerousness was an essential element of a defense. State v. Jacobs, 195 N.C. App. 599, 673 S.E.2d 724 (2009), aff'd, 363 N.C. 815, 689 S.E.2d 859, 2010 N.C. LEXIS 195 (2010).

Testimony Regarding Prior Incarceration Inadmissible. - Evidence of defendant's prior incarceration constituted inadmissible character evidence that prejudiced his defense because the State improperly elicited that evidence to show defendant's propensity to commit the drug crimes for which he was on trial; the State could not purport to rebut the testimony of defendant's girlfriend with bad character evidence as she did not testify as to defendant's reputation for being law-abiding; and there was a reasonable possibility that, had the error not been committed, the jury would have reached a different result, as the evidence against defendant was largely circumstantial, and a jury could have reasonably concluded that the marijuana and cocaine were attributable to defendant's roommates. State v. Rios, 251 N.C. App. 318, 795 S.E.2d 234 (2016).

Evidence Inadmissible. - Evidence concerning the victim's gang membership, his possession of firearms, and his tattoo did not involve specific instances of conduct that were admissible under this rule, and therefore the trial court did not err by excluding the evidence. State v. Greenfield, 262 N.C. App. 631, 822 S.E.2d 477 (2018), aff'd, rev'd, in part, remanded, 2020 N.C. LEXIS 841 (N.C. 2020).

Applied in State v. Britt, 93 N.C. App. 126, 377 S.E.2d 79 (1989); State v. Garner, 330 N.C. 273, 410 S.E.2d 861 (1991); State v. Cummings, 332 N.C. 487, 422 S.E.2d 692 (1992); State v. Richardson, 346 N.C. 520, 488 S.E.2d 148 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 652 (1998); State v. Belfield, 144 N.C. App. 320, 548 S.E.2d 549 (2001); State v. O'Hanlan, 153 N.C. App. 546, 570 S.E.2d 751 (2002), cert. denied, 358 N.C. 158, 593 S.E.2d 397 (2004); State v. Thaggard, 168 N.C. App. 263, 608 S.E.2d 774 (2005); State v. Jacobs, 363 N.C. 815, 689 S.E.2d 859 (2010).

Cited in State v. Peek, 313 N.C. 266, 328 S.E.2d 249 (1985); State v. Hannah, 316 N.C. 362, 341 S.E.2d 514 (1986); State v. Bogle, 324 N.C. 190, 376 S.E.2d 745 (1989); State v. Hall, 98 N.C. App. 1, 390 S.E.2d 169 (1990); State v. Gibson, 333 N.C. 29, 424 S.E.2d 95 (1992); Pinckney v. Van Damme, 116 N.C. App. 139, 447 S.E.2d 825 (1994); State v. Jones, 339 N.C. 114, 451 S.E.2d 826 (1994); State v. Roten, 115 N.C. App. 118, 443 S.E.2d 794 (1994); State v. Baymon, 336 N.C. 748, 446 S.E.2d 1 (1994); State v. Call, 349 N.C. 382, 508 S.E.2d 496 (1998); State v. Browning, 177 N.C. App. 487, 629 S.E.2d 299 (2006); State v. Register, 206 N.C. App. 629, 698 S.E.2d 464 (2010); State v. Horskins, 228 N.C. App. 217, 743 S.E.2d 704 (2013), review denied 367 N.C. 273, 752 S.E.2d 481, 2013 N.C. LEXIS 1439 (2013); State v. Walston, 229 N.C. App. 141, 747 S.E.2d 720 (2013), review denied 753 S.E.2d 666, 2014 N.C. LEXIS 28 (2014), rev'd 367 N.C. 721, 766 S.E.2d 312, 2014 N.C. LEXIS 953 (2014); State v. Taylor, 238 N.C. App. 159, 767 S.E.2d 585 (2014).


Rule 406. Habit; routine practice.

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 406.

The Advisory Committee's Note states:

"An oft-quoted paragraph, McCormick § 162, p. 340, describes habit in terms effectively contrasting it with character.

'Character and habit are close akin. "Character" is a generalized description of one's disposition, or of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness. "Habit," in modern usage, both lay and psychological, is more specific. It describes one's regular response to a repeated specific situation. If we speak of character for care, we think of the person's tendency to act prudently in all the varying situations of life, in business, family life, in handling automobiles and in walking across the street. A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic.'

Equivalent behavior on the part of a group is designated 'routine practice of an organization' in the rule.

Agreement is general that habit evidence is highly persuasive as proof of conduct on a particular occasion. Again quoting McCormick § 162, p. 341:

'Character may be thought of as the sum of one's habits though doubtless it is more than this. But unquestionably the uniformity of one's response to habit is far greater than the consistency with which one's conduct conforms to character or disposition. Even though character comes in only exceptionally as evidence of an act, surely any sensible man in investigating whether X did a particular act would be greatly helped in his inquiry by evidence as to whether he was in the habit of doing it.'

When disagreement has appeared, its focus has been upon the question what constitutes habit, and the reason for this is readily apparent. The extent to which instances must be multiplied and consistency of behavior maintained in order to rise to the status of habit inevitably gives rise to difference of opinion. Lewan, Rationale of Habit Evidence, 16 Syracuse L.Rev. 39, 49 (1964). While adequacy of sampling and uniformity of response are key factors, precise standards for measuring their sufficiency for evidence purposes cannot be formulated.

The rule is consistent with prevailing views. Much evidence is excluded simply because of failure to achieve the status of habit. Thus, evidence of intemperate 'habits' is generally excluded when offered as proof of drunkenness in accident cases, Annot., 46 A.L.R.2d 103, and evidence of other assaults is inadmissible to prove the instant one in a civil assault action, Annot., 66 A.L.R.2d 806. In Levin v. United States, 119 U.S.App. D.C. 156, 338 F.2d 265 (1964), testimony as to the religious 'habits' of the accused, offered as tending to prove that he was at home observing the Sabbath rather than out obtained money through larceny by trick, was held properly excluded:

'It seems apparent to us that an individual's religious practices would not be the type of activities which would lend themselves to the characterization of "invariable regularity." (1 Wigmore 520.) Certainly the very volitional basis of the activity raises serious questions as to its invariable nature, and hence its probative value.' Id. at 272.

These rulings are not inconsistent with the trend towards admitting evidence of business transactions between one of the parties and a third person as tending to prove that he made the same bargain or proposal in the litigated situation. Slough, Relevancy Unraveled, 6 Kan.L.Rev. 38-41 (1957). Nor are they inconsistent with such cases as Whittemore v. Lockheed Aircraft Corp., 65 Cal.App.2d 737, 151 P.2d 670 (1944), upholding the admission of evidence that plaintiff's intestate had on four other occasions flown planes from defendant's factory for delivery to his employer airline, offered to prove that he was piloting rather than a guest on a plane which crashed and killed all on board while en route for delivery.

A considerable body of authority has required that evidence of the routine practice of an organization be corroborated as a condition precedent to its admission in evidence. Slough, Relevancy Unraveled, 5 Kan.L.Rev. 404, 449 (1957). This requirement is specifically rejected by the rule on the ground that it relates to the sufficiency of the evidence rather than admissibility. * * * The rule also rejects the requirement of the absence of eyewitnesses, sometimes encountered with respect to admitting habit evidence to prove freedom from contributory negligence in wrongful death cases."

Rule 406 is consistent with North Carolina practice. See Brandis on North Carolina Evidence § 95 (1982).

CASE NOTES

Court to Make Inquiries. - This rule permits proof of habit by evidence of specific instances of conduct; before evidence of specific instances of conduct may be admitted to prove habit, however, the trial court must make certain inquiries to determine the reliability and probative value of the proffered evidence. Crawford v. Fayez, 112 N.C. App. 328, 435 S.E.2d 545 (1993), cert. denied, 335 N.C. 553, 441 S.E.2d 113 (1994).

Witness Held Competent to Testify as to Routine Practice. - Defendant-employer's corporate safety specialist was competent to testify concerning the routine practice of the defendant-employer in removing asbestos pursuant to this rule, even though the witness was not actually present at the jobsite where plaintiff worked. Barber v. Babcock & Wilcox Constr. Co., 98 N.C. App. 203, 390 S.E.2d 341 (1990), rev'd on other grounds on rehearing, 101 N.C. App. 564, 400 S.E.2d 735, cert. granted, 328 N.C. 569, 403 S.E.2d 506 (1991).

Witness testimony as to the customary procedures followed in administering tests using the Breathalyzer model 900 machine was sufficient, and properly admitted under this rule, to prove defendant's test was administered in accordance with "approved methods," required by G.S. 20-139.1, where copies of the actual test and the arresting officer's personal notes concerning the case had been discarded as customary after approximately five years. State v. Tappe, 139 N.C. App. 33, 533 S.E.2d 262 (2000).

Admission of Testimony Properly Denied. - The trial court did not abuse its discretion in refusing to admit habit evidence under this section given the vague and imprecise nature of the witness's testimony regarding defendant's speed (defendant was driving "'wide open as usual") and the witness's potential, albeit understandable, interest in the outcome of the case as the son of plaintiffs. Long v. Harris, 137 N.C. App. 461, 528 S.E.2d 633 (2000).

The trial court did not abuse its discretion in denying admissibility of evidence of a victim's prior assault which the defendant claimed the victim fabricated so as to obtain a pregnancy test and which he wanted to introduce to demonstrate "habit" where it noted that the "two incidents" occurring "two years apart" were not sufficient to constitute a habit within the meaning of this rule. State v. Chavis, 141 N.C. App. 553, 540 S.E.2d 404 (2000).

Where defendant claimed to have met murder victim in an adult video store the night of the murder, and defendant attempted to introduce evidence that the victim had visited adult-oriented establishments two or three times per month, the trial court properly excluded the evidence; occasional visits did not constitute relevant evidence of habit. State v. Fair, 354 N.C. 131, 552 S.E.2d 568 (2001).

Testimony Held Admissible. - It was not error to allow the decedent's sister to testify that she was familiar with the decedent's habit of keeping money and always having on her person from twenty to forty dollars. State v. Palmer, 334 N.C. 104, 431 S.E.2d 172 (1993).

Trial court did not err in admitting testimony relating to plaintiff's prior course of conduct involving alcohol, marijuana, and automobiles where the habit evidence was not admitted to prove that plaintiff was drinking on the night in question, but that plaintiff had a habit of engaging in the above-described behavior, and that his conduct on the night in question was willful or wanton, in conformity with the habit. Anderson v. Austin, 115 N.C. App. 134, 443 S.E.2d 737, cert. denied, 338 N.C. 514, 452 S.E.2d 806 (1994).

Cited in State v. Griffin, 136 N.C. App. 531, 525 S.E.2d 793 (2000); Kilgo v. Wal-Mart Stores, Inc., 138 N.C. App. 644, 531 S.E.2d 883 (2000); State v. Anthony, 354 N.C. 372, 555 S.E.2d 557 (2001); State v. Perry, 159 N.C. App. 30, 582 S.E.2d 708 (2003), cert. denied, 357 N.C. 510, 588 S.E.2d 469 (2003); Schmidt v. Petty, 231 N.C. App. 406, 752 S.E.2d 690 (2013).


Rule 407. Subsequent remedial measures.

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if those issues are controverted, or impeachment.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 407 except that the phrase "those issues are" has been inserted to clarify what must be controverted.

The Advisory Committee's Note states:

"The rule incorporates conventional doctrine which excludes evidence of subsequent remedial measures as proof of an admission of fault. The rule rests on two grounds. (1) The conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence. Or, as Baron Bramwell put it, the rule rejects the notion that 'because the world gets wiser as it gets older, therefore it was foolish before'. Hart v. Lancashire & Yorkshire Ry. Co., 21 L.T.R.N.S. 261, 263 (1869). Under a liberal theory of relevancy this ground alone would not support exclusion as the inference is still a possible one. (2) The other, and more impressive, ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety. The courts have applied this principle to exclude evidence of subsequent repairs, installation of safety devices, changes in company rules, and discharge of employees, and the language of the present rule is broad enough to encompass all of them. See Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L.Rev. 574, 590 (1956).

The second sentence of the rule directs attention to the limitations of the rule. Exclusion is called for only when the evidence of subsequent remedial measures is offered as proof of negligence or culpable conduct. In effect it rejects the suggested inference that fault is admitted. Other purposes are, however, allowable, including ownership or control, existence of duty, and feasibility of precautionary measures, if controverted, and impeachment. 2 Wigmore § 283; Annot., 64 A.L.R.2d 1296. Two recent federal cases are illustrative. Boeing Airplane Co. v. Brown, 291 F.2d 310 (9th Cir. 1961), an action against an airplane manufacturer for using an allegedly defectively designed alternator shaft which caused a plane crash, upheld the admission of evidence of subsequent design modification for the purpose of showing that design changes and safeguards were feasible. And Powers v. J. B. Michael & Co., 329 F.2d 674 (6th Cir. 1964), an action against a road contractor for negligent failure to put out warning signs, sustained the admission of evidence that defendant subsequently put out signs to show that the portion of the road in question was under defendant's control. The requirement that the other purpose be controverted calls for automatic exclusion unless a genuine issue be present and allows the opposing party to lay the groundwork for exclusion by making an admission. Otherwise the factors of undue prejudice, confusion of issues, misleading the jury, and waste of time remain for consideration under Rule 403."

The increasing tendency of federal courts is to hold that Rule 407 is not applicable to product liability cases. North Carolina courts have applied the rule excluding evidence of subsequent remedial measures in product liability cases. See Jenkins v. Helgren, 26 N.C. App. 653 (1975). It is the intent of the Committee that the rule should apply to all types of actions.

Rule 407 is consistent with North Carolina practice. See Brandis on North Carolina Evidence § 180 (1982).

CASE NOTES

Measures Taken to Assess Reasonableness of Conduct. - In a negligence action, trial court did not commit prejudicial error in admitting evidence concerning a subsequent accident in which, on the day after the accident in question, officers and employees of defendant employer, in an attempt to assess the safety and reasonableness of defendant employee's actions, placed another garbage truck of similar size and weight in the same location as the truck driven by defendant employee the day before, at the same time of day and where a car driven in an easterly direction collided with the right front portion of the truck; this rule excludes evidence of measures taken after an event which would have made the event less likely to occur, and there was no evidence that the actions taken by defendant were remedial in nature. Smith v. Pass, 95 N.C. App. 243, 382 S.E.2d 781 (1989).

Evidence of subsequent remedial measures in the form of written instructions to security guards was properly excluded since it could not be used to impeach testimony that there was no reason to lock the front door of the restaurant and since its probative value tended to be outweighed by the danger of unfair prejudice. Benton v. Hillcrest Foods, Inc., 136 N.C. App. 42, 524S.E.2d 53 (1999).

Measures Taken by Another. - In action against motel by guest who was criminally assaulted by third parties, admission of the testimony of another motel operator as to security measures that he took after the incident involving plaintiff at defendants' motel did not violate this rule. Murrow v. Daniels, 85 N.C. App. 401, 355 S.E.2d 204 (1987), rev'd on other grounds, 321 N.C. 494, 364 S.E.2d 392 (1988).

Evidence of Control and Feasibility of Precautionary Measures. - Where general contractor repeatedly argued that it had no control of a construction site on the day of the subject accident, the measures taken by it, immediately following decedent's death, to cover floor openings, were admissible to rebut this contention and to demonstrate the feasibility of taking precautionary measures. Lane v. R.N. Rouse & Co., 135 N.C. App. 494, 521 S.E.2d 137 (1999).

Evidence Inadmissible. - Interrogatory answer detailing the steps a board of education took in response to an accident in which a child fell through the bleachers was inadmissible under G.S. 8C-1, N.C. R. Evid. 407 as a guardian was relying on the subsequent measures to prove the board's negligence. Davis v. Cumberland County Bd. of Educ., 217 N.C. App. 582, 720 S.E.2d 418 (2011).

Actions Held to be Subsequent Remedial Measures. - Assistant division traffic engineer's notes were a subsequent remedial measure because they were made after the traffic collision at issue, and in the post-accident report the engineer made a professional recommendation to move the stop sign, which "would have made the event less likely to occur" if it had been made before the accident and in conjunction with actual movement of the sign. Holland v. French, - N.C. App. - , - S.E.2d - (Sept. 1, 2020).

Evidence Admissible. - Impeachment exception to this rule applied, and therefore the decedent's impeachment of an assistant division traffic engineer with his report, which stated that the stop sign at the intersection where the accident occurred was "too far out" and needed to be "moved in closer" to the road "for better sight distance," was relevant to show a defect in the engineer's perception, memory, and narration, as well as the veracity of his testimony on direct examination. Holland v. French, - N.C. App. - , - S.E.2d - (Sept. 1, 2020).

Applied in McClain v. Otis Elevator Co., 106 N.C. App. 45, 415 S.E.2d 78 (1992); Smith v. North Carolina Dep't of Natural Resources & Community Dev., 112 N.C. App. 739, 436 S.E.2d 878 (1993); Monson v. Paramount Homes, Inc., 133 N.C. App. 235, 515 S.E.2d 445 (1999).

Cited in Klassette ex rel. Klassette v. Mecklenburg County Area Mental Health, Mental Retardation & Substance Abuse Auth., 88 N.C. App. 495, 364 S.E.2d 179 (1988).


Rule 408. Compromise and offers to compromise.

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or evidence of statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 408 except that the words "evidence of" were added to the second sentence. The addition is for the purpose of clarification and is not intended as a material change. The Advisory Committee's Note states:

"As a matter of general agreement, evidence of an offer to compromise a claim is not receivable in evidence as an admission of, as the case may be, the validity or invalidity of the claim. As with evidence of subsequent remedial measures, dealt with in Rule 407, exclusion may be based on two grounds. (1) The evidence is irrelevant, since the offer may be motivated by a desire for peace rather than from any concession of weakness of position. The validity of this position will vary as the amount of the offer varies in relation to the size of the claim and may also be influenced by other circumstances. (2) A more consistently impressive ground is promotion of the public policy favoring the compromise and settlement of disputes. McCormick §§ 76, 251. While the rule is ordinarily phrased in terms of offers of compromise, it is apparent that a similar attitude must be taken with respect to completed compromise when offered against a party thereto. This latter situation will not, of course, ordinarily occur except when a party to the present litigation has compromised with a third person."

North Carolina practice is consistent with Rule 408 in that an offer of compromise, as such, is not admissible to prove liability for or invalidity of a claim or its amount. See Brandis on North Carolina Evidence § 180 (1982). The same rule applies to an offer to settle, or the actual settlement of, a third person's claim arising out of the transaction in litigation. Id. at 56. The words "the claim" in the first sentence should be interpreted to include the claim that is the subject of the lawsuit and any other claim arising out of the same occurrence.

The Advisory Committee's Note states:

"The policy considerations which underlie the rule do not come into play when the effort is to induce a creditor to settle an admittedly due amount for a lesser sum. McCormick § 251, p. 540. Hence the rule requires that the claim be disputed as to either validity or amount."

The phrase "which was disputed" should be interpreted consistently with North Carolina decisional law concerning what constitutes a dispute. See Wilson County Board of Education v. Lamm, 276 N.C. 487 (1970).

With respect to the second sentence of the rule, the Advisory Committee's Note states:

"The practical value of the common law rule has been greatly diminished by its inapplicability to admissions of fact, even though made in the course of compromise negotiations, unless hypothetical, stated to be 'without prejudice,' or so connected with the offer as to be inseparable from it. McCormick § 251, pp. 540-541. An inevitable effect is to inhibit freedom of communication with respect to compromise, even among lawyers. Another effect is the generation of controversy over whether a given statement falls within or without the protected area. These considerations account for the expansion of the rule herewith to include evidence of conduct or statements made in compromise negotiations, as well as the offer or completed compromise itself."

Thus Rule 408 changes the current North Carolina practice that allows a "distinct admission of an independent fact" made during compromise negotiations to be received in evidence. See Brandis on North Carolina Evidence § 180, at 56-57 (1982).

Policy reasons for the compromise rule do not apply to evidence discoverable outside of settlement negotiations. Thus the third sentence of Rule 408 states that evidence otherwise discoverable need not be excluded merely because it is presented in compromise discussions. There is not any North Carolina case law on this point.

The Advisory Committee's Note states that:

"The final sentence of the rule serves to point out some limitations upon its applicability. Since the rule excludes only when the purpose is proving the validity or invalidity of the claim or its amount, an offer for another purpose is not within the rule. The illustrative situations mentioned in the rule are supported by the authorities. As to proving bias or prejudice of a witness, see Annot., 161 A.L.R. 395, contra, Fenberg v. Rosenthal, 348 Ill.App. 510, 109 N.E.2d 402 (1952), and negativing a contention of lack of due diligence in presenting a claim, 4 Wigmore § 1061. An effort to 'buy off' the prosecution or a prosecuting witness in a criminal case is not within the policy of the rule of exclusion. McCormick, § 251, p. 542."

The final sentence of the rule is consistent with North Carolina practice in that an offer for a purpose other than to prove the validity or invalidity of the claim or its amount is not within the rule. See Brandis on North Carolina Evidence § 180, at 55, 56 (1982).

Legal Periodicals. - For comment, "An End to Settlement on the Courthouse Steps? Mediated Settlement Conferences in North Carolina Superior Courts," see 71 N.C.L. Rev. 1857 (1993).

CASE NOTES

This rule does not apply unless there is an existing dispute when offer to compromise a claim which is disputed is made. Marina Food Assocs. v. Marina Restaurant, Inc., 100 N.C. App. 82, 394 S.E.2d 824 (1990).

Evidence of a Contract of Compromise. - While evidence of either an offer or an acceptance of consideration in compromising or attempting to compromise a disputed claim is not admissible to prove liability for or invalidity of the claim, evidence admitted under this rule of a contract of compromise between the parties to a suit, whether or not performed, is admissible. Carter v. Foster, 103 N.C. App. 110, 404 S.E.2d 484 (1991).

Failure to Object at Trial. - Even if affidavits of two defendants contained evidence of settlement negotiations made inadmissible by this rule incompetent to support defendants' motions for summary judgment, plaintiff's failure to move to strike the affidavits prohibited plaintiff from asserting their admission as error on appeal. Lindsey v. North Carolina Farm Bureau Mut. Ins. Co., 103 N.C. App. 432, 405 S.E.2d 803 (1991).

Exclusion of Evidence Otherwise Discoverable Not Proper. - Although this rule provides that evidence of conduct or statements made in compromise negotiations is inadmissible, this rule does not require the exclusion of evidence that is otherwise discoverable or offered for another purpose, merely because it is presented in the course of compromise negotiations. Renner v. Hawk, 125 N.C. App. 483, 481 S.E.2d 370 (1997), cert. denied, 346 N.C. 283, 487 S.E.2d 553 (1997).

Evidence Held Admissible. - Admission into evidence of defendants' offer of $150,000 to plaintiff to terminate lease, which was an effort on part of defendant to satisfy a condition of sale of restaurant property, was not violative of G.S. 8C-1, Rule 408, nor was it barred by G.S. 8C-1, Rule 402, as offer was evidence of value of lease and was therefore relevant to issue of damages. Marina Food Assocs. v. Marina Restaurant, Inc., 100 N.C. App. 82, 394 S.E.2d 824 (1990).

The trial judge properly determined that admitted portions of an answering machine message and a subsequent conversation between the plaintiff mother of a boy injured on an amusement ride and the deceased defendant ride operator in which defendant admitted the possibility that he had not fastened the boy properly were not part of settlement negotiations; there was no mention of an intent to compromise or negotiate in the admitted portions of the conversation and the testimony was an admission of fact during a telephone conversation initiated by a party to the dispute. Breedlove v. Aerotrim, U.S.A., Inc., 142 N.C. App. 447, 543 S.E.2d 213 (2001).

Deputy commissioner in workers' compensation proceeding properly allowed evidence of the existence of a claims adjuster's form, which contained an offer to pay compensation, that was sent to the injured worker's counsel to be introduced as rebuttal after the injured worker claimed the insurance company refused to pay according to the treating physician's evaluation. Hawley v. Wayne Dale Constr., 146 N.C. App. 423, 552 S.E.2d 269 (2001).

Harmless Error. - The admission of offers of compromise to boost defendant's argument that decedent intended for home listed in her daughter's name to belong to her constituted harmless error where an abundance of evidence otherwise supported the decedent's intent to treat the property as a gift. Tucker v. Westlake, 136 N.C. App. 162, 523 S.E.2d 139 (1999).

Evidence Held Inadmissible. - In a medical malpractice case, evidence of the plaintiffs' separate lawsuit against a different defendant, which had been dismissed, was irrelevant under G.S. 8C-1, Rule 402, and its admission contravened the strong public policy favoring settlement of controversies out of court. Cates v. Wilson, 83 N.C. App. 448, 350 S.E.2d 898 (1986), modified, 321 N.C. 1, 361 S.E.2d 734 (1987).

Use of Statements Made During Compromise Negotiations to Support Separate Claim. - While affidavit of plaintiff's attorney containing statements made during negotiations between a member and the board of a voluntary association could not be offered up to prove plaintiff's innocence of the charges against her, they could support a distinct and separate claim for damages on the ground that she was denied a fair hearing by an impartial board. Wilson Realty & Constr., Inc. v. Asheboro-Randolph Bd. of Realtors, Inc., 134 N.C. App. 468, 518 S.E.2d 28 (1999).

Applied in State v. Holder, 331 N.C. 462, 418 S.E.2d 197 (1992).

Cited in Ryals v. Hall-Lane Moving & Storage Co., 122 N.C. App. 134, 468 S.E.2d 69 (1996); Faucette v. 6303 Carmel Rd., LLC, 242 N.C. App. 267, 775 S.E.2d 316 (2015).


Rule 409. Payment of medical and other expenses.

Evidence of furnishing or offering or promising to pay medical, hospital, or other expenses occasioned by an injury is not admissible to prove liability for the injury.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 409, except that the phrase "other expenses" has been established for the phrase "similar expenses."

The Advisory Committee's Note states:

"The considerations underlying this rule parallel those underlying Rules 407 and 408, which deal respectively with subsequent remedial measures and offers of compromise. As stated in Annot., 20 A.L.R.2d 291, 293:

'[G]enerally, evidence of payment of medical, hospital, or similar expenses of an injured party by the opposing party, is not admissible, the reason often given being that such payment or offer is usually made from humane impulses and not from an admission of liability, and that to hold otherwise would tend to discourage assistance to the injured person.' "

Under current North Carolina law, rendering aid to an injured person or promising to render aid is not an admission of fault.

Rule 409 does not cover rendering aid but does not change existing North Carolina law that rendering aid to an injured person or promising to render aid is not an admission of fault. Brandis on North Carolina Evidence § 180, at 58 (1982).

Unlike the federal rule, which applies to "medical, hospital, or similar expenses," this rule applies to "medical, hospital, or other expenses." The phrase "other expenses" is intended to include, but is not limited to, lost wages and damage to property. The phrase "occasioned by an injury" is intended to include a property injury as well as a personal injury. The rule's coverage of nonmedical expenses occasioned by either a personal or property injury is an expansion of the current North Carolina rule. See Id. However, this rule is intended to apply only to tort claims and not to claims in other actions such as child support.

Rule 409 is consistent with North Carolina practice in that evidence inadmissible under the rule to prove liability may be admissible for another purpose. See Id. § 180, at 58-59 (1982). The rule is also consistent with North Carolina practice in that it does not bar evidence of conduct and statements outside of the simple act of furnishing or offering to pay medical expenses. As the Advisory Committee's Note states:

"Contrary to Rule 408, dealing with offers of compromise, the present rule does not extend to conduct or statements not a part of the act of furnishing or offering or promising to pay. This difference in treatment arises from fundamental differences in nature. Communication is essential if compromises are to be effected, and consequently broad protection of statements is needed. This is not so in cases of payments or offers or promises to pay medical expenses, where factual statements may be expected to be incidental in nature."

Rule 410. Inadmissibility of pleas, plea discussions, and related statements.

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible for or against the defendant who made the plea or was a participant in the plea discussions:

  1. A plea of guilty which was later withdrawn;
  2. A plea of no contest;
  3. Any statement made in the course of any proceedings under Article 58 of Chapter 15A of the General Statutes or comparable procedure in district court, or proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable procedure in another state, regarding a plea of guilty which was later withdrawn or a plea of no contest;
  4. Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 410, except as noted below.

The Advisory Committee's Note states:

"Withdrawn pleas of guilty were held inadmissible in federal prosecutions in Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L. Ed. 1009 (1927). The Court pointed out that to admit the withdrawn plea would effectively set at naught the allowance of withdrawal and place the accused in a dilemma utterly inconsistent with the decision to award him a trial. The New York Court of Appeals, in People v. Spitaleri, 9 N.Y.2d 168, 212 N.Y.S.2d 53, 173 N.E.2d 35 (1961), reexamined and overturned its earlier decisions which had allowed admission. In addition to the reasons set forth in Kercheval, which was quoted at length, the court pointed out that the effect of admitting the plea was to compel defendant to take the stand by way of explanation and to open the way for the prosecution to call the lawyer who had represented him at the time of entering the plea. State court decisions for and against admissibility are collected in Annot., 86 A.L.R.2d 326."

Subsection (2), regarding pleas of no contest is the same as the federal rule and is consistent with North Carolina law. Brandis on North Carolina Evidence § 177, at 41, 42 (1982).

The third paragraph differs from Fed. R. Evid. 410 by making a reference to Article 58 of General Statutes Chapter 15A, which specifies the procedure relating to guilty pleas in superior court. The third paragraph also refers to comparable procedures in district court, although no statutory scheme regulates plea negotiations in district court. See Official Commentary to Ch. 15A, Art. 58.

Prior to the 1979 amendments to Fed. R. Evid. 410 and Fed. R. Crim. P. 11(e)(6), it was questionable whether an otherwise voluntary admission to law enforcement officials was rendered inadmissible merely because it was made in hope of obtaining leniency by a plea. The Notes of the Advisory Committee on the amendment to Fed. R. Crim. P. 11(e)(6) state that the rule:

"makes inadmissible statements made 'in the course of any proceedings under this rule regarding' either a plea of guilty later withdrawn or a plea of no contest later withdrawn and also statements 'made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.' It is not limited to statements by the defendant himself, and thus would cover statements by defense counsel regarding defendant's incriminating admissions to him. It thus fully protects the plea discussion process . . . without attempting to deal with confrontations between suspects and law enforcement agents, which involve problems of quite different dimensions . . .. This change, it must be emphasized, does not compel the conclusion that statements made to law enforcement agents, especially when the agents purport to have authority to bargain, are inevitably admissible. Rather, the point is that such cases . . . must be resolved by that body of law dealing with police interrogations."

If there has been a plea of guilty later withdrawn or a plea of no contest, the third paragraph of Rule 410 makes inadmissible statements made in the course of any proceedings relating to guilty pleas in the superior or district courts. This includes, for example, admissions by the defendant when he makes his plea in court and also admissions made to provide the factual basis for the plea. However, the rule is not limited to statements made in court. If the court were to defer its decision on a plea agreement pending examination of the presentence report, statements made to the probation officer in connection with the preparation of that report would come within the third paragraph. See Notes of Advisory Committee on the Amendment to Fed. R. Crim. P. 11(e)(6).

The last sentence of Rule 410 provides an exception to the general rule of nonadmissibility of the described statements. Such a statement is admissible "in any proceedings wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it."

". . . when evidence of statements made in the course of or as consequence of a certain plea or plea discussions are introduced under circumstances not prohibited by this rule (e.g., not 'against' the person who made the plea), other statements relating to the same plea or plea discussions may also be admitted when relevant to the matter at issue. For example, if a defendant upon a motion to dismiss a prosecution on some ground were able to admit certain statements made in aborted plea discussions in his favor, then other relevant statements made in the same plea discussions should be admissible against the defendant in the interest of determining the truth of the matter at issue. The language . . . follows closely that in Fed. R. Evid. 106, as the considerations involved are very similar." Id.

Unlike the federal rule, Rule 410 does not contain an exception permitting a statement made by the defendant under oath, on the record, and in the presence of counsel to be introduced in a criminal proceeding for perjury or false statement.

Rule 410 differs from the federal rule by making the described evidence inadmissible in favor of the defendant as well as against him. North Carolina practice in this area is governed in part by G.S. 15A-1025 which is consistent with this rule. G.S. 15A-1025 should be amended after Rule 410 is adopted.

Legal Periodicals. - For article, "A Deal with the Devil: Reevaluating Plea Bargains Offered to the Wrongfully Convicted,” see 99 N. C. L. Rev. Addendum 139 (2021).

CASE NOTES

The defendant waived his right to appellate review of a possible violation of this section by introducing evidence during his own direct examination of plea discussions and subsequently failing to object to the State's eliciting of further evidence during cross-examination. State v. Thompson, 141 N.C. App. 698, 543 S.E.2d 160 (2001), cert. denied, 353 N.C. 396, 548 S.E.2d 157 (2001).

Inculpatory Statements Improperly Admitted. - Defendant's letters to the district attorney constituted a "plea discussion" within the intent and meaning of G.S. 15A-1025 and G.S. 8C-1, N.C. R. Evid. 410, so the State could not cross-examine defendant concerning those plea negotiations; the trial court committed reversible error and a new trial was ordered because the State's questioning repeatedly placed before the jury defendant's statements that he made a big mistake and was willing to confess to what he had done and to reveal who planned the robbery, which information was highly prejudicial and potentially influenced the jury's decision. State v. Walker, 167 N.C. App. 110, 605 S.E.2d 647 (2004).

Inculpatory Statements Properly Admitted - Where defendant was told he would have to be completely cooperative with law enforcement for a plea offer to be considered, but was also told that no formal plea offer was being made, his inculpatory statements to law enforcement were admissible against him, because he had no reasonable, subjective belief that he was negotiating a plea, nor did he state an intention to plead guilty to any offense. State v. Curry, 153 N.C. App. 260, 569 S.E.2d 691 (2002).

Cited in State v. Curry, 153 N.C. App. 260, 569 S.E.2d 691 (2002); State v. Watkins, 195 N.C. App. 215, 672 S.E.2d 43 (2009); State v. Haymond, 203 N.C. App. 151, 691 S.E.2d 108 (2010).


Rule 411. Liability insurance.

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 411. The Advisory Committee's Note states:

"The courts have with substantial unanimity rejected evidence of liability insurance for the purpose of proving fault, and absence of liability insurance as proof of lack of fault. At best the inference of fault from the fact of insurance coverage is a tenuous one, as is its converse. More important, no doubt, has been the feeling that knowledge of the presence or absence of liability insurance would induce juries to decide cases on improper grounds. McCormick § 168; Annot., 4 A.L.R.2d 761. The rule is drafted in broad terms so as to include contributory negligence or other fault of a plaintiff as well as fault of a defendant.

The second sentence points out the limits of the rule, using well established illustrations. Id. "

Rule 411 is consistent with North Carolina practice in barring evidence of insurance unless offered for a purpose other than to prove negligence. See Brandis on North Carolina Evidence § 88 (1982).

CASE NOTES

Generally, Evidence of Insurance is Not Relevant. - Under G.S. 8C-1, N.C. R. Evid. 411, evidence of insurance is generally inadmissible as relevant evidence unless offered for some collateral purpose. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918 (2003), cert. denied, 358 N.C. 375, 598 S.E.2d 135 (2004).

G.S. 8C-1, N.C. R. Evid. 411 deals with the admissibility of evidence of liability insurance, and the general rule is that the existence of liability insurance is not admissible to show a party acted negligently or wrongfully; however, the rule does not require the exclusion of evidence of insurance for other purposes, such as proof of agency. Williams v. Bell, 167 N.C. App. 674, 606 S.E.2d 436 (2005).

Rule Not an Absolute Bar. - This rule does not operate as an absolute bar to the admission of evidence concerning liability insurance when offered for a purpose, such as proof of agency, ownership, or control or bias and prejudice of a witness. Warren v. Jackson, 125 N.C. App. 96, 479 S.E.2d 278 (1997).

Section 8C-1, Rule 411 does not absolutely bar the admission of evidence concerning liability insurance when that evidence is offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. Williams v. McCoy, 145 N.C. App. 111, 550 S.E.2d 796 (2001).

Admission to Explain Answer. - The trial court abused its discretion when it refused, under G.S. 8C-1, Rule 411, to allow the injured party to explain why she consulted an attorney before seeing a doctor, since this was prompted by a negative experience with an insurance adjuster, because this rule did not prohibit such testimony, and the trial court could have given a limiting instruction. Williams v. McCoy, 145 N.C. App. 111, 550 S.E.2d 796 (2001).

Purposes for Which Evidence of Insurance Is Admissible. - This rule enumerates several examples for which evidence of insurance is admissible, but it does not by its terms limit admissibility to those examples alone. Johnson v. Skinner, 99 N.C. App. 1, 392 S.E.2d 634, cert. denied, 327 N.C. 429, 395 S.E.2d 680 (1990).

In deciding whether evidence of insurance should be received under G.S. 8C-1, N.C. R. Evid. 411, a trial court should engage in the following analysis: (1) Is the insurance coverage offered for a purpose other than to show that a person acted negligently or otherwise wrongfully; (2) If so, is the evidence relevant to show that other purpose; and (3) If so, is the probative value of the relevant evidence substantially outweighed by the factors set forth in G.S. 8C-1, N.C. R. Evid. 403. Williams v. Bell, 167 N.C. App. 674, 606 S.E.2d 436 (2005).

Introduction of Coverage. - In suit regarding automobile accident, evidence of defendant's liability insurance coverage should not have been introduced just because evidence of plaintiff's recovery in workers' compensation was introduced pursuant to G.S. 97-10.2(e). Anderson v. Hollifield, 123 N.C. App. 426, 473 S.E.2d 399 (1996), rev'd on other grounds, 345 N.C. 480, 480 S.E.2d 661 (1997).

The fact that defendant may have had liability insurance on vehicle some two months before accident in question did not tend to show agency, ownership or control on the later date. As registration certification and financial responsibility certification did not tend to show agency on the date of the accident, this rule had no application. Further, the documents were not relevant and were thus inadmissible. Smith v. Starnes, 88 N.C. App. 609, 364 S.E.2d 442 (1988).

Evidence of Insurance Held Admissible. - Admission was proper where evidence was offered for following purposes: (1) to show defendant's motive for using dealer tags; (2) to show that Toyota had knowledge that defendant wanted to use tags so his Pontiac could be driven on highway by himself and others after defendant's insurance had lapsed; and (3) to allow jury to assess foreseeability of an accident when dealer tags are loaned to a member of class of persons who have not complied with North Carolina's Financial Responsibility Act. Johnson v. Skinner, 99 N.C. App. 1, 392 S.E.2d 634, cert. denied, 327 N.C. 429, 395 S.E.2d 680 (1990).

Evidence of Insurance Held Inadmissible. - Personal representatives for a decedent were properly disallowed from admitting evidence of a fishing club's insurance policy because the policy did not show whether a boat driver, who was a director for the fishing club, was its agent. Williams v. Bell, 167 N.C. App. 674, 606 S.E.2d 436 (2005).

Admission to Show Bias or Prejudice. - The trial court properly allowed plaintiff to cross-examine private investigator about insurance company's hiring him to do videotape; this rule provides for the admission of evidence concerning insurance when offered to show bias or prejudice of a witness. Carrier v. Starnes, 120 N.C. App. 513, 463 S.E.2d 393 (1995).

Claim Estimates Properly Excluded as Evidence. - In personal injury action against plaintiff's UIM insurer, admitting claim estimates prepared by the insurer as admissions of a party opponent would unduly prejudice the defense and circumvent the policy of having the jury focus on the facts and not the existence of liability insurance. Braddy v. Nationwide Mut. Liab. Ins. Co., 122 N.C. App. 402, 470 S.E.2d 820 (1996).

Reference to defendant builder's insurance was not grounds for a mistrial in a liability suit for defects in plaintiffs' house, where the reference was accidental, insignificant and inadvertent, so much so that the judge determined that giving the jury a curative instruction would only serve to highlight the matter and bring it to the jury's attention. Medlin v. Fyco, Inc., 139 N.C. App. 534, 534 S.E.2d 622 (2000).

Evidence of Settlement Offer From Insurance Company Held Inadmissible. - Judgment for a driver in an injured party's personal injury action was affirmed; pursuant to G.S. 8C-1, N.C. R. Evid. 411, and G.S. 1-540.2, a letter from the driver's insurer indicating that the insurer would consider settling claims arising from the accident was inadmissible as proof that the driver was liable for the accident. Garrett v. Smith, 163 N.C. App. 760, 594 S.E.2d 232 (2004).

Right to Appeal Waived. - Injured automobile passenger waived her right to appeal the refusal of the trial court to allow her to rehabilitate her expert witness, a chiropractor; the passenger failed to make an offer of proof under G.S. 1A-1, N.C. R. Civ. P. 43(c), indicating the relevance of the question or that the testimony was sought for purposes allowed under G.S. 8C-1, N.C. R. Evid. 411. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918 (2003), cert. denied, 358 N.C. 375, 598 S.E.2d 135 (2004).


Rule 412. Rape or sex offense cases; relevance of victim's past behavior.

  1. As used in this rule, the term "sexual behavior" means sexual activity of the complainant other than the sexual act which is at issue in the indictment on trial.
  2. Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:
    1. Was between the complainant and the defendant; or
    2. Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or
    3. Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or
    4. Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.
  3. Sexual behavior otherwise admissible under this rule may not be proved by reputation or opinion.
  4. Notwithstanding any other provision of law, unless and until the court determines that evidence of sexual behavior is relevant under subdivision (b), no reference to this behavior may be made in the presence of the jury and no evidence of this behavior may be introduced at any time during the trial of any of the following:
    1. A charge of rape or a lesser included offense of rape.
    2. A charge of a sex offense or a lesser included offense of a sex offense.
    3. An offense being tried jointly with a charge of rape or a sex offense, or with a lesser included offense of rape or a sex offense.
    4. A charge of sexual servitude under G.S. 14-43.13.
  5. The record of the in camera hearing and all evidence relating thereto shall be open to inspection only by the parties, the complainant, their attorneys and the court and its agents, and shall be used only as necessary for appellate review. At any probable cause hearing, the judge shall take cognizance of the evidence, if admissible, at the end of the in camera hearing without the questions being repeated or the evidence being resubmitted in open court.

Before any questions pertaining to such evidence are asked of any witness, the proponent of such evidence shall first apply to the court for a determination of the relevance of the sexual behavior to which it relates. The proponent of such evidence may make application either prior to trial pursuant to G.S. 15A-952, or during the trial at the time when the proponent desires to introduce such evidence. When application is made, the court shall conduct an in camera hearing, which shall be transcribed, to consider the proponent's offer of proof and the argument of counsel, including any counsel for the complainant, to determine the extent to which such behavior is relevant. In the hearing, the proponent of the evidence shall establish the basis of admissibility of such evidence. Notwithstanding subdivision (b) of Rule 104, if the relevancy of the evidence which the proponent seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the in camera hearing or at a subsequent in camera hearing scheduled for that purpose, shall accept evidence on the issue of whether that condition of fact is fulfilled and shall determine that issue. If the court finds that the evidence is relevant, it shall enter an order stating that the evidence may be admitted and the nature of the questions which will be permitted.

History

(1983, c. 701, s. 1; 2018-75, s. 6(a).)

COMMENTARY

This rule differs substantially from Fed. R. Evid. 412. Except as noted below, the rule is the same as the current shield law, G.S. 8-58.6 [now repealed].

Subdivision (c), which is derived from the federal rule, was added to the current shield law to make it clear that sexual behavior otherwise admissible under this rule may not be proved by reputation or opinion.

The next to the last sentence of subdivision (d), which is derived from the federal rule, was added to the shield law to address the issue of conditional relevancy. The sentence provides that, notwithstanding Rule 104(b), if the relevancy of the evidence depends upon the fulfillment of a condition of fact, the court will hear evidence in the in camera proceeding and decide whether the condition of fact is fulfilled. The court should decide whether the defendant has presented sufficient evidence for a reasonable jury to find the proposition asserted to be true. If so, the defendant's evidence should be admitted. If not, the evidence should be excluded. See S. Saltzburg and K. Redden, Federal Rules of Evidence Manual , at 221 - 27 (3d ed. 1982). Evidence should not be admitted on behalf of the defendant subject to connecting-up. The court should make sure, before any evidence of prior sexual activity is admitted, that the conditional relevance analysis has been satisfied. Id. at 90.

Editor's Note. - Session Laws 2018-75, s. 6(b), provides: "This section becomes effective December 1, 2018, and applies to trials held on or after that date." Session Laws 2018-75, s. 6(a), added subdivision (d)(4), and made minor stylistic changes.

Session Laws 2018-75, s. 9, is a severability clause.

Effect of Amendments. - Session Laws 2018-75, s. 6(a), added subdivision (d)(4), and made minor stylistic changes. For effective date and applicability, see editor's note.

Legal Periodicals. - For comment, "The Use of Rape Trauma Syndrome as Evidence in a Rape Trial: Valid or Invalid?," see 21 Wake Forest L. Rev. 93 (1985).

For note, "State v. Strickland: Evening the Odds in Rape Trials! North Carolina Allows Expert Testimony on Post Traumatic Stress Disorder to Disprove Victim Consent," see 69 N.C.L. Rev. 1624 (1991).

For note entitled, "Michigan v. Lucas: Failure to Define the State Interest in Rape Shield Legislation," see 70 N.C.L. Rev. 1592 (1992).

For note, "Evidence - Rape Shield Statute - Witnesses - State v. Guthrie, 110 N.C. App. 91, 428 S.E.2d 853 (1993)," see 72 N.C.L. Rev. 1777 (1994).

For article, "Let's Talk Specifics: Why STI Evidence Should Be Treated as a ‘Specific Instance' Under Rape Shield Laws,” see 98 N.C.L. Rev. 689 (2020).

CASE NOTES

I. GENERAL CONSIDERATION.

Construction. - Rule declares that other sexual behavior engaged in by the prosecuting witness generally is irrelevant. State v. Martin, 241 N.C. App. 602, 774 S.E.2d 330 (2015).

Exception set forth in subsection (b)(2) exists to limit the blanket exclusion of evidence related to sexual behavior pursuant to the rule. State v. Jacobs, 370 N.C. 661, 811 S.E.2d 579 (2018).

Qualifications for Relevancy. - Under this rule, the sexual behavior of the prosecuting witness is irrelevant unless the behavior (1) was between the complainant and the defendant; or (2) is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or (3) is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or (4) is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged. State v. Alverson, 91 N.C. App. 577, 372 S.E.2d 729 (1988).

Prior sexual conduct between the complainant and the defendant on trial was relevant, even though multiple defendants were being tried for rape in separate proceedings. State v. Ginyard, 122 N.C. App. 25, 468 S.E.2d 525 (1996).

By this statute, the legislature intended to exclude from evidence only the actual sexual history of the complainant and not prior false accusations made by the complainant. State v. McCarroll, 109 N.C. App. 574, 428 S.E.2d 229, cert. granted, 333 N.C. 794, 430 S.E.2d 426 (1993), rev'd on other grounds, 336 N.C. 559, 445 S.E.2d 18 (1994).

Exclusion of Public Held Proper. - Court did not err in closing to the public a voir dire hearing conducted to determine the relevance of prosecuting rape victim's past sexual behavior. State v. McNeil, 99 N.C. App. 235, 393 S.E.2d 123 (1990).

Scope of In Camera Hearing. - At an in camera hearing pursuant to this rule, the trial judge acted well within his authority when he refused to allow defendant to question victim about the manner in which her assailant performed the act of sexual intercourse. Such questions did not present an inquiry into evidence of sexual activity of the victim other than the sexual acts which were at issue, and so were not a proper subject of the in camera examination; further, defendant had already cross-examined victim about the extent of penetration and ejaculation by her assailant during the rape. State v. Mason, 315 N.C. 724, 340 S.E.2d 430 (1986).

Cross-Examination Properly Limited. - Where the defendant attempted to elicit testimony from the victim regarding an incident in which she was allegedly "making out" with defense witness, the trial court properly limited the cross-examination of the victim pursuant to the Rape Shield Statute. State v. Herring, 322 N.C. 733, 370 S.E.2d 363 (1988).

Trial court did not err in denying defendant's request to inquire into the victim's previous sexual activity for the purpose of attacking her credibility as a witness, where defendant was on trial for having committed sexual offenses against the victim, his 16-year-old daughter, as he failed to show that such examination was within any of the four very narrow situations that were excepted from that prohibition under the Rape Shield Statute. State v. Dorton, 172 N.C. App. 759, 617 S.E.2d 97, cert. denied, 360 N.C. 69, 623 S.E.2d 775 (2005).

Trial court did not err in precluding defendant from questioning the complainant about her inconsistent statements on sexual history to police and to medical personnel, as the complainant did not offer testimony about prior sexual history, the testimony defendant sought to elicit was about sexual activity occurring months before the subject incident, and there was no issues as to consent of the complainant. State v. Edmonds, 212 N.C. App. 575, 713 S.E.2d 111 (2011).

Deceased Rape Victim. - In the limited circumstance where the rape victim is deceased and the defendant's own testimony brings into question the victim's sexual behavior, the prosecution may present rebuttal evidence relating to the victim's prior sexual conduct to challenge the credibility of defendant's testimony. State v. Sexton, 336 N.C. 321, 444 S.E.2d 879, cert. denied, 513 U.S. 1006, 115 S. Ct. 525, 130 L. Ed. 2d 429 (1994), 343 N.C. 516, 472 S.E.2d 23 (1996).

The victim's virginity or lack thereof does not fall within any of the four exceptions and is therefore an area prohibited from cross-examination by this rule. State v. Autry, 321 N.C. 392, 364 S.E.2d 341 (1988).

Although this rule did not operate as a shield to questions regarding medical records relating to victim's gonorrhea where defendant maintained that the sexual acts, if any, committed on the victim (and the resultant gonorrhea) were done by someone else, defendant's questions were properly excluded as irrelevant because the records, referring only to the victim's "partner," did not contradict anything testified to by the victim, nor did it suggest anything else that could be used to impeach her. State v. Thompson, 139 N.C. App. 299, 533 S.E.2d 834 (2000).

Evidence of prostitution does not necessarily counter the allegations of a witness as prostitutes may be victims of sexual offenses. State v. Fletcher, 125 N.C. App. 505, 481 S.E.2d 418 (1997), cert. denied, 346 N.C. 285, 487 S.E.2d 560 (1997), cert. denied, 522 U.S. 957, 118 S. Ct. 383, 139 L. Ed. 2d 299 (1997).

Prior Abuse of Child Not Admissible. - Absent some "opening of the door," evidence of prior abuse sought to be admitted solely to show child had prior knowledge of sexual matters was not admissible under this rule. State v. Bass, 121 N.C. App. 306, 465 S.E.2d 334 (1996).

Trial court did not abuse its discretion in refusing to permit defendant from introducing evidence that his minor sexual assault victim had been sexually abused by her father years earlier because there was no indication in the record that this evidence was relevant to the victim's credibility. State v. Yearwood, 147 N.C. App. 662, 556 S.E.2d 672 (2001).

Evidence excluded under G.S. 8C-1, N.C. R. Evid. 412(b)(2) that a victim's grandfather had kissed the victim did not establish an alternative explanation for a healed tear in the victim's vaginal area as evidence of blood on the victim's panties and on the victim's grandfather's underwear did not show vaginal penetration as there was testimony that the blood stain on the victim's panties was from the victim's period and that the stain on the victim's grandfather's underwear was from a boil. State v. Adu, 195 N.C. App. 269, 672 S.E.2d 84 (2009), review denied, appeal dismissed, 363 N.C. 375, 680 S.E.2d 210 (2009).

Prosecutor Held Allowed to Comment on Purpose of the Rape Shield Statute. - The trial court did not abuse its discretion in overruling the defendant's objection to the prosecutor's comment about the purpose of the Rape Shield Statute where the prosecutor attempted to explain that the statute was intended to insure that victims were not again "victimized" through inquiries about irrelevant sexual behavior, and the trial court immediately cautioned the jury to follow the court's instructions as to the law. State v. Herring, 322 N.C. 733, 370 S.E.2d 363 (1988).

Questions Excluded Where No Request for Hearing. - Trial court did not err by excluding questions defendant sought to ask the prosecutrix regarding her past sexual behavior; once the State opens the door into a victim's sexual activity, the defendant may request an in camera hearing, and in the absence of such a request, a fishing expedition into the victim's past sexual behavior is not permitted. State v. Fenn, 94 N.C. App. 127, 379 S.E.2d 715, cert. denied, 325 N.C. 548, 385 S.E.2d 504 (1989).

Where a child victim denied on cross examination that she had sexual activity with another person and the other person was not called during an in camera hearing during the State's case or as a witness during the defense case, the trial court properly excluded the other person's testimony pursuant to G.S. 8C-1, N.C. R. Evid. 412(d). Even if defense counsel's representation regarding the proposed testimony was sufficient to comply with Rule 412(d), defendant failed to establish the relevance of the other person's testimony. State v. Cook, 195 N.C. App. 230, 672 S.E.2d 25 (2009).

Cross-Examination of Defendant Concerning Defendant's In Camera Statements. - Contrary to defendant's position, this rule could not be utilized as a barrier to prevent cross-examination concerning critical inconsistencies in sworn testimony; therefore, the prosecution was properly permitted to cross-examine defendant concerning his prior inconsistent statements made at an in camera hearing. State v. Najewicz, 112 N.C. App. 280, 436 S.E.2d 132 (1993), cert. denied, 335 N.C. 362, 441 S.E.2d 130 (1994).

Exclusion of Evidence Upheld. - In prosecution in which defendant was convicted of taking indecent liberties with a minor, the trial court did not err by prohibiting defendant from cross-examining prosecutrix about her previous accusations of sexual misconduct against her father and stepfather. State v. Anthony, 89 N.C. App. 93, 365 S.E.2d 195 (1988).

The trial court did not commit reversible error in denying defendant's request to cross-examine the victim about her testimony that before she was raped she told defendant that she was a virgin, despite defendant's contention that the trial court's ruling prevented the correction of false testimony by the victim and was therefore fundamentally unfair and violative of his constitutional right to confront his accuser. State v. Autry, 321 N.C. 392, 364 S.E.2d 341 (1988).

Contention that because witness stated at trial that he thought the victim was a "nice person" and detective stated that witness had voiced a similar opinion during a recorded statement given to the police, certain portions of that recorded statement concerning the victim's prior sexual history should have been admitted into evidence was without merit. State v. McCrimmon, 89 N.C. App. 525, 366 S.E.2d 572, appeal dismissed and cert. denied, 322 N.C. 609, 370 S.E.2d 253 (1988).

Trial court properly limited line of questioning whereby defense counsel attempted to question rape victim about an alleged violent incident with her boyfriend, which rape victim testified was unrelated to any sexual activity, as these questions were not relevant or admissible under subsection (b) of this rule. State v. Watkins, 89 N.C. App. 599, 366 S.E.2d 876, cert. denied, 323 N.C. 179, 373 S.E.2d 123 (1988).

Defendant's request to cross-examine the prosecuting witness in rape trial, based upon his speculation that she was motivated to accuse him of rape because she was pregnant by her boyfriend, did not fall under an exception in this rule; therefore, the trial court was correct in denying this line of questioning during cross-examination of the prosecuting witness. State v. Alverson, 91 N.C. App. 577, 372 S.E.2d 729 (1988).

Evidence that someone other than defendant sexually abused child two and a half years before the incident resulting in a rape charge against defendant was properly excluded as being irrelevant and confusing to the jury. State v. Holden, 106 N.C. App. 244, 416 S.E.2d 415, appeal dismissed, 332 N.C. 669, 424 S.E.2d 413 (1992).

Testimony was properly excluded where there was evidence of only one incident of the complainant exchanging sex for crack cocaine; there was not sufficient evidence that the complainant engaged in a pattern of exchanging sex for crack. State v. Ginyard, 122 N.C. App. 25, 468 S.E.2d 525 (1996).

Evidence of victim's alleged past sexual behavior was not the type of relevant evidence which could be offered, under this rule, for the purpose of showing that the acts charged were not committed by defendant. State v. Trogden, 135 N.C. App. 85, 519 S.E.2d 64 (1999), cert. denied, 351 N.C. 190, 541 S.E.2d 725 (1999).

Because no evidence proffered at an in camera hearing supported an inference that a victim's prior sexual activity was forced or caused any injuries, evidence of the victim's prior sexual activity was properly excluded under the rape shield statute, G.S. 8C-1, N.C. R. Evid. 412(b)(2); the probative value, if any, to defendant was substantially outweighed by the danger of unfair prejudice to the State and the prosecuting witness under G.S. 8C-1, N.C. R. Evid. 403. State v. Harris, 360 N.C. 145, 622 S.E.2d 615 (2005).

Trial court did not err, in a trial of charges of statutory sexual offense and taking indecent liberties with a child, in disallowing defendant from questioning the prosecuting witness regarding her sleeping in the same bed with a boyfriend around the same period of defendant's alleged criminal conduct; since the victim's denial of a sexual relationship was the only evidence on this point, there was no evidence of sexual activity the relevance of which the trial court was obligated to determine. State v. Hammett, 182 N.C. App. 316, 642 S.E.2d 454 (2007), cert. denied, appeal dismissed, 361 N.C. 572, 2007 N.C. LEXIS 884 (2007).

Where defendant had never argued that he had a consensual sexual encounter with his sexual assault victim and repeatedly denied having such an encounter, consensual or otherwise, the exception to the rape shield did not apply, rendering the contested evidence irrelevant under G.S. 8C-1, N.C. R. Evid. 412(b). The trial court therefore did not err in excluding evidence of the victim's prior sexual behavior with persons other than defendant. State v. Harris, 189 N.C. App. 49, 657 S.E.2d 701 (2008), review denied, 362 N.C. 366, 664 S.E.2d 315 (2008).

Trial court properly sustained the State's objection under G.S. 8C-1, N.C. R. Evid. 403, on the basis that the prejudicial effect of testimony, that defendant and his sexual assault victim previously had rented motel rooms together, outweighed its probative benefit. The evidence was not relevant and admissible under G.S. 8C-1, N.C. R. Evid. 412(b)(1) because defendant had not raised the victim's consent as a defense. State v. Harris, 189 N.C. App. 49, 657 S.E.2d 701 (2008), review denied, 362 N.C. 366, 664 S.E.2d 315 (2008).

Trial court did not err in excluding a police report and a minor child's Myspace website pursuant to G.S. 8C-1, N.C. R. Evid. 412, during an adjudicatory and disposition hearing because although the report was not evidence of prior sexual history, it had no probative value because it was not a false accusation that could be used to impeach; the Myspace page was admissible as impeachment evidence, but the exclusion of the evidence was harmless error because the child's father did not offer a persuasive argument that the outcome of the hearing would have been different if the website had been admitted. In re K.W., 192 N.C. App. 646, 666 S.E.2d 490 (2008).

Undisputed medical evidence indicated that a child's having sex with another person could not have resulted in the child's vaginal scarring, and therefore the other person's testimony would not have tended to show that defendant did not commit the charged offenses. Therefore, the other person's testimony as to whether he had sex with the child was not relevant and was not admissible under G.S. 8C-1, N.C. R. Evid. 412(d). State v. Cook, 195 N.C. App. 230, 672 S.E.2d 25 (2009).

Although a child victim admitted, during an in camera hearing, that her boyfriend had inserted his finger in her vagina while she was partially nude in a closet with him, defendant failed to present evidence during the in camera hearing that the boyfriend's digital penetration could have caused the internal scarring attributed to the charged offenses. That evidence was not admissible under G.S. 8C-1, N.C. R. Evid. 412(d). State v. Cook, 195 N.C. App. 230, 672 S.E.2d 25 (2009).

Trial court did not err in sustaining the prosecution's objection to testimony that a child abuse victim was unsure of whether she was pregnant by defendant, who was her grandfather, or her boyfriend at the time, because the victim had already testified to this fact, and evidence that the victim had sexual relations with another man would not have shown that the alleged acts were not committed by defendant and would be unnecessarily humiliating. State v. Khouri, 214 N.C. App. 389, 716 S.E.2d 1 (2011).

In a trial on sex offense charges, the trial court did not err in excluding the victim's past sexual activity, as defendant proposed evidence about occurrences which were not close in time and proximity to the alleged crime and no evidence tied the victim's past sexual activity or parental punishment to the subject incident. State v. Mbaya, 249 N.C. App. 529, 791 S.E.2d 266 (2016), review denied, 794 S.E.2d 343, 2016 N.C. LEXIS 1054 (2016).

In a case in which defendant was convicted of statutory rape of a 15-year-old child and taking indecent liberties with a child, because defendant made no application to the court for a determination of the relevance of the sexual behavior about which defendant wished to question the complainant, the trial court did not conduct an in camera hearing on the issue; thus, defendant failed to establish the admissibility of evidence of the complainant's past sexual behavior. State v. Parlier, 252 N.C. App. 185, 797 S.E.2d 340 (2017).

In a case in which defendant was convicted of statutory rape of a 15-year-old child and taking indecent liberties with a child, because defendant did not make an offer of proof to show what the complainant's response to questions about her past sexual behavior would have been, he failed to preserve that issue for appellate review. State v. Parlier, 252 N.C. App. 185, 797 S.E.2d 340 (2017).

This rule was implicated and evidence of the victim's sexually transmitted disease (STD) was properly excluded, because the presence of an STD denoted sexual behavior, because an STD is commonly associated with sexual activity, sexual intercourse, and was accompanied by the same type of stigma this rule was designed to prohibit.

Exclusion of Evidence Held Error. - In a trial for rape and sexual offense against a child victim, where the only physical evidence corroborating the victim's testimony of rape was possibly attributable to the acts of a man other than the defendant, namely, the defendant's adult son, exclusion of evidence about defendant's son's acts was prejudicial to the defendant in presenting his defense to the charge of rape, and necessitated a new trial. State v. Ollis, 318 N.C. 370, 348 S.E.2d 777 (1986).

Excluded testimony of 12-year-old rape complainant's grandmother that she observed complainant masturbate with a washcloth and with her fingers on several occasions provided an alternative explanation for the victim's physical condition, consistent with physician's testimony that repeated acts of intercourse, penetration or masturbation could create the degree of irritation that prosecutrix suffered, and should have been admitted as evidence relating to whether the rape occurred. State v. Wright, 98 N.C. App. 658, 392 S.E.2d 125 (1990).

Defendant's evidence, which consisted of a letter written by victim to her friend asking her to engage in sex, was evidence of conversation, not of a prior sexual act. Therefore, testimony in sexual abuse case concerning the letter was not deemed irrelevant by this rule and was improperly excluded on that basis. State v. Guthrie, 110 N.C. App. 91, 428 S.E.2d 853, cert. denied, 333 N.C. 793, 431 S.E.2d 28 (1993).

It was error to exclude testimony which would have tended to show that the prosecuting witness was not truthful when she said she had a sexual encounter with someone other than the defendants. State v. McCarroll, 336 N.C. 559, 445 S.E.2d 18 (1994).

Where the trial court erred by not allowing the defendant to question the complainant in the presence of the jury regarding the allegation of rape made five months earlier and subsequently withdrawn, defendant was entitled to a new trial because there was a reasonable probability that the outcome of the trial would have been different. State v. Ginyard, 122 N.C. App. 25, 468 S.E.2d 525 (1996).

Sexual behavior of a rape complainant can be relevant if such behavior is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by a defendant; thus, defendant's rape conviction was reversed and a new trial was granted where evidence of a victim's sexual encounter earlier in the day of her alleged rape was improperly excluded despite its relevance to the issue of consent. State v. Harris, 166 N.C. App. 386, 602 S.E.2d 697 (2004).

In a first degree rape case, although a trial court erred by excluding evidence of a consensual sexual encounter between the victim and another man before the rape, no prejudice was shown because a condom was used during the consensual encounter, the victim specifically stated that the man involved in the consensual encounter was not her attacker, defendant's deoxyribonucleic acid evidence was found inside of the victim's vagina, and the man involved in the consensual encounter was effectively removed as the source of the semen at issue, despite the fact that he was not tested. State v. Davis, 237 N.C. App. 481, 767 S.E.2d 565 (2014).

Evidence that the victim was discovered watching a pornographic video, without anything more, was not evidence of sexual activity barred by the Rape Shield Statute, and the trial court erred in excluding it, as it was relevant to explain an alternative source of the victim's sexual knowledge, from which she could have fabricated the allegations. State v. Rorie, 242 N.C. App. 655, 776 S.E.2d 338 (2015).

Trial court's determination that the victim's prior allegations and inconsistent statements were covered by this rule was error, as although the statements involved the mention of sexual behavior, they were not with the purview of this rule and may have been admissible to attack the victim's credibility if they were not more prejudicial than probative under G.S. 8C-1, N.C. R. Evid. 403. State v. Rorie, 242 N.C. App. 655, 776 S.E.2d 338 (2015).

Even though the trial court erred by refusing to allow defense counsel to cross-examine a victim about statements he allegedly made to his wife and the police that he was addicted to porn, had an affair, and that he could not control his behavior because of defendant's abuse of him, because the evidence was relevant and was not barred by the Rape Shield Act, defendant was not prejudiced because the evidence of defendant's guilt was overwhelming. State v. Goins, 244 N.C. App. 499, 781 S.E.2d 45 (2015).

Court of appeals improperly ruled the trial court did not err in excluding evidence of the complainant's sexually transmitted diseases (STDs) because defendant's offer of proof indicated the evidence fell within the exception set forth in subsection (b)(2); the evidence was an essential part of the proposed testimony of defendant's expert regarding the presence of STDs in the victim and the absence of those same STDs in defendant and permitted an inference defendant did not commit the crime. State v. Jacobs, 370 N.C. 661, 811 S.E.2d 579 (2018).

Because evidence of the complainant's sexually transmitted diseases (STDs) diminished the likelihood of a three-year period of sexual relations between defendant and the complainant, the trial court erred in excluding the evidence pursuant to the rule; there was a reasonable possibility that, had the error not been committed, a different result would have been reached at trial. State v. Jacobs, 370 N.C. 661, 811 S.E.2d 579 (2018).

Exclusion of Evidence Held Error In Part. - Trial court erred by concluding that the evidence about the complainant was inadmissible per se because it did not fall within one of the four categories in the Rape Shield Statute, and the trial court should have looked beyond the four categories to determine whether the evidence was relevant to show the complainant's motive to falsely accuse defendant and, if so, conducted a balancing test; this error was prejudicial with respect to defendant's conviction of the 2008 incident, as the State's case was based almost entirely on the complainant's testimony, but he failed to show how the error prejudiced him regarding his conviction based on the 2006 incident. State v. Martin, 241 N.C. App. 602, 774 S.E.2d 330 (2015).

Error in the Face of Overwhelming Evidence to Convict. - Even if evidence of victim's alleged past sexual behavior was improperly excluded, the defendant failed to show, in view of the testimony of seven other juvenile sexual abuse victims, that a different result would have resulted from its inclusion. State v. Trogden, 135 N.C. App. 85, 519 S.E.2d 64 (1999), cert. denied, 351 N.C. 190, 541 S.E.2d 725 (1999).

Failure to Conduct In Camera Hearing Held Harmless. - Where all of the testimony complained of by defendant related to sexual behavior between complainant and defendant, even if it was assumed arguendo that the trial court erred by failing to conduct the required in camera hearing before admitting such testimony, the error was harmless. State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368 (1988).

Victim Not Prohibited from Willingly Testifying. - Neither this rule nor its predecessor statute, G.S. 8-58.6, prohibited a rape victim from willingly testifying as to her lack of sexual involvement for purposes of corroboration. State v. Stanton, 319 N.C. 180, 353 S.E.2d 385 (1987).

Defendant could present evidence of previous acts of bondage between the complainant and defendant, sexual acts on a leather couch, complainant experiencing pain during previous acts of intercourse, a sexual act on a piano stool, and watching pornographic movies because it was evidence of sexual act pertinent to the defense that the complainant consented to the sexual act that was the basis of the charge. State v. Jenkins, 115 N.C. App. 520, 445 S.E.2d 622, stay granted pending appeal, 336 N.C. 784, 447 S.E.2d 435, cert. denied, temporary stay dissolved, 337 N.C. 804, 449 S.E.2d 752 (1994).

Attorney Held in Contempt for Violation of Rape Shield Law. - Defense counsel was found guilty of criminal contempt, pursuant to G.S 5A-11(a), because competent evidence supported the trial court's finding that counsel violated the North Carolina Rape Shield Statute, G.S. 8C-412, in that counsel asked the complainant, in a case resulting from a charge of rape, about a possible prior instance of rape between the complainant and the complainant's cousin, without first addressing the relevance and admissibility of that question during an in camera hearing. Furthermore, the violation was willful and grossly negligent. State v. Okwara, 223 N.C. App. 166, 733 S.E.2d 576 (2012).

Court disagreed that an informal offer of proof is per se insufficient in the context of a rape shield law in camera hearing; there is nothing in the rule to suggest that an offer of proof made thereunder must be made formally, there may be situations where a trial court may not want to require a witness to recount an episode, and to the extent that certain cases could be read to provide a per se rule prohibiting an informal offer of proof, they conflict with North Carolina Supreme Court's decisions disavowing a per se rule. State v. Martin, 241 N.C. App. 602, 774 S.E.2d 330 (2015).

Preservation for Review. - Offer of proof made by defendant's counsel was sufficient for the court to conduct appellate review, as it was clear that counsel had interviewed each witness and knew first hand the content of their testimonies, and he was unambiguous about how they would testify, and the trial court clearly understood the nature of the testimonies and decided the issue based on the offer of proof. State v. Martin, 241 N.C. App. 602, 774 S.E.2d 330 (2015).

Applied in State v. Degree, 322 N.C. 302, 367 S.E.2d 679 (1988); State v. Norris, 101 N.C. App. 144, 398 S.E.2d 652 (1990); State v. Black, 111 N.C. App. 284, 432 S.E.2d 710 (1993); State v. Mustafa, 113 N.C. App. 240, 437 S.E.2d 906, cert. denied, 336 N.C. 613, 447 S.E.2d 409 (1994); State v. Graham, 118 N.C. App. 231, 454 S.E.2d 878 (1995).

Cited in State v. Baker, 320 N.C. 104, 357 S.E.2d 340 (1987); State v. Baker, 333 N.C. 325, 426 S.E.2d 73 (1993); State v. Smith, 152 N.C. App. 514, 568 S.E.2d 289 (2002), cert. denied, 356 N.C. 623, 575 S.E.2d 757 (2002); State v. Peterson, 179 N.C. App. 437, 634 S.E.2d 594 (2006); State v. Wagner, 249 N.C. App. 445, 790 S.E.2d 575 (2016), review denied, 795 S.E.2d 221, 2017 N.C. LEXIS 43 (2017); State v. West, 255 N.C. App. 162, 804 S.E.2d 225 (2017).

II. DECISIONS UNDER FORMER G.S. 8-58.6

Editor's Note. - The cases below were decided under former G.S. 8-58.6 and previous statutory provisions.

Codification of Rule of Relevance. - Former G.S. 8-58.6 was nothing more than a codification of this jurisdiction's rule of relevance as that rule specifically applies to the past sexual behavior of rape victims. State v. Fortney, 301 N.C. 31, 269 S.E.2d 110 (1980).

Constitutionality. - Former G.S. 8-58.6, referred to as the rape victim shield statute, did not violate a rape defendant's constitutional right to confront the witnesses against him by preventing him from automatically questioning the victim about her prior sexual experience, since (1) there is no constitutional right to ask a witness questions that are irrelevant, (2) the statute was primarily procedural in its impact and application and does not alter any of the defendant's substantive rights, and (3) there were valid policy reasons, aside from questions of relevance, which support the statute. State v. Fortney, 301 N.C. 31, 269 S.E.2d 110 (1980).

Former G.S. 8-58.6 changed the rule of evidence in such a way that matters collateral to the issues on trial could not be introduced into evidence, and this change in the rule of evidence did not violate a defendant's constitutional right to cross-examine witnesses appearing against him. State v. Porter, 48 N.C. App. 565, 269 S.E.2d 266, appeal dismissed and cert. denied, 301 N.C. 529, 273 S.E.2d 459 (1980).

Inferences of prior sexual activity by a rape victim with third persons, without more, are irrelevant to the defense of consent in a rape trial. State v. Fortney, 301 N.C. 31, 269 S.E.2d 110 (1980).

Evidence of Discussion Between Complainant and Defendant Held Inadmissible. - In a prosecution for rape, evidence of a discussion between complainant and defendant concerning complainant's sexual problems was not admissible, since such discussion did not constitute sexual behavior or activity between complainant and defendant. State v. Smith, 45 N.C. App. 501, 263 S.E.2d 371 (1980).

Evidence of Different Semen Stains on Victim's Clothing. - Former G.S. 8-58.6 was not unconstitutionally applied to defendant when the trial court excluded evidence that three different semen stains were found on clothing worn by an alleged rape victim, since the inference raised by such evidence, i.e., that the victim had had sex with two persons other than defendant at some time prior to the sexual acts in question, was not probative of the victim's consent to those acts. State v. Fortney, 301 N.C. 31, 269 S.E.2d 110 (1980).

Evidence of Prosecutrix' Moral Environment Held Irrelevant Where Defendant Denied Act. - Whether the prosecutrix in a prosecution for second degree rape lived in an environment of sexual immorality or in a cloistered convent had no relevance to the issues in a case where defendant denied that any act of intercourse or other assault took place. State v. McLean, 294 N.C. 623, 242 S.E.2d 814 (1978), decided prior to the effective date of this section.

Decisions of Trial Court at Voir Dire Hearing Held Proper. - In a prosecution for assault with intent to commit rape, the trial court did not err in refusing to permit defendant to testify at a voir dire hearing to determine whether testimony as to prior conduct of the prosecutrix was admissible as evidence of a pattern of sexual behavior closely resembling defendant's version of the alleged encounter, and in postponing its ruling on the admissibility of the testimony of prior conduct until after it had heard defendant's version of the events in question. State v. White, 48 N.C. App. 589, 269 S.E.2d 323 (1980).


Rule 413. Medical actions; statements to ameliorate or mitigate adverse outcome.

Statements by a health care provider apologizing for an adverse outcome in medical treatment, offers to undertake corrective or remedial treatment or actions, and gratuitous acts to assist affected persons shall not be admissible to prove negligence or culpable conduct by the health care provider in an action brought under Article 1B of Chapter 90 of the General Statutes.

History

(2004-149, s. 3.1.)

Rule 414. Evidence of medical expenses.

Evidence offered to prove past medical expenses shall be limited to evidence of the amounts actually paid to satisfy the bills that have been satisfied, regardless of the source of payment, and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied. This rule does not impose upon any party an affirmative duty to seek a reduction in billed charges to which the party is not contractually entitled.

History

(2011-283, s. 1.1; 2011-317, s. 1.1.)

CASE NOTES

Cited in Slaughter v. Slaughter, 254 N.C. App. 430, 803 S.E.2d 419 (2017), review dismissed, as moot, 806 S.E.2d 41, 2017 N.C. LEXIS 906 (N.C. 2017).


Rule 415. Evidence of bankruptcy asbestos trust claims.

In any civil action asserting personal injury claiming disease based upon exposure to asbestos, there shall be a rebuttable presumption that bankruptcy trust claims materials are relevant, authentic, and admissible in evidence in the civil action.

History

(2018-4, s. 2.)

Cross References. - As to general provisions governing discovery, see G.S. 1A-1, Rule 26.

Editor's Note. - Session Laws 2018-4, s. 4, made this section effective June 12, 2018, and applicable to actions filed on or after that date.

ARTICLE 5. Privileges.

Rule

Rule 501. General rule.

Except as otherwise required by the Constitution of the United States, the privileges of a witness, person, government, state, or political subdivision thereof shall be determined in accordance with the law of this State.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule differs from Fed. R. Evid. 501. After reviewing rules on privilege proposed by the Supreme Court, Congress rejected the proposal and substituted a rule that applies the common law of privileges in federal civil and criminal cases. In civil actions in which state law supplies the rule of decision, the state law on privileges applies.

The Uniform Rules of Evidence (1974) adopted the federal draft and several states have modeled their privilege laws on the federal draft. However, there is not a great deal of uniformity among the federal courts and various states with respect to privileges. Adoption of the federal draft would modify and delete privileges currently recognized in North Carolina and add other privileges currently not recognized in North Carolina.

Because of the extensive effort needed to clarify this confused area, the Committee decided not to draft new rules of privilege at this time but to continue the present statutory and common law system. See generally Brandis on North Carolina Evidence § 54 et seq. (1982).

Cross References. - As to privileged communications, see G.S. 8-53 et seq.

Legal Periodicals. - For note, "The Case for a Federal Psychotherapist-Patient Privilege that Protects Patient Identity," see 6 Duke L.J. Rev. 1217 (1985).

For article, "Too High a Price for Truth: The Exception to the Attorney-Client Privilege for Contemplated Crimes and Frauds," see 64 N.C.L. Rev. 443 (1986).

For article, "Recent Developments: Mortal Clients, Immortal Privilege? In re Death of Miller and the Future of the Posthumous Attorney-Client Privilege in North Carolina," 81 N.C.L. Rev. 2095 (2003).

ARTICLE 6. Witnesses.

Rule

Rule 601. General rule of competency; disqualification of witness.

  1. General rule. - Every person is competent to be a witness except as otherwise provided in these rules.
  2. Disqualification of witness in general. - A person is disqualified to testify as a witness when the court determines that the person is (1) incapable of expressing himself or herself concerning the matter as to be understood, either directly or through interpretation by one who can understand him or her, or (2) incapable of understanding the duty of a witness to tell the truth.
  3. Disqualification of interested persons. - Upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his or her interest or title by assignment or otherwise, shall not be examined as a witness in his or her own behalf or interest, or in behalf of the party succeeding to his or her title or interest, against the executor, administrator or survivor of a deceased person, or the guardian of an incompetent person, or a person deriving his or her title or interest from, through or under a deceased or incompetent person by assignment or otherwise, concerning any oral communication between the witness and the deceased or incompetent person. However, this subdivision shall not apply when:
    1. The executor, administrator, survivor, guardian, or person so deriving title or interest is examined in his or her own behalf regarding the subject matter of the oral communication.
    2. The testimony of the deceased or incompetent person is given in evidence concerning the same transaction or communication.
    3. Evidence of the subject matter of the oral communication is offered by the executor, administrator, survivor, guardian or person so deriving title or interest.

Nothing in this subdivision shall preclude testimony as to the identity of the operator of a motor vehicle in any case.

History

(1983, c. 701, s. 1; 2011-29, s. 2.)

COMMENTARY

Subdivision (a) is identical to the first sentence of Fed. R. Evid. 601. The second sentence of Fed. R. Evid. 601 concerns the application of state law in diversity cases and was omitted. Fed. R. Evid. 601 does not contain subdivision (b) on disqualification of a witness.

This rule eliminates all grounds of incompetency not specifically recognized in subdivision (b) or (c) or the succeeding rules of this Article.

At common law husband and wife were incompetent to testify in an action to which either was a party. However, by statute, each spouse has been competent to testify for or against the other in all civil actions and proceedings, with two rigidly defined exceptions. One exception makes one spouse incompetent to testify "for or against the other . . . in any action or proceeding for or on account of criminal conversation. . . ." G.S. 8-56. With respect to this exception Professor Brandis states:

"It is hard to find a purpose except one based on notions of delicacy, and even this is frustrated by permitting the plaintiff husband to testify to his wife's improper relations with the defendant. Danger of collusion would seem to be no greater than in any other case, and the interest of the state in the marriage relation, which only doubtfully justifies extreme measures to prevent collusion in divorce litigation, is no excuse for a rule of incompetency in criminal conversation actions." Brandis on North Carolina Evidence § 58, at 232, n. 28 (1982).

The other exception bars a spouse from testifying "for or against the other in any action or proceeding in consequence of adultery." G.S. 8-56. This exception is supplemented by G.S. 50-10 which provides that in divorce actions "neither the husband nor the wife shall be a competent witness to prove the adultery of the other, nor shall the admissions of either party be received as evidence to prove such fact." With respect to this exception, Professor Brandis notes that if the original purpose was to prevent collusion in divorce actions, "[I]t would seem that the prohibition should have been repealed when a relatively short period of separation was made a ground for divorce." Brandis on North Carolina Evidence § 58, at 230, n. 20 (1982).

At common law the spouse of a criminal defendant was incompetent to testify. This incompetence was removed by G.S. 8-57 so far as testifying for the defendant was concerned. With respect to testimony against the other spouse, G.S. 8-57 left in force the common law rule of incompetence. In State v. Freeman, 302 N.C. 591 (1981), the court removed the incompetence to testify against the other spouse (except to the extent that it preserved the privilege against disclosure of confidential communications). During the 1983 Legislative Session G.S. 8-57 was rewritten and now provides that the spouse of the defendant is competent but not compellable to testify for the State against the defendant except that the spouse is both competent and compellable to testify in the following cases:

  1. In a prosecution for bigamy or criminal cohabitation, to prove the fact of marriage and facts tending to show the absence of divorce or annulment;
  2. In a prosecution for assaulting or communicating a threat to the other spouse;
  3. In a prosecution for trespass in or upon the separate lands or residence of the other spouse when living separate and apart from each other by mutual consent or court order;
  4. In a prosecution for abandonment of or failure to provide support for the other spouse or their child;
  5. In a prosecution of one spouse for any other criminal offense against the minor child of either spouse, including any illegitimate or adopted or foster child of either spouse.

The provisions of the previous G.S. 8-57 which provided that the spouse is a competent witness for the defendant in a criminal action and which also provided that a spouse was not compellable to disclose any confidential communication made by one to the other during their marriage are retained in the rewrite of the statute.

Upon adoption of Rule 601, G.S. 8-56 and 50-10 should be rewritten to make it clear that a husband or wife are competent to testify. The privilege against disclosure of confidential communications should be retained.

Subdivision (b) establishes a minimum standard for competency of a witness and is consistent with North Carolina practice. See Brandis on North Carolina Evidence § 55 (1982).

Subdivision (c) represents a narrowing of the scope of G.S. 8-51 [now repealed], the Dead Man's Statute. The Dead Man's Statute will now be applicable only to oral communications between the party interested in the event and the deceased person or lunatic, rather than to "a personal transaction or communication between the witness and the deceased person or lunatic." Subdivision (c) preserves the exceptions already existing in G.S. 8-51 and adds subsection (3) which is a statement of the North Carolina case law having to do with one way in which "the door can be opened." See Carswell v. Greene, 253 N.C. 266, 270 (1960); Brandis on North Carolina Evidence § 75, at 282, 283 (1982).

It was not the intent of the drafters of subdivision (c) to change any existing cases where the Dead Man's Statute has been held to be inapplicable, or where, because of the actions of one party or the other the protection of the rule has been held to be waived. For example, subdivision (c) would not change the results in Smith v. Perdue, 258 N.C. 686 (1963) or In re Chisman, 175 N.C. 420 (1918). The report of the Legislative Research Commission's Study Committee on the Laws of Evidence to the 1983 General Assembly did not contain subdivision (c), nor did the original versions of House Bill 96 and Senate Bill 43. This would have completely eliminated the Dead Man's Statute, which has been much criticized. In Professor Brandis' view, for example:

"[T]he statute has fostered more injustice than it has prevented and has led to an unholy waste of the time and ingenuity of judges and counsel. The situation calls for more than legislative tinkering. What is needed is repeal of the statute." Brandis on North Carolina Evidence § 66 at 258, n. 62 (1982).

However, subdivision (c) was added to Rule 601 because of a concern that fraud and hardship could result if an interested party could testify concerning an oral communication with the deceased or lunatic.

G.S. 8-51 should be repealed after this rule is adopted.

Effect of Amendments. - Session Laws 2011-29, s. 2, effective April 7, 2011, throughout Rule 601, substituted "guardian" for "committee" and "incompetent person" for "lunatic," and made gender-neutralizing changes.

Legal Periodicals. - For note on the admissibility of a criminal defendant's hypnotically refreshed testimony, see 10 Campbell L. Rev. 311 (1988).

CASE NOTES

I. GENERAL CONSIDERATION.

Prior to the adoption of the North Carolina Rules of Evidence, the test for whether a witness was competent to testify was whether the witness understood the obligation of an oath or affirmation and had sufficient capacity to understand and relate facts which would assist the jury in reaching its decision. There was no fixed age limit below which a witness was incompetent to testify. The determination of the competency of a witness was entrusted to the discretion of the trial judge, and his determination was conclusive on appeal absent a showing of an abuse of discretion. State v. Gordon, 316 N.C. 497, 342 S.E.2d 509 (1986).

The purpose of this section is to exclude evidence of statements of deceased persons since those persons are not available to respond. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801, rehearing denied, 321 N.C. 300, 362 S.E.2d 780 (1987).

This rule makes no change in the basic rules of competency as they have been stated by the North Carolina Supreme Court. In re Will of Leonard, 82 N.C. App. 646, 347 S.E.2d 478 (1986).

The general rule is that every person is competent to testify unless determined to be disqualified by the Rules of Evidence. State v. Rael, 321 N.C. 528, 364 S.E.2d 125 (1988); State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368 (1988).

Lack of understanding of the nature of an oath would have been grounds for disqualification of a person as a witness prior to the adoption of the Rules of Evidence; however, this rule does not mention the ability to understand the nature of an oath, but provides that a person may be disqualified as a witness when he is incapable of expressing himself concerning the matter or when he is incapable of understanding the duty of a witness to tell the truth. State v. Baker, 320 N.C. 104, 357 S.E.2d 340 (1987).

Subsection (b) establishes a minimum standard for competency of a witness. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986).

Subsection (c) of this rule is a compromise between the traditional "Dead Man's Act" and complete abolition. Hunt v. Hunt, 85 N.C. App. 484, 355 S.E.2d 519 (1987).

As to the applicability of subsection (c) of this rule, see Hunt v. Hunt, 85 N.C. App. 484, 355 S.E.2d 519 (1987).

Hearsay Defined. - Whenever the assertions of any person, other than that of the witness himself in his present testimony, is offered to prove the truth of the matter asserted, the evidence so offered is hearsay. If offered for any other purpose, it is not hearsay. DeHart v. R/S Fin. Corp., 78 N.C. App. 93, 337 S.E.2d 94 (1985), cert. denied, 316 N.C. 375, 342 S.E.2d 893 (1986).

A witness' testimony is incompetent under the dead man's statute if the witness is a party or is interested in the event, his or her testimony relates to a personal communication with the decedent, the action is against a personal representative of the decedent or a person deriving title or an interest from, through, or under the decedent, or the witness is testifying in his or her own behalf. In re will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801, rehearing denied, 321 N.C. 300, 362 S.E.2d 780 (1987).

The competency of a witness is determined at the time the witness is called upon to testify. In re Will of Leonard, 82 N.C. App. 646, 347 S.E.2d 478 (1986), cert. denied, 351 N.C. 186, 541 S.E.2d 709 (1999).

Defendant Who Was Competent to Testify Held Competent to Confess. - Where there was no dispute that the defendant was capable of expressing herself concerning the matter so that she could be understood, and there was no evidence that she was incapable of understanding the duty of a witness to tell the truth, the defendant would have been competent to testify; therefore, she was competent to confess. State v. Shytle, 323 N.C. 684, 374 S.E.2d 573 (1989).

Defendant was properly found competent to confess; therefore, even if she was not fully capable of appreciating the seriousness of the confession, this did not make it inadmissible if it otherwise had the indicia of reliability. State v. Shytle, 323 N.C. 684, 374 S.E.2d 573 (1989).

The test of competency is the capacity of the proposed witness to understand and to relate under oath the facts which will assist the jury in determining the truth with respect to the ultimate facts. In re Will of Leonard, 82 N.C. App. 646, 347 S.E.2d 478 (1986); State v. Jenkins, 83 N.C. App. 616, 351 S.E.2d 299 (1986), cert. denied, 319 N.C. 675, 356 S.E.2d 791 (1987).

Competency under both the new rules and the case law prior to their adoption is the capacity of the proposed witness to understand and relate, under the obligation of an oath, facts which will assist the jury in determining the truth of the matters as to which it is called upon to decide. State v. Hicks, 319 N.C. 84, 352 S.E.2d 424 (1987).

Subsection (b) of this rule does not ask how bright, how young, or how old a witness is. Instead, the question is: does the witness have the capacity to understand the difference between telling the truth and lying? State v. Davis, 106 N.C. App. 596, 418 S.E.2d 263 (1992), cert. denied, 333 N.C. 347, 426 S.E.2d 710 (1993).

The trial court applied an erroneous legal standard in denying respondent father's request to call the children as witnesses because the focus of the voir dire was incorrectly directed to the effect the children's testifying would have on their mental health, rather than upon the ability of the children to understand their obligation to tell the truth and to relate events which they may have seen, heard or experienced; rather than determining whether all or any of them were competent to testify under this section, the trial court disqualified them as being "unavailable," apparently relying upon the definition of "unavailability" contained in G.S. 8C-1, Rule 804(a)(4), but the question of a potential witness' unavailability becomes relevant only with respect to the admissibility of his hearsay declarations. In re Faircloth, 137 N.C. App. 311, 527 S.E.2d 679 (2000).

Ambiguity or Vagueness of Witness on Voir Dire. - It matters not that some of a witness' answers during voir dire are ambiguous or vague or that a witness is unable to answer some of the questions which are put to him. Such performance is not unusual when the witness is a young child. The same applies for a mentally retarded individual. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, cert. denied, 320 N.C. 174, 358 S.E.2d 64 (1987).

Effect of Drug Use on Competency. - A witness is not incompetent to testify on the basis of drug use alone, but only insofar as such use affects his ability to be understood or to respect the importance of veracity. State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985).

Where the effect of drug use is concerned, the question is more properly one of the witness' credibility, not his competence. As such, it is in the jury's province to weigh his evidence, not in the court's to bar it. State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985).

Witness who participated in a controlled buy with defendant was allowed to testify although he was impaired by controlled substances during his testimony as the witness was not incompetent because defendant did not show that the witness was incapable of expressing himself or incapable of understanding his duties to tell the truth; the other evidence, including a detective's testimony and a videotape, entirely corroborated the witness's testimony against defendant; and evidence of the witness's impairment was presented to the jury, and thus the jury was free to determine whether they found the witness's testimony credible. State v. Burgess, - N.C. App. - , 843 S.E.2d 706 (2020), review denied, 376 N.C. 539, 851 S.E.2d 637, 2020 N.C. LEXIS 1241 (2020).

Competency of Child to Testify. - The competency of a child witness to testify at trial is not a proper subject for stipulation of counsel absent the trial judge's independent finding pursuant to personally examining or observing the child on voir dire. State v. Fearing, 315 N.C. 167, 337 S.E.2d 551 (1985).

There is no age below which one is incompetent, as a matter of law, to testify. State v. Jenkins, 83 N.C. App. 616, 351 S.E.2d 299 (1986), cert. denied, 319 N.C. 675, 356 S.E.2d 791 (1987); State v. Rael, 321 N.C. 528, 364 S.E.2d 125 (1988).

In sexual offense case, fact that six-year-old victim testified without objection that she was six years old and had one brother who was eight years old, named the school she attended, gave her teacher's name and where she lived, and said that she was going to tell the truth clearly supported the trial judge's conclusion that the six-year-old was competent to testify; thus, the trial judge's failure to conduct a voir dire examination to establish the child's competency was not prejudicial error. State v. Gilbert, 96 N.C. App. 363, 385 S.E.2d 815 (1989).

Trial court did not abuse its discretion in finding the four year old victim competent to testify and allowing her to testify to sexual offenses allegedly occurring when she was two. State v. Ward, 118 N.C. App. 460, 455 S.E.2d 666 (1995).

Although child was two-and-a-half years at the time of her mother's murder she had the capacity to testify at age five. State v. Reeves, 337 N.C. 700, 448 S.E.2d 802 (1994), cert. denied, 514 U.S. 1114, 115 S. Ct. 1971, 131 L. Ed. 2d 860 (1995).

It was not error to allow five year old child to testify to the jury while sitting on her stepmother's lap. State v. Reeves, 337 N.C. 700, 448 S.E.2d 802 (1994), cert. denied, 514 U.S. 1114, 115 S. Ct. 1971, 131 L. Ed. 2d 860 (1995).

The court did not abuse its discretion in ruling that a mentally retarded rape victim was incapable of effectively communicating at trial and was therefore incompetent to testify. State v. Washington, 131 N.C. App. 156, 506 S.E.2d 283 (1998), cert. denied, 352 N.C. 362, 544 S.E.2d 562 (2000).

A six-year old sexual abuse victim was not competent to testify, where the trial court conducted an extensive voir dire of the child to determine his ability to tell the truth, and he consistently exhibited that he did not know the truth from falsehood. State v. Waddell, 130 N.C. App. 488, 504 S.E.2d 84 (1998), aff'd in part and modified in part, 351 N.C. 413, 527 S.E.2d 644 (2000).

Despite the fact that the three-year-old child testified that telling the truth was bad at one point, he was found competent to testify where he later demonstrated his understanding that telling the truth was what you do and then promised to tell only the truth. State v. Meadows, 158 N.C. App. 390, 581 S.E.2d 472 (2003), cert. denied, 357 N.C. 467, 586 S.E.2d 774 (2003).

Offer of Proof as to Child's Competency. - Because no evidence was presented as to the minor child's competency as a witness, the trial court, by not allowing an offer of proof, had no basis upon which to make such a determination; the trial court quashed the subpoena and refused to allow any sort of offer of proof based upon potential trauma to the child, and while her well-being was an important concern, it was a not a legal basis to disregard the mandate within the rule. Counsel had to be allowed to make an offer of proof under these facts. Daly v. Kelly, - N.C. App. - , - S.E.2d - (July 21, 2020).

Further findings were required because the juvenile court disqualified the four-year-old victim without making an appropriate inquiry into her competency to testify. A short voir dire based on five questions, only one of which she did not answer, was insufficient to allow the juvenile court to determine whether she was incapable of expressing herself concerning the matter or incapable of understanding the duty to tell the truth. State v. Pugh, 138 N.C. App. 60, 530 S.E.2d 328 (2000).

"Unavailable" Witness. - Where four year old victim's testimony was so limited and she was neither cooperative nor responsive, the victim was in fact "unavailable" for purposes of testifying at trial, and combining her de facto unavailability with the evidentiary importance of her previous statements, the hearsay testimony of the witness to these statements was "necessary" under the two-part hearsay test. State v. Ward, 118 N.C. App. 460, 455 S.E.2d 666 (1995).

Failure of Court to Personally Determine Competency of Child. - In a prosecution charging defendant with first-degree rape, incest, and taking indecent liberties with his three-year-old daughter, the trial judge's adoption of counsel's stipulation in concluding that the child victim was incompetent to testify, where he never personally examined or observed the child's demeanor in responding to questions during a voir dire examination, was reversible error, where highly prejudicial testimony was erroneously admitted pursuant to G.S. 8C-1, Rules 803 (24) and 804 (b)(5) on the basis of this improperly based conclusion. State v. Fearing, 315 N.C. 167, 337 S.E.2d 551 (1985).

Despite child prosecutrix's lack of understanding of an obligation to tell the truth from a religious point of view, because she stated on direct examination an understanding of the difference between truth and lies and the importance of telling the truth, she exhibited a capacity to understand and relate facts and a comprehension of the difference between the truth and untruth. State v. Weaver, 117 N.C. App. 434, 451 S.E.2d 15 (1994).

Effect of Mental Illness on Competency. - Even when the trial court finds that a witness is presently suffering from a mental illness, the witness may testify if he has sufficient understanding to apprehend his obligation to tell the truth and is able to give a correct account of the matters he seeks to testify about. In re Will of Leonard, 82 N.C. App. 646, 347 S.E.2d 478 (1986).

An interested party may testify to oral communications with a decedent or lunatic where his mental capacity is in issue, the interested party expresses an opinion thereon, and the basis for the opinion includes the communications and personal transactions testified to. Peterson v. Finger, 82 N.C. App. 743, 348 S.E.2d 351 (1986).

Dead Man's Act Protections. - Estate did not waive the protections of the Dead Man's Statute, G.S. 8C-1, N.C. R. Evid. 601(c), when it timely objected at the widow's deposition to oral communications between the decedent and the widow, moved to strike the incompetent parts, and later admitted the deposition into evidence and did not object at a partial summary judgment hearing regarding the deposition. Since the oral communications in the deposition were offered by the widow, and not the estate, the estate's conduct at the deposition of objecting and moving to strike properly preserved those protections. Estate of Redden v. Redden, 194 N.C. App. 806, 670 S.E.2d 586 (2009).

Failure to Make Findings as to Competency. - Trial court did not commit reversible error by failing to make findings of fact and more detailed conclusions concerning competency of child victim to testify. State v. Rael, 321 N.C. 528, 364 S.E.2d 125 (1988).

When the evidence clearly supports a conclusion that the witness is competent, the trial court's failure to conduct a voir dire inquiry and make specific findings and conclusions concerning the witness' competency is, at worst, harmless error. State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368 (1988).

Although the trial court did not make a specific finding as to whether a nine-year-old child was capable of expressing herself concerning matters as to which she was to testify, the findings made by the trial court and its conclusion that she was competent clearly establish that the trial court exercised its discretion in declaring her competent as a witness. State v. Eason, 328 N.C. 409, 402 S.E.2d 809 (1991).

Finding of Competency Upheld. - Trial court did not abuse its discretion in finding 12-year-old child with a low IQ competent to testify, where the court considered and determined the overall competency of the witness as to his mental capacity and his age as these factors affected his ability to understand and relate under oath facts concerning the charge of first-degree sexual offense committed upon him. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986).

Refusal of the trial court to disqualify ten-year-old victim and her nine-year-old brother upheld. State v. Rhodes, 321 N.C. 102, 361 S.E.2d 578 (1987).

Trial court's exercise of its discretion in ruling that four-year-old child victim was competent to testify would be upheld. State v. Rael, 321 N.C. 528, 364 S.E.2d 125 (1988).

Testimony of four-year-old victim of rape held to meet the standards of this rule. State v. Everett, 98 N.C. App. 23, 390 S.E.2d 160, cert. denied, 326 N.C. 599, 393 S.E.2d 884 (1990), rev'd on other grounds, 328 N.C. 72, 399 S.E.2d 305 (1991).

Testimony of victim, who was one month short of her 14th birthday, observed by the trial court, fully supported the conclusion that she was not disqualified as a witness for failure to understand her duty to tell the truth as a witness. Assuming arguendo that the trial court erred in failing to conduct a voir dire examination of the witness and in failing to make specific findings and conclusions as to the witness' competency, any such error was harmless. State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368 (1988).

Finding of Incompetency Upheld. - The trial judge did not abuse her discretion by finding that witness was incapable of remembering, understanding, and relating to the jury matters of detail concerning holographic will in question, where the events and conversations which the witness would have testified about occurred during the period of 1979-1982, and where the witness could not remember having twice been involuntarily committed during that same period of time. In re Will of Leonard, 82 N.C. App. 646, 347 S.E.2d 478 (1986).

Where the trial judge conducted a competency hearing at which he was able to observe for himself a five-year-old's competence to be a witness, and the record showed that the child could not respond to simple questions about basic facts in her life, and was contradictory, uncommunicative, and frightened, there was no error in the court's finding the child incompetent to testify. State v. Deanes, 323 N.C. 508, 374 S.E.2d 249 (1988), cert. denied, 490 U.S. 1101, 109 S. Ct. 2455, 104 L. Ed. 2d 1009 (1989).

Discretion of Trial Court. - The determination that a witness is competent to testify is within the discretion of the trial court, which has the opportunity itself to observe the comportment of the witness. State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985).

The competency of a witness is a matter which rests in the sound discretion of the trial judge in the light of his or her examination of the observation of the particular witness. State v. Jenkins, 83 N.C. App. 616, 351 S.E.2d 299 (1986), cert. denied, 319 N.C. 675, 356 S.E.2d 791 (1987); State v. Hicks, 319 N.C. 84, 352 S.E.2d 424 (1987); State v. Rael, 321 N.C. 528, 364 S.E.2d 125 (1988); State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368 (1988).

Averments in Affidavit Violating This Rule Properly Disregarded. - Decedent's estate's contention that the trial court erred by allegedly considering an affidavit because it contained statements made by a decedent and her deceased sister was without merit since to the extent the challenged affidavit contained averments that would violate N.C. R. Evid. 601(c) if admitted as evidence at a later trial, the appellate court assumed the trial court properly disregarded them. Forbis v. Neal, 361 N.C. 519, 649 S.E.2d 382 (2007).

Appellate Review of Trial Court's Ruling. - Absent a showing that the trial court's ruling as to the competency of a witness could not have been the result of a reasoned decision, the ruling must stand on appeal. State v. Hicks, 319 N.C. 84, 352 S.E.2d 424 (1987); State v. Rael, 321 N.C. 528, 364 S.E.2d 125 (1988); State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368 (1988).

Applied in Elledge v. Welch, 238 N.C. 61, 76 S.E.2d 340 (1953); Heiland v. Lee, 207 F.2d 939 (4th Cir. 1953); Fesmire v. First Union Nat'l Bank, 267 N.C. 589, 148 S.E.2d 589 (1966); North Carolina State Bar v. Temple, 2 N.C. App. 91, 162 S.E.2d 649 (1968); Bryant v. Kelly, 279 N.C. 123, 181 S.E.2d 438 (1971); Schoolfield v. Collins, 281 N.C. 604, 189 S.E.2d 208 (1972); Woodard v. McGee, 21 N.C. App. 487, 204 S.E.2d 871 (1974); Brown v. Moore, 286 N.C. 664, 213 S.E.2d 342 (1975); In re Will of Wadsworth, 30 N.C. App. 593, 227 S.E.2d 632 (1976); Waters v. Humphrey, 33 N.C. App. 185, 234 S.E.2d 462 (1977); Stone v. Paradise Park Homes, 37 N.C. App. 97, 245 S.E.2d 801 (1978); Etheridge v. Etheridge, 41 N.C. App. 44, 255 S.E.2d 729 (1979); Hanover Co. v. Twisdale, 42 N.C. App. 472, 256 S.E.2d 840 (1979); Page v. Wilson Mem. Hosp., 49 N.C. App. 533, 272 S.E.2d 8 (1980); Almond v. Rhyne, 108 N.C. App. 605, 424 S.E.2d 231 (1993); State v. Beck, 163 N.C. App. 469, 594 S.E.2d 94 (2004), appeal dismissed, 358 N.C. 546, 599 S.E.2d 558 (2004).

Cited in Hinson v. Morgan, 225 N.C. 740, 36 S.E.2d 266 (1945); Bell v. Chatwick, 226 N.C. 598, 39 S.E.2d 743 (1946); State v. Davis, 229 N.C. 386, 50 S.E.2d 37 (1948); Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316 (1949); Reynolds v. Earley, 241 N.C. 521, 85 S.E.2d 904 (1955); Green v. Eastern Constr. Co., 1 N.C. App. 300, 161 S.E.2d 200 (1968); Peaseley v. Virginia Iron, Coal & Coke Co., 12 N.C. App. 226, 182 S.E.2d 810 (1971); Wall v. Sneed, 13 N.C. App. 719, 187 S.E.2d 454 (1972); Wall v. Sneed, 30 N.C. App. 680, 228 S.E.2d 81 (1976); State v. Gregory, 78 N.C. App. 565, 338 S.E.2d 110 (1985); Smith v. Allison, 83 N.C. App. 232, 349 S.E.2d 623 (1986); Chandler v. U-Line Corp., 91 N.C. App. 315, 371 S.E.2d 717 (1988); State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139 (1988); State v. Liner, 98 N.C. App. 600, 391 S.E.2d 820 (1990); State v. Huntley, 104 N.C. App. 732, 411 S.E.2d 155 (1991); State v. Rogers, 109 N.C. App. 491, 428 S.E.2d 220 (1993); Caudill v. Smith, 117 N.C. App. 64, 450 S.E.2d 8 (1994), cert. denied, 339 N.C. 610, 454 S.E.2d 247 (1995); State v. Waddell, 351 N.C. 413, 527 S.E.2d 644 (2000); State v. Redd, 144 N.C. App. 248, 549 S.E.2d 875 (2001); In re M.G.T.-B., 177 N.C. App. 771, 629 S.E.2d 916 (2006); State v. King, 366 N.C. 68, 733 S.E.2d 535 (2012); State v. Steen, 226 N.C. App. 568, 739 S.E.2d 869 (2013); In re M.A.E., - N.C. App. - , - S.E.2d - (July 21, 2015); In re Estate of Phillips, 251 N.C. App. 99, 795 S.E.2d 273 (2016).

II. PERSONS INTERESTED IN THE EVENT OF THE ACTION.

Dead Man's Statute. - The North Carolina "Dead Man's Statute", formerly G.S. 8-51, has traditionally prohibited testimony involving both transactions and communications by individuals who would potentially benefit from the alleged statements of a deceased individual. In re Will of Lamparter, 348 N.C. 45, 497 S.E.2d 692 (1998).

The statute, or rule as now codified, is applicable only to oral communications between the party interested in the event and the deceased. In re Will of Lamparter, 348 N.C. 45, 497 S.E.2d 692 (1998).

The Dead Man's Statute was intended as a shield to protect against fraudulent and unfounded claims. In re Will of Lamparter, 348 N.C. 45, 497 S.E.2d 692 (1998).

Affidavit, in which a nephew averred that he never took any action on behalf of his aunts without their knowledge and consent, never converted any assets to his own benefit or engaged in inappropriate conduct as attorney-in-fact for the aunts, and denied fraud, did not violate G.S. 8C-1, Rule 601. Forbis v. Neal, 175 N.C. App. 455, 624 S.E.2d 387 (2006), aff'd in part, rev'd in part, 361 N.C. 519, 649 S.E.2d 382 (2007).

Trial court erred in admitting the testimony of the brother's wife about conversations she had with decedent, and about conversations she overheard between decedent and the brother; since the wife was an interested party because she stood to inherit the property the brother was seeking if his specific performance action to enforce decedent's contract to make a will in the brother's favor was resolved in the brother's favor, she was barred from testifying about what a dead man had said in that regard. Taylor v. Abernethy, 174 N.C. App. 93, 620 S.E.2d 242 (2005), appeal dismissed, 360 N.C. 367, 630 S.E.2d 454 (2006).

In a case in which a home buyer argued at trial that a promissory note release was a gratuitous transfer requiring no consideration, the trial court noted that any parol evidence that the release was intended to be a gift conveyance would have been excluded under the Dead Man's Statute, G.S. 8C-1, N.C. R. Evid. 601, and the parties had stipulated that there would be no documentary evidence other than what an estate administrator had presented that would change the contract at all. Burton v. Williams, 202 N.C. App. 81, 689 S.E.2d 174 (2010).

Exception to the Dead Man's Statute. - With regard to a holographic will, an exception to the Dead Man's Statute has evolved which allows beneficiaries to testify as to the three material elements of a will: the testator's handwriting, the testator's signature, and what the testator considered to be his place for keeping valuable players. In re Will of Lamparter, 348 N.C. 45, 497 S.E.2d 692 (1998).

Legal or Pecuniary Interest in the Outcome. - To be disqualified as a witness interested in the event of the action, the witness must have a direct legal or pecuniary interest in the outcome of the litigation. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801, rehearing denied, 321 N.C. 300, 362 S.E.2d 780 (1987).

A named executor is not a person interested in the event of the caveat proceeding within the meaning of the dead man's statute. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801, rehearing denied, 321 N.C. 300, 362 S.E.2d 780 (1987).

The named executor's membership in a church, which was a beneficiary under the contested will, was too tenuous an interest to come within the meaning of the dead man's statute. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801 (1987).

Propounders and Caveators. - In a proceeding for the probate of a will, both propounders and caveators are parties interested in the event within the meaning and spirit of subsection (c) of this section. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801, rehearing denied, 321 N.C. 300, 362 S.E.2d 780 (1987); In re Will of Lamparter, 348 N.C. 45, 497 S.E.2d 692 (1998).

A beneficiary under a will may not testify as to communications with the deceased, but he or she may give an opinion, based on his or her own observations, as to the issue of the decedent's mental capacity at the time of the execution of the will and testify to transactions with the deceased as being a part of the basis of the opinion. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801, rehearing denied, 321 N.C. 300, 362 S.E.2d 780 (1987).

Subsection (c) prohibits beneficiaries from testifying as to oral communications they had with the decedent about his intent to make a new will or with regard to specific bequests to be contained in that will. In re Will of Lamparter, 348 N.C. 45, 497 S.E.2d 692 (1998).

III. TESTIMONY NOT DISQUALIFIED.

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Child Held Competent. - Where a child testified at the voir dire hearing that she knew what it meant to tell the truth and she knew it was bad to tell a lie, and she promised to tell just what had happened and nothing else, the fact that the child may not have told the truth in the past and was uncertain about some times and dates did not prevent her from being a competent witness. State v. Fletcher, 322 N.C. 415, 368 S.E.2d 633 (1988).

Where child's competency to testify was not determined until after her direct testimony, this was not prejudicial error; although the better practice would have been to conduct the voir dire examination and determine competency prior to the witness' testimony in order to avoid possible mistrial or prejudice from the admission of testimony by a witness later found incompetent, this witness was correctly determined to be competent during her testimony, and the timing of the competency finding was not prejudicial error. State v. Reynolds, 93 N.C. App. 552, 378 S.E.2d 557 (1989).

A child was competent to testify in a capital murder trial, where she was about five when she testified and she had been four when her mother was murdered, and although she said at the trial's outset that it was not good to tell the truth, she thereafter responded to the prosecutor that it was not true to say that her blue dress was red, and she also stated that she knew she would get a spanking if she did something wrong, that it was wrong to tell a lie, that she knew she was in court to talk about the defendant shooting her mother, and that she wanted to tell the truth. State v. Andrews, 131 N.C. App. 370, 507 S.E.2d 305 (1998).

The child victim-witness was competent to testify where it was demonstrated that she knew the difference between the truth and a lie; she indicated a capacity to understand and relate facts to the jury concerning defendant's assaults upon her; she displayed a comprehension of the difference between truth and untruth; and she affirmed her intention to tell the truth. State v. Ford, 136 N.C. App. 634, 525 S.E.2d 218 (2000).

Defendant's conviction of first-degree sexual assault on a child under the age of 13 years was affirmed and the trial court did not err when it determined that the children victims were competent to testify. State v. Burgess, 181 N.C. App. 27, 639 S.E.2d 68 (2007), cert. denied 717 S.E.2d 384, 2011 N.C. LEXIS 728 (N.C. 2011).

Four-year-old victim, who was two and one-half years old at the time of the alleged G.S. 14-202.1 incident, was competent to testify under G.S. 8C-1-601(b) as: (1) It was expected that the victim would make vague and self-contradictory answers during voir dire; and (2) Somewhat non-responsive and contradictory responses to some questions when the victim testified before the jury did not show that the victim was unable to relate facts, although they might have been proper subjects for cross-examination or a jury argument. State v. Carter, 210 N.C. App. 156, 707 S.E.2d 700 (2011), review denied 365 N.C. 202, 710 S.E.2d 9, 2011 N.C. LEXIS 419 (N.C. 2011).

Seven-Year-Old Child Competent to Testify. - Where the voir dire record revealed that although the seven-year-old child did not understand her obligation to tell the truth from a religious point of view and had no fear of certain retribution for mendacity, she knew the difference between the truth and a lie, indicated a capacity to understand and relate facts to the jury concerning the defendant's assaults upon her, a comprehension of the difference between truth and untruth, and her obligation to tell the truth, and affirmed her intention to do so, the victim's testimony met the standards of this rule. State v. Hicks, 319 N.C. App. 84, 352 S.E.2d 424 (1987).

Where defendant was charged with first degree rape of his seven-year-old daughter, although child answered she did not know what it meant to break a promise and did not know what an oath was, court did not abuse its discretion in finding child competent to testify, since child testified she knew what it meant to tell the truth and she knew the difference between right and wrong. State v. Green, 95 N.C. App. 558, 383 S.E.2d 419 (1989).

Four-Year-Old Child Competent to Testify. - Juvenile court did not commit plain error in admitting the testimony of a four-year-old victim, despite defendant's argument that the victim was incompetent to testify in that she did not clearly communicate her understanding of the obligation to tell the truth or illustrate that she had the capacity to understand and relate facts since she provided inaudible responses to questions; the victim's story was consistent and corroborated by the testimony of her mother, her brother, her doctor, and the investigating officer and the evidence sufficiently demonstrated the use of force. In re Clapp, 137 N.C. App. 14, 526 S.E.2d 689 (2000).

Retarded Victim Held Competent. - A mentally retarded 13-year-old victim, whose language abilities were that of a seven-year-old, read at a kindergarten level, and functioned socially and emotionally as a four- or five-year-old, and had a poor concept of time, but remembered details accurately, was held competent to testify. State v. Swann, 322 N.C. 666, 370 S.E.2d 533 (1988).

Officer Who Interviewed Defendant. - Law enforcement officer who customarily spoke a different dialect of defendant's language was competent to testify about his interview of defendant, under G.S. 8C-1, Rule 601(a), as there was little difference between the two dialects and the officer had conducted numerous interviews of individuals who spoke defendant's dialect. State v. Aquino, 149 N.C. App. 172, 560 S.E.2d 552 (2002).

Witness of Low Mentality. - The fact that the court felt the witness was of low mentality did not disqualify her, and the record did not show that the witness was either incapable of expressing herself or incapable of understanding her duty to tell the truth such that the court should have disqualified her as a witness on its own motion. State v. Cox, 344 N.C. 184, 472 S.E.2d 760 (1996).

Defendant Suffering Brain Damage Held Competent to Confess and Stand Trial. - Defendant, who, as a result of a self-inflicted gunshot wound to the head and resulting surgery, had suffered damage to her brain which impaired her emotional response to situations, was competent to make a valid confession and stand trial; there was evidence that defendant had an I.Q. within the normal range and that she knew what the charges were and what could happen to her if she was convicted; if this did not worry or upset her because of her altered mental condition, it did not mean she did not understand these facts, and the court could find from this and other evidence that the defendant understood the nature and object of the proceedings against her and could comprehend her own situation in reference to the proceedings. State v. Shytle, 323 N.C. 684, 374 S.E.2d 573 (1989).

Witness with Illness Affecting Speech. - Trial court did not abuse its discretion in finding competent a witness who suffered from viral encephalitis, a motor disease that affected his speech, because the witness was sufficiently audible and understandable when he repeated his testimony. State v. Hyatt, 355 N.C. 642, 566 S.E.2d 61 (2002).

Past Mental Illness. - Although codefendant had a past history of mental illness, the denial of the motion to preclude the witness from testifying was not error; the trial judge considered the psychiatric report from hospital which stated the witness had the capacity to proceed and determined that, in light of the fact that defendant presented no other evidence and based on his own observation of the witness, the witness was competent to testify. State v. Liles, 324 N.C. 529, 379 S.E.2d 821 (1989).

Where executor does not qualify as a person interested in the outcome of the caveat proceeding, his testimony regarding oral communications with the decedent is competent. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801, rehearing denied, 321 N.C. 300, 362 S.E.2d 780 (1987).

Where the executor drafted the will, his testimony regarding decedent's mental capacity was properly admitted for the purpose of showing the basis for his opinion that at the crucial time decedent had the requisite mental capacity. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801, rehearing denied, 321 N.C. 300, 362 S.E.2d 780 (1987).

Will Beneficiary Could Testify Against Self-Interest - Trial court properly admitted a beneficiary of both the decedent's first will and the decedent's second will to testify that the decedent revoked and tore up the first will, under an exception to the Dead Man's Statute, because the beneficiary testified against the beneficiary's own interest in that she would receive less under the second will than under the first will. In re Will of Barnes, 157 N.C. App. 144, 579 S.E.2d 585, cert. denied., appeal dismissed, 357 N.C. 460, 586 S.E.2d 95 (2003).

Waiver of Dead Man Protections. - Defendants, manufacturers of an amusement ride, waived any protection afforded by this rule when they deposed the mother of an injured boy regarding her conversation with the amusement ride operator who had since died, although they did not offer the testimony at trial. Breedlove v. Aerotrim, U.S.A., Inc., 142 N.C. App. 447, 543 S.E.2d 213 (2001).

Court of appeals could not consider the contention of the public administrator of a decedent's estate that summary judgment should not have been granted to purchasers on the ground that their evidence of a settlement agreement with the decedent was dependent upon an oral communication between the purchasers and the decedent's attorney, who was deceased, and that the communication was incompetent under G.S. 8C-1, N.C. R. Evid. 601(c), because the claim was not properly preserved for review pursuant to N.C. R. App. P. 10(b)(1), and even if the administrator had preserved the objection and properly assigned it as error, he waived the protection of the dead man's statute by eliciting the testimony through interrogatories. Woods v. Mangum, 200 N.C. App. 1, 682 S.E.2d 435 (2009), aff'd, 363 N.C. 827, 689 S.E.2d 858, 2010 N.C. LEXIS 200 (2010).

Redundant Testimony. - Trial court did not err in excluding testimony of statements made by the decedent under G.S. 8C-1, N.C. R. Evid. 601(c), where the jury heard the gist of the testimony regarding the reasons the decedent removed himself from a college board, the state of his mental condition, and his relationship with his children. In re Estate of Pickelsimer, 242 N.C. App. 582, 776 S.E.2d 216 (2015), review denied 781 S.E.2d 290, 2015 N.C. LEXIS 1227 (2015).

IV. DECISIONS UNDER FORMER G.S. 8-51.

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A. GENERAL CONSIDERATION.

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Editor's Note. - The cases below were decided under the former Dead Man's Statute, former G.S. 8-51.

As to summary and analysis of former G.S. 8-51, see Burnett v. Savage, 92 N.C. 10 (1885); Sumner v. Candler, 92 N.C. 634 (1885); Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043 (1890); Seals v. Seals, 165 N.C. 409, 81 S.E. 613 (1914); Fidelity Bank v. Wysong & Miles Co., 177 N.C. 284, 98 S.E. 769 (1919).

Purpose of Section. - The mischief the statute was passed to prevent was the giving of testimony by a witness interested in the event, as to a personal transaction or communication between the witness and the deceased person whose lips are sealed in death. Abernathy v. Skidmore, 190 N.C. 66, 128 S.E. 475 (1925).

The purpose of this section was to exclude evidence of a personal transaction or communication between the witness and a person who by reason of death or lunacy cannot be heard. White v. Mitchell, 196 N.C. 89, 144 S.E. 526 (1928).

The reasoning behind this section was succinctly stated: Death having closed the mouth of one of the parties (with respect to a personal transaction or communication), it is but meet that the law should not permit the other to speak of those matters which are forbidden by the statute. Men quite often understand and interpret personal transactions and communications differently, at best; and the legislature, in its wisdom, has declared that an ex parte statement of such matters shall not be received in evidence. Carswell v. Greene, 253 N.C. 266, 116 S.E.2d 801 (1960); Whitley v. Redden, 5 N.C. App. 705, 169 S.E.2d 260 (1969), rev'd on other grounds, 276 N.C. 263, 171 S.E.2d 894 (1970).

The law that an interested survivor to a personal transaction or communication cannot testify with respect thereto against the dead man's estate was intended as a shield to protect against fraudulent and unfounded claims. It was not intended as a sword with which the estate may attack the survivor. Pearce v. Barham, 267 N.C. 707, 149 S.E.2d 22 (1966); Smith v. Dean, 2 N.C. App. 553, 163 S.E.2d 551 (1968).

The rule that evidence offered is admissible if it is competent for any purpose ought not to be used as a sword with which to attack a decedent's estate by destroying the express provisions of this section. Whitley v. Redden, 5 N.C. App. 705, 169 S.E.2d 260 (1969), rev'd on other grounds, 276 N.C. 263, 171 S.E.2d 894 (1970).

When Testimony Is Incompetent Under This Section. - This section did not render the testimony of a witness incompetent in any case unless these four questions required an affirmative answer: 1. Is the witness (a) a party to the action, or (b) a person interested in the event of the action, or (c) a person from, through or under whom such a party or interested person derives his interest or title? 2. Is the witness testifying (a) in his own behalf or interest, or (b) in behalf of the party succeeding to his title or interest? 3. Is the witness testifying against (a) the personal representative of a deceased person, or (b) the committee of a lunatic, or (c) a person deriving his title or interest from, through or under a deceased person or lunatic? 4. Does the testimony of the witness concern a personal transaction or communication between the witness and the deceased person or lunatic? Peek v. Shook, 233 N.C. 259, 63 S.E.2d 542 (1951); Brown v. Green, 3 N.C. App. 506, 165 S.E.2d 534 (1969); Ballard v. Lance, 6 N.C. App. 24, 169 S.E.2d 199 (1969); Etheridge v. Etheridge, 41 N.C. App. 39, 255 S.E.2d 735 (1979).

Even in instances where these four things concurred, the testimony of the witness was nevertheless admissible under an exception specified in the statute itself if the personal representative of the deceased person, or the committee of the lunatic, or the person deriving his title or interest from, through, or under the deceased person or lunatic, was examined in his own behalf, or the testimony of the deceased person or lunatic was given in evidence concerning the same transaction or communication. Peek v. Shook, 233 N.C. 259, 63 S.E.2d 542 (1951); Brown v. Green, 3 N.C. App. 506, 165 S.E.2d 534 (1969).

The testimony of a witness was incompetent under the provisions of this statute when it appeared (1) that such witness was a party, or interested in the event, (2) that his testimony related to a personal transaction or communication with the deceased person, (3) that the action was against the personal representative of the deceased or a person deriving title or interest from, through or under the deceased, and (4) that the witness was testifying in his own behalf or interest. Collins v. Covert, 246 N.C. 303, 98 S.E.2d 26 (1957); Godwin v. Wachovia Bank & Trust Co., 259 N.C. 520, 131 S.E.2d 456 (1963).

Reasons for Exclusion. - The exclusion of such testimony rested not merely upon the ground that the dead man could not have a fair showing, but upon the broader and more practical ground that the other party to the action had no chance by the oath of the relevant witness to reply to the oath of the party to the action. In re Will of Mann, 192 N.C. 248, 134 S.E. 649 (1926).

Courts were not disposed to extend the disqualification of a witness under this section to those not included in its express terms. Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156 (1952); Brown v. Whitley, 12 N.C. App. 306, 183 S.E.2d 258 (1971).

The provisions of this section could be waived by the adverse party. Andrews v. Smith, 198 N.C. 34, 150 S.E. 670 (1929).

Where an administrator brought proceedings under former G.S. 1-569 et seq., to examine a defendant to discover assets of the estate of the deceased, the administrator waived the provisions of this section and the testimony thus taken could be introduced by the defendant in his own behalf. Andrews v. Smith, 198 N.C. 34, 150 S.E. 670 (1929).

If the plaintiffs at a former trial called the defendant as an adverse witness, examined her in detail about her relations with deceased, such examination would seem to be a waiver of this section and would open the door for the defendant to testify in another trial in respect to the matters about which the plaintiffs examined her. Hayes v. Ricard, 244 N.C. 313, 93 S.E.2d 540 (1956).

Where a party claiming under a deceased person examined the attorney for the deceased in respect to the execution and delivery of deeds to the land in controversy and the consideration therefor, such examination constituted a waiver of this section in respect to communications or transactions with decedent, and the other party was entitled to cross-examine the attorney as to such transactions. However, the waiver did not apply to other and independent transactions. Hayes v. Ricard, 244 N.C. 313, 93 S.E.2d 540 (1956).

Where the plaintiffs adversely examined the defendant for the purpose of obtaining evidence for use in the trial as provided in former G.S. 1-568.1 through 1-568.16, that examination was a waiver of the protection afforded by this section to the extent that either party might use it upon the trial. Hayes v. Ricard, 244 N.C. 313, 93 S.E.2d 540 (1956).

But adverse examinations of defendant in regard to transactions with decedent, which examinations were taken in prior actions nonsuited, did not operate as a waiver of this section so as to render competent defendant's testimony in subsequent trials in regard to such transactions. McCurdy v. Ashley, 259 N.C. 619, 131 S.E.2d 321 (1963).

Where an action to recover for injuries to one passenger was consolidated with two actions for wrongful deaths of two other passengers against the same defendant, the admission of testimony of plaintiff passenger in regard to a transaction between defendant and one of the deceased passengers did not constitute a waiver of this section in regard to the two actions for wrongful death. McCurdy v. Ashley, 259 N.C. 619, 131 S.E.2d 321 (1963).

Under certain circumstances the personal representative could waive the protection afforded by this section, and when this is done, it is frequently referred to as "opening the door" for the testimony of the opposing party or interested survivor. Smith v. Dean, 2 N.C. App. 553, 163 S.E.2d 551 (1968).

Province of Court to Decide What Testimony May "Come In". - When a personal representative "opens the door" by testifying to a transaction, it is not in his province, but that of the court, to decide what testimony favorable to the adverse party may "come in." Mansfield v. Wade, 208 N.C. 790, 182 S.E. 475 (1935).

This section applied to actions in tort as well as actions on contract. Boyd v. Williams, 207 N.C. 30, 175 S.E. 832 (1934). See Hardison v. Gregory, 242 N.C. 324, 88 S.E.2d 96 (1955).

This section prohibited the surviving party from testifying in his own behalf with respect to personal transactions and communications between him and a deceased person in an action in which the survivor seeks to establish a claim, either in contract or in tort, against the estate of the deceased. Carswell v. Greene, 253 N.C. 266, 116 S.E.2d 801 (1960).

Itemized and Verified Accounts. - Section 8-45, relating to itemized and verified accounts, was subordinate to this section. See William M. Lloyd & Co. v. Poythress, 185 N.C. 180, 116 S.E. 584 (1923).

Testimony Not Barred by Section. - Where a widow was entitled during her widowhood to the profits on the land devised by her deceased husband, but not to his moneys commingled therewith in a deposit in a bank, and she died devising the total amount of the deposit: Held, testimony as to her receipt of the money from the crops was competent, not falling within the provisions of this section, and did not affect the title to other money owned by her husband at his death and given to her for life by his will. White v. Mitchell, 196 N.C. 89, 144 S.E. 526 (1928).

Conversations with Living Persons. - Where the widow under the terms of the will of her husband could only dispose of the moneys in the bank to her credit, and not such as could at her death pass to the remainderman under his will, it could be shown by disinterested witnesses as to what part passed under the widow's will, as not objectionable evidence under this section based upon conversations with other living parties interested under the husband's will. White v. Mitchell, 196 N.C. 89, 144 S.E. 526 (1928).

Testimony of conversations with party to action wherein witness related statements of decedent is not in contravention of this section. Allen v. Allen, 213 N.C. 264, 195 S.E. 801 (1938).

Rehearsal of Conversation. - Direct evidence of a conversation and understanding with the plaintiff's testator was, under this section, incompetent, but a rehearsal of that conversation was a part of the res gestae, and admissible. Gilmer v. McNairy, 69 N.C. 335 (1873).

Personal letters written by decedent to his granddaughter, one of the propounders of his will, were held admissible over the objection that they constituted personal transactions with the deceased which were prohibited by the "dead man's statute." In re Will of McDowell, 230 N.C. 259, 52 S.E.2d 807 (1949).

Testimony to Prove Time When Act Was Done. - Where the act of the widow's execution of dissent to the will and the delivery of such dissent by her to the court was established by evidence, an interested party could testify, after the death of the widow, as to the time she saw the widow file the dissent in the clerk's office, the testimony being offered not for the purpose of proving the widow's execution of the dissent but only to establish that the act was done within the time allowed. Philbrick v. Young, 255 N.C. 737, 122 S.E.2d 725 (1961).

Record Evidence. - While testimony as to personal transactions with the deceased payee of a note would be incompetent to establish defenses to the note over the objection of the personal representative of the payee, record evidence tending to establish such defenses was not precluded by this section. Flippin v. Lindsey, 221 N.C. 30, 18 S.E.2d 824 (1942).

The death certificate of the daughter intestate recorded no transaction between the child's mother and the doctor, and even had that been the case, record evidence did not fall within the ban of this section. Spillman v. Forsyth Mem. Hosp., 30 N.C. App. 406, 227 S.E.2d 292 (1976).

Testimony Competent as to Only One of Two Defendants Was Admissible. - When there was more than one defendant, testimony which was competent as to one party should not have been excluded by virtue of this section because it was not competent against another party in the suit. Lamm v. Gardner, 250 N.C. 540, 108 S.E.2d 847 (1959); Brown v. Whitley, 12 N.C. App. 306, 183 S.E.2d 258 (1971).

Instruction as to Use of Section Cannot Be Obtained by Declaratory Judgment. - In an action instituted under the Declaratory Judgment Act the court had no authority to instruct a litigant whether to take advantage of the provision of this section, upon the hearing of the cause upon its merits, since such instructions upon a question of procedure do not fall within the purview of the act. Redmond v. Farthing, 217 N.C. 678, 9 S.E.2d 405 (1940).

B. PARTIES TO THE ACTION.

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A member of the board of county commissioners was not a competent witness as to transactions with the defendant's intestate in a suit by the board. Commissioners of Forsyth v. Lash, 89 N.C. 159 (1883).

A principal debtor, who was a party to an action to foreclose a mortgage given by his sureties as security for the loan, was an incompetent witness to a contract with the deceased creditor. Benedict v. Jones, 129 N.C. 475, 40 S.E. 223 (1901).

A defendant executor could not testify concerning a land transaction between himself and the intestate in a suit brought by creditors of the estate to subject the land alleged to have been fraudulently conveyed to the defendant by the intestate. State ex rel. Bryant & Bro. v. Morris, 69 N.C. 444 (1873); Grier v. Cagle, 87 N.C. 377 (1882).

Guardian. - Testimony of a guardian, suing an executor to establish a gift made by testatrix to the guardian's ward, as to what occurred between the testatrix and executor, was admissible as against the objection that the guardian could not testify as to any communication or transaction between himself and testatrix. Zollicoffer v. Zollicoffer, 168 N.C. 326, 84 S.E. 349 (1915).

A "next friend" is not a party to the suit. But his liability for costs renders him incompetent to testify to the transactions or conversations here under consideration. Mason v. McCormick, 75 N.C. 263 (1876). See McLeary v. Norment, 84 N.C. 235 (1881).

Original Beneficiary of Life Insurance Policy. - In an action by the person substituted as beneficiary in a policy of life insurance to recover the policy and proceeds as against the original beneficiary after the death of the insured, the original beneficiary was precluded by this section from testifying to the effect that she had the policy in her possession and was holding same as security for a loan to insured and for premiums paid by her on the policy, since such testimony tends to establish an oral assignment of the policy to her as security, she being a party to the action and having a direct pecuniary interest in the outcome. Harrison v. Winstead, 251 N.C. 113, 110 S.E.2d 903 (1959).

Parties in Probate of Will. - In a proceeding for the probate of a will, both propounders and caveators were parties interested in the event within the meaning and spirit of this section. In re Will of Brown, 194 N.C. 583, 140 S.E. 192 (1927).

Under this section the beneficiary under a will could not testify to transactions and communications with the deceased, but he could in proceedings of devisavit vel non give his opinion, based on his own observations, as to the mental incapacity of the deceased at the time of the execution of the writing propounded, and then testify to personal transactions he had with him as being a part of the basis of his opinion, when evidence of this character was properly so confined upon the trial by instructions or otherwise, the weight and credibility being for the jury to determine. In re Will of Brown, 194 N.C. 583, 140 S.E. 192 (1927).

A caveator or a propounder in a will contest was a "party" to whom the prohibitions and exceptions of this section apply. In re Will of Ricks, 292 N.C. 28, 231 S.E.2d 856 (1977).

Partner. - Where one partner was a party to the action and was interested in the event of the action, and the other partner was dead, because his lips were sealed in death the living partner was incompetent to testify in his own behalf to any transaction or communication between himself and the intestate concerning his relationship to the copartnership and to relate certain conversations he had with deceased about the assets of the partnership. Wingler v. Miller, 223 N.C. 15, 25 S.E.2d 160 (1943).

In a suit by distributees to recover from administrators and surviving partner money found on the person of decedent and claimed by his partner, testimony of the partner, concerning his relations to the partnership and the relation of certain conversations he had with deceased about the assets of the partnership, was clearly inadmissible under this section. Wingler v. Miller, 223 N.C. 15, 25 S.E.2d 160 (1943).

Party Acting in Corporate Capacity. - One who is a party to a suit, though in his corporate capacity, was not competent to testify as to a transaction with a deceased person. Commissioners of Forsyth v. Lash, 89 N.C. 159 (1883).

Payee of Promissory Note. - The Dead Man's Statute was clearly applicable to the testimony of a payee of a promissory note. In re Cooke, 37 N.C. App. 575, 246 S.E.2d 801 (1978).

Surviving Occupant of Car. - Testimony of a surviving occupant in a car to the effect that he was not driving but that one of the other occupants killed in the accident was driving at the time of the accident came within the provisions of this section in actions against the surviving occupant for wrongful death. McCurdy v. Ashley, 259 N.C. 619, 131 S.E.2d 321 (1963).

Surviving Stockholders. - In an action by a corporation and the surviving principal stockholders against the widow of a deceased principal stockholder, involving the liability of the corporation under its contract for the purchase of the stock of the deceased stockholder, the surviving stockholders were incompetent to testify as to conversations between the stockholders modifying the stock purchase agreement in favor of the corporation or the surviving stockholders. Collins v. Covert, 246 N.C. 303, 98 S.E.2d 26 (1957).

Decedent's Tenant. - In an action for goods sold and delivered to the intestate, a tenant of the intestate who was furnished with goods from the plaintiff's store, and who settled with the intestate, was competent to testify in the plaintiff's behalf as to the intestate's delivery to him of the merchandise because the witness was not a party to the action. Sorrell v. McGhee, 178 N.C. 279, 100 S.E. 434 (1919).

Surviving tenant by the entirety was the "survivor of a deceased person" within the meaning of this section in an action which attacked the validity of a deed by which the tenancy by the entirety was created. Gribble v. Gribble, 25 N.C. App. 366, 213 S.E.2d 376, cert. denied, 287 N.C. 465, 215 S.E.2d 623 (1975).

Party May Testify as to Transaction with Deceased Agent of Opponent. - This section did not render an interested witness incompetent to testify to a transaction between himself and a deceased agent of his opponent. Bailey v. Westmoreland, 251 N.C. 843, 112 S.E.2d 517 (1960); Tharpe v. Newman, 257 N.C. 71, 125 S.E.2d 315 (1962).

Hence, where a note was executed to two payees jointly and one of them thereafter acquired the interest of the other and sued the makers of the note, after the death of the other payee, testimony of the maker as to a contemporaneous agreement with the deceased payee, acting for himself and as agent of the other payee, that the note should not become a binding obligation until the happening of a stated contingency, was competent as to plaintiff payee's original share of the note, even though it was incompetent as to the share acquired by him as assignee of the deceased payee. Bailey v. Westmoreland, 251 N.C. 843, 112 S.E.2d 517 (1960).

But This Rule Applies Only Where Agent Was Not Personally Liable. - The rule that this section did not render an interested witness incompetent to testify to a transaction between himself and a deceased agent of his opponent was applied only in factual situations where the deceased agent was not personally liable in respect of the alleged cause of action. It had no application where the liability, if any, of the principal rested solely on the alleged tortious acts of the agent under the doctrine of respondeat superior. Tharpe v. Newman, 257 N.C. 71, 125 S.E.2d 315 (1962).

Testimony of the surviving occupant of car tending to show that the other occupant, killed in the accident, was driving at that time was incompetent in an action by the survivor against the owner of the vehicle sought to be held liable under the doctrine of agency, since the owner, after having paid such liability, would have had a right of action against the estate of the deceased, and therefore the transaction came within the spirit if not the letter of this section. Tharpe v. Newman, 257 N.C. 71, 125 S.E.2d 315 (1962).

Testimony by Agent of Adverse Party Admissible. - In an action on an insurance policy by the son of the deceased owner, testimony of insurer's agent that prior to his death the owner directed him to transfer the policy to the owner's son because the owner was giving the land to his son was not precluded by this section. King v. National Union Fire Ins. Co., 258 N.C. 432, 128 S.E.2d 849 (1963).

Action to Enforce Agreement to Bequeath Property in Consideration of Services. - Where the plaintiff, in her own right and as administratrix of her mother, sought to recover upon an alleged contract made by her mother and another person now deceased, under which her mother performed services to such other person under his agreement that he would devise and bequeath to her all of his property, it was incompetent for the plaintiff to testify to communications or transactions between her mother and such other person tending to establish her demand, for she was a party interested, within the contemplation of the statute. Brown v. Adams, 174 N.C. 490, 93 S.E. 989 (1917).

C. PERSONS INTERESTED IN THE EVENT OF THE ACTION.

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Section Not Confined to Parties to Action. - The provisions of this section were not confined to the parties to the action, but extended to testimony of a witness interested in the result of the action. Honeycutt v. Burleson, 198 N.C. 37, 150 S.E. 634 (1929).

Test for Disqualifying Interest. - To determine when such interests existed as to render a person incompetent, the following rule was applied: The true test of the competency of a witness is whether he bears such a relation to the controversy that the verdict and judgment in the case may be used against him as a party in another action; if not, he is not disqualified. Jones v. Emory, 115 N.C. 158, 20 S.E. 206 (1894); Henderson v. McLain, 146 N.C. 329, 59 S.E. 873 (1907).

Nature of Interest Involved. - This section does not disqualify every witness who, in the broadest sense of the term, is interested in the event of the action, but only such as have a direct and substantial or a direct legal or pecuniary interest in the result. Jones v. Emory, 115 N.C. 158, 20 S.E. 206 (1894); Helsabeck v. Doub, 167 N.C. 205, 83 S.E. 241 (1914); In re Gorham, 177 N.C. 271, 98 S.E. 717 (1919); Allen v. Allen, 213 N.C. 264, 195 S.E. 801 (1938); Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156 (1952).

It follows that a mere sentimental interest will not suffice. Sutton v. Walters, 118 N.C. 495, 24 S.E. 357 (1896); Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156 (1952).

And it has been held that relationship of the parties alone does not constitute the direct, legal, pecuniary interest required. See Sutton v. Walters, 118 N.C. 495, 24 S.E. 357 (1896); Porter v. White, 128 N.C. 42, 38 S.E. 24 (1901); Bennett v. Best, 142 N.C. 168, 55 S.E. 84 (1906); Walston v. Lowry, 212 N.C. 23, 192 S.E. 877 (1937).

To be disqualified as a "person interested in the event" the witness must have a direct legal or pecuniary interest in the outcome of the litigation. Brown v. Whitley, 12 N.C. App. 306, 183 S.E.2d 258 (1971).

Present Interest. - In Isler v. Dewey, 67 N.C. 93 (1872), the court intimates that the interest necessary to disqualify is a present interest; that is, one retained by the party at the time of examination. In reaching this conclusion it was said: "Any other construction would make a statute, professedly for the removal of the incompetency of witnesses, the means of introducing new incompetencies unknown to the common law and opposed to its principles." See Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156 (1952).

Originally this section disqualified a fourth class of persons, i. e. those who have had an interest in the subject matter of the suit, but whose interest has since ceased. This disqualification did not exist at common law, and was struck out of this section of the Code of 1883, except in the cases in which such persons still came under the third class of disqualified persons above stated. Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043 (1890).

Witness Having Dual or Alternative Interest. - To determine the competency of a witness who has a dual or alternative interest in the event of the action, the court must decide which of the two interests was the more immediately valuable. Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156 (1952).

The competency of the interested witness is limited to the same transaction as the one testified about by the administrator or the deceased, or elicited from the witness himself by the administrator. Smith v. Dean, 2 N.C. App. 553, 163 S.E.2d 551 (1968).

Agent of Payee of Note. - Testimony of an endorser of a note, as to conversations with the payee's agent, now dead, showing the consideration which induced the endorsement, was not excluded under this section, the agent not being a party interested in the event within the meaning of the statute for, although the agent guaranteed all notes to the payee, if there was a failure of consideration the payee could hold neither of the guarantors and had the endorser been liable he could not have recovered from the agent. American Agrl. Chem. Co. v. Griffin, 204 N.C. 559, 169 S.E. 152 (1933).

Agent of Third Person in Transaction with Deceased. - Assuming that a collision between two motor vehicles was a "transaction" within the meaning of this section, then one who has acted as an agent for a third person in a transaction with a person since deceased was ordinarily competent to testify to conversations or transactions of the decedent. Brown v. Whitley, 12 N.C. App. 306, 183 S.E.2d 258 (1971).

Attorney Formerly Holding Note for Collection. - An attorney formerly holding a note for collection was not an interested party in an action on the note within the meaning of this section, prohibiting testimony by interested parties as to transactions with or declarations of a decedent. Vannoy v. Stafford, 209 N.C. 748, 184 S.E. 482 (1936).

Brother-in-Law of Decedent in Action to Recover Embezzled Funds. - The testimony of a witness, in an action against the administrator of his deceased brother-in-law to recover certain sums obtained by the deceased on two vouchers made to a fictitious firm and embezzled by him, that he collected the vouchers for the deceased through his bank and sent the proceeds to the deceased, was not incompetent as falling within the provisions of this section, the witness not being a party in interest and having no direct, legal or pecuniary interest in the event of the action. Fort Worth & D.C. Ry. v. Hegwood, 198 N.C. 309, 151 S.E. 641 (1930).

Depositor's Son in Action to Recover Moneys Deposited. - In an action by the administrator of a deceased person against a bank to recover moneys deposited by the intestate, resisted on the ground that the deceased had authorized the bank to pay the money upon his son's checks, the latter being present at the time, the son was interested in the event since he would be liable to the plaintiff if he was not authorized to draw the checks and possibly to the defendant, and his testimony was incompetent under this section, and the fact that a third person was present at the time of the transaction and testified at the trial did not affect this result. Donoho v. Wachovia Bank & Trust Co., 198 N.C. 765, 153 S.E. 451 (1930).

Draftsman of Deed Sought to Be Reformed. - In an action for reformation of a deed to a county board of education for mistake of the draftsman in failing to insert a reversionary clause therein in accordance with the agreement between the grantors and grantee, testimony of the draftsman relating to declarations of a deceased member of the board and of the superintendent of schools, tending to show that it was agreed that the reversionary clause should be inserted, was held not precluded by this section, the draftsman not being a party interested in the event as contemplated by the statute. Ollis v. Board of Educ., 210 N.C. 489, 187 S.E. 772 (1936).

Holder of Insurance Policy. - A policy holder in a mutual life insurance company is not disqualified as "interested in the event of the action" to testify for the company suing to cancel another policy. Mutual Life Ins. Co. v. Leaksville Woolen Mills, 172 N.C. 534, 90 S.E. 574 (1916). See also Gwaltney v. Provident Sav. Life Assurance Soc'y, 132 N.C. 925, 44 S.E. 659 (1903); Gwaltney v. Provident Sav. Life Assurance Soc'y, 134 N.C. 552, 47 S.E. 122 (1904).

Husband and Wife. - A witness may have a very large pecuniary interest in fact, as the interest of a wife in an important lawsuit to which her husband is a party, and still be competent, while a comparatively slight legal interest will disqualify the witness. Rape v. Lyerly, 287 N.C. 601, 215 S.E.2d 737 (1975).

The prohibition against the testimony of a "person interested in the event" extends only to those having a "direct legal or pecuniary interest," and not to the sentimental interest the husband or wife would naturally have in the lawsuit of the other. Burton v. Styers, 210 N.C. 230, 186 S.E. 248 (1936).

Where husband and wife instituted separate suits to recover, each respectively, for personal services rendered by them to defendant's testate, it was held that each was competent to testify for the other, since neither had a direct pecuniary interest in the action of the other, and was not therefore an interested party in the other's action within the meaning of this section, the testimony not being as to a transaction between the witnesses and the deceased, but between a third party and deceased. Burton v. Styers, 210 N.C. 230, 186 S.E. 248 (1936).

Interest of Wife in Compensation Due Husband. - In an action against an administrator to recover the value of services which the plaintiff alleged he has rendered the deceased, the wife of the plaintiff had no interest in the event which would bar her testimony as to a transaction with the deceased, and it was competent for her to testify to the contract relied upon by her husband the plaintiff. Helsabeck v. Doub, 167 N.C. 205, 83 S.E. 241 (1914). See Price v. Askins, 212 N.C. 583, 194 S.E. 284 (1937).

Where plaintiffs acquired ownership as issue of devisee, devisee's husband had no pecuniary legal interest in plaintiffs' real property; therefore, his testimony as to the decedent's devise was not incompetent under this section. Rape v. Lyerly, 287 N.C. 601, 215 S.E.2d 737 (1975).

Husband as Interested Party in Check Given Wife. - When a check made payable to one of the intestate's daughters and signed by the intestate was introduced in evidence to show an advancement, the daughter's husband was held competent under this section to testify over objection that the check was given his wife as a wedding present, he having no interest in the event of the action. Likewise another daughter was permitted to testify for her sister, the transaction testified to not being between the witness and deceased, but between the witness's sister and deceased father. Vannoy v. Green, 206 N.C. 80, 173 S.E. 275 (1934).

Husband as Interested Party in Deed Drawn by Wife. - The husband was an interested witness in the event of the action, though not a party, when a trust deed made by his deceased wife was being attacked for the want of his joining therein; and upon the question of abandonment, his evidence, to the effect that his wife said to him, she would give him a horse if he would leave, was incompetent. The testimony of the daughter that she heard the conversation to that effect would be the "indirect testimony of an interested witness as to a transaction or communication with deceased," and also incompetent. Whitty v. Barham, 147 N.C. 479, 61 S.E. 372 (1908).

Husband's Interest in Wife's Action to Recover for Services. - A husband was not disqualified by interest from testifying in his wife's behalf in her action to recover for services rendered a deceased person, the possibilities of his being benefited by her will or in case of her intestacy being too remote. McCurry v. Purgason, 170 N.C. 463, 87 S.E. 244 (1915).

Husband of Decedent Grantee. - Where the blind husband of a grantee, in a deed reserving a life estate in the grantor, was present and heard the grantor acknowledge its execution and delivery, he was a competent witness to prove such execution and delivery, his wife having died prior to the grantor and the title therefore being vested in her son, in that his evidence disclosed no personal transaction or communication and he was not a party in interest within this section. Turlington v. Neighbors, 222 N.C. 694, 24 S.E.2d 648 (1943).

Husband of Donee of Gift May Testify as to Declarations Made by Donor to Donee. - The husband of the donee of a gift could testify as to directions given and declarations made by the donor to the donee, since the testimony was not in behalf of the husband or in behalf of a party succeeding to his interest nor as to a transaction or communication between him and the deceased the testimony being as to a transaction between donor and donee. Scottish Bank v. Atkinson, 245 N.C. 563, 96 S.E.2d 837 (1957).

Widower Has No Interest in Division of Wife's Lands Among Children. - When a husband and wife, each owning certain lands, entered into an agreement to pool their lands for division among their children, and the wife died intestate before her lands were deeded in accordance with the agreement, the husband had a life estate in her lands as tenant by the curtesy regardless of the disposition of the lands among the children, and therefore had no direct pecuniary interest in an action by the children to whom deeds were not executed to declare the heirs of another child estopped to assert an interest in the lands of their mother, and his testimony of the agreement with his wife was not precluded by this section. Coward v. Coward, 216 N.C. 506, 5 S.E.2d 537 (1939).

The interest of one who temporarily held the title to the lands in dispute prior to the defendant was a sufficient interest in the event to disqualify his testimony as to a conversation or transaction with the plaintiff's deceased predecessor in title. Dill-Cramer-Truitt Corp. v. Downs, 201 N.C. 478, 160 S.E. 492 (1931).

A partner in intestate's firm could not testify as to transactions or communications with intestate in an action by brokers against the estate on a claim for commissions and advancements. Fenner v. Tucker, 213 N.C. 419, 196 S.E. 357 (1938).

Nonmember of Partnership. - Where the defendant's liability depended upon whether he was a member of the defendant partnership at the time the firm contracted a debt, which was the subject of the action, with the plaintiff who had since died and whose administrator had been made a party to the action, a witness who was not a member of the firm was not such person interested in the result as would exclude his direct testimony, under the provisions of this section as to the payment to his own knowledge by the deceased of the partnership debts. Herring v. Ipock, 187 N.C. 459, 121 S.E. 758 (1924).

Sheriff in Action by Deputy. - A deputy collected a sum of money on account of taxes and deposited the same with G. with instructions to pay it over to the sheriff, which was not done, and the deputy was afterwards required to pay the sheriff the sum so collected; it was held, in an action to recover the amount, brought by the deputy against the administrator of G., that the sheriff had no interest in the event of the action, and was a competent witness under this section. Allen v. Gilkey, 86 N.C. 64 (1882).

Stockholder's Interest in Recovery on Contract of Sale. - Where defendant's intestate made two separate contracts with the holders of stock in a corporation to purchase their respective holdings, in an action by one of the stockholders to recover on the contract of sale the other testified that he had no claim against the estate on his contract. It was held that the witness was not interested in the event, and his testimony as to the transaction between decedent and plaintiff as to the contract of sale of plaintiff's stock was competent under this section. Winborne v. McMahan, 206 N.C. 30, 173 S.E. 278 (1934).

Trustor's Son Where Estate Insolvent. - In an action involving the validity of a deed of trust, where the trustor was dead and his estate insolvent, the son of the trustor was a competent witness as to his declarations concerning the trust; the disqualification of the son under this section was removed by the insolvency of his father's estate, for there was nothing for the children in any event of the action. Gidney v. Logan, 79 N.C. 214 (1878).

D. PERSONS DERIVING TITLE OR INTEREST THROUGH PARTIES OR INTERESTED PERSONS.

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In General. - The words "derives its interest or title by assignment or otherwise" meant gets from a source, some person, through or under one or more persons, successively, directly or indirectly, immediately or mediately, "his interest or title," any valuable interest in part or share of something real or personal, of whatever nature, whether legal or equitable, acquired by assignment, or by any other means, or in any other manner. Carey v. Carey, 104 N.C. 171, 10 S.E. 156 (1889).

The exclusion under this section applied to privies as well as parties. Carswell v. Greene, 253 N.C. 266, 116 S.E.2d 801 (1960).

Deceased Assignee. - When deceased had no interest in lands, but was simply an assignee, evidence of his declarations was admissible as no claim of title was made under him. Condor v. Secrest, 149 N.C. 201, 62 S.E. 921 (1908).

Attorney. - The fact that an attorney has an interest in the event of a suit on account of the fee taxed does not disqualify him under this section. Nor is an attorney of one of the parties precluded from testifying for his client concerning the agreement. Propst v. Fisher, 104 N.C. 214, 10 S.E. 295 (1889).

Testimony of Grantee of Deceased Debtor. - In an action in the nature of a creditor's bill, evidence of the brother of the immediate grantee of the deceased debtor was held incompetent as in favor of their sister, claiming title under the witness, the validity of which title was affected by the testimony. Sutton v. Wells, 175 N.C. 1, 94 S.E. 688 (1917).

Trustee. - In an action by trustors against a trustee to compel an accounting for the proceeds of a foreclosure sale, the incompetency of the trustor to testify as to transactions between himself and the deceased cestui que trust must be predicated upon the assumption that the trustee under the deed of trust derived his "title or interest from, through or under" the cestui, and furthermore that it is this interest which is attacked. Garrett v. Stadiem, 220 N.C. 654, 18 S.E.2d 178 (1942).

Trustor. - Where a deed of trust was attacked for fraud, the trustee having died, and the property having been conveyed by a substituted trustee to the defendants, the trustor was not excluded by this section from being a witness for the plaintiff, who also claimed title through him. Isler v. Dewey, 67 N.C. 93 (1872).

E. TESTIMONY DISQUALIFIED.

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Party May Not Contradict Former Witness. - A defendant having an interest in the event of an action was not permitted under this section to testify in his own behalf, for the purpose of contradicting a former witness whose testimony tended to show that the defendant fraudulently procured an assignment from a person deceased. Bushee v. Surles, 77 N.C. 62 (1877).

Where Adverse Party Non Compos Mentis. - A party interested in the event of the action could not testify as a witness as to a transaction with the adverse party who at the time of trial has been adjudged non compos mentis. Price v. Whisnant, 232 N.C. 653, 62 S.E.2d 56 (1950).

Action Concerning Disputed Boundary. - Testimony of a party interested in the result of the action that the deceased predecessor of the common source of title of the parties had agreed as to the boundary of the lands in dispute preliminary to making the deeds, that the deceased had the lands surveyed, and that the witness saw the deceased mark the boundary claimed by him as controlling the description given in the deeds later made, was that of a transaction or communication prohibited by this section. Poole v. Russell, 197 N.C. 246, 148 S.E. 242 (1929).

The defendant in an action for money demanded was disqualified by this section to testify as to the time and place of signing a receipt by the plaintiff's intestate in support of his plea of satisfaction. Sumner v. Candler, 86 N.C. 71 (1882).

Receipt of Money from Person Now Deceased. - Where, in an action to establish a claim against an estate, plaintiff introduced evidence that prior to his death decedent had received the funds in dispute, testimony by her that she had never received any part of the funds was tantamount to testifying that decedent had not paid her any part thereof, and was incompetent under this section. Wilson v. Ervin, 227 N.C. 396, 42 S.E.2d 468 (1947).

Testimony by the maker of notes as to transactions with deceased payee tending to establish nonliability was properly excluded as coming within prohibition of this section. Perry v. First Citizens Nat'l Bank & Trust Co., 226 N.C. 667, 40 S.E.2d 116 (1946).

In an action to recover for services rendered deceased, testimony by the plaintiff that plaintiff boarded deceased was incompetent under the provisions of this section. Price v. Pyatt, 203 N.C. 799, 167 S.E. 69 (1933).

Contest over Will. - As between the propounder or an interested executor and a person who is interested in the result of the trial, this section, rendering an interested survivor incompetent as a witness to a personal transaction with a deceased person, applied in a contest over a will, notwithstanding the proceeding is in rem. There was an exception when the evidence is directed solely towards the question or issue of mental condition or testamentary capacity. In that case, it is competent for the interested witness to give testimony of such transaction or conversation, solely, however, as a basis for the opinion formed as to the mental condition or capacity of the deceased. Whitley v. Redden, 276 N.C. 263, 171 S.E.2d 894 (1970).

F. TESTIMONY NOT DISQUALIFIED.

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Party Testifying against Interest. - Under this section a witness could testify against his own interest, even if thereby other parties to the suit are injuriously affected; the disqualification applied only when a witness testifies in his own behalf. In re Worth's Will, 129 N.C. 223, 39 S.E. 956 (1901); Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156 (1952).

In proceedings to caveat a will, an heir at law who would receive more as a beneficiary under the will if it was not set aside may testify to declarations made by the testator after its execution which were competent to show that it was obtained by fraud and undue influence; and such testimony, being against the interests of the witness, was not prohibited by this section. In re Worth's Will, 129 N.C. 223, 39 S.E. 956 (1901); In re Will of Fowler, 159 N.C. 203, 74 S.E. 117 (1912).

When the witness was testifying not in his own behalf or interest, but against his interest, he was not disqualified by this section. Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156 (1952).

Testimony Not Against Representatives. - The administrator of a deceased guardian was a competent witness to prove the execution to said guardian by a debtor of a bond for the payment of money, such testimony not being against the representatives of a deceased person. Thompson v. Humphrey, 83 N.C. 416 (1880).

Testimony in Favor of Representative. - Where a witness was not asked to testify against the representative or assignee of a dead person as to any transaction or communication between himself and the person deceased, but in favor of such a representative, the testimony being offered by the party to the suit who represented the dead person, it was held that such testimony did not fall within the inhibition of this section, which was intended to protect the deceased person's representative or assignee who was suing or being sued. Bonner v. Stotesbury, 139 N.C. 3, 51 S.E. 781 (1905).

Where the witness was testifying for, rather than against, the person deriving title or interest from, through or under a deceased person, such testimony did not come within the inhibitions of this section. Sprinkle v. Ponder, 233 N.C. 312, 64 S.E.2d 171 (1951).

Representative Not a Party. - It was competent for a plaintiff, as a witness for himself, to testify where the representative of the deceased was not a party to the suit. Thomas v. Kelly, 74 N.C. 416 (1876).

Sureties Entitled to Same Protection as Representative. - The rule to be deduced from the authorities was that the surety, who comes not within the letter but within the intendment of the law, stands in the same position and was entitled to the same protection as the representative of his deceased principal when sued. McGowan v. Davenport, 134 N.C. 526, 47 S.E. 27 (1904).

Conversations with Third Parties Present. - A witness was not incompetent, under this section, to testify to a conversation had with two persons, one of whom was dead at the time of the trial, in reference to a contract made between them and the witness. Peacock v. Stott, 90 N.C. 518 (1884).

This section made no exception where other parties were present but left these witnesses to be called by either, and their testimony to come before the jury and be considered by itself, its credit unaffected by the testimony of the interested party. MacRae v. Molley, 90 N.C. 521 (1884).

Where the conversation was not strictly with the intestate, but was one held with him and two others who were associated with him in the transaction, then the provisions of this section did not incapacitate the party from testifying. Johnson v. Townsend, 117 N.C. 338, 23 S.E. 271 (1895).

Action for Breach of Contract. - In an action against the administrator of a deceased person to recover for breach of the deceased's contract to devise, testimony of witnesses not interested in the event as to declarations made by the deceased against his interest was properly admitted. Hager v. Whitener, 204 N.C. 747, 169 S.E. 645 (1933).

Action for Breach of Warranty. - In an action against an insane person for damages for breach of warranty in a deed, a witness who was not interested in the recovery was not disqualified by this section, though he might have an interest in the land. Lemly v. Ellis, 143 N.C. 200, 55 S.E. 629 (1906).

Action in Ejectment. - Where some of the witnesses in an action in ejectment were not interested in the event, their testimony did not fall within the intent and meaning of this section and the exclusion of their testimony tending to show the tenancy of a decedent under whom one defendant claimed as adverse possessor was reversible error entitling the plaintiff to a new trial. Pitman v. Hunt, 197 N.C. 574, 150 S.E. 13 (1929).

In an action to declare a deed void on the ground that it was never delivered to the grantee, since deceased, testimony offered by the grantor tending to show that the deed had not been delivered was not incompetent under this section. Gulley v. Smith, 203 N.C. 274, 165 S.E. 710 (1932).

Transactions with Partnership. - The death of one of the partners in a firm would not incapacitate the witness from proving a transaction with the firm while the other partner, who was present at the interview, was living. Peacock v. Stott, 90 N.C. 518 (1884).

G. SUBJECT MATTER OF THE TRANSACTION.

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1. IN GENERAL.

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This section related not only to "personal transactions" but also to "communications" with a deceased person. Smith v. Dean, 2 N.C. App. 553, 163 S.E.2d 551 (1968).

Not Applicable Unless Transaction Was Personal. - Under this section the parties in interest were disqualified from testifying only as to personal transactions with the deceased. McCall v. Wilson, 101 N.C. 598, 8 S.E. 225 (1888); Cox v. Beaufort County Lumber Co., 124 N.C. 78, 32 S.E. 381 (1899); Davidson v. Bardin, 139 N.C. 1, 51 S.E. 779 (1905).

Test as to When Transaction Was "Personal". - A fair test in undertaking to ascertain what was a "personal transaction or communication" with the deceased was to inquire whether, in case the witness testified falsely, the deceased, if living, could contradict it of his own knowledge. Sherrill v. Wilhelm, 182 N.C. 673, 110 S.E. 95 (1921); Whitley v. Redden, 5 N.C. App. 705, 169 S.E.2d 260 (1969), rev'd on other grounds, 276 N.C. 263, 171 S.E.2d 894 (1970).

A personal transaction or communication within the purview of this section was anything done or said between the witness and the deceased person or lunatic tending to establish the claim being asserted against the personal representative of the deceased person, or the committee of the lunatic, or the person deriving his title or interest from, through, or under the deceased person or lunatic. Peek v. Shook, 233 N.C. 259, 63 S.E.2d 542 (1951); Brown v. Green, 3 N.C. App. 506, 165 S.E.2d 534 (1969); Ballard v. Lance, 6 N.C. App. 24, 169 S.E.2d 199 (1969).

A personal transaction or communication within the purview of this section was anything done or said between the witness and the deceased person tending to establish the claim being asserted against the personal representative of the deceased person. Smith v. Dean, 2 N.C. App. 553, 163 S.E.2d 551 (1968); Etheridge v. Etheridge, 41 N.C. App. 39, 255 S.E.2d 735 (1979).

A personal transaction included that which was done by one person which affected the rights of another, and out of which a cause of action arose. Smith v. Dean, 2 N.C. App. 553, 163 S.E.2d 551 (1968).

Caveat to Will. - On an issue of devastavit vel non it was not competent to prove by a witness whose husband was one of the caveators and heirs at law of the testator, declarations of said testator offered for the purpose of showing undue influence, as such witness had an interest in the real estate, dependent upon the result of the action. Linebarger v. Linebarger, 143 N.C. 229, 55 S.E. 709 (1906).

The interest which a married woman has in the real property of her husband before and during coverture came within the intent and meaning of this section, and would exclude testimony by her of a communication or transaction between her husband and a deceased person as to a contract made between them whereby a mortgage on the lands of her husband executed prior to his marriage was to be canceled by the deceased. Honeycutt v. Burleson, 198 N.C. 37, 150 S.E. 634 (1929).

Mother, in her illegitimate child's action against the estate of the deceased father on a contract made by him for the child's support, was not a party interested in the event of the action whose evidence on the trial was excluded under the provisions of this section. Conley v. Cabe, 198 N.C. 298, 151 S.E. 645 (1930).

A husband has no vested interest in the real estate of his wife, and it would seem that he was not a "person interested in the event" within the contemplation of this section in an action involving his wife's title to realty. Allen v. Allen, 213 N.C. 264, 195 S.E. 801 (1938).

Transaction Must Be Exclusive Source of Knowledge. - In order to exclude testimony under this provision, it must be made to appear that the knowledge of the witness was derived from a personal transaction with the deceased person. Thompson v. Onley, 96 N.C. 9, 1 S.E. 620 (1887). And it was proper to show whether the witness had knowledge of the fact testified to, from sources extraneous to his personal communications or relations with the deceased. Charlotte Oil & Fertilizer Co. v. Rippy, 123 N.C. 656, 31 S.E. 879 (1898), rehearing denied, State v. Barnwell, 17 N.C. App. 299, 194 S.E.2d 63 (1973).

Testimony of a witness as to what he himself did in regard to the transaction did not come within the prohibition of this section when it did not relate to acts or communications with the deceased person in regard to such transaction. Waddell v. Carson, 245 N.C. 669, 97 S.E.2d 222 (1957).

Testimony as to Independent Facts. - A party in interest could testify to any substantive fact which was independent of any transaction or communication with the deceased or was based upon independent knowledge not derived from such source. Sutton v. Wells, 175 N.C. 1, 94 S.E. 688 (1917). See also In re Will of Saunders, 177 N.C. 156, 98 S.E. 378 (1919); Price Real Estate & Ins. Co. v. Jones, 191 N.C. 176, 131 S.E. 587 (1926).

Testimony of an interested witness as to independent facts and circumstances, within his own knowledge, or as to what he saw or heard take place between deceased and a third party, was not rendered incompetent by this section, since in such instances the testimony did not relate to a personal transaction or communication between the witness and deceased and, accordingly, appellant's exceptions to the admission of such testimony were not sustained. Wilder v. Medlin, 215 N.C. 542, 2 S.E.2d 549 (1939).

This section did not preclude a witness from testifying to independent facts and circumstances within her observation and knowledge or from giving evidence of what she saw or heard take place between the deceased and another or others, not involving personal transactions between herself and the deceased. Collins v. Lamb, 215 N.C. 719, 2 S.E.2d 863 (1939).

The disqualification of a party to the action to testify against the personal representative of a deceased person as to a transaction or communication with the deceased did not prohibit such interested party from testifying as to the acts and conduct of the deceased where the interested party was merely an observer and was testifying as to facts based upon independent knowledge not derived from any personal transaction or communication with the deceased. Hardison v. Gregory, 242 N.C. 324, 88 S.E.2d 96 (1955); Carswell v. Greene, 253 N.C. 266, 116 S.E.2d 801 (1960); Brown v. Whitley, 12 N.C. App. 306, 183 S.E.2d 258 (1971).

An interested party was not prohibited by this section from testifying concerning his independent acts. Hardison v. Gregory, 242 N.C. 324, 88 S.E.2d 96 (1955).

This section did not preclude an interested party from testifying as to his own acts or the acts and conduct of the decedent when the witness was testifying as to facts based upon independent knowledge not derived from any personal transaction or communication with the deceased. Brown v. Green, 3 N.C. App. 506, 165 S.E.2d 534 (1969).

Any acts done in observation of a deceased person were considered independent acts and not within the statutory exclusion. Brown v. Whitley, 12 N.C. App. 306, 183 S.E.2d 258 (1971).

Acts of Deceased. - This section did not prohibit an interested party from testifying as to acts and conduct of the deceased where the interested party was merely an observer. Archer v. Norwood, 37 N.C. App. 432, 246 S.E.2d 37, cert. denied, 295 N.C. 645, 248 S.E.2d 249 (1978).

The prohibitions of this section did not prevent a witness from testifying as to the acts and conduct of the deceased where the witness was merely an observer and was testifying to facts based upon independent knowledge. In re Will of Simmons, 43 N.C. App. 123, 258 S.E.2d 466 (1979), cert. denied, 299 N.C. 121, 262 S.E.2d 9 (1980).

Facts Occurring Out of Presence of Deceased. - A witness who offered to prove a fact which occurred out of the presence of, and which was in no sense a transaction with, a deceased person was not incompetent under this section. It was only when the transaction was between the deceased and the living party that the statute prohibits the latter from testifying. Lockhart v. Bell, 86 N.C. 443 (1882), appeal dismissed, 90 N.C. 499 (1884).

The acts of two independent drivers, total strangers to each other up to the point of impact, cannot be said to be acts done with a deceased person but are acts done in observation of a deceased person; thus, testimony as to these acts was not excluded by this section. Brown v. Whitley, 12 N.C. App. 306, 183 S.E.2d 258 (1971).

A defendant was not prevented from describing the conduct and movements of a deceased's car by the phrase "concerning a personal transaction" when the movements were quite independent and apart from, and in no way connected with, or prompted or influenced by reason of, the conduct of the party testifying. Brown v. Whitley, 12 N.C. App. 306, 183 S.E.2d 258 (1971).

In action for alienation of affections and criminal conversation against the administrators of the alleged tort-feasor, plaintiff's testimony that when he returned to his home at night he found the deceased standing in the living room of the unlighted house, and that on two other occasions he saw his wife and the deceased alone at farm cabins was held competent as testimony of independent facts. Hardison v. Gregory, 242 N.C. 324, 88 S.E.2d 96 (1955).

Action for Debt. - In an action in the nature of a creditor's bill, testimony of the deceased debtor's grantee that the deceased grantor occupied the building part of the time after she got her deed to the land in litigation was held admissible as being to a substantive fact of which she had knowledge independently of any statement by the deceased. Sutton v. Wells, 175 N.C. 1, 94 S.E. 688 (1917).

Testimony Concerning Mental Capacity. - Where a witness testifies to the want of mental capacity in a grantor to take a deed, and that his opinion was formed from conversation and communication between the witness and grantor, it was held competent to prove the facts upon which such opinion was founded, the provisions not applying as the subject was not a "transaction" within its meaning. McLeary v. Norment, 84 N.C. 235 (1881); Rakestraw v. Pratt, 160 N.C. 436, 76 S.E. 259 (1912).

Beneficiaries under the will are competent to testify as to transactions with the testator solely on the issue of testamentary capacity. In re Will of Lomax, 226 N.C. 498, 39 S.E.2d 388 (1946).

A party interested in the event could testify as to transactions with a decedent when such testimony related solely to the issue of mental capacity. Goins v. McLoud, 231 N.C. 655, 58 S.E.2d 634 (1950).

The rule prohibiting an interested party from testifying as to a transaction with a decedent did not preclude a caveator from testifying as to his opinion of the mental condition of testator. In re Will of Thompson, 248 N.C. 588, 104 S.E.2d 280 (1958).

A person (who would otherwise be precluded from testifying by this section), after testifying as to the mental capacity of a deceased person, could testify to transactions and communications with deceased in order to show the jury that the opinion was well founded. Whitley v. Redden, 276 N.C. 263, 171 S.E.2d 894 (1970).

However, such evidence would be rejected when it was offered for the purpose of proving and did tend to prove vital and material facts which will fix liability against the representative of a deceased person, or committee of a lunatic, or anyone deriving his title or interest through them. Whitley v. Redden, 276 N.C. 263, 171 S.E.2d 894 (1970); In re Will of Ricks, 292 N.C. 28, 231 S.E.2d 856 (1977).

A party or an interested witness could, notwithstanding this section, in an action to set aside a will, a deed or other writing, testify to communications or conversations with a deceased to show the basis upon which the party or witness had formed an opinion regarding the mental capacity of the deceased, when he testified to such an opinion, and when the lack of such capacity was a ground for setting aside the instrument. In re Will of Ricks, 292 N.C. 28, 231 S.E.2d 856 (1977).

2. PARTICULAR TRANSACTIONS.

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In a proceeding for dower, the decision of the question whether the plaintiff left her husband's home of her own volition or by reason of what the law would recognize as compulsion, was an inquiry that did not necessarily involve a transaction or communication with her husband which would disqualify her under this section. Hicks v. Hicks, 142 N.C. 231, 55 S.E. 106 (1906).

Driving of Car as "Transaction" Between Occupants of Same Car. - Where the only evidence of negligence in an action by the wife of the driver to recover for injuries sustained in an automobile accident was her testimony that he was traveling at an excessive speed upon a curve, and that the accident occurred when the car failed to make the curve, and that she had spoken to him in regard to the speed he was driving the car, the driving of the car was a transaction within the meaning of the term as used in this section and her testimony of his manner of driving and her statement to him regarding the speed was incompetent under this section, her testimony of the transaction and communication being an essential or material link in the chain establishing liability of the estate to her. Boyd v. Williams, 207 N.C. 30, 175 S.E. 832 (1934).

Prior to the 1967 amendment to this section it was held that the surviving occupant of an automobile, in an action against the estate of the deceased occupant, was an incompetent witness as to the identity of the driver immediately preceding and at the time of the wreck. Tharpe v. Newman, 257 N.C. 71, 125 S.E.2d 315 (1962). See Davis v. Pearson, 220 N.C. 163, 16 S.E.2d 655 (1941).

Two occupants of the same automobile were engaged in a "personal transaction," thereby rendering incompetent the testimony of one against the personal representative of the other's estate. Brown v. Whitley, 12 N.C. App. 306, 183 S.E.2d 258 (1971).

But a collision between two motor vehicles was not a "personal transaction" within the meaning of this section. Brown v. Whitley, 12 N.C. App. 306, 183 S.E.2d 258 (1971).

Section Did Not Exclude Testimony of Surviving Driver. - Considering the fact that the only relationship between a defendant and a decedent was the impact of their vehicles, such a collision was not a personal transaction within the meaning of the term, and this section was not applicable to the testimony of the surviving driver in a two-vehicle collision. Brown v. Whitley, 12 N.C. App. 306, 183 S.E.2d 258 (1971).

Conversation Between Decedent and Third Person. - This section did not apply to the testimony of an interested witness as to a conversation between her deceased father and a living defendant. This was not testimony "concerning a personal transaction." Abernathy v. Skidmore, 190 N.C. 66, 128 S.E. 475 (1925).

Testimony by a party as to a conversation between decedent and a third person did not concern a personal transaction or communication between the witness and the decedent; therefore it was not excluded by this section. Hodges v. Hodges, 257 N.C. 774, 127 S.E.2d 567 (1962).

The transaction observed and testified to by the plaintiff mother of intestate was not one between her and the deceased doctor but was one between the deceased doctor and a third party, her daughter. Therefore, notwithstanding her interest, she was properly allowed to testify concerning it. Spillman v. Forsyth Mem. Hosp., 30 N.C. App. 406, 227 S.E.2d 292 (1976).

Proof of Handwriting. - A party interested in the event of a suit was not an incompetent witness, under this section, to prove the handwriting of the deceased person. Rush v. Steed, 91 N.C. 226 (1884); Hussey v. Kirkman, 95 N.C. 63 (1886); Armfield v. Colvert, 103 N.C. 147, 9 S.E. 461 (1889); Sawyer v. Grady, 113 N.C. 42, 18 S.E. 79 (1893); Lister v. Lister, 222 N.C. 555, 24 S.E.2d 342 (1943).

The plaintiff on his examination-in-chief, in an action against an executor or administrator, was competent to testify to the handwriting of deceased from his general knowledge, but not to testify that he saw deceased actually sign the particular instrument. Batten v. Aycock, 224 N.C. 225, 29 S.E.2d 739 (1944).

A husband, who testified that he knew his wife's handwriting, was competent to testify after his wife's death, that her signature was on the note in question, and while his further testimony that she signed the instruments in question was technically incompetent under this section, such further testimony would not be held prejudicial when this fact was established by other competent testimony. Waddell v. Carson, 245 N.C. 669, 97 S.E.2d 222 (1957).

Claim That Intestate Was Holder in Due Course. - Where the administrator of the deceased claimed that his intestate was a holder of a negotiable instrument in due course for value, and relied upon his intestate's possession to make out a prima facie case, it was not a personal transaction or communication with the deceased, prohibited by statute, for it could have been shown in rebuttal that after maturity it was seen in the possession of another claimant of the title. Price Real Estate & Ins. Co. v. Jones, 191 N.C. 176, 131 S.E. 587 (1926).

Loan and Instrument Evidencing Indebtedness. - In an action by the widow against the executor of her husband upon an acknowledgment of indebtedness executed by the husband to her, the widow was incompetent to testify that she had loaned her husband the sum or that she saw him sign the instrument and that he delivered it to her. McGowan v. Beach, 242 N.C. 73, 86 S.E.2d 763 (1955).

Evidence of the declarations of a deceased partner tending to show that the deceased partner made an agreement with plaintiff that check given for a disputed account and marked thereon "balance on account" was not to be taken as full settlement was incompetent as a transaction or communication with a deceased person prohibited by this section. Walston v. Coppersmith, 197 N.C. 407, 149 S.E. 381 (1929).

Sale of Interest in Partnership. - This section did not apply to a transaction between living persons by which one of them sold to the other his interest in a firm of which the decedent was the other partner. Brantley v. Marshbourn, 166 N.C. 527, 82 S.E. 959 (1914).

Personal Services. - Since personal services rendered by plaintiff to decedent are of necessity personal transactions between them, plaintiff may not testify directly that he rendered such services, nor establish this fact indirectly by testifying that he expected pay for such services or as to their value, or that he had not been paid for them. Peek v. Shook, 233 N.C. 259, 63 S.E.2d 542 (1951).

The performance of services by a witness for the deceased was held to be a personal transaction. Godwin v. Tew, 38 N.C. App. 686, 248 S.E.2d 771 (1978).

Services of Physician. - Testimony by a physician, the plaintiff, that he attended the deceased as such, for which he had an account against him, of the number of visits, sum due therefor, etc., was incompetent as being "personal" transactions with the deceased, prohibited by this section. Dunn v. Currie, 141 N.C. 123, 53 S.E. 533 (1906); Knight v. Everett, 152 N.C. 118, 67 S.E. 328 (1910).

In a civil action for rents allegedly received by defendant's intestate from plaintiffs' property, evidence of plaintiffs, that deceased went into possession of the premises, shortly after default in payments to a mortgagee, for the purpose of collecting the rents and applying same to plaintiffs' mortgage indebtedness, that afterwards defendant's intestate purchased the property and plaintiffs executed notes to defendant's intestate and saw a deed for the premises in the possession of deceased, was excluded by this section as personal transactions and communications with defendant's intestate. McMichael v. Pegram, 225 N.C. 400, 35 S.E.2d 174 (1945).

Sale of Property by Guardian. - It was competent for the plaintiff to prove the sale of his property by his guardian as this was not a personal transaction within the meaning of this section. State ex rel. Dobbins v. Osborne, 67 N.C. 259 (1872).

Possession of Stock. - See Jones v. Waldroup, 217 N.C. 178, 7 S.E.2d 366 (1940).

Testimony Given in Former Trial. - It was competent for the plaintiff's witness to testify what the deceased maker of the note sued upon testified on a former trial as to its payment, such not being a personal transaction within the meaning of the provisions of this section. Costen v. McDowell, 107 N.C. 546, 12 S.E. 432 (1890); Worth v. Wrenn, 144 N.C. 656, 57 S.E. 388 (1907).

Testimony as to Placement of Deed. - This section did not exclude testimony that the witness saw the decedent place the deed, under which the witness claims, in a trunk as it did not involve a communication or transaction with him. Cornelius v. Brawley, 109 N.C. 542, 14 S.E. 78 (1891); Carroll v. Smith, 163 N.C. 204, 79 S.E. 497 (1913).

Probate of Wills. - In Cox v. Beaufort County Lumber Co., 124 N.C. 78, 32 S.E. 381 (1899), it was held that this section did not apply to wills, but that they were governed by §§ 31-9 and 31-10; this was placed on the ground that this section applied where there was necessarily a contract or agreement between the parties, and in the case of a will there was ordinarily no transaction between the parties.

By the same reasoning it was held that attesting a will was not a "personal transaction," the witness being of the law and not of the party. Collins v. Collins, 101 N.C. 114, 7 S.E. 687 (1888).

But a beneficiary could not testify as to the leaving of a holograph will with her for safekeeping. McEwan v. Brown, 176 N.C. 249, 97 S.E. 20 (1918).

A beneficiary could, however, testify that when a will was opened it contained certain erasures and that they were not made by him. In re Will of Saunders, 177 N.C. 156, 98 S.E. 378 (1919).

Circumstances could arise, however, in which the person interested as a beneficiary could attempt to testify as to personal transactions or conversations with the deceased, and this testimony would, of course, be excluded. But the rule of exclusion did not apply, as may be inferred from the preceding cases, as to facts of which the witness had knowledge by means other than by personal transactions with the deceased. So the rule did not exclude the witness from testifying as to the identity of certain papers as being those which he had previously seen in the testator's presence; nor to the fact that it was the same "will," when only for the purpose and effect of the identification of the sheets in question. In re Will of Mann, 192 N.C. 248, 134 S.E. 649 (1926).

Under this section a party interested in the results of the action was incompetent to testify to a declaration of the deceased, whose will was under attack, when the issue was as to undue influence. In re Will of Plott, 211 N.C. 451, 190 S.E. 717 (1937).

This section applied to caveat proceedings notwithstanding that they were in rem, with the exception that beneficiaries under the will were competent to testify as to transactions with deceased testator solely upon the issue of testamentary capacity. In re Will of Lomax, 226 N.C. 498, 39 S.E.2d 388 (1946).

A challenge to the testimony of a witness on the ground that any knowledge regarding a purported will and where it was located was obtained as the result of a personal transaction or communication with the testatrix was rejected. In re Will of Wilson, 258 N.C. 310, 128 S.E.2d 601 (1962).

This section operated to exclude evidence by the caveator in a caveat proceeding concerning any personal transactions or communications between him and decedent. In re Will of Edgerton, 29 N.C. App. 60, 223 S.E.2d 524, cert. denied, 290 N.C. 308, 225 S.E.2d 832 (1976).

Settlement of Estate. - Testimony relating to an agreement between administrator and distributee in regard to the settlement of an estate was incompetent in an action by distributee's administrator to recover assets. Wilder v. Medlin, 215 N.C. 542, 2 S.E.2d 549 (1939).

H. EXCEPTIONS.

.

This section contained only two exceptions, one of which related to the identity of the driver of a motor vehicle, and the other of which related to cases in which the representative of the lunatic or deceased person had "opened the door" by testifying or offering the testimony of the deceased or insane person. Whitley v. Redden, 5 N.C. App. 705, 169 S.E.2d 260 (1969), rev'd on other grounds, 276 N.C. 263, 171 S.E.2d 894 (1970).

However, the Supreme Court stated what seemed to be another exception to this section, which provided that after a witness had stated his opinion as to the mental capacity of the deceased person, and where this opinion had been formed from conversations and communications with such person, it was competent to offer such in evidence as constituting the basis of such opinion. While it was conceded that a sane declaration by a person may have been some evidence of sanity, the statute as written by the legislature did not contain this exception. Whitley v. Redden, 5 N.C. App. 705, 169 S.E.2d 260 (1969), rev'd on other grounds, 276 N.C. 263, 171 S.E.2d 894 (1970).

Exception for Similar Evidence Previously Introduced. - This section did not apply where evidence similar to that which was being introduced had previously been introduced and the door had been opened to the objecting party. Davison v. West Oxford Land Co., 126 N.C. 704, 36 S.E. 162 (1900).

When defendant, representative of deceased, was examined in behalf of himself and his corepresentative concerning a personal transaction between plaintiff and deceased, under this section, he thus opened the door and made competent the testimony of his adversary concerning the same transaction. Batten v. Aycock, 224 N.C. 225, 29 S.E.2d 739 (1944).

Testimony otherwise incompetent under this section was rendered admissible when the personal representative of a deceased person, or the committee of a lunatic, or the person deriving his title or interest from, through, or under the deceased person or lunatic, was examined in his own behalf, or the testimony as to declarations of the deceased person or lunatic was given in evidence concerning the same transaction or communication. Peek v. Shook, 233 N.C. 259, 63 S.E.2d 542 (1951).

But this section gave a personal representative no right to "open the door," over the other party's objection, by incompetent evidence. Gurganus v. Guaranty Bank & Trust Co., 246 N.C. 655, 100 S.E.2d 81 (1957).

Introduction by the opposing party of evidence of a transaction between plaintiff and decedent opened the door to plaintiff's testimony in regard thereto. Pearce v. Barham, 267 N.C. 707, 149 S.E.2d 22 (1966).

The rule was that when incompetent evidence was admitted over objection, the admission of such evidence was cured where the same evidence, or evidence of substantially the same import, was thereafter admitted without objection. Brown v. Green, 3 N.C. App. 506, 165 S.E.2d 534 (1969).

Grounds for Exceptions. - The rule of exclusion, if left absolute in form, might in certain cases, it was thought, work unequally, and therefore the exception was inserted to make it fair and just in its operation. There was nothing inequitable in requiring that the opposing testimony to that given in evidence by the other side should be limited to the same transaction or communication. It could not be otherwise without opening the door much wider than the necessity of the particular case justified. Pope v. Pope, 176 N.C. 283, 96 S.E. 1034 (1918).

Where the testimony of a deceased adverse party has been given and was available, the reason for the exclusion rule ceases. Phillips v. Interstate Land Co., 174 N.C. 542, 94 S.E. 12 (1917).

Limitation of Exception. - Where the door was opened to the opposing party to testify for himself, he could testify only as to those particular transactions and communications to which the testimony of the deceased person or his representative was pertinent. Sumner v. Candler, 92 N.C. 634 (1885).

In order to "open the door" for the admission of evidence of transactions or communications with a deceased person, prohibited by this section, such evidence had to relate to the particular subject matter of the evidence testified to by the adverse party, or the same transaction, and the door was not necessarily opened to all transactions or fact situations growing out of the controversy. Walston v. Coppersmith, 197 N.C. 407, 149 S.E. 381 (1929).

The door was opened, under this section, by the representative of deceased taking the stand, only in respect to the transaction or set of facts about which such representative testifies. If one party opened the door as to one transaction, the other party could not swing it wide in order to admit another independent transaction. Batten v. Aycock, 224 N.C. 225, 29 S.E.2d 739 (1944).

The incompetence of the adverse party to testify may be removed by her being cross-examined as to the transaction in question. When the door was thus opened for the adverse party, it was only opened to the extent that he may testify as to the transaction about which he was cross-examined. Godwin v. Tew, 38 N.C. App. 686, 248 S.E.2d 771 (1978).

Illustrations. - Where the defendant executor testified as to certain matters relating to the identification of certain letters the deceased had written upon the question of whether he should be held liable as a partner for the debts of a firm, it was competent for the plaintiff's witness to testify in the plaintiff's behalf, as to other matters relating thereto and tending to fix the deceased with liability as a partner, under the principle that when the defendant had himself "opened the door by his own evidence" the plaintiff may testify as to the completed transaction, and this section prohibiting testimony as to transaction, etc., with a deceased person, did not apply. Herring v. Ipock, 187 N.C. 459, 121 S.E. 758 (1924).

It was incompetent as a transaction with a deceased person for the plaintiff to testify as to personal services rendered to the deceased as coming within her demand for damages, where the defendant had not "opened the door" by asking the plaintiff for an explanation as to why she had changed the amount at her demand. Pulliam v. Hege, 192 N.C. 459, 135 S.E. 288 (1926).

The prohibition against a beneficiary testifying as to transactions with deceased testator on the question of undue influence related solely to transactions with the deceased, and a beneficiary was competent to testify as to circumstances tending to show undue influence on the part of the propounder unrelated to any transaction which the witness had with testator. In re Will of Lomax, 226 N.C. 498, 39 S.E.2d 388 (1946).

Where, in an action to recover upon a quantum meruit for personal services rendered deceased, defendant executor first testified as to his version of the services rendered, it did not violate this section for plaintiff to testify in rebuttal as to the services she rendered, since the "door had been swung wide" by defendant's prior testimony. Highfill v. Parrish, 247 N.C. 389, 100 S.E.2d 840 (1957).

If the challenged testimony violated this section, it was rendered admissible when the sister of intestate, as plaintiff's witness, testified that defendant was driving and that he was not intoxicated. This opened the door for defendant's version of the matter. Bryant v. Ballance, 13 N.C. App. 181, 185 S.E.2d 315 (1971), cert. denied, 280 N.C. 495, 186 S.E.2d 513 (1972).

In an action to recover the amount of a note from the estate of the borrower's attorney-in-fact, there was no merit to defendant's contention that much of the affidavit testimony upon which the trial court based its decision should have been excluded under this section as testimony of transactions with a deceased person, since defendant, by offering evidence as to a completely independent transaction, opened the door for plaintiff to give an explanation by his own affidavit. Nye v. Lipton, 50 N.C. App. 224, 273 S.E.2d 313, cert. denied, 302 N.C. 630, 280 S.E.2d 441 (1981).

I. PLEADING AND PRACTICE.

.

Admission. - Anything that a party to the action had said, if relevant to the issues and not subject to some specific exclusionary rule, was admissible against him as an admission. Brown v. Green, 3 N.C. App. 506, 165 S.E.2d 534 (1969).

Proper Objection Required. - In order to have the benefit of this section, a party had to lodge a proper objection at the time the incompetent testimony was offered. Etheridge v. Etheridge, 41 N.C. App. 39, 255 S.E.2d 735 (1979).

Effect of Failure to Object. - Objections to the competency of testimony had to be taken in due time; if not, they were waived. Therefore, where a party was allowed to testify, upon examination in chief, to a conversation between himself and the defendant's testator, and during the cross-examination the defendant objected to the competency of such testimony and asked that it might be excluded, it was held that, although incompetent, the objection to its reception came too late. Meroney v. Avery, 64 N.C. 312 (1870).

Where a general objection as to witness' competency was overruled, and afterwards no specific objection was made to his testimony as to transactions with the decedent, the objection was deemed waived. Norris v. Stewart, 105 N.C. 455, 10 S.E. 912, 18 Am. St. R. 917 (1890).

The objection will not be considered unless it is so specific as to show that the evidence is objectionable. Perkins v. Berry, 103 N.C. 131, 9 S.E. 621 (1889).

The incompetency must appear at the time of the objection to the evidence, so that the court may pass intelligently upon the objection. Harris v. Harris, 178 N.C. 7, 100 S.E. 125 (1919).

The objecting party has the burden of establishing the incompetency of the evidence. Etheridge v. Etheridge, 41 N.C. App. 39, 255 S.E.2d 735 (1979).

Motion to Strike Out Incompetent Part of Answer. - The rule was that where a question asked a witness was competent, exception to his answer, when incompetent in part, should be taken by motion to strike out the part that was objectionable. Brown v. Green, 3 N.C. App. 506, 165 S.E.2d 534 (1969).

When Admission of Evidence Harmless. - The erroneous admission of evidence of transactions with deceased persons prohibited by this section becomes immaterial when from the answers by the jury to the issues it appears that this evidence was disregarded by them. Ray v. Ray, 175 N.C. 290, 95 S.E. 550 (1918).

Determination on Appeal of Relevancy of Testimony. - Where testimony of transactions or communications with a decedent was properly excluded as irrelevant to the issue, its competency or incompetency under this section would not be determined on appeal. Pendleton v. Spencer, 205 N.C. 179, 170 S.E. 637 (1933).


Rule 602. Lack of personal knowledge.

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule, which is identical to Fed. R. Evid. 602, restates the traditional common-law rule in North Carolina barring a witness from testifying to a fact of which he has no direct personal knowledge. See Robbins v. C. W. Myers Trading Post, Inc., 251 N.C. 663 (1960). A witness who testifies to a fact which can be perceived by the senses must have had an opportunity to observe and must have actually observed the facts. The Advisory Committee's Note states that:

"These foundation requirements may, of course, be furnished by the testimony of the witness himself; hence personal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception. * * * It will be observed that the rule is in fact a specialized application of the provisions of Rule 104(b) on conditional relevancy."

Preliminary determination of personal knowledge need not be explicit but may be implied from the witness' testimony.

Rule 602 applies to hearsay statements admitted under the hearsay exception rules in that admissibility of a hearsay statement is predicated on the foundation requirement of the witness' personal knowledge of the making of the statement itself. However, it is not intended that firsthand knowledge be required where a hearsay exception necessarily embraces secondhand knowledge (e.g. Rules 803(8)(C) and 803(23)).

Rule 602 is subject to Rule 703 relating to expert witnesses.

CASE NOTES

Admission of 911 Statements Held Proper. - Child's statements in the 911 call were clearly probative as to whether defendant had shot the victim; the child was in the next room when he heard the shot and the surrounding circumstances established that defendant had been inside when the shooting occurred. State v. Wright, 151 N.C. App. 493, 566 S.E.2d 151 (2002).

Testimony Establishing Personal Knowledge. - Testimony of witness that she in fact heard the defendant make the statements in question ipso facto amounted to testimony that she had the ability to hear him make those statements. No more was required to establish her personal knowledge under this rule, but the defendant was free to cross-examine her as to such matters. State v. Riddick, 315 N.C. 749, 340 S.E.2d 55 (1986).

Testimony properly allowed to draw an inference that defendant could not have known the caliber of the murder weapon at the time he made his inculpatory statement unless he was the murderer. State v. Corbett, 339 N.C. 313, 451 S.E.2d 252 (1994).

The witness' answer was not inadmissible opinion evidence but was testimony as to what was within his own personal knowledge, where in a prosecution for second degree murder the prosecutor asked the defendant's son about the meaning of his own statement of "I know" in response to the defendant's statement that he had made a big mistake, and the son replied that his father's statement referred to murdering the victim. State v. Marecek, 130 N.C. App. 303, 502 S.E.2d 634 (1998).

Officer's testimony as to what occurred after his conversation with informant consisted of details of the drug transaction derived from his subsequent participation in the deal and not from any prior conversation with the informant and was, therefore, admissible under this rule. State v. Broome, 136 N.C. App. 82, 523 S.E.2d 448 (1999), cert. denied, 351 N.C. 362, 543 S.E.2d 136 (2000).

Witness properly permitted to testify as to her degree of certainty in her testimony since such evidence was within the witness's personal knowledge. State v. Cole, 147 N.C. App. 637, 556 S.E.2d 666 (2001), appeal dismissed, cert. denied, 356 N.C. 169, 568 S.E.2d 619 (2002), cert. denied, 537 U.S. 1203, 123 S. Ct. 1275, 154 L. Ed. 2d 1045 (2003).

Store clerk had personal knowledge of the robber when she was able to look at him through his mask and otherwise observe for 45 seconds during the robbery. State v. Tuck, 173 N.C. App. 61, 618 S.E.2d 265 (2005).

Investigator was permitted to testify that defendant had no brother based on research he conducted. State v. Watson, 179 N.C. App. 228, 634 S.E.2d 231 (2006), review denied, 361 N.C. 437, 649 S.E.2d 896 (2007).

Trial court did not commit plain error by admitting under G.S. 8C-1-602 a victim's testimony that defendant shot the victim even though the victim did not see defendant shoot the victim, since the victim's testimony was based on what the victim perceived as the shooting occurred, and the victim's brother testified that he also heard defendant's voice shortly after the shooting and that he had known defendant "since the day he was born"; the brother had sufficient personal knowledge to identify defendant and his opinion was rationally based on his perception of the shooting under G.S. 8C-1-701. State v. Watkins, 181 N.C. App. 502, 640 S.E.2d 409 (2007), appeal dismissed, 361 N.C. 436, 649 S.E.2d 896 (2007).

Witness's redirect testimony explained why she removed the guns and drugs from her apartment and this testimony showed that she, acting alone, made the decision to hide the guns because she knew defendant had left the apartment with firearms and under the influence of drugs and, as a result of what she had seen and heard, feared that he had shot someone. This information explaining why she acted as she did was within the witness's personal knowledge and was admissible to clarify evidence elicited by defense counsel on cross-examination; the witness's explanation of her motivation was not an opinion as to defendant's guilt. State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009), cert. denied 130 S. Ct. 2104, 2010 U.S. LEXIS 3379, 176 L. Ed. 2d 734 (U.S. 2010).

In a murder case, a trial court did not err by allowing testimony from a witness regarding another person's struggle with defendant because this was proper opinion testimony; the witness merely gave his understanding and interpretation of what went on at a door based on his sitting in the next room and being able to hear the whole situation. State v. Sharpless, 221 N.C. App. 132, 725 S.E.2d 894 (2012).

When defendant was accused of embezzlement, the owner of the hotel where defendant worked testified to the owner's knowledge of the duties of defendant in the position of general manager of the hotel, and given that knowledge, the owner's testimony that defendant generated the deposit summaries and put together the bank deposits was properly within the scope of the owner's personal knowledge as contemplated by G.S. 8C-1, N.C. R. Evid. 602. State v. Warren, 225 N.C. App. 791, 738 S.E.2d 225 (2013).

Testimony Properly Excluded. - Trial court did not err under N.C. R. Evid. 602 in prohibiting the owner of real property in a condemnation action from cross-examining pursuant to N.C. R. Evid. 613 a North Carolina Department of Transportation expert witness about the nature of an in-house transaction involving a comparable property as the witness stated that the witness did not know what the relationship between the parties in the transaction was. DOT v. Haywood Oil Co., 195 N.C. App. 668, 673 S.E.2d 712 (2009).

Trial court properly prohibited a lay witness from testifying about a specific psychiatric diagnosis for defendant, as she was not qualified as an expert for such testimony; rather, she was permitted to testify about defendant's mental state based upon her occasional observations of him. State v. Storm, 228 N.C. App. 272, 743 S.E.2d 713 (2013).

Trial court's ruling preventing the examination of the victim concerning the contents of a probation violation report that she had not previously seen was not an abuse of discretion because she did not have personal knowledge of the matter. State v. Oliphant, 228 N.C. App. 692, 747 S.E.2d 117 (2013), review denied 753 S.E.2d 677, 2014 N.C. LEXIS 58 (2014), review denied, 753 S.E.2d 677, 2014 N.C. LEXIS 64 (2014).

Although defendant argued that the terms of the victim's probation was relevant to determine credibility and to determine whether she was intoxicated when she filed her police report, the trial court did not err in not allowing the co-defendant to cross-examine the victim regarding her probation because she did not have personal knowledge of the contents of a probation violation report, and there was no testimony from the officer that she appeared to be intoxicated while he was taking her statement. State v. Oliphant, 228 N.C. App. 692, 747 S.E.2d 117 (2013), review denied 753 S.E.2d 677, 2014 N.C. LEXIS 58 (2014), review denied, 753 S.E.2d 677, 2014 N.C. LEXIS 64 (2014).

Testimony Held Improper. - Husband's testimony that wife was familiar with the corporation's financial records and should have known about the $102,000 loan violated this rule since a witness may only testify as to matters of which he has personal knowledge and the evidence presented did not support the finding that wife was familiar with the corporation's books. Lee v. Lee, 93 N.C. App. 584, 378 S.E.2d 554 (1989).

Officer's testimony that it appeared just by looking over there that there had indeed been a break in at victim's home on the night in question constituted inadmissible opinion evidence. However, defendant was not entitled to a new trial unless the erroneous admission of this testimony prejudiced him. State v. Shaw, 106 N.C. App. 433, 417 S.E.2d 262, cert. denied, 333 N.C. 170, 424 S.E.2d 914 (1992).

Where witness could not identify the speaker, nor did she have personal knowledge of his voice, trial court properly excluded the testimony. State v. Locklear, 121 N.C. App. 355, 465 S.E.2d 61 (1996).

Even though the trial court erred by admitting defendant's girlfriend's testimony that defendant knew her brother planned to shoot the victims because it was outside her personal knowledge, the error was not plain because the State provided circumstantial evidence that defendant assisted in planning and carrying out the ambush. State v. Mitchell, - N.C. App. - , 840 S.E.2d 276 (2020).

Assertions in Affidavit Held Improper. - Where an affidavit filed to support a motion to dismiss under N.C. R. Civ. P. 12(b)(2) contained assertions made "upon information and belief," the court would not consider those assertions because such an affidavit had to be based upon personal knowledge. Banc of Am. Secs. LLC v. Evergreen Int'l Aviation, Inc., 169 N.C. App. 690, 611 S.E.2d 179 (2005).

Testimony Held Improper But Not Prejudicial. - Witness testimony that the defendant intended to purchase a gun for the purpose of threatening the victim was admitted without a foundation in violation of this rule but did not prejudice the defendant where other evidence at trial pointed to premeditation and deliberation. State v. Harshaw, 138 N.C. App. 657, 532 S.E.2d 224 (2000), cert. dismissed, 794 S.E.2d 331, 2016 N.C. LEXIS 1065 (2016).

Although a trial court erred in admitting a trooper's opinion testimony that defendant was impaired at the time of the collision when the testimony was not based on the trooper's personal knowledge but was based solely upon hearsay and conjecture, defendant failed to show any reasonable possibility that the jury would have reached a different verdict had the trial court properly excluded the inadmissible opinion testimony; the record showed overwhelming evidence that defendant: (1) drank heavily before operating his vehicle, (2) caused a tractor trailer truck to run off the road, (3) almost swerved into another truck, (4) struck a vehicle parked on the shoulder of the highway, (5) told the trooper he "had two beers," and (6) tested positive for the presence of amphetamines, marijuana, and opiates in his body. State v. Cook, 193 N.C. App. 179, 666 S.E.2d 795 (2008).

Witness's perception was simply that her husband sold drugs out of the back bedroom and that he went into the back bedroom with defendant; she did not hear defendant ask for drugs or see any drugs, thus the evidence supporting the assumption that her husband sold drugs to defendant was not based upon personal knowledge or perception, and her inference that a drug deal occurred was a supposition based largely on guesswork and speculation. However, in light of the other evidence against defendant and the relative insignificance of this evidence of one purported drug sale, the error was not prejudicial. State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009), cert. denied 130 S. Ct. 2104, 2010 U.S. LEXIS 3379, 176 L. Ed. 2d 734 (U.S. 2010).

State of Mind Testimony Was Not Plain Error. - The testimony of a police officer as to defendant's state of mind neither constituted "a miscarriage of justice" nor did it probably cause the jury to reach a different verdict than it otherwise would have in light of defendant's confession, as well as his trial testimony concerning his involvement in these crimes. State v. Holder, 138 N.C. App. 89, 530 S.E.2d 562 (2000).

Testimony Held Proper. - Where all of the evidence challenged by the defendant, accused of murdering her grandmother in a nursing home, was either within the personal knowledge of the witness or was permitted due to the defendant's having opened the door to the subject on cross-examination, the court rejected the contention that the trial court erred by permitting various witnesses to offer a variety of speculative testimony. State v. Smith, 135 N.C. App. 649, 522 S.E.2d 321 (1999).

In a trial for attempted murder, the trial court properly admitted testimony by the victim that it was defendant who shot him, as the victim had sufficient personal knowledge under G.S, 8C-1, N.C. R. Evid. 602, and the victim's opinion was rationally based on his perception of the shooting as required by G.S. 8C-1, N.C. R. Evid. 701. State v. Watkins, 169 N.C. App. 518, 610 S.E.2d 746 (2005), cert. denied, appeal dismissed, - N.C. - , 624 S.E.2d 632 (2005).

Although a witness did not have personal knowledge of the matters contained in documents in plaintiff's file, the documents were admissible in evidence under the business records exception to the hearsay rule; thus, the witness's subsequent testimony about the matters contained in the business records was admissible. N.C. Indus. Capital, LLC v. Clayton, 185 N.C. App. 356, 649 S.E.2d 14 (2007).

Detective's testimony about a dog's tracking was admissible as a matter about which the detective had personal knowledge. State v. Walston, 193 N.C. App. 134, 666 S.E.2d 872 (2008).

Trial court did not err by allowing a witness's testimony that he believed that defendant had a gun under his jacket during a robbery as the testimony was rationally based on the witness's firsthand observation of defendant hiding his arm under his jacket and was more than mere speculation or conjecture. State v. Elkins, 210 N.C. App. 110, 707 S.E.2d 744 (2011).

Law witness who was at the crash site immediately after the crash and who detected a strong odor of alcohol on defendant and observed that defendant was unable to maintain balance, incoherent, acting in an inebriated fashion, and disoriented was allowed to testify that defendant was impaired; any challenge to the testimony went to its weight, not admissibility. State v. Norman, 213 N.C. App. 114, 711 S.E.2d 849 (2011), review denied, 718 S.E.2d 401, 2011 N.C. LEXIS 940 (2011).

Because the detective had personal knowledge of the girlfriend's interview, the trial court did not err by allowing her to read from the transcript and clarify portions of the recording to the jury under this rule. State v. Gettys, 243 N.C. App. 590, 777 S.E.2d 351 (2015), dismissed and review denied, 781 S.E.2d 798, 2016 N.C. LEXIS 118 (2016).

Trial court did not plainly err by allowing a detective to testify regarding defendant's apprehension and extradition because he had personal knowledge, as he initiated the involvement of the U.S. Marshals Service and had direct oversight of the case as lead detective. State v. Graham, - N.C. App. - , 841 S.E.2d 754 (2020), denied, in part, 845 S.E.2d 789, 2020 N.C. LEXIS 710 (N.C. 2020).

Applied in State v. Hollingsworth, 78 N.C. App. 578, 337 S.E.2d 674 (1985); State v. Hunt, 324 N.C. 343, 378 S.E.2d 754 (1989); State v. Jones, 98 N.C. App. 342, 391 S.E.2d 52 (1990); State v. Johnson, 340 N.C. 32, 455 S.E.2d 644 (1995); State v. King, 343 N.C. 29, 468 S.E.2d 232 (1996); State v. Garcell, 363 N.C. 10, 678 S.E.2d 618 (2009).

Cited in State v. Strickland, 321 N.C. 31, 361 S.E.2d 882 (1987); State v. Greene, 324 N.C. 1, 376 S.E.2d 430 (1989); State v. Hunt, 325 N.C. 187, 381 S.E.2d 453 (1989); State v. Givens, 95 N.C. App. 72, 381 S.E.2d 869 (1989); State v. Robinson, 330 N.C. 1, 409 S.E.2d 288 (1991); State v. Hester, 330 N.C. 547, 411 S.E.2d 610 (1992); State v. Dodd, 330 N.C. 747, 412 S.E.2d 46 (1992); State v. Palmer, 334 N.C. 104, 431 S.E.2d 172 (1993); State v. Kelly, 118 N.C. App. 589, 456 S.E.2d 861 (1995); State v. Strickland, 346 N.C. 443, 488 S.E.2d 194 (1997), cert. denied, 522 U.S. 1078, 118 S. Ct. 858, 139 L. Ed. 2d 757 (1998); State v. Cummings, 346 N.C. 291, 488 S.E.2d 550 (1997), cert. denied, 522 U.S. 1092, 118 S. Ct. 886, 139 L. Ed. 2d 873 (1998); State v. Anthony, 354 N.C. 372, 555 S.E.2d 557 (2001); State v. Redd, 144 N.C. App. 248, 549 S.E.2d 875 (2001); Elliott v. Muehlbach, 173 N.C. App. 709, 620 S.E.2d 266 (2005); State v. De La Sancha Cobos, 211 N.C. App. 536, 711 S.E.2d 464 (2011); State v. Phillips, 365 N.C. 103, 711 S.E.2d 122 (2011), cert. denied, 132 S. Ct. 1541, 2012 U.S. LEXIS 1493, 182 L. Ed. 2d 176 (U.S. 2012); State v. Jackson, 229 N.C. App. 644, 748 S.E.2d 50 (2013); In re C.R.B., 245 N.C. App. 65, 781 S.E.2d 846 (2016).


Rule 603. Oath or affirmation.

Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 603 and is in accord with North Carolina practice. The Advisory Committee's Note states that:

"The rule is designed to afford the flexibility required in dealing with religious adults, atheists, conscientious objectors, mental defectives, and children. Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required."

CASE NOTES

This rule merely provides that a witness before testifying must either by oath or affirmation declare that he will testify truthfully. State v. James, 322 N.C. 320, 367 S.E.2d 669 (1988).

Rule Not Applicable at Sentencing Hearing. - The trial court committed no error by allowing an unsworn victim impact statement at the sentencing hearing where the rules of evidence do not apply. State v. Hendricks, 138 N.C. App. 668, 531 S.E.2d 896 (2000).

Indirect Reference by Prosecutor to Defendant's Affirmation. - Prosecutor's argument as to defendant's credibility held not to violate N.C. Const., Art. I, § 13, nor did it violate this rule or G.S. 8C-1, Rule 610, despite an indirect reference to defendant's affirmation as a witness. State v. James, 322 N.C. 320, 367 S.E.2d 669 (1988).

Competency of Child to Testify. - The competency of a child witness to testify at trial is not a proper subject for stipulation of counsel, absent the trial judge's independent finding pursuant to personally examining or observing the child on voir dire. State v. Fearing, 315 N.C. 167, 337 S.E.2d 551 (1985).

Inquiry into Sincerity of Oath. - Despite the prohibition of evidence of the beliefs or opinions of a witness on matters of religion, by questioning the sincerity and solemnity with which the witness took the oath, the defense exposed the witness to the same inquiry by the prosecution; thus, and there was no error in the prosecution's questioning of the witness because the defense had already "opened the door" to this line of inquiry. State v. Westall, 116 N.C. App. 534, 449 S.E.2d 24 (1994), cert. denied, 338 N.C. 671, 453 S.E.2d 185 (1994).

Cited in State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986); State v. Rogers, 109 N.C. App. 491, 428 S.E.2d 220 (1993).


Rule 604. Interpreters.

An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation that he will make a true translation.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 604. There are no North Carolina cases on this point.

Rule 605. Competency of judge as witness.

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule, which is identical to Fed. R. Evid. 605, prevents a judge from testifying in a trial over which he is presiding. The Advisory Committee's Note states that:

"The rule provides for an 'automatic objection'. To require an actual objection would confront the opponent with a choice between not objecting, with the result of allowing the testimony, and objecting, with the probable result of excluding the testimony but at the price of continuing the trial before a judge likely to feel that his integrity had been attacked by the objector."

G.S. 15A-1223 requires a judge in a criminal case to disqualify himself if he is a witness in the case upon motion of the State or the defendant. Upon adoption of Rule 605, a conforming amendment should be made to G.S. 15A-1223 to remove the requirement for a motion to disqualify.

The question of whether a judge may testify in civil proceedings over which he is presiding does not appear to have arisen in North Carolina. See Brandis on North Carolina Evidence § 53, at 198 (1982).

CASE NOTES

Instruction Calling for an Opinion. - In a trial in which the defendant claimed to have multiple personalities, the trial court could not, as the defense requested, instruct the jury that the person sitting at the defense table was not "James Woodard," but instead was "Johnny Gustud" (the defendant's "alternate personality"). If the judge had done so, he would have impermissibly expressed his opinion as to whether the defendant in fact had multiple personalities. State v. Woodard, 102 N.C. App. 687, 404 S.E.2d 6 (1990), cert. denied and appeal dismissed, 329 N.C. 504, 407 S.E.2d 550 (1991).


Rule 606. Competency of juror as witness.

  1. At the trial. - A member of the jury may not testify as a witness before that jury in the trial of the case in which he is sitting as a juror. If he is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
  2. Inquiry into validity of verdict or indictment. - Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 606.

Subdivision (a) provides that a juror may not testify as a witness in the trial in which he is sitting as a juror. There are no North Carolina cases on this point.

The Advisory Committee's Note to subdivision (a) states:

"The considerations which bear upon the permissibility of testimony by a juror in the trial in which he is sitting as juror bear an obvious similarity to those evoked when the judge is called as a witness. See Advisory Committee's Note to Rule 605. The judge is not, however, in this instance so involved as to call for departure from usual principles requiring objection to be made; hence the only provision on objection is that opportunity be afforded for its making out of the presence of the jury. Compare Rule 605."

Subdivision (b) concerns an inquiry into the validity of a verdict or indictment. The Advisory Committee's Note states:

"Whether testimony, affidavits, or statements of jurors should be received for the purpose of invalidating or supporting a verdict or indictment, and if so, under what circumstances, has given rise to substantial differences of opinion. The familiar rubric that a juror may not impeach his own verdict, dating from Lord Mansfield's time, is a gross oversimplification. The values sought to be promoted by excluding the evidence include freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment. McDonald v. Pless, 238 U.S. 264 (1915). On the other hand, simply putting verdicts beyond effective reach can only promote irregularity and injustice. The rule offers an accommodation between these competing considerations.

The mental operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors and invite tampering and harassment. * * * The authorities are in virtually complete accord in excluding the evidence. * * * As to matters other than mental operations and emotional reactions of jurors, substantial authority refuses to allow a juror to disclose irregularities which occur in the jury room, but allows his testimony as to irregularities occurring outside and allows outsiders to testify as to occurrences both inside and out. * * * However, the door of the jury room is not necessarily a satisfactory dividing point, and the Supreme Court has refused to accept it for every situation. Mattox v. United States, 146 U.S. 140, . . . (1892). Under the federal decisions the central focus has been upon insulation in the manner in which the jury reached its verdict, and this protection extends to each of the components of deliberation, including arguments, statements, discussions, mental and emotional reactions, votes, and any other feature of the process. Thus testimony or affidavits of jurors have been held incompetent to show a compromise verdict, Hyde v. United States, 225 U.S. 347, 382 (1912); a quotient verdict, McDonald v. Pless, 238 U.S. 264, (1915); speculation as to insurance coverage, Holden v. Porter, 405 F.2d 878 (10th Cir. 1969), Farmers Coop. Elev. Ass'n v. Strand, 382 F.2d 224, 230 (8th Cir. 1967), cert. denied, 389 U.S. 1014; misinterpretation of instructions, Farmers Coop. Elev. Ass'n v. Strand, supra; mistake in returning verdict, United States v. Chereton, 309 F.2d 197 (6th Cir. 1962); interpretation of guilty plea by one defendant as implicating others, United States v. Crosby, 294 F.2d 928, 949 (2d Cir. 1961). The policy does not, however, foreclose testimony by jurors as to prejudicial extraneous information or influences injected into or brought to bear upon the deliberative process. Thus a juror is recognized as competent to testify to statements by the bailiff or the introduction of a prejudicial newspaper account into the jury room, Mattox v. United States, 146 U.S. 140 (1892). See also Parker v. Gladden, 385 U.S. 363 (1966)."

The exclusion is intended to encompass testimony about mental processes and testimony about any matter or statement occurring during the deliberations, except that testimony of either of these two types can be admitted if it relates to extraneous prejudicial information or improper outside influence.

The general rule in North Carolina has been that a juror's testimony or affidavit will not be received to impeach the verdict of the jury. Brandis on North Carolina Evidence § 65 (1982). The North Carolina rule, unlike Rule 606, does not apply to attempts to support a verdict. Id. An express, though limited exception to the anti-impeachment rule is provided in G.S. 15A-1240, which should be amended to conform to Rule 606.

Also, the Advisory Committee's Note states:

"This rule does not purport to specify the substantive grounds for setting aside verdicts for irregularity; it deals only with the competency of jurors to testify concerning those grounds. Allowing them to testify as to matters other than their own inner reactions involves no particular hazard to the values sought to be protected. The rule is based upon this conclusion. It makes no attempt to specify the substantive grounds for setting aside verdicts for irregularity."

Legal Periodicals. - For article, "Jury Misconduct, Jury Interviews, and the Federal Rules of Evidence: Is the Broad Exclusionary Principle of Rule 606(b) Justified?," see 66 N.C.L. Rev. 509 (1988).

CASE NOTES

Extraneous Information. - Extraneous information is information dealing with the defendant or the case which is being tried, which information reaches a juror without being introduced in evidence; it does not include information which a juror has gained in his or her experience which does not deal with the defendant or the case being tried. State v. Rosier, 322 N.C. 826, 370 S.E.2d 359 (1988).

The Supreme Court of North Carolina has interpreted extraneous information under subsection (b) to mean information that reaches a juror without being introduced into evidence and that deals specifically with the defendant or the case being tried. State v. Heatwole, 344 N.C. 1, 473 S.E.2d 310 (1996), cert. denied, 520 U.S. 1122, 117 S. Ct. 1259, 137 L. Ed. 2d 339 (1997).

Defendant was entitled to a new trial because a detective's comments to a deputy, who was serving on the jury, about the deputy doing the right thing and notifying the deputy that defendant had flunked a polygraph, were intended to influence the verdict in defendant's case. State v. Lewis, 188 N.C. App. 308, 654 S.E.2d 808 (2008).

Irregularities in the jury's deliberations could not be considered in a motion for appropriate relief where a juror stated that comments were made about defendant's release after serving eight years' and about how she would feel if defendant were sentenced for second-degree murder, got out after eight years and came after her son as the jurors' discussion did not consist of specific extraneous factual information about defendant; even if the juror had been polled, dissented, and revealed the jury's discussion, the information would not have been extraneous. State v. Marsh, 229 N.C. App. 606, 747 S.E.2d 750 (2013).

Trial court did not abuse its discretion by denying defendants' motion for appropriate relief based on alleged juror misconduct without conducting an evidentiary hearing because defendants' allegations of juror misconduct were, at best, general, speculative, and conclusory, and even if the trial court had held an evidentiary hearing, precedent prohibiting verdict impeachment would prevent defendants from presenting any admissible evidence to prove the truth of their allegations. State v. Corbett, - N.C. App. - , 839 S.E.2d 361 (2020), cert. dismissed, as moot, mot. denied, 845 S.E.2d 793, 2020 N.C. LEXIS 742 (N.C. 2020); aff'd, 855 S.E.2d 228, 2021 N.C. LEXIS 176 (N.C. 2021).

Official Comment Misstates Rule. - Hearing judge did not err by excluding juror testimony regarding how the extraneous information affected the jury's decision; although the official comment to this rule suggests that a juror is competent to testify regarding the effect of extraneous prejudicial information upon the juror's mental processes, the comment inadvertently misstates the rule since both subsection (b) of this rule and G.S. 15A-1240 unambiguously prohibit inquiry into the effect of anything occurring during deliberations upon jurors' minds. State v. Lyles, 94 N.C. App. 240, 380 S.E.2d 390 (1989).

Section 15A-1240 and Subsection (b) of This Rule Do Not Conflict. - Although subsection (b) of this rule is broader in some respects than G.S. 15A-1240, the two statutes do not conflict; the exceptions to the anti-impeachment rule listed in G.S. 15A-1240 are designed to protect the same interests as, and are entirely consistent with, the exceptions in subsection (b) of this rule. State v. Lyles, 94 N.C. App. 240, 380 S.E.2d 390 (1989).

Impeachment of Civil Verdict Not Permitted. - Prior to July 1, 1984, the effective date of the Rules of Evidence, a juror's testimony could not be received even to show that extraneous prejudicial information was improperly brought to the jury's attention. While such evidence could be received in a criminal case because of the constitutional right of confrontation, no such exception to the general anti-impeachment rule applied in civil cases. Therefore, it was error for judge to grant a conditional new trial on the basis of juror misconduct proved solely by the juror's affidavit and testimony. Smith v. Price, 315 N.C. 523, 340 S.E.2d 408 (1986).

Impeachment of Criminal Verdict Not Permitted. - Affidavits of three jurors, asserting that the jury's verdict, as reported by the foreman, was not a true verdict, but represented their answer to the foreman's question of whether defendant might have been guilty of some other offense, but also asserting that all 12 jurors, when polled, agreed with the verdict of guilty, were not admissible to impeach the verdict. State v. Costner, 80 N.C. App. 666, 343 S.E.2d 241, cert. denied, 317 N.C. 709, 347 S.E.2d 444 (1986).

Juror's Statements May Not Be Used To Determine Whether Compromised Verdict Delivered. - Trial court did not err in refusing to grant plaintiff's motion for a new trial under G.S. 1A-1, N.C. R. Civ. P. 59 on the ground that the jury issued a compromised verdict because pursuant to G.S. 8C-1, N.C. R. Evid. 606(b), plaintiff could not use juror comments as evidence supporting his motion for a new trial; a juror's statements may not be used in determining whether a compromise verdict was delivered. Smith v. White, 213 N.C. App. 189, 712 S.E.2d 717 (2011).

Jurors May Testify to Objective Events But Not Subjective Effect. - Jurors may testify regarding the objective events listed as exceptions in the statutes, but are prohibited from testifying to the subjective effect those matters had on their verdict. State v. Lyles, 94 N.C. App. 240, 380 S.E.2d 390 (1989).

Consideration of Possibility of Parole. - Allegations that jurors considered defendant's possibility of parole during their deliberations were allegations of internal influences on the jury; the information that defendant would be eligible for parole in about ten years was not information dealing with this particular defendant, but general information concerning the possibility of parole for a person sentenced to life imprisonment for first-degree murder; furthermore, there was no allegation that the jurors received information about parole eligibility from an outside source. State v. Quesinberry, 325 N.C. 125, 381 S.E.2d 681 (1989), vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990), in light of McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), death sentence vacated, remanded for new capital sentencing proceeding, State v. Quesinberry, 328 N.C. 288, 401 S.E.2d 632 (1991).

Writing on Letter as Extraneous Information and Matter Not in Evidence. - While viewing exhibit, juror peeled back the paper over the bottom of defendant's photograph, revealing the words, "Police Department, Wilson, North Carolina - 12291, 12-07-81"; therefore, where the jurors discussed the writing on the photograph as evidence that defendant had been in area in December 1981, a fact which, if true, contradicted the testimony of defendant's alibi witnesses, the writing on defendant's photograph was both "extraneous information" within the meaning of subsection (b) of this rule and a matter not in evidence, which implicated defendant's confrontation right within the meaning of G.S. 15A-1240(c)(1). State v. Lyles, 94 N.C. App. 240, 380 S.E.2d 390 (1989).

Information allegedly received by jurors did not concern either the defendant or the case being tried, but was rather information about the foreman's belief or impression about the impact of punitive damage awards; therefore, the trial court correctly refused to consider the juror affidavits under section (b). Berrier v. Thrift, 107 N.C. App. 356, 420 S.E.2d 206 (1992), cert. denied, 333 N.C. 254, 424 S.E.2d 918 (1993).

Jurors' Affidavits Held Not Extraneous Information. - In prosecution for first-degree sexual offense where the court instructed the jury not to talk to anyone about the case and not to read, watch or listen to any publication or broadcast concerning the trial, affidavits containing statements by the jurors that the foreman of the jury had watched the program on child abuse and that the foreman told them about a 15 to 17 year old friend of his who had been raped, did not deal with extraneous information within the meaning of this rule. State v. Rosier, 322 N.C. 826, 370 S.E.2d 359 (1988).

Information contained in jurors' affidavits as to the reading of dictionary definitions of "malice" could not be used to impeach the verdict under G.S. 15A-1240 as under the caselaw, definitions in standard dictionaries were not extraneous information within the meaning of G.S. 8C-1-606(b). State v. Bauberger, 176 N.C. App. 465, 626 S.E.2d 700 (2006).

Trial court erred in granting a patient's motion to set aside the verdict and to grant a new trial pursuant to G.S. 1A-1, N.C. R. Civ. P. 59(a)(2), because the affidavits of two jurors regarding a third juror's misconduct were inadmissible pursuant to G.S. 8C-1, N.C. R. Evid. 606(b); the third juror's statements did not constitute an external influence but were more properly described as an internal influence because, as recounted in the affidavits, the statements reflected the third juror's state of mind about the case, and even if the third juror had made up his mind before the patient introduced any evidence, that state of mind was precisely the type of information that Rule 606(b) excluded. Cummings v. Ortega, 365 N.C. 262, 716 S.E.2d 235 (2011).

Juror's Question to Psychology Professor Did Not Entitle Defendant to Relief. - Defendant was not entitled to relief under subsection (b) where a juror, who was enrolled in a psychology class, asked his professor if schizophrenics or paranoid schizophrenics commit violent acts. State v. Heatwole, 344 N.C. 1, 473 S.E.2d 310 (1996), cert. denied, 520 U.S. 1122, 117 S. Ct. 1259, 137 L. Ed. 2d 339 (1997).

Admissibility of Jurors' Affidavits. - Subsection (b) reflects the common law rule that affidavits of jurors are inadmissible for the purposes of impeaching the verdict except as they pertain to extraneous influences that may have affected the jury's decision. State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994), cert. denied, 115 S. Ct. 750, 130 L. Ed. 2d 650 (1995).

Trial court properly received and considered affidavits of jurors which stated that one juror had provided the jurors with definitions of the words "willful" and "wanton" from a dictionary during juror deliberations. Lindsey v. Boddie-Noell Enters., 147 N.C. App. 166, 555 S.E.2d 369 (2001), cert. denied, 355 N.C. 213, 559 S.E.2d 803 (2002).

Trial court erred in granting a patient's motion to set aside the verdict and to grant a new trial pursuant to G.S. 1A-1, N.C. R. Civ. P. 59(a)(2), because the affidavits of two jurors regarding a third juror's misconduct were inadmissible pursuant to G.S. 8C-1, N.C. R. Evid. 606(b); the third juror's statements did not constitute an external influence but were more properly described as an internal influence because, as recounted in the affidavits, the statements reflected the third juror's state of mind about the case, and even if the third juror had made up his mind before the patient introduced any evidence, that state of mind was precisely the type of information that Rule 606(b) excluded. Cummings v. Ortega, 365 N.C. 262, 716 S.E.2d 235 (2011).

G.S. 8C-1, N.C. R. Evid. 606(b), bars jurors from testifying during consideration of post-verdict motions seeking relief from an order or judgment about alleged pre-deliberation misconduct by their colleagues; determining whether jurors may present post-verdict testimony about alleged juror misconduct pursuant to Rule 606(b) depends on the nature of the allegation, not when the misconduct allegedly occurred. Cummings v. Ortega, 365 N.C. 262, 716 S.E.2d 235 (2011).

Evidence of a jury foreman's error in writing down the verdict was not excludable under this rule, as it dealt with a clerical error occurring after deliberations rather than with a matter occurring during deliberations. Chandler v. U-Line Corp., 91 N.C. App. 315, 371 S.E.2d 717, cert. denied, 323 N.C. 623, 374 S.E.2d 583 (1988).

Based on the affidavits of jurors, the foreman shared dictionary definitions with all other jurors after a lunch break; any other testimony regarding any claimed emphasis given to the definitions or evidence of the actual impact upon jury deliberations was foreclosed by Fed. R. Evid. 606(b) and G.S. 8C-1, N.C. R. Evid. 606(b). What was known was that the jury foreman sought out a dictionary after specifically advising the trial judge of the jury's interest in a definition for malice, brought it into the jury room after lunch, and shared particular definitions with the other jurors. Bauberger v. Haynes, - F. Supp. 2d - (M.D.N.C. Oct. 27, 2009), rev'd 632 F.3d 100, 2011 U.S. App. LEXIS 2643 (4th Cir. N.C. 2011).

Bible Reading by Juror. - Trial court did not abuse its discretion by failing to inquire further into allegation that a juror read the Bible aloud in the jury room prior to the commencement of deliberations and prior to the trial court's instructions to the jury as the alleged Bible reading was not directed to the facts or governing law at issue in the case. State v. Barnes, 345 N.C. 184, 481 S.E.2d 44 (1997), cert. denied, 522 U.S. 876, 118 S. Ct. 196, 139 L. Ed. 2d 134 (1997), cert. denied, 523 U.S. 1024, 118 S. Ct. 1309, 140 L. Ed. 2d 473 (1998), cert. denied, 362 N.C. 239, 660 S.E.2d 53 (2008).

Testimony in Criminal Contempt Hearing. - Jurors' testimony regarding the alleged misconduct of a fellow juror was admissible in a criminal contempt hearing, fell within exception to subsection (b) of this rule, and did not frustrate public policy considerations underlying this rule. State v. Pierce, 134 N.C. App. 148, 516 S.E.2d 916 (1999).

Applied in Borg-Warner Acceptance Corp. v. Johnston, 107 N.C. App. 174, 419 S.E.2d 195 (1992); Gregory v. Kilbride, 150 N.C. App. 601, 565 S.E.2d 685 (2002), cert. denied, 357 N.C. 164, 580 S.E.2d 365 (2003); State v. Heavner, 227 N.C. App. 139, 741 S.E.2d 897 (2013).

Cited in McClain v. Otis Elevator Co., 106 N.C. App. 45, 415 S.E.2d 78 (1992); Pinckney v. Van Damme, 116 N.C. App. 139, 447 S.E.2d 825 (1994); Fenz ex rel. Gladden v. Davis, 128 N.C. App. 621, 495 S.E.2d 748 (1998); State v. Smith, 138 N.C. App. 605, 532 S.E.2d 235 (2000); Call v. Polk, 454 F. Supp. 2d 475 (W.D.N.C. 2006), aff'd, 254 Fed. Appx. 257 (4th Cir. N.C. 2007).


Rule 607. Who may impeach.

The credibility of a witness may be attacked by any party, including the party calling him.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 607. The rule abandons the traditional common law rule that a party "vouches" for a witness by calling him and, therefore, may not impeach his own witness. The traditional rule has been the subject of numerous exceptions. See N.C. Civ. Pro. Rule 43(b); Brandis on North Carolina Evidence § 40 (1982). The substantial inroads into the old rule made by statutes and decisions are evidence of doubts as to its basic soundness and workability. As the Advisory Committee's Note states:

"The traditional rule against impeaching one's own witness is abandoned as based on false premises. A party does not hold out his witnesses as worthy of belief, since he rarely has a free choice in selecting them. Denial of the right leaves the party at the mercy of the witness and the adversary."

The impeaching proof must be relevant within the meaning of Rule 401 and Rule 403 and must in fact be impeaching. See Ordover, Surprise! That Damaging Turncoat Witness Is Still With Us, 5 Hofstra L. Rev. 65, 70 (1976).

Legal Periodicals. - For note, "State v. Hunt: Rekindling Requirements for Impeaching One's Own Witness," see 68 N.C. L. Rev. 1236 (1990).

CASE NOTES

Prior Law Distinguished. - Prior to the adoption of the North Carolina Rules of Evidence, the general rule was that the State was prohibited from impeaching its own witness. However, this rule now provides that a witness may be impeached by any party, including the party who called him. State v. Covington, 315 N.C. 352, 338 S.E.2d 310 (1986).

The anti-impeachment rule and exceptions thereto were abolished with the adoption of the North Carolina Rules of Evidence. State v. Hosey, 318 N.C. 330, 348 S.E.2d 805 (1986).

It is not the intent of this rule to provide a subterfuge for getting otherwise impermissible hearsay before the jury in the guise of impeachment, and this tactic is expressly disapproved. State v. Bell, 87 N.C. App. 626, 362 S.E.2d 288 (1987).

Prior statements by a defendant are a proper subject of inquiry by cross-examination. State v. Aguallo, 322 N.C. 818, 370 S.E.2d 676 (1988).

Prior Statement Offered for Impeachment or Corroboration. - Prior statement which corroborated witness' direct testimony, although it tended to impeach his cross-examination testimony, was properly introduced where it was not offered as substantive evidence but was admitted for a limited purpose, impeachment or corroboration, whichever the jury found. State v. Ayudkya, 96 N.C. App. 606, 386 S.E.2d 604 (1989).

Even assuming arguendo that it was error for a trial court to permit the State of North Carolina's impeachment of the victim regarding inconsistent statements the victim made at a probable cause hearing, the admission of this evidence was not prejudicial error, as the substantive information regarding what happened on the night of the shooting of the victim contained in the questions had already been introduced into evidence by another witness on direct examination. State v. Wade, 213 N.C. App. 481, 714 S.E.2d 451 (2011), review denied, 366 N.C. 228, 726 S.E.2d 181, 2012 N.C. LEXIS 454 (N.C. 2012).

Trial court did not err in allowing the cross-examination of defendant in regards to his prior inconsistent statements because defendant failed to mention his story of a consensual sexual encounter on the night of the alleged offense to the detective which he later recalled with a high level of particularity during direct examination; such a memorable encounter would have been natural for defendant to recall at the time the detective was conducting his investigation; and the prosecutor did not exploit defendant's right to remain silent, but instead merely inquired as to why defendant did not remain consistent between testifying on direct examination and in his interview with the detective two years prior. State v. Wyrick, 257 N.C. App. 534, 809 S.E.2d 608, review denied, 371 N.C. 113, 813 S.E.2d 238, 2018 N.C. LEXIS 368 (2018).

Prior Statement Offered for Impeachment and Corroboration. - Trial court did not err by admitting the recording of defendant's ex-girlfriend's police interview for both corroboration and impeachment purposes where the recording included many pretrial statements, some of which tended to corroborate her testimony and some of which tended to impeach her testimony. State v. Gettys, 243 N.C. App. 590, 777 S.E.2d 351 (2015), dismissed and review denied, 781 S.E.2d 798, 2016 N.C. LEXIS 118 (2016).

Whether or not a witness has given prior inconsistent statements is a collateral matter, and when a witness is cross-examined on a collateral matter, the party who draws out unfavorable answers will not be permitted to contradict them using other testimony. State v. Jerrells, 98 N.C. App. 318, 390 S.E.2d 722, cert. denied, 326 N.C. 802, 393 S.E.2d 901 (1990).

Use of Prior Inconsistent Statement for Corroborative Purposes. - Where State's witness admitted giving a statement, but denied the specifics of what the State claimed he said, the proper use of his prior statement for corroborative purposes was to have detective attest to the fact that a prior statement was indeed made, but not to prove the facts to which the statement purportedly related. State v. Jerrells, 98 N.C. App. 318, 390 S.E.2d 722, cert. denied, 326 N.C. 802, 393 S.E.2d 901 (1990).

Trial court did not err under G.S. 8C-1-607 in admitting the unsworn out-of-court statement a witness made to the police because the statement was being used to corroborate the testimony of the witness who originally made the statement; although the witness testified that she did not remember speaking with the police on the night of the murder, she did not ever deny making the statement to the police, nor did the trial court make a determination that the witness was a hostile or unwilling witness, the trial court issued a limiting instruction when the evidence was admitted, and the statement was immediately published to the jury. State v. Walters, 209 N.C. App. 159, 703 S.E.2d 493 (2011), review denied 365 N.C. 188, 707 S.E.2d 240, 2011 N.C. LEXIS 232 (2011).

Use of Prior Consistent Statement for Corroborative Purposes. - Officer's testimony concerning a witness' out-of-court statement was properly admitted for corroborative purposes; the witness' trial testimony constituted a description, albeit a less complete one, of the same events described in her out-of-court statement, a fact that meant the out-of-court statement tended to add weight and credibility to her trial testimony despite the fact that she denied any memory of certain event described in the out-of-court statement. State v. Walker, 204 N.C. App. 431, 694 S.E.2d 484 (2010).

Inquiry Prior to Allowing Impeachment of State's Witness. - The better practice continues to be for the trial court, before allowing impeachment of the State's own witness by a prior inconsistent statement, to make findings and conclusions with respect to whether the witness' testimony is other than what the State had reason to expect, or whether a need to impeach otherwise exists. State v. Bell, 87 N.C. App. 626, 362 S.E.2d 288 (1987).

Impeachment of Own Witness by State. - After State's witness testified that his identification of defendant was based on his prior photographic identification, the State had the right under this rule to elicit contradictory testimony. Furthermore, even under the old impeachment rule, this evidence would have been admissible. State v. Covington, 315 N.C. 352, 338 S.E.2d 310 (1986).

Where witness admitted that she had not told the police or the prosecutors during their meeting that she intended to change her version of the facts, that she felt as though the trial was her "chance to speak out" and that she was scared to tell the detectives prior to trial that defendant told her another person shot the victim, thus indicating that she had not spoken to the State about her change of testimony prior to trial, the State was surprised at trial by witness's change of her version of the facts, and the trial court properly allowed the State to impeach her with her prior inconsistent statement. State v. Williams, 341 N.C. 1, 459 S.E.2d 208 (1995), cert. denied, 516 U.S. 1128, 116 S. Ct. 945, 133 L. Ed. 2d 870 (1996).

The State properly impeached two of its witnesses concerning the inconsistencies in their prior statements where both admitted making statements to a detective in which they discussed details of the robbery and assault of the victim and implicated defendant but, then subsequently testified that certain parts of their statements as recounted were inaccurate. State v. Riccard, 142 N.C. App. 298, 542 S.E.2d 320 (2001).

State's impeachment of two of its witnesses with their prior inconsistent statements did not violate G.S. 8C-1, N.C. R. Evid. 607 as: (1) both of the witnesses' statements to the police were material as the statements concerned the credibility of two individuals who claimed they did not see defendant at the scene of the crime; (2) the witnesses' testimonies concerned matters that were pertinent and material to the pending inquiry; (3) both witnesses admitted having made the prior statements; (4) mere subterfuge did not take place on the part of the State, although the State knew that the witnesses were going to testify that any previous statement given by each was not the truth; and (5) the trial court followed the introduction of the statements with an effective limiting instruction. State v. Avent, 222 N.C. App. 147, 729 S.E.2d 708 (2012).

State was properly permitted to impeach its own witness because the testimony of the witness, who had the best opportunity to observe defendant's demeanor and hear his statement just before and just after the alleged offenses, was critical to the State's case. State v. Goins, 232 N.C. App. 451, 754 S.E.2d 195 (2014).

Defendant cannot call witness and then attempt to impeach him by inquiring into prior charges or indictments against the witness. State v. Mills, 332 N.C. 392, 420 S.E.2d 114 (1992).

Prior bad acts and prior inconsistent statements are proper subjects for cross-examination. State v. Belton, 77 N.C. App. 559, 335 S.E.2d 522 (1985).

Impeachment Improper of Witness Where Officer Could Have Given Testimony. - Once the trial court determined that witness was a hostile or unwilling witness, it properly permitted the State to subject her to cross-examination. However, the trial court erred in permitting police officer to testify as to the substance of the prior statements denied by witness since the officer could properly have been called to contradict the fact, denied by witness, that she had made the statement to him on the specified date. But, it was improper to impeach her concerning what she had or had not told officer by offering the testimony of officer. State v. Hunt, 324 N.C. 343, 378 S.E.2d 754 (1989).

Admission of Impeachment Testimony Upheld. - Where prosecutor was unaware of witness's prior inconsistent statement until after he had testified, and defendant offered substantially the same evidence through his own witness, the admission of impeachment testimony without a preliminary inquiry by the trial court was not prejudicial error. State v. Bell, 87 N.C. App. 626, 362 S.E.2d 288 (1987).

The State was permitted, under this rule, to question its witness about his prior criminal activity only after defendant himself had elicited the testimony on cross-examination, where the questions appeared to have been asked in order to clarify State witness' testimony on cross-examination. State v. McLaughlin, 323 N.C. 68, 372 S.E.2d 49 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1021, 110 S. Ct. 1463, 108 L. Ed. 2d 601 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Statement Held Inadmissible for Impeachment. - Where witness never testified to his recollection of the events in question either before or after the court admitted his statement, he never testified to something with which his statement was inconsistent. Thus his statement was not admissible for the limited purpose of impeachment, and the court erred in admitting it. State v. Platt, 85 N.C. App. 220, 354 S.E.2d 332, cert. denied, 320 N.C. 516, 358 S.E.2d 529 (1987).

Witness's prior inconsistent statements were properly introduced to impeach the witness and did not violate G.S. 8C-1-607 where the State did not appear to know before the witness was called to the stand that she would not cooperate by reiterating her prior statements. State v. Gabriel, 207 N.C. App. 440, 700 S.E.2d 127 (2010).

Witness Summary Improperly and Prejudicially Admitted. - Defendant was entitled to yet another new trial where a witness' purported summary, allegedly written by an investigating officer who was not called as a witness by the State, was improperly and prejudicially admitted into evidence although it was not admissible as a recorded recollection under Rule 803(5), did not refresh the witness' recollection, was not properly used to impeach her under this rule and the witness, in fact, objected to parts of the statement. State v. Spinks, 136 N.C. App. 153, 523 S.E.2d 129 (1999).

Questions to Rebuttal Witness. - Impeaching questions about a previous alleged knifing incident asked by prosecutor of rebuttal witness held not to constitute error. State v. Price, 118 N.C. App. 212, 454 S.E.2d 820 (1995).

Applied in State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009), cert. denied 130 S. Ct. 2104, 2010 U.S. LEXIS 3379, 176 L. Ed. 2d 734 (U.S. 2010); State v. Banks, 210 N.C. App. 30, 706 S.E.2d 807 (2011).

Cited in State v. Gardner, 312 N.C. 70, 320 S.E.2d 688 (1984); State v. McDonald, 312 N.C. 264, 321 S.E.2d 849 (1984); State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985); State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986); State v. Hosey, 318 N.C. 330, 348 S.E.2d 805 (1986); State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986); State v. Locklear, 322 N.C. 349, 368 S.E.2d 377 (1988); State v. Hyleman, 89 N.C. App. 424, 366 S.E.2d 530 (1988); State v. Miller, 330 N.C. 56, 408 S.E.2d 846 (1991); State v. Goodson, 101 N.C. App. 665, 401 S.E.2d 118 (1991); State v. Ward, 338 N.C. 64, 449 S.E.2d 709 (1994), cert. denied, 514 U.S. 1134, 115 S. Ct. 2014, 131 L. Ed. 2d 1012 (1995), cert. denied, 343 N.C. 757, 473 S.E.2d 626 (1996), cert. denied, 354 N.C. 74, 571 S.E.2d 835 (2001); State v. Bishop, 343 N.C. 518, 472 S.E.2d 842 (1996), cert. denied, 519 U.S. 1097, 117 S. Ct. 779, 136 L. Ed. 2d 723 (1997); State v. Miller, 137 N.C. App. 450, 528 S.E.2d 626 (2000); State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808 (2003); State v. Batchelor, 190 N.C. App. 369, 660 S.E.2d 158 (2008); State v. Sargeant, 365 N.C. 58, 707 S.E.2d 192 (2011).


Rule 608. Evidence of character and conduct of witness.

  1. Opinion and reputation evidence of character. - The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion as provided in Rule 405(a), but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
  2. Specific instances of conduct. - Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 608, except for the addition of the phrase "as provided in Rule 405(a)" to subdivision (a).

Subdivision (a) allows the credibility of a witness to be attacked or supported by evidence in the form of reputation or opinion. Admitting opinion evidence to prove character is a change in North Carolina practice. See Commentary to Rule 405. The reference to Rule 405(a) is to make it clear that expert testimony on the credibility of a witness is not admissible.

The rule in North Carolina has been that evidence of a specific trait of character is admissible only if asked on cross-examination or if "volunteered" by the witness on direct examination in answer to a question which asks if the witness knows the general reputation or reputation and character of the subject. In both cases, the witness may testify to character traits that are wholly irrelevant to any issue in the case. Brandis on North Carolina Evidence §§ 114, 115 (1982). The North Carolina rule is unique, and appears to have its origin in a misinterpretation of earlier opinions. Id. § 114.

The first limitation of subdivision (a) changes this result by confining evidence of specific traits of a witness to character for truthfulness or untruthfulness and permitting counsel to ask questions regarding these traits on direct examination or cross-examination. However, evidence of truthfulness is permitted only after the character of the witness for truthfulness has been attacked.

In North Carolina the necessity for impeachment as a prerequisite to corroboration has been more theoretical than real. Id. § 50. Adoption of this rule strengthens the limitation. The Advisory Committee's Note states that:

"Opinion or reputation that the witness is untruthful specifically qualifies as an attack under the rule, and evidence of misconduct, including conviction of crime, and of corruption also fall within this category. Evidence of bias or interest does not. McCormick § 49; 4 Wigmore §§ 1106, 1107. Whether evidence in the form of contradiction is an attack upon the character of the witness must depend upon the circumstances. McCormick § 49. ( Cf. 4 Wigmore §§ 1108, 1109)."

As to the use of specific instances on direct by an opinion witness, see the Commentary to Rule 405, supra.

Subdivision (b) generally bars evidence of specific instances of conduct of a witness for the purpose of attacking or supporting his credibility. Evidence of wrongful acts admissible under Rule 404(b) is not within this rule and is admissible by extrinsic evidence or by cross-examination of any witness.

There are two exceptions under subdivision (b). Conviction of a crime as a technique of impeachment is treated in detail in Rule 609 and is merely recognized in this rule as an exception to the general rule excluding evidence of specific incidents for impeachment purposes.

The second exception allows particular instances of conduct, though not the subject of criminal conviction, to be inquired into on cross-examination of the principal witness himself or of a witness who testifies concerning his character for truthfulness. Current North Carolina practice allows only inquiry concerning the specific acts of the principal witness himself. Brandis on North Carolina Evidence §§ 111, 115 (1982). The Advisory Committee's Note states that:

"Effective cross-examination demands that some allowance be made for going into matters of this kind, that the possibilities of abuse are substantial. Consequently safeguards are erected in the form of specific requirements that the instances inquired into be probative of truthfulness or its opposite and not remote in time. Also, the overriding protection of Rule 403 requires that the probative value not be outweighed by danger of unfair prejudice, confusion of issues, or misleading the jury, and that of Rule 611 bars harassment and undue embarrassment."

The last sentence of Rule 608 constitutes a rejection of the doctrine of such cases as State v. Foster, 284 N.C. 259 (1973), that any past criminal act relevant to credibility may be inquired into on cross-examination, in apparent disregard of the privilege against self-incrimination. As the Advisory Committee's Note states:

"While it is clear that an ordinary witness cannot make a partial disclosure of incriminating matter and then invoke the privilege on cross-examination, no tenable contention can be made that merely by testifying he waives his right to foreclose inquiry on cross-examination into criminal activities for the purpose of attacking his credibility. So to hold would reduce the privilege to a nullity. While it is true that an accused, unlike an ordinary witness, has an option whether to testify, if the option can be exercised only at the price of opening up inquiry as to any and all criminal acts committed during his lifetime, the right to testify could scarcely be said to possess much vitality. In Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d. 106 (1965), the Court held that allowing comment on the election of an accused not to testify exacted a constitutionally impermissible price, and so here. While no specific provision in terms confers constitutional status on the right of an accused to take the stand in his own defense, the existence of the right is so completely recognized that a denial of it or substantial infringement upon it would surely be of due process dimensions. See Ferguson v. Georgia, 365 U.S. 570, 81 S. Ct. 756, 5 L. Ed. 2d. 783 (1961); McCormick, § 131; 8 Wigmore § 2276 (McNaughton Rev. 1961). In any event, wholly aside from constitutional considerations, the provision represents a sound policy."

See Brandis on North Carolina Evidence § 111, at 409, n. 28 (1982).

Legal Periodicals. - For note on the future of character impeachment in North Carolina, in light of State v. Jean, 310 N.C. 157, 311 S.E.2d 266 (1984), see 63 N.C.L. Rev. 535 (1985).

For essay, "Credence, Character, and the Rules of Evidence: Seeing Through the Liar's Tale," see 1993 Duke L.J. 776.

For Survey of Developments in North Carolina Law (1992), see 71 N.C.L. Rev. 1893 (1993).

For article, "Issues Once Moot: The Other Evidentiary Objections to the Admission of Exculpatory Polygraph Examinations," see 32 Wake Forest L. Rev. 1045 (1997).

CASE NOTES

I. GENERAL CONSIDERATION.

Departure from Former Practice. - Subsection (b) of this rule represents a drastic departure from former traditional North Carolina practice, which allowed a defendant to be cross-examined for impeachment purposes regarding any prior act of misconduct not resulting in conviction, so long as the prosecutor had a good-faith basis for the questions. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).

This rule curtailed former North Carolina practice allowing cross-examination of a defendant for impeachment purposes regarding any prior misconduct not resulting in a conviction, as long as the prosecutor had a good-faith basis for the question. State v. Scott, 318 N.C. 237, 347 S.E.2d 414 (1986).

With the introduction of subsection (a) of this rule, the long-standing North Carolina rule against allowing a witness to testify as to his or her own opinion of another's character for truth and veracity was abrogated. State v. Morrison, 84 N.C. App. 41, 351 S.E.2d 810, cert. denied, 319 N.C. 408, 354 S.E.2d 724 (1987).

Subsection (b) of this rule represents a drastic departure from former traditional North Carolina practice, which allowed cross-examination for impeachment purposes regarding any prior act of misconduct if the question was asked in good faith. State v. Lamb, 321 N.C. 633, 365 S.E.2d 600 (1988).

Subsection (b) of this rule limits the State in its inquiry to types of misconduct which involve truthfulness or untruthfulness. State v. Woodard, 102 N.C. App. 687, 404 S.E.2d 6 (1990), cert. denied and appeal dismissed, 329 N.C. 504, 407 S.E.2d 550 (1991).

But State allowed questions about defendant's "Affidavit of Indigency". - Limited nature of questions permitted by the trial court in allowing the State to cross-examine the defendant regarding the contents of his "Affidavit of Indigency," filed in conjunction with his motion that counsel be appointed for trial, fell within the parameters of subsection (b). State v. Larrimore, 340 N.C. 119, 456 S.E.2d 789 (1995).

Prior statements by a defendant are a proper subject of inquiry by cross-examination. State v. Aguallo, 322 N.C. 818, 370 S.E.2d 676 (1988).

Expert Opinion on Witness's Procedures And Practices. - The court rightfully refused the testimony of defendant's expert, a private detective and retired police officer of 30 years, where the jury was perfectly capable of judging the improper methods and procedures used by the undercover narcotics officer without the assistance of the expert; the testimony was irrelevant, had insufficient probative value on the facts to be proved, and violated the rule prohibiting expert testimony as to witness credibility, G.S. 8C-1, Rules 405(a) and 608, as read together. State v. Mackey, 352 N.C. 650, 535 S.E.2d 555 (2000).

Subsection (b) of this rule does not allow the use of extrinsic evidence concerning that misconduct to impeach a witness. State v. Woodard, 102 N.C. App. 687, 404 S.E.2d 6 (1990), cert. denied and appeal dismissed, 329 N.C. 504, 407 S.E.2d 550 (1991).

North Carolina law prohibits the use of extrinsic evidence, i.e., the testimony of another witness, to attack a witness' credibility under G.S. 8C-1, N.C. R. Evid. 608(b). State v. Johnson, 161 N.C. App. 504, 588 S.E.2d 488 (2003).

Section 8C-1, Rule 404(b) Distinguished. - Although subsection (b) of this rule and G.S. 8C-1, Rule 404(b) concern the use of specific instances of a person's conduct, the two rules have very different purposes and are intended to govern entirely different uses of extrinsic conduct evidence. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).

Subsection (b) of this rule governs reference to specific instances of conduct only on cross-examination regarding the credibility of any witness and prohibits proof by extrinsic evidence. Under G.S. 8C-1, Rule 404(b), however, evidence regarding extrinsic acts is not limited to cross-examination and may be proved by extrinsic evidence as well as through cross-examination. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).

"Extrinsic conduct evidence" refers to evidence of a specific prior or subsequent act, not charged in the indictment, which may be criminal but, as applied in subsection (b) of this rule, does not result in a conviction. Criminal convictions are included in Rule 404(b). State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).

When G.S. 8C-1, Rule 611 Applicable. - While specific instances of drug use or mental instability are not directly probative of truthfulness, they may bear upon credibility in other ways, in which case G.S. 8C-1, Rule 611 is applicable to the admission of such evidence rather than this rule. State v. Williams, 330 N.C. 711, 412 S.E.2d 359 (1992).

Violation of Rule Does Not Require New Trial. - Although extrinsic evidence of sexual misconduct is not in any way probative of a witness' character for truthfulness or untruthfulness, even so, any error in admitting evidence in violation of this rule does not require a new trial unless there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at trial. State v. Moore, 103 N.C. App. 87, 404 S.E.2d 695 (1991).

Discretion of Court. - Although this Rule allows evidence of prior acts or misconduct to be admissible for the purpose of impeaching the credibility of a witness, whether to admit such evidence is within the trial court's discretion and will not be overturned absent an abuse of discretion. Ferebee v. Hardison, 126 N.C. App. 230, 484 S.E.2d 857 (1997), rev'd in part, 347 N.C. 346, 492 S.E.2d 354 (1997).

It was within the court's discretion to allow the State to question defendant briefly as to his knowledge regarding insurance fraud committed by his brother and parents, where the possibility that he was aware of such a scam would arguably be probative of his truthfulness. State v. Kimble, 140 N.C. App. 153, 535 S.E.2d 882 (2000).

Extrinsic Evidence Properly Excluded. - Trial court properly excluded testimony from a defense witness who claimed to have seen the prosecution's sole eyewitness assist a prisoner escape from jail; while defendant could have used cross-examination to challenge the eyewitness's credibility, G.S. 8C-1, N.C. R. Evid. 608(b), prohibited the use of extrinsic evidence, i.e., the testimony of another witness, to attack the eyewitness's credibility. State v. Johnson, 161 N.C. App. 504, 588 S.E.2d 488 (2003).

Applied in State v. Hamrick, 81 N.C. App. 508, 344 S.E.2d 316 (1986); Frye v. Anderson, 86 N.C. App. 94, 356 S.E.2d 370 (1987); State v. Russell, 91 N.C. App. 581, 372 S.E.2d 880 (1988); Hinnant v. Holland, 92 N.C. App. 142, 374 S.E.2d 152 (1988); State v. Hunt, 325 N.C. 187, 381 S.E.2d 453 (1989); State v. Stevenson, 328 N.C. 542, 402 S.E.2d 396 (1991); State v. Wills, 110 N.C. App. 206, 429 S.E.2d 376 (1993); State v. Black, 111 N.C. App. 284, 432 S.E.2d 710 (1993); State v. Robertson, 115 N.C. App. 249, 444 S.E.2d 643 (1994); State v. McCarroll, 336 N.C. 559, 445 S.E.2d 18 (1994); State v. Burton, 119 N.C. App. 625, 460 S.E.2d 181 (1995); State v. Grace, 341 N.C. 640, 461 S.E.2d 330 (1995); State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995); State v. Walls, 342 N.C. 1, 463 S.E.2d 738 (1995); N.C. State Bar v. Gilbert, 151 N.C. App. 299, 566 S.E.2d 685 (2002), aff'd, 357 N.C. 502, 586 S.E.2d 89 (2003); State v. O'Hanlan, 153 N.C. App. 546, 570 S.E.2d 751 (2002), cert. denied, 358 N.C. 158, 593 S.E.2d 397 (2004); State v. Thaggard, 168 N.C. App. 263, 608 S.E.2d 774 (2005); State v. Harris, 243 N.C. App. 728, 778 S.E.2d 875 (2015).

Cited in State v. Watts, 77 N.C. App. 124, 334 S.E.2d 400 (1985); State v. McClintick, 315 N.C. 649, 340 S.E.2d 41 (1986); State v. Sidden, 315 N.C. 539, 340 S.E.2d 340 (1986); State v. Brewington, 80 N.C. App. 42, 341 S.E.2d 82 (1986); State v. Childers, 80 N.C. App. 236, 341 S.E.2d 760 (1986); State v. White, 82 N.C. App. 358, 346 S.E.2d 243 (1986); State v. McKoy, 317 N.C. 519, 347 S.E.2d 374 (1986); State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986); State v. Clark, 319 N.C. 215, 353 S.E.2d 205 (1987); State v. Sullivan, 86 N.C. App. 316, 357 S.E.2d 414 (1987); State v. Strickland, 321 N.C. 31, 361 S.E.2d 882 (1987); State v. Bagley, 321 N.C. 201, 362 S.E.2d 244 (1987); State v. Autry, 321 N.C. 392, 364 S.E.2d 341 (1988); State v. Miller, 321 N.C. 445, 364 S.E.2d 387 (1988); State v. Martin, 322 N.C. 229, 367 S.E.2d 618 (1988); State v. Carter, 326 N.C. 243, 388 S.E.2d 111 (1990); State v. Sherrill, 99 N.C. App. 540, 393 S.E.2d 352 (1990); State v. Burton, 108 N.C. App. 219, 423 S.E.2d 484 (1992); State v. Brooks, 113 N.C. App. 451, 439 S.E.2d 234 (1994); State v. Jones, 339 N.C. 114, 451 S.E.2d 826 (1994); State v. Johnson, 337 N.C. 212, 446 S.E.2d 92 (1994); State v. Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994); State v. Hunt, 339 N.C. 622, 457 S.E.2d 276 (1994); State v. Perkins, 345 N.C. 254, 481 S.E.2d 25 (1997), cert. denied, 522 U.S. 837, 118 S. Ct. 111, 139 L. Ed. 2d 64 (1997); Holt v. Williamson, 125 N.C. App. 305, 481 S.E.2d 307 (1997), cert. denied, 346 N.C. 178, 486 S.E.2d 204 (1997); State v. Dickens, 346 N.C. 26, 484 S.E.2d 553 (1997); State v. Bishop, 346 N.C. 365, 488 S.E.2d 769 (1997); State v. Cardwell, 133 N.C. App. 496, 516 S.E.2d 388 (1999); State v. Fluker, 139 N.C. App. 768, 535 S.E.2d 68 (2000); State v. McGill, 141 N.C. App. 98, 539 S.E.2d 351 (2000); State v. Mays, 158 N.C. App. 563, 582 S.E.2d 360 (2003), cert. denied, 357 N.C. 510, 588 S.E.2d 379 (2003), cert. denied, 358 N.C. 547, 599 S.E.2d 913 (2004); State v. Whaley, 362 N.C. 156, 655 S.E.2d 388 (2008); State v. Ward, 199 N.C. App. 1, 681 S.E.2d 354 (2009), aff'd 2010 N.C. LEXIS 424 (2010); State v. Curry, 203 N.C. App. 375, 692 S.E.2d 129 (2010); State v. Register, 206 N.C. App. 629, 698 S.E.2d 464 (2010); State v. Green, 209 N.C. App. 669, 707 S.E.2d 715 (2011); State v. Lynch, 217 N.C. App. 455, 720 S.E.2d 452 (2011); State v. Davis, 222 N.C. App. 562, 731 S.E.2d 236 (2012).

II. OPINION AND REPUTATION EVIDENCE OF CHARACTER.

Before a witness may testify as to another witness's reputation, a foundation must be laid showing that the testifying witness has sufficient contact with the community to enable him or her to be qualified as knowing the general reputation of the person in question. State v. Morrison, 84 N.C. App. 41, 351 S.E.2d 810, cert. denied, 319 N.C. 408, 354 S.E.2d 724 (1987).

The phrase "as provided in § 8C-1, Rule 405(a)" was inserted in subsection (a) of this rule to make clear that expert testimony on the credibility of a witness is not admissible. State v. Aguallo, 318 N.C. 590, 350 S.E.2d 76 (1986).

Opinion and Reputation Evidence on Credibility. - Both opinion and reputation evidence are admissible as evidence pertaining to a witness' credibility under this rule and Rule 405. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, cert. denied, 320 N.C. 174, 358 S.E.2d 64 (1987).

Expert Opinion on Credibility. - This rule and G.S. 8C-1, Rule 405(a), read together, forbid an expert's opinion as to the credibility of a witness. State v. Heath, 316 N.C. 337, 341 S.E.2d 565 (1986).

In a prosecution for taking indecent liberties with a child, testimony of two witnesses for the State, a pediatrician and a child psychologist, that in their opinion the child had testified truthfully, did not meet the requirements for expert testimony, as it concerned the credibility of a witness, a field in which jurors are supreme and require no assistance, rather than some fact involving scientific, technical or other specialized knowledge, and as character evidence, the testimony violated the provisions of G.S. 8C-1, Rule 405(a) and this rule. State v. Holloway, 82 N.C. App. 586, 347 S.E.2d 72 (1986).

Testimony of pediatrician that in her opinion the victim of alleged sexual abuse was "believable" was inadmissible under this rule and G.S. 8C-1, Rule 405. State v. Aguallo, 318 N.C. 590, 350 S.E.2d 76 (1986).

This rule and G.S. 8C-1, Rule 405(a), read together, forbid an expert's opinion testimony as to the credibility of a witness. State v. Chul Yun Kim, 318 N.C. 614, 350 S.E.2d 347 (1986).

Testimony of child psychologist as to child rape victim's truthfulness during her evaluation and treatment was not admissible, where her sessions with the child began as a result of the acts which resulted in charges against the defendant and involved psychotherapy to assist the victim in overcoming her negative responses to the incidents, as the question posed by the prosecutor to which this testimony was responsive clearly invoked the psychologist's status as an expert and sought to establish the credibility of the victim as a witness. State v. Chul Yun Kim, 318 N.C. 614, 350 S.E.2d 347 (1986).

Section 8C-1, Rule 405(a) and subsection (a) of this rule, read together, forbids an expert's opinion testimony as to the credibility of a witness; this rule applies to child witnesses as well as adults. State v. Jenkins, 83 N.C. App. 616, 351 S.E.2d 299 (1985), cert. denied, 319 N.C. 675, 356 S.E.2d 791 (1987).

In prosecution for taking indecent liberties with children, the trial court committed prejudicial error in allowing a child psychologist to give his expert opinion as to whether children lie about sexual abuse, where his testimony referred in part to the individual witnesses and not just to children in general. State v. Jenkins, 83 N.C. App. 616, 351 S.E.2d 299 (1986), cert. denied, 319 N.C. 675, 356 S.E.2d 791 (1987).

This rule and G.S. 8C-1, Rule 405(a) prohibit the admission of expert testimony on the issue of credibility of a witness. State v. Teeter, 85 N.C. App. 624, 355 S.E.2d 804, writ denied, 320 N.C. 175, 358 S.E.2d 66, appeal dismissed and cert. denied, 320 N.C. 175, 358 S.E.2d 67 (1987), holding, however, that erroneous admission of testimony did not entitle defendant to a new trial absent prejudice.

Expert testimony as to the credibility of a witness is not admissible. State v. Huang, 99 N.C. App. 658, 394 S.E.2d 279 (1990), vacated in part, 107 N.C. App. 710, 421 S.E.2d 812 (1992).

In child sexual abuse case where the medical evidence was in conflict, testimony by doctor that was offered to show that the victim was being truthful about allegations was prejudicial. For this reason defendant was entitled to a new trial. State v. Baymon, 336 N.C. 748, 446 S.E.2d 1 (1994).

Although Rules 405 and 608, when read together, prohibit an expert witness from commenting on the credibility of another witness, Rule 702 allows expert testimony where the expert's testimony goes to the reliability of a diagnosis and not to the credibility of a rape victim. State v. Marine, 135 N.C. App. 279, 520 S.E.2d 65 (1999).

Trial court committed plain error in distributing to the jury an expert witness' report prepared following an evaluation of an alleged sexual assault victim, wherein the expert gave the opinion that the victim's disclosure of the alleged sexual assault was credible; the admission of that portion of the report constituted impermissible expert testimony on the credibility of the alleged sexual assault victim's testimony; moreover, because there was no physical evidence of abuse and the State's case was almost entirely dependent on the alleged victim's credibility with the jury, the admission of the statement was plain error. State v. O'Connor, 150 N.C. App. 710, 564 S.E.2d 296 (2002).

Trial court did not err under G.S. 8C-1, N.C. R. Evid. 405 and G.S. 8C-1, N.C. R. Evid. 608 in allowing an expert witness to testify as to the credibility of a minor victim because defendant's cross-examination was designed to elicit the type of response which the expert provided. Therefore, defendant could not contend that the expert's response, which might have rightfully been excluded had it been offered by the State of North Carolina, unfairly prejudiced defendant and warranted a new trial. State v. Crocker, 197 N.C. App. 358, 676 S.E.2d 658 (2009).

Expert's Testimony Held Not Expression of Opinion. - In trial on first-degree rape charges where, when asked to "describe the victim emotionally" during counseling sessions, the victim's counselor, who was qualified as an expert, responded, "Genuine," the witness was testifying that the emotions of the victim during the counseling session were genuine emotions, and was not testifying that she believed what the victim told her was true, nor was she giving her opinion as to the victim's character for truthfulness in general; therefore, such a response was proper. State v. Wise, 326 N.C. 421, 390 S.E.2d 142, cert. denied, 498 U.S. 853, 111 S. Ct. 146, 112 L. Ed. 2d 113 (1990).

Testimony as to Credibility Distinguished from Testimony Relating to Diagnosis. - While the testimony of an expert to the effect that a prosecuting witness is believable, credible, or telling the truth is inadmissible evidence, those cases in which the disputed testimony concerns the credibility of a witness' accusation of a defendant must be distinguished from cases in which the expert's testimony relates to a diagnosis based on the expert's examination of the witness. State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651 (1988).

Tendency to Fabricate. - In prosecution for second degree rape and sexual offense, the trial court erred in permitting the prosecutor to pose a question to an expert in clinical psychology regarding whether the 13-year-old victim had a mental condition which would cause her to fabricate a story about the sexual assault. State v. Heath, 316 N.C. 337, 341 S.E.2d 565 (1986).

Truthfulness of Witness. - Testimony by FBI agent regarding a State's witness was given for the purpose of laying the foundation for the agent's opinion as to the witness's truthfulness and was admissible. State v. Sidden, 347 N.C. 218, 491 S.E.2d 225 (1997), cert. denied, 523 U.S. 1097, 118 S. Ct. 1583, 140 L. Ed. 2d 797 (1998).

It was error to exclude opinion testimony of three defense witnesses as to a victim's character for untruthfulness under G.S. 8C-1-405(a) and G.S. 8C-1-608(a) as: (1) a foundation was not required for opinion testimony as to a witness's character for truthfulness or untruthfulness, nor did the victim have to have been shown to have been untruthful on a particular occasion; (2) defendant established that each of the three defense witnesses had personal knowledge of the victim and that each of the them had formed an opinion as to her character for truthfulness or untruthfulness; and (3) the defense witnesses testified to having personal knowledge of the victim and to having formed an opinion as to the victim's character for untruthfulness. State v. Valdez-Hernendez, 184 N.C. App. 344, 646 S.E.2d 579 (2007).

Defendant was entitled to a new trial due to the improper exclusion of opinion testimony as to the truthfulness or untruthfulness of a victim under G.S. 8C-1-405(a) and G.S. 8C-1-608(a) as defendant was prejudiced under G.S. 15A-1443(a) since: (1) the state's case rested almost exclusively on the victim's testimony; (2) because the victim did not report the alleged rape until over two weeks after the night of the incident, and defendant admitted to having consensual sexual intercourse with the victim; and (3) the credibility of the victim was of significant probative value. State v. Valdez-Hernendez, 184 N.C. App. 344, 646 S.E.2d 579 (2007).

Testimony of three witnesses as to defendant's character for truthfulness was properly admitted under G.S. 8C-1, N.C. R. Evid. 806(a) where plaintiff repeatedly attacked defendant's testimony that he had personally examined decedent following her fall, and his counsel acknowledged that he had accused defendant of not personally performing an examination of decedent on that day; plaintiff opened the door for defendant to present the three witnesses who testified as to his character for truthfulness. Manning v. Anagnost, 225 N.C. App. 576, 739 S.E.2d 859 (2013).

Truthfulness of Defendant. - The prosecutor properly elicited information from defendant about his numerous prison infractions to show his character for untruthfulness where defendant testified on direct examination about the living conditions that he endured while on lockup and while on maximum security but never explained why he was confined in that manner. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001).

Although the trial court erred in refusing to allow the admission of testimony regarding defendant's character for truthfulness after defendant's credibility was impugned by the State, the error was not prejudicial. State v. Marecek, 152 N.C. App. 479, 568 S.E.2d 237 (2002).

Evidence of the competitors' reputation for truthfulness was properly admitted under G.S. 8C-1-608 since; (1) the case was a defamation case, which necessarily alleged that the competitors had made a false statement; (2) character evidence was admissible when character was directly in issue as in actions involving moral intent like defamation; and (3) each competitor for whom evidence of truthful character was admitted had already been called as a witness and questioned before the admission of the evidence of that competitor's truthful character. Blyth v. McCrary, 184 N.C. App. 654, 646 S.E.2d 813 (2007), review denied, 362 N.C. 175, 658 S.E.2d 482 (2008), review dismissed, as moot, 362 N.C. 175, 658 S.E.2d 482 (2008).

Trial court erred in permitting the State to ask questions that assumed facts not in evidence as G.S. 8C-1, N.C. R. Evid. 608 did not apply since the State did not explain how Rule 608 authorized the questions suggesting that a test indicated that defendant was a "psychopathic deviant," that he was a risk taker who might do things others did not approve of simply for the personal enjoyment of doing so, and that he was oriented towards thrill seeking and self gratification; none of the questions related to defendant's truthfulness, State v. Davis, - N.C. App. - , 726 S.E.2d 900 (2012).

Character for Untruthfulness. - Where defendant sought to reveal that two years ago witness had deceived a person he was investigating in an effort to obtain a confession for that crime, the evidence was probative of the witness's character for untruthfulness, was not too remote and was unfairly prejudicial; thus, the defendant was entitled to a new trial. State v. Baldwin, 125 N.C. App. 530, 482 S.E.2d 1 (1997), cert. granted, 345 N.C. 756, 485 S.E.2d 299 (1997), discretionary review improvidently allowed, 347 N.C. 348, 492 S.E.2d 354 (1997).

Ability to Distinguish Reality from Fantasy. - Question asked of expert as to whether or not mentally retarded adult who had been sexually assaulted had any mental condition which would generally affect her ability to distinguish reality from fantasy was within the scope of the expert witness' expertise and did not amount to an impermissible opinion with respect to defendant's guilt or innocence. State v. Teeter, 85 N.C. App. 624, 355 S.E.2d 804, appeal dismissed and cert. denied, 320 N.C. 175, 358 S.E.2d 67 (1987).

No Focus on Victim's Character. - Although the State argued that defendant's decision to question the victim authorized the admission of the challenged portion of a detective's testimony pursuant to the rule, this argument was not persuasive given that the detective's testimony was not focused on the victim's character for truthfulness or untruthfulness and given that her character, as compared to her credibility, had not been attacked. State v. Taylor, 238 N.C. App. 159, 767 S.E.2d 585 (2014).

Evidence as to Plaintiff's Character in Civil Suit. - In a civil suit for assault and battery, where in addition to pleading self defense and alleging that plaintiff assaulted defendant, defendant sought to cast doubt on plaintiff's truthfulness by rigorously cross-examining him about his version of the incident, as well as about specific misdeeds that tended to sully plaintiff's character, plaintiff had a right to attempt to counteract these reflections upon his veracity and character with evidence as to his reputation for truthfulness, and as to his general character. McNeill v. Durham County ABC Bd., 87 N.C. App. 50, 359 S.E.2d 500 (1987), modified on other grounds, 322 N.C. 425, 368 S.E.2d 619 (1988), rehearing denied, 322 N.C. 838, 371 S.E.2d 278 (1988).

Question of Truthfulness Held Proper on Redirect. - Where following cross-examination, during which defense counsel asked the child if she had ever told a lie, and where the State asked the child if she had testified truthfully, witness' statement that she had testified truthfully was not character evidence since the question was a proper one to ask on redirect examination. State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467 (1989).

Failure to Object to Expert Opinion on Credibility. - Defense counsel's failure to object to a social worker's testimony that child/victim's statements were believable did not constitute ineffective assistance of counsel, where testimony was elicited by defense counsel in an effort to show that child's sexual knowledge resulted from a prior incident of sexual abuse. State v. Pretty, 134 N.C. App. 379, 517 S.E.2d 677, cert. denied, appeal dismissed, 351 N.C. 117, 540 S.E.2d 745 (1999).

Evidence Held Admissible. - In trial for sexual offense in the first degree, the trial judge did not err in permitting State's rebuttal witness, Chief Medical Examiner for the State, to testify that in his opinion scratch marks on child's back were not consistent with self-mutilation and in allowing pediatrician to offer her opinion that the injuries were neither accidental nor self-inflicted. State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987).

Psychologist's testimony that child victim responded to test questions in an "honest fashion . . . admitting that she was in a fair amount of emotional distress" did not constitute an expert opinion as to her character or credibility, but was merely a statement of opinion by a trained professional, based upon personal knowledge and professional expertise, that the test results were reliable because the victim seemed to respond to the questions in an honest fashion. State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987).

In trial for sexual offense in the first degree, it was not improper to allow both psychologist and pediatrician to testify concerning the symptoms and characteristics of sexually abused children and to state the opinion that the symptoms exhibited by the victim were consistent with sexual or physical abuse. State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987).

In prosecution in which defendant was convicted of taking indecent liberties with a minor, admission of testimony of psychologist who examined child at the request of DSS as to her anxiousness and anger during his examination of her and his professional expert opinion as to the relationship between her anxiousness and anger and the events which she described during the examination was not error. State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651 (1988).

In a prosecution in which defendant was convicted of taking indecent liberties with a minor, it was not error for the trial court to permit social worker and pediatrician to give expert opinion testimony that child had been sexually abused. State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651 (1988).

Where State asked child "Do you recall indicating earlier that you understood what it meant to tell the truth?", child's statements did not constitute improper character evidence since question was simply attempt by assistant district attorney to prompt child to speak. State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467 (1989).

Plaintiff's evidence placed defendant's reputation for truthfulness in issue when plaintiff testified that defendant paid fee to himself under power of attorney without her (plaintiff's) consent, thus implying that defendant had engaged in self-dealing in violation of his fiduciary duty to plaintiff; therefore, defendant was entitled to submit evidence of his reputation for truthfulness to help rebut any presumption that as a fiduciary he was guilty of constructive fraud in procuring a benefit for himself. Williams v. Randolph, 94 N.C. App. 413, 380 S.E.2d 553, cert. denied, 325 N.C. 437, 384 S.E.2d 547 (1989).

Where, on cross-examination of the victim, the defendant's attorney repeatedly attempted to impeach her by asking her about prior inconsistent statements made to her doctor, her mother, and at the preliminary hearing, this cross-examination constituted an attack on her credibility such that the State could then present reputation or opinion evidence as to the victim's reputation for truthfulness. State v. Hall, 98 N.C. App. 1, 390 S.E.2d 169 (1990), rev'd on other grounds, 330 N.C. 808, 412 S.E.2d 883 (1990).

Guidance counselor's testimony that she believed the victim's account of rape, made in the context of her role as a guidance counselor who suspected a child had been abused and admitted for corroboration, was admissible. State v. Browning, 177 N.C. App. 487, 629 S.E.2d 299 (2006).

Evidence Held Inadmissible. - Expert witness' answer on cross-examination that his opinion about the "improbability" of hair originating from a source other than defendant was based on nonscientific considerations, addressed the credibility of other witnesses and was an expression of opinion as to defendant's guilt and thus violated the Rules of Evidence. State v. Faircloth, 99 N.C. App. 685, 394 S.E.2d 198 (1990).

Witness statement that defendant had been in trouble with the law from the time that he was twelve years old was not admissible under either Rule 405(a) or subsection (a) of this rule. State v. Hunt, 339 N.C. 622, 457 S.E.2d 276 (1994).

III. SPECIFIC INSTANCES OF CONDUCT.

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Admissibility of Evidence Under Subsection (b). - Subsection (b) of this rule addresses the admissibility of specific instances of conduct, as opposed to opinion or reputation evidence, only in the very narrow instance where (1) the purpose of producing the evidence is to impeach or enhance credibility by proving that the witness' conduct indicates his character for truthfulness or untruthfulness; (2) the conduct in question is in fact probative of truthfulness or untruthfulness and is not too remote in time; (3) the conduct in question did not result in a conviction; and (4) the inquiry into the conduct takes place during cross-examination. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).

Inquiries concerning prior criminal acts or specific acts of misconduct must be limited to conduct which bears upon or is relevant to the witness' propensity to truthfulness or untruthfulness. State v. Bailey, 80 N.C. App. 678, 343 S.E.2d 434, petition for cert. improvidently allowed, 318 N.C. 652, 350 S.E.2d 94 (1986).

Determination of admissibility under this rule rests on whether the alleged prior misconduct elicited at trial was probative of defendant's truthfulness or lack thereof. State v. Scott, 318 N.C. 237, 347 S.E.2d 414 (1986).

Specific instances of the conduct of a witness, for the purpose of attacking the witness' credibility, may be inquired into on cross-examination of the witness only if they are "probative of truthfulness or untruthfulness." State v. Clemmons, 319 N.C. 192, 353 S.E.2d 209 (1987).

Under subsection (b) of this rule, evidence of a specific instance of conduct is not admissible for impeachment purposes unless it is in fact probative of truthfulness. State v. Lamb, 321 N.C. 633, 365 S.E.2d 600 (1988).

Defendant's confrontation rights under N.C. Const. Art. I, § 23 were not violated when the trial court refused to allow defendant to cross-examine the witness about the witness's disciplinary record, as there were confidentiality concerns about the record pursuant to G.S. 115C-402, and defendant failed to show how the disciplinary record was relevant to impeach the witness's credibility under G.S. 8C-1, Rule 608(b). State v. Oliver, 159 N.C. App. 451, 584 S.E.2d 86 (2003).

Trial court did not err under G.S. 8C-1, Rule 608(b) in denying defendant the opportunity to cross-examine the school principal regarding the witness's disciplinary record, as G.S. 8C-1, Rule 608(b) prevented defendant from cross-examining the principal about specific instances of the witness's conduct if the principal had not already testified regarding that character. State v. Oliver, 159 N.C. App. 451, 584 S.E.2d 86 (2003).

Although evidence of other acts is not permissible under G.S. 8C-1, N.C. R. Evid. 404(b) to show a propensity for violence solely because a defendant raised the claim of self-defense, such evidence may be used to refute specific evidence of a defendant's credibility under G.S. 8C-1, N.C. R. Evid. 608, when such credibility is at issue (such as when a criminal defendant introduces evidence of his good character, thereby placing his character at issue); when the criminal defendant introduces such evidence, the State in rebuttal can then introduce evidence of defendant's bad character, and under G.S. 8C-1, N.C. R. Evid. 405(a), and the State may do so by cross-examining a defendant's character witnesses as to relevant specific instances of conduct. State v. Ammons, 167 N.C. App. 721, 606 S.E.2d 400 (2005).

Trial court did not err in permitting witnesses to testify regarding an employee's conduct at the time of a motor vehicle accident as the testimony was relevant to show the employee's motivation in leaving the scene of the accident, G.S. 8C-1, N.C. R. Evid. 608(b). Jackson v. Carland, 192 N.C. App. 432, 665 S.E.2d 553 (2008).

When defendant was retried after an officer had improper contact with a juror at defendant's first trial, it was prejudicial error to exclude evidence of the officer's improper contact because (1) defendant should have been allowed to raise the misconduct when cross-examining the officer to show the officer's bias, and character for untruthfulness, under G.S. 8C-1, N.C. R. Evid. 608(b), and (2) the error barred inquiry into the officer's bias, and kept the jury from knowledgeably weighing the officer's credibility. State v. Lewis, 365 N.C. 488, 724 S.E.2d 492 (2012).

Evidence routinely disapproved of as irrelevant to the question of a witness' veracity includes specific instances of conduct relating to violence against other persons. State v. Lamb, 321 N.C. 633, 365 S.E.2d 600 (1988).

Prior bad acts and prior inconsistent statements are proper subjects for cross-examination. State v. Belton, 77 N.C. App. 559, 335 S.E.2d 522 (1985).

Cross-Examination on Witness' Prior Violent Conduct. - Trial court properly denied defendant the right to cross-examine a State's witness regarding his prior violent conduct. State v. Holston, 134 N.C. App. 599, 518 S.E.2d 216 (1999).

Veracity or Lack Thereof Is Only Relevant Trait Under Subsection (b). - Because the only purpose for which evidence is sought to be admitted under subsection (b) of this rule is to impeach or bolster the credibility of a witness, the only character trait relevant to the issue of credibility is veracity or the lack of it. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986); State v. Harris, 323 N.C. 112, 371 S.E.2d 689 (1988).

Defendant's testimony as to his sexual assault victim's prior drug use could have been excluded under G.S. 8C-1, N.C. R. Evid. 608(b), because the fact of the victims's prior placement in a drug rehabilitation program was not probative of her character for truthfulness or untruthfulness. State v. Harris, 189 N.C. App. 49, 657 S.E.2d 701 (2008), review denied, 362 N.C. 366, 664 S.E.2d 315 (2008).

Probative Value Must Be Weighed Against Potential Prejudice. - If the proffered evidence meets the four enumerated prerequisites for admission under subsection (b) of this rule, before admitting the evidence the trial judge must determine, in his discretion, pursuant to G.S. 8C-1, Rule 403, that the probative value of the evidence is not outweighed by the risk of unfair prejudice, confusion of issues or misleading the jury, and that the questioning will not harass or unduly embarrass the witness. Even if the trial judge allows the inquiry on cross-examination, extrinsic evidence of the conduct is not admissible. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).

Questions About Collateral Misdeeds Must Have Good Faith Basis. - A defendant who takes the stand may be asked about collateral misdeeds that tend to show his criminal conduct, intent or motive in the case being tried. But such questions must have a good faith basis. State v. Flannigan, 78 N.C. App. 629, 338 S.E.2d 109 (1985), cert. denied, 316 N.C. 197, 341 S.E.2d 572 (1986).

Questions Must Be Supported by Evidence. - The State, by questions put to a defendant during cross-examination, may not inform the jury of purported misdeeds by the defendant that firsthand knowledge of its source does not support. State v. Flannigan, 78 N.C. App. 629, 338 S.E.2d 109 (1985), cert. denied, 316 N.C. 197, 341 S.E.2d 572 (1986).

The prior use of false identification is probative of a witness' tendency to be truthful. State v. Freeman, 79 N.C. App. 177, 339 S.E.2d 56, cert. denied, 317 N.C. 338, 346 S.E.2d 144 (1986), rehearing denied, 318 N.C. 509, 349 S.E.2d 868 (1986), overruled in part by State v. Rogers, 346 N.C. 262, 485 S.E.2d 619 (1997).

Extrinsic evidence of sexual misconduct is not in any way probative of a witness' character for truthfulness or untruthfulness. State v. Gordon, 316 N.C. 497, 342 S.E.2d 509 (1986); State v. Clemmons, 319 N.C. 192, 353 S.E.2d 209 (1987).

Adultery is not the type of misconduct which falls under Rule 608(b). State v. Woodard, 102 N.C. App. 687, 404 S.E.2d 6 (1990), cert. denied and appeal dismissed, 329 N.C. 504, 407 S.E.2d 550 (1991).

Prior Drug Deals. - Court's ruling that defendant's prior drug deals could only come in if he "opened the door" by taking the stand and denying he had ever dealt drugs was upheld where defendant did not show prejudice because he did not make an offer of proof regarding his testimony, and there was no evidence as to what his factual defense would have been had the State revealed to him those acts it intended to prove, under G.S. 8C-1, Rule 404(b), and those acts it would attempt to elicit, should he testify, under section (b) of this rule. State v. Manning, 139 N.C. App. 454, 534 S.E.2d 219, cert. denied and appeal dismissed, 353 N.C. 273, 546 S.E.2d 385 (2000), aff'd, 353 N.C. 449, 545 S.E.2d 211 (2001).

Alcohol Use. - Evidence of drug use alone is not admissible, however, a witness may be impeached by evidence showing mental or physical impairment affecting his ability to observe and remember the events in question; impeachment of a witness concerning alcohol use near the time of the observed incident is permissible to show such impairment. State v. Alkano, 119 N.C. App. 256, 458 S.E.2d 258, appeal dismissed, 341 N.C. 653, 467 S.E.2d 898 (1995).

Where the prosecutor limited his questions on alcohol use to substances used on the day and evening of the incident and did not ask questions about addiction or habitual use, this was permissible impeachment. State v. Alkano, 119 N.C. App. 256, 458 S.E.2d 258, appeal dismissed, 341 N.C. 653, 467 S.E.2d 898 (1995).

Other Tort Suits. - In an action to recover for injuries allegedly sustained when struck by defendant's car in a shopping center parking lot, testimony that following the parking lot accident plaintiff contacted his lawyer before he did his doctor, that between the time this accident occurred and the trial, five years later, he sued two others, alleging that they ran their car over his foot and injured him, and that he also sued the county sheriff, alleging that deputy gave him a severe beating and seriously injured him, was relevant to the issue being tried and was also admissible for the purpose of impeaching plaintiff's credibility and showing his bias as a witness. Thompson v. James, 80 N.C. App. 535, 342 S.E.2d 577 (1986).

Cross-Examination Held Proper. - A specific instance of false swearing is clearly probative of untruthfulness; thus, it was permissible for the prosecutor to impeach and cast doubt upon the defendant witness's testimony in a murder case by cross-examining him concerning a previous false statement made under oath to a magistrate. State v. Springer, 83 N.C. App. 657, 351 S.E.2d 120 (1986), cert. denied, 319 N.C. 226, 353 S.E.2d 410 (1987).

Where defendant in a capital murder case testified that he had not robbed or injured the victim or anyone else, the accuracy of the assertion that he had not injured anyone else was probative of his truthfulness or untruthfulness and the trial court could, in its discretion, allow cross-examination regarding the statement. State v. Darden, 323 N.C. 356, 372 S.E.2d 539 (1988).

Trial court's decision to allow prosecution's cross-examination of defendant in murder trial concerning numerous prior acts, which tested the plausibility of the defense theory that while in the Navy defendant developed a drinking problem which, over the years, became a chronic disease rendering him nonculpable on the night in question by seeking to show that defendant's Navy service was, in fact, replete with instances of bad conduct, did not constitute plain error. State v. Leroux, 326 N.C. 368, 390 S.E.2d 314 (1990), cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155 (1990).

Defendant, on trial for the murder of his wife, opened the door to the cross-examination regarding specific instances of misconduct toward both his wife and children where defendant testified on direct examination that he was a loving and supportive husband and father, that he did not intend to hurt his wife but rather unintentionally, or in self-defense, struck back at her with the screwdriver, trying only to get her to stop moving the car. The State was entitled to cross-examine defendant concerning the specific acts of prior misconduct - including threats, arguments, and acts of violence toward both his wife and children - to explain and rebut defendant's direct examination testimony. State v. Syriani, 333 N.C. 350, 428 S.E.2d 118 (1993), cert. denied, 510 U.S. 948, 114 S. Ct. 392, 126 L. Ed. 2d 341 (1993), reh'g denied, 510 U.S. 1066, 114 S. Ct. 745, 126 L. Ed. 2d 707 (1994).

Subsection (b) generally bars evidence of specific instances of conduct of a witness for the purpose of attacking his credibility, but such testimony was relevant where the State was not attempting to impeach either witnesses' general reputations for veracity but was trying to rebut their testimony on direct examinations. State v. Bell, 338 N.C. 363, 450 S.E.2d 710 (1994), cert. denied, 515 U.S. 1163, 115 S. Ct. 2619, 132 L. Ed. 2d 861 (1995).

The admission of evidence regarding a witness's pending burglary charge under this section was not plain error in view of the admission under G.S. 8C-1, Rule 609 of his first-degree burglary conviction and his own testimony that he consumed "four 40[-]ounce beers" on the evening of the shooting. State v. McEachin, 142 N.C. App. 60, 541 S.E.2d 792 (2001), cert. dismissed, 353 N.C. 392, 548 S.E.2d 151 (2001), cert. denied and appeal dismissed, 353 N.C. 392, 548 S.E.2d 152 (2001).

The prosecutor did not exceed the scope of this rule by exploring the facts on cross-examination after defendant tended to minimize the seriousness of his criminal involvement, for example, characterizing the attack on an officer at a youth prison facility as "[getting] into some trouble." State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001).

Defendant was properly cross-examined regarding his prior violent behavior because defendant opened the door to his nonviolent nature when he and his uncle testified that he was not violent. State v. Ammons, 167 N.C. App. 721, 606 S.E.2d 400 (2005).

State was properly allowed to cross-examine and impeach defendant by questing defendant about false statement made to police. State v. Browning, 177 N.C. App. 487, 629 S.E.2d 299 (2006).

By defendant's own admission, G.S. 8C-1-608 was inapplicable because the state's questioning on cross-examination about defendant's prior convictions was neither a reference to a specific act, nor probative of defendant's truthfulness. State v. Mewborn, 178 N.C. App. 281, 631 S.E.2d 224, appeal dismissed, cert. denied, 637 S.E.2d 187 (N.C. 2006).

Trial court did not violate G.S. 8C-1-608(b) and G.S. 8C-1-609(a) in allowing the State to cross-examine a robbery defendant about his criminal history; by testifying on direct that he was not a violent person and had never robbed anyone, defendant had opened the door to this questioning. State v. Blair, 181 N.C. App. 236, 638 S.E.2d 914 (2007), cert. denied, appeal dismissed, 361 N.C. 570, 650 S.E.2d 815 (2007).

Cross-Examination Held Improper. - Prosecutor's cross-examination of defendant concerning an alleged specific instance of misconduct, i.e., two assaults by pointing a gun at two people during the same incident, was improper under subsection (b) of this rule, because extrinsic instances of assaultive behavior, standing alone, are not in any way probative of the witness' character for truthfulness or untruthfulness. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).

In prosecution for rape, sexual offense and crime against nature, cross-examination of defendant with regard to other nonconsensual sexual activity with another woman was not relevant on the question of the victim's consent, and where defendant's only defense was consent, this cross-examination inquiry was clearly prejudicial and required a new trial. State v. Bailey, 80 N.C. App. 678, 343 S.E.2d 434, petition for cert. improvidently allowed, 318 N.C. 652, 350 S.E.2d 94 (1986).

In a prosecution for first degree sexual offense involving three and four year old victims, testimony elicited from defendant during cross-examination, involving instances of sexual relations or proclivities, fell outside the bounds of admissibility under this rule. State v. Scott, 318 N.C. 237, 347 S.E.2d 414 (1986).

Cross-examination concerning defendant's drug addiction was improper under subsection (b) of this rule, because extrinsic evidence of drug addiction, standing alone, is not probative of a defendant's character for truthfulness or untruthfulness. State v. Rowland, 89 N.C. App. 372, 366 S.E.2d 550 (1988).

Where defendant testified and denied he had ever sexually abused any of the witnesses and the State then cross-examined defendant about his prior acts of sexual misconduct it was error for the trial court to allow this cross-examination but the error did not require defendant a new trial. State v. Frazier, 121 N.C. App. 1, 464 S.E.2d 490 (1995), aff'd, 344 N.C. 611, 476 S.E.2d 297 (1996).

The trial court properly precluded questions concerning the witness' history of domestic violence for which he had not been convicted, where such evidence had no bearing on the witness' truthfulness or untruthfulness in the capital murder prosecution. State v. Call, 349 N.C. 382, 508 S.E.2d 496 (1998).

Limiting Cross-Examination Held Proper. - Trial court did not abuse its discretion in preventing defendant's cross-examination of witness about theft of restaurant ribs, when defendant had already impeached witness with evidence that he waited four months before admitting that he knew about the robbery, had experienced a messy break-up with defendant's sister, and had "bad blood" with defendant. State v. Grigsby, 134 N.C. App. 315, 517 S.E.2d 195 (1999), rev'd on other grounds, 351 N.C. 454, 526 S.E.2d 460 (2000).

Factors Affecting Mental State. - Defendant was properly permitted to cross-examine plaintiff about other factors in her life which had a bearing upon her mental state such as acts of wrong-doing on the part of her children. Pelzer v. UPS, Inc., 126 N.C. App. 305, 484 S.E.2d 849 (1997), cert. denied, 346 N.C. 549, 488 S.E.2d 808 (1997).

Evidence Held Admissible. - Evidence in a malicious prosecution action involving the institution of a child support claim, concerning a bribe by plaintiff to alter a blood grouping test, was not introduced for the purpose of attacking plaintiff's credibility, but was offered as relevant noncollateral evidence of plaintiff's knowledge of the surrounding facts and circumstances of the case, and hence, such evidence was not inadmissible under subsection (b) of this rule. Lay v. Mangum, 87 N.C. App. 251, 360 S.E.2d 481 (1987).

Trial court's failure to rule on defendant's motion in limine to prohibit the prosecutor from cross-examining her with the allegedly inadmissible evidence of her involvement in her husband's murder did not impermissibly chill her exercise of her constitutional right to testify on her own behalf in indictment for murder of her stepson; the State could have legitimately cross-examined defendant about her involvement in her husband's murder for impeachment purposes to the extent such evidence was probative of defendant's truthfulness or to the extent that defendant "opened the door" to such testimony. State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995).

Trial court properly allowed evidence of a paid confidential informant's prior conviction but properly excluded the details of the conviction under G. S. 8C-1, N.C. R. Evid. 608(b). State v. Rhodes, 151 N.C. App. 208, 565 S.E.2d 266 (2002), cert. denied, 356 N.C. 173, 569 S.E.2d 273 (2002).

Trial court properly admitted evidence that the defendant had previously become angry and had broken the mirror on his truck to test the truthfulness of the defendant's answer and to determine his presence with friends at a restaurant. State v. Taylor, 154 N.C. App. 366, 572 S.E.2d 237 (2002).

Evidence Held Inadmissible. - In trial for murder of defendant's husband, specific instances of conduct regarding defendant's alleged participation in three previous unrelated murders were not probative of defendant's character for truthfulness under subsection (b) of this rule, and were not admissible to prove motive under G.S. 8C-1, Rule 404(b). Thus the trial court committed prejudicial error in denying defendant's motion in limine to prevent the district attorney from using the inadmissible evidence to impeach defendant. State v. Lamb, 84 N.C. App. 569, 353 S.E.2d 857 (1987), aff'd, 321 N.C. 633, 365 S.E.2d 600 (1988).

Where the victim testified that defendant stated "they are never going to take me in again alive," the statement was probative of defendant's knowledge of his guilt, and defendant made no showing that the probative value of the statement was substantially outweighed by its prejudicial effect. State v. Charles, 92 N.C. App. 430, 374 S.E.2d 658 (1988), cert. denied, 324 N.C. 338, 378 S.E.2d 800 (1989).

The trial court erred by allowing the teacher of an alleged victim of sexual abuse to testify on direct examination regarding specific instances of the alleged victim's conduct which tended to establish her truthfulness. State v. Baymon, 108 N.C. App. 476, 424 S.E.2d 141, aff'd, 336 N.C. 748, 446 S.E.2d 1 (1994).

Instances of alleged prior and unrelated acts of larceny and possession of marijuana, without more, were not necessarily probative of a prosecution witness's propensity for truthfulness or untruthfulness under the standard imposed by subsection (b). State v. Bell, 338 N.C. 363, 450 S.E.2d 710 (1994), cert. denied, 515 U.S. 1163, 115 S. Ct. 2619, 132 L. Ed. 2d 861 (1995).

Evidence of defendant's prior use of cocaine and marijuana was irrelevant and inadmissible under subsection (b), and under G.S. 8C-1, Rule 611(b), because defendant was not a key prosecution witness. State v. Wilson, 118 N.C. App. 616, 456 S.E.2d 870, cert. denied, 341 N.C. 424, 461 S.E.2d 768 (1995).

Medical examinations of several minor children who allegedly participated and witnessed the abuse of the victims who testified at trial were inadmissible extrinsic evidence. State v. Parker, 119 N.C. App. 328, 459 S.E.2d 9 (1995).

The trial court erred in allowing the introduction of evidence of plaintiff's prior use of illegal drugs in sexual molestation case, such information was highly prejudicial and defendants proffered no permissible use of such information. Johnson v. Amethyst Corp., 120 N.C. App. 529, 463 S.E.2d 397 (1995), cert. granted, 467 S.E.2d 713 (1996).

Extrinsic Conduct Evidence Held Inadmissible. - Prosecutor's questions upon cross-examination of defendant, regarding a fight he was involved in at the hospital where his competency evaluation took place, were not addressed to the issue of defendant's credibility and it was error for such extrinsic conduct evidence to be admitted. State v. Harris, 323 N.C. 112, 371 S.E.2d 689 (1988).

Where, in an attempt to undercut defendant's testimony about her abuse by her first husband who was drug addict, and by her second who was an alcoholic, district attorney asked, "Well, you sort of enjoyed smoking marijuana, didn't you?" and defendant responded, "I did on occasion sir," the question was error; defendant's admission to having smoked marijuana had no conceivable tendency to prove or disprove her truthfulness and G.S. 8C-1, Rule 404(b) prohibits evidence of other crimes, wrongs, or acts to prove the defendant acted in conformity with a character trait those acts exhibit. State v. Clark, 324 N.C. 146, 377 S.E.2d 54 (1989).

Evidence showing that the victim had let the air out of the tires of the defendant's vehicle months before the kidnapping was properly excluded pursuant to this section. State v. Guice, 141 N.C. App. 177, 541 S.E.2d 474 (2000), cert. dismissed, 353 N.C. 731, 551 S.E.2d 112 (2001).

Refusal to Exclude Evidence of Other Crimes Held Prejudicial. - In trial for murder of defendant's husband, rulings of the trial judge denying defendant's motion in limine to exclude evidence implicating her in other killings held to have impermissibly chilled her right to testify in her own defense. State v. Lamb, 321 N.C. 633, 365 S.E.2d 600 (1988).

Exclusion of Evidence Not Prejudicial Error. - Defendant's intended question to state's witness, concerning an attempt by that witness to lure his acquaintance away from his home so his accomplices could break into the residence and steal the property inside, should have been allowed as bearing on the witness' propensity to deceive and defraud others, but the exclusion of this testimony did not constitute prejudicial error. State v. Bell, 338 N.C. 363, 450 S.E.2d 710 (1994), cert. denied, 515 U.S. 1163, 115 S. Ct. 2619, 132 L. Ed. 2d 861 (1995).

No error by prohibiting defendant from cross-examining witness regarding the lawsuit that he had brought against law enforcement officers in which he made false allegations because there was no reasonable possibility that the outcome of the trial would have been different if the excluded evidence had been admitted. State v. Hunt, 339 N.C. 622, 457 S.E.2d 276 (1994).

Admission of Evidence Not Prejudicial Error. - Where defendant did not object to the prosecutor cross-examining him as to his alleged prior assaults, the appellate court's review of the record and transcripts satisfied that court that the defendant did not meet the test for finding plain error because the State presented strong evidence of defendant's guilt through the testimony of three eyewitnesses who were present when the victim, a police officer, was shot, with all three giving consistent testimony identifying defendant as the shooter; therefore it was not possible for the appellate court to say that the cross-examination amounted to a miscarriage of justice or denied defendant a fundamental right. State v. Augustine, 359 N.C. 709, 616 S.E.2d 515 (2005).

Testimony by a witness as to defendant's having lied to the witness about an unrelated matter was not admissible under G.S. 8C-1, N.C. R. Evid. 608 because there was no other purpose for the testimony than to attack defendant's credibility. However, the error was not reversible under G.S. 15A-1447(a), because defendant failed to show prejudice resulting from the admission of the evidence given the other evidence presented by witnesses at defendant's trial. State v. Lee, 189 N.C. App. 474, 658 S.E.2d 294 (2008).


Rule 609. Impeachment by evidence of conviction of crime.

  1. General rule. - For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class A1, Class 1, or Class 2 misdemeanor, shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter.
  2. Time limit. - Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
  3. Effect of pardon. - Evidence of a conviction is not admissible under this rule if the conviction has been pardoned.
  4. Juvenile adjudications. - Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
  5. Pendency of appeal. - The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

History

(1983, c. 701, s. 1; 1999-79, s. 1.)

COMMENTARY

Subdivision (a) differs from Fed. R. Evid. 609(a), which permits, for purposes of attacking the credibility of a witness, evidence of conviction of a felony or a crime that involves dishonesty or false statement. The current practice in North Carolina is that any sort of criminal offense may be the subject of inquiry for the purpose of attacking credibility.

Subdivision (a) provides that evidence of a crime punishable by more than 60 days confinement shall be admissible. This is the standard used in the Fair Sentencing Act in defining an aggravating factor. See G.S. 15A-1340.4(a)(1)(o). This includes convictions occurring in other states, the District of Columbia, and the United States even though the crime for which the defendant was convicted would not have been a crime if committed in this state.

Under current North Carolina practice a witness' denial of a prior conviction "may not be contradicted by introducing the record of his conviction or otherwise proving by other witnesses that he was, in fact, convicted." However, this prohibition has often been circumvented. Brandis on North Carolina Evidence § 112, at 414 (1982). Subdivision (a) allows the record of the conviction to be introduced.

Subdivision (a) also deletes the requirement in Fed. R. Evid. 609(a) that the court determine that the probative value of admitting evidence of the prior conviction outweighs its prejudicial effect to the defendant.

Subdivision (b) is identical to Fed. R. Evid. 609 (b) and departs from the common law in North Carolina in providing a time limit on the use of prior convictions. Generally, evidence of a prior conviction is not admissible under subdivision (b) if more than 10 years has elapsed since the date of the conviction or of the release of the witness from confinement imposed for that conviction, whichever is the later date. Evidence of such a conviction is admissible, however, if the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. A party must give written notice if he intends to use a conviction falling outside the 10-year period.

Subdivision (c) differs from Fed. R. Evid. 609(c) and provides an absolute prohibition of evidence of a conviction that has been pardoned. Current North Carolina practice does not prohibit evidence of such convictions.

Subdivision (d) is identical to Fed. R. Evid. 609(d) and provides that evidence of a juvenile adjudication is generally inadmissible. However, the court in a criminal case may "allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence." This is intended to satisfy the requirement of Davis v. Alaska, 415 U.S. 308 (1974). G.S. 7A-677, which provides that the defendant or another witness in a criminal case may be ordered to testify with respect to whether he was adjudicated delinquent, should be amended to conform to this subdivision. Conforming amendments also should be made to G.S. 15-223(b) [see now 15A-145], G.S. 90-96, and G.S. 90-113.14.

Subdivision (e) is the same as Fed. R. Evid. 609(e) and conforms to current North Carolina practice. See Brandis on North Carolina Evidence G.S. 112, at 411 (1982).

Editor's Note. - Section 7A-677, referred to in the Official Commentary above, has been repealed. See now G.S. 7B-3201.

Legal Periodicals. - For note, "The Death of Discretion: Prior Felony Convictions Automatically Admissible in Civil Actions - Green v. Bock Laundry Mach. Co.," see 12 Campbell L. Rev. 319 (1990).

For essay, "Credence, Character, and the Rules of Evidence: Seeing Through the Liar's Tale," see 1993 Duke L.J. 776.

For article, "What Went Wrong with FRE Rule 609: A Look at How Jurors Really Misuse Prior Conviction Evidence," see 23 N.C. Cent. L.J. 14 (1997).

CASE NOTES

Applicability. - G.S. 8C-1, Rule 609 addresses the use of evidence of prior convictions to impeach a testifying witness; a trial court did not err in holding that G.S. 8C-1, Rule 609 was inapplicable to statements made by a non-testifying defendant. State v. al-Bayyinah, 359 N.C. 741, 616 S.E.2d 500 (2005), cert. denied, 547 U.S. 1076, 126 S. Ct. 1784, 164 L. Ed. 2d 528 (2006), cert. denied, 700 S.E.2d 925, 2010 N.C. LEXIS 588 (2010), cert. denied 2010 N.C. LEXIS 588 (N.C. 2010).

The State is prohibited from eliciting details of prior convictions other than the name of the crime and the time, place, and punishment for impeachment purposes under section (a) of this Rule in the guilt-innocence phase of a criminal trial (overruling State v. Harrison, 90 N.C. App. 629, 369 S.E.2d 624 and State v. Gibson, 333 N.C. 29, 47-48, 424 S.E.2d 95, 105 (1992)). State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993).

A no contest plea can properly be admitted under subsection (a) of this rule for purposes of impeachment. State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337 (1990).

For the purposes of impeachment, a witness, including defendant, may be cross-examined with respect to prior convictions. State v. Gallagher, 101 N.C. App. 208, 398 S.E.2d 491 (1990).

Defendant's argument that a prayer for judgment continued was not a final judgment and should not be treated as a conviction for purposes of this rule was without merit. State v. Sidberry, 337 N.C. 779, 448 S.E.2d 798 (1994).

Question as to Whether Witness Had Been Charged with a Crime Error. - It was error for the court to allow a question on cross-examination as to whether the defendant had been charged with a crime. State v. Jones, 329 N.C. 254, 404 S.E.2d 835 (1991).

When Evidence of Defendant's Prior Convictions Is Admissible. - This rule allows defendant's prior conviction to be offered into evidence when defendant takes the stand and thereby places his credibility at issue. State v. Chandler, 100 N.C. App. 706, 398 S.E.2d 337 (1990).

Evidence pertaining to defendant's prior convictions for possession with intent to manufacture, sell, and deliver cocaine was properly admitted under G.S. 8C-1, Rule 404(b) to show intent and knowledge, and the trial court properly gave a limiting instruction to the jury; furthermore, while testimony from the deputy clerk was inadmissible under G.S. 8C-1, Rule 404(b), the error was harmless when defendant testified and was properly cross-examined about the convictions. State v. Renfro, 174 N.C. App. 402, 621 S.E.2d 221 (2005), aff'd, 360 N.C. 395, 627 S.E.2d 463 (2006).

Trial court did not err by admitting into evidence at defendant's first degree murder trial defendant's prior conviction from more than ten years earlier because (1) the prior conviction showed that defendant's status as a convicted felon made it illegal for him to possess the firearm with which he shot the victim; (2) the prior conviction, as did defendant's trial, involved eluding the police; and (3) the prior conviction was for aggravated assault, manifesting extreme indifference to the value of human life, and recklessly causing serious bodily injury. State v. Kaher Maruf Muhammad, 186 N.C. App. 355, 651 S.E.2d 569 (2007), appeal dismissed, 362 N.C. 242, 660 S.E.2d 537 (2008).

Trial court did not err in allowing the State to cross-examine defendant on his previous convictions because although its findings were conclusory and would normally be inadequate under subsection (b), the record contained facts and circumstances showing the probative value of the evidence; the prior convictions reflected upon defendant's character and raised doubts about his credibility, and the impeachment value of the evidence was manifest. State v. Joyner, 243 N.C. App. 644, 777 S.E.2d 332 (2015).

Where a conviction is established for impeachment purposes, there may be further inquiry into the time and place of the conviction and the punishment imposed. State v. Rathbone, 78 N.C. App. 58, 336 S.E.2d 702 (1985), cert. denied, 316 N.C. 200, 341 S.E.2d 582 (1986).

Scope of Inquiry into Prior Convictions. - Inquiry into prior convictions which exceeds the limitations established in State v. Finch, 293 N.C. 132, 235 S.E.2d 819 (1977), is reversible error. State v. Gallagher, 101 N.C. App. 208, 398 S.E.2d 491 (1990).

The prosecution's repeated inquiries into the facts of prior crimes improperly exceeded the limitations on admissibility of evidence of prior convictions for impeachment purposes under section (a) of this Rule established in State v. Finch, 293 N.C. 132, 141, 235 S.E.2d 819, 825 (1977). State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993).

In defendant's trial on a charge of felony possession of cocaine, the trial court erred by allowing a deputy clerk to testify regarding defendant's prior convictions for possession with intent to sell and deliver cocaine and sale of cocaine, pursuant to G.S. 8C-1, N.C. R. Evid. 404(b), without requiring evidence of the underlying facts of the prior convictions to show similarities between the prior convictions and the offense charged; although the jury could have considered the evidence of defendant's prior convictions, pursuant to G.S. 8C-1, N.C. R. Evid. 609(a), for the limited purpose of assessing defendant's credibility, the trial court improperly instructed the jury that they could consider defendant's prior drug convictions for Rule 404(b) purposes, and the error was not harmless. State v. Hairston, 156 N.C. App. 202, 576 S.E.2d 121 (2003).

The permissible scope of inquiry into prior convictions for impeachment purposes is restricted to the name of the crime, the time and place of the conviction, and the punishment imposed. State v. Perkins, 345 N.C. 254, 481 S.E.2d 25 (1997), cert. denied, 522 U.S. 837, 118 S. Ct. 111, 139 L. Ed. 2d 64 (1997).

This rule is much more restrictive than the former law; it limits admissible evidence of prior convictions to those convictions less than 10 years old and punishable by more than 60 days confinement. Alston v. Herrick, 76 N.C. App. 246, 332 S.E.2d 720 (1985), aff'd, 315 N.C. 386, 337 S.E.2d 851 (1986).

Comparison to Federal Rule. - North Carolina's version of subsection (a) of this rule is more permissive than its federal counterpart in that its only limitation on evidence of a witness's convictions is that the crime be punishable by more than sixty days confinement. The federal rule requires (1) that the crime be punishable by death or imprisonment for more than one year, and that the court balance the probative weight of the evidence against its prejudicial effect, or (2) that the crime involve "dishonesty or false statement, regardless of the punishment." State v. Ross, 329 N.C. 108, 405 S.E.2d 158 (1991).

Subsection (b) of this rule is identical to the federal rule. State v. Ross, 329 N.C. 108, 405 S.E.2d 158 (1991).

Inapplicability of Time Limit to Trials Held Before July 1, 1984. - The trial court did not err in permitting the prosecutor to ask the defendant on cross-examination whether he had been convicted of several larceny charges more than 10 years before the date of trial, where the Rules of Evidence became effective the week following his trial, as the court had no authority to implement a statute before its effective date. State v. Lane, 77 N.C. App. 741, 336 S.E.2d 410 (1985).

Legislative Intent as to Time Limit. - The legislative intent behind this rule is not to forbid the admission of evidence of a prior conviction where a period of more than 10 years has elapsed since the date of conviction or the date of defendant's release from confinement, but rather, as affecting admissibility, to balance the prejudicial effect of the remoteness of the conviction against the probative value of the conviction as evidence. State v. Ragland, 80 N.C. App. 496, 342 S.E.2d 532 (1986).

Subsection (b) requires the court to conduct a balancing test to see whether the probative value substantially outweighs the prejudicial effect. State v. Hunt, 123 N.C. App. 762, 475 S.E.2d 722 (1996).

In order to adequately review the careful weighing of probative value and prejudicial effect necessitated by an evidentiary rule, an appellate court must consider the factual context of the entire trial, including the testimony of the defendant. State v. Hunt, 123 N.C. App. 762, 475 S.E.2d 722 (1996).

In order to preserve rulings made under subsection (b) for appeal, a defendant must testify. State v. Hunt, 123 N.C. App. 762, 475 S.E.2d 722 (1996).

Subsection (b) of this rule does not forbid the admission of a prior conviction more than 10 years old as a matter of law. Rather, as in the federal rule, the court must weigh the probative value of the conviction against its possible prejudicial effect. State v. Blankenship, 89 N.C. App. 465, 366 S.E.2d 509 (1988).

Failure to Make Required Findings of Fact. - Court erred by admitting into evidence defendant's convictions for contributing to the delinquency of a minor and assault on a juvenile which were more than 10 years old where the court did not make findings of fact to support its determination that the probative value of the convictions outweighed the prejudicial effect. State v. Farris, 93 N.C. App. 757, 379 S.E.2d 283 (1989), discretionary review improvidently allowed, 326 N.C. 45, 387 S.E.2d 54 (1990).

Finding of Specific Facts and Circumstances. - A conclusory finding that the evidence would attack defendant's credibility without prejudicial effect does not satisfy the "specific facts and circumstances" requirement of subsection (b) of this rule. State v. Hensley, 77 N.C. App. 192, 334 S.E.2d 783 (1985), cert. denied, 315 N.C. 393, 338 S.E.2d 882 (1986).

Evidence Must Be Probative of Defendants' Credibility. - Where defendant was accused of sexually attacking and murdering a woman in 1983, the trial court's determination that defendant's 1957 and 1967 convictions for assault on a female with intent to commit rape and assault on a female were admissible, was erroneous; the trial court failed to comply with this rule by identifying any fact or circumstance indicating that this evidence was probative of defendant's credibility. State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990) in light of State v. Dawson, 281 N.C. 645, 190 S.E.2d 196 (1972).

In first-degree murder trial, specific facts and circumstances articulated by trial court as underlying its determination that introduction of defendant's 13-year-old convictions were more probative than prejudicial violated principle that when witness is the accused, his past convictions should be offered for what they indicate about his credibility, not for what they indicate about his character; court singled out and permitted evidence that defendant had committed prior assaults because they involved the use of violence; furthermore, court's conclusory remark that the only purpose for admission through cross-examination would be to impeach the credibility or truthfulness of defendant was not a "fact" or "circumstance" vouching for an appropriate balance of probative over prejudicial weight. State v. Carter, 326 N.C. 243, 388 S.E.2d 111 (1990).

Evidence of Prior Convictions Held Admissible on Issue of Credibility. - Where trial court conducted an extensive hearing and entered findings of fact revealing that the credibility of defendant's testimony, in which he claimed he acted in self-defense, was central to the resolution of the case and that evidence of a 1981 conviction was therefore more probative than prejudicial, evidence of the old attempted robbery was properly presented to the jury for its consideration. State v. Holston, 134 N.C. App. 599, 518 S.E.2d 216 (1999).

Trial court did not commit reversible error by allowing the State to question a defense witness as to defendant's prior conviction for forcible robbery because evidence of defendant's prior conviction was admissible to attack defendant's credibility as a hearsay declarant; the defense witness's testimony assisted in establishing an alibi for defendant and was hearsay because it was offered for the truth of the matter asserted. State v. McConico, 153 N.C. App. 723, 570 S.E.2d 776 (2002), cert. denied, 357 N.C. 168, 581 S.E.2d 440 (2003).

Trial court erred, under G.S. 8C-1, N.C. R. Evid. 609(a), when the court refused to admit defendant's certified true copies of the victim's criminal records into evidence, because the decision prevented defense counsel from drawing into question the victim's credibility by showing that the victim had misrepresented to the jury the victim's prior criminal record by greatly minimizing the number and severity of the victim's prior convictions. The err was prejudicial under G.S. 15A-1443(a) because there was a reasonable possibility that the jury would have reached a different result had the evidence been admitted. State v. Lynch, 217 N.C. App. 455, 720 S.E.2d 452 (2011).

Trial court did not err in permitting the State to impeach defendant with his prior convictions because defendant testified, and he was subject to impeachment on the basis of his prior convictions. State v. Gayles, 233 N.C. App. 173, 756 S.E.2d 46 (2014).

Evidence of Prior DWI Convictions Admissible for Impeachment Purposes - Trial court properly denied defendant's motion in limine to suppress and bar the use of his prior DWI convictions, as a DWI conviction was a class 1 misdemeanor and, thus, was admissible for impeachment purposes under G.S. 8C-1, N.C. R. Evid. 609(a). State v. Gregory, 154 N.C. App. 718, 572 S.E.2d 838 (2002).

Evidence Admitted Despite Failure to Disclose Crimes Punishable by 60 Days Confinement. - State properly introduced public records which indicated that defendant had pled guilty in its rebuttal to certain crimes, even though the records of conviction did not disclose that the offenses were punishable by confinement of greater than 60 days as (1) defendant first brought his prior convictions to the jury's attention in his own testimony, (2) without objection on cross-examination defendant admitted his prior convictions, and (3) when defendant denied that he had pled guilty to the charges against him, the State, as a basis for attacking his credibility, was entitled to show on rebuttal that defendant had in fact pled guilty to those charges. State v. Dalton, 96 N.C. App. 65, 384 S.E.2d 573 (1989).

Waiver of Objection to Introduction of Prior Convictions. - Since the introduction of evidence of defendant's prior convictions more than 10 years old was not forbidden by statute, it was incumbent upon defendant to timely object in order to present the question of admissibility for review on appeal. Defendant's failure to object constituted a waiver of the right to do so. State v. Ragland, 80 N.C. App. 496, 342 S.E.2d 532 (1986).

Even if trial court erred by ruling that the State would be permitted to cross-examine a murder defendant about his conviction which was more than 10 years old, this objection was waived when defendant himself testified as to the convictions on direct examination. State v. Ross, 100 N.C. App. 207, 395 S.E.2d 148 (1990), aff'd, 329 N.C. 108, 405 S.E.2d 158 (1991).

Defendant's Out-of-Court Statements Implying Prior Conviction Held Admissible. - Where the victim testified that defendant stated "they are never going to take me in again alive," the statement was probative of defendant's knowledge of his guilt, and defendant made no showing that the probative value of the statement was substantially outweighed by its prejudicial effect. State v. Charles, 92 N.C. App. 430, 374 S.E.2d 658 (1988), cert. denied, 324 N.C. 338, 378 S.E.2d 800 (1989).

Convictions Resulting from Nolo Contendere Plea. - Since in State v. Holden, 321 N.C. 125, 362 S.E.2d 513 (1987) the Supreme Court held, under G.S. 15A-2000(e) that a nolo contendere plea may be used to aggravate a crime so as to sustain a death sentence, evidence of past convictions resulting from a nolo plea should also be properly admitted under subsection (a) for purposes of impeachment especially when a defendant has voluntarily taken the stand to testify and be cross-examined, at which time he could explain his plea if he desired and assert his innocence. State v. Outlaw, 94 N.C. App. 491, 380 S.E.2d 531 (1989), aff'd, 326 N.C. 467, 390 S.E.2d 336 (1990).

Under G.S. 15A-1022(c), when a plea of no contest is now entered there must be a finding by a court that there is a factual basis for the plea. This finding and the entry of a judgment thereon constitute an adjudication of guilt. This adjudication would be a conviction within the meaning of subsection (a) of this rule, and as a conviction it may then be used in another case to attack the credibility of a witness. State v. Outlaw, 326 N.C. 467, 390 S.E.2d 336 (1990).

Use of Juvenile Adjudication Orders. - Court did not err where pursuant to the discretion afforded in subsection (d) of this rule, the court allowed juvenile adjudication orders concerning a witness to be used by defendant on cross-examination for impeachment purposes but denied defendant's request to introduce them into evidence at the close of defendant's evidence. State v. Whiteside, 325 N.C. 389, 383 S.E.2d 911 (1989).

Trial court applied the correct standard that evidence of juvenile convictions were not necessary for the fair determination of guilt or innocence even though it stated that "the probative value of the evidence of the juvenile petitions and convictions is far outweighed by the prejudice that may be committed and the creation of ancillary issues." State v. McAllister, 132 N.C. App. 300, 511 S.E.2d 660 (1999), aff'd, 351 N.C. 44, 519 S.E.2d 524 (1999).

Juvenile Convictions Properly Excluded. - The trial court did not abuse its discretion by excluding evidence of a witness's juvenile convictions committed subsequent to her sexual assault and initial accusations against defendant, where at the time she made the accusations she was a thirteen year old child with good grades and no history of criminal activity. State v. McAllister, 132 N.C. App. 300, 511 S.E.2d 660 (1999), aff'd, 351 N.C. 44, 519 S.E.2d 524 (1999).

The trial court did not abuse its discretion when it allowed the State's pre-trial motion in limine to prohibit defendant from cross-examining a witness concerning her juvenile adjudication of guilt of involuntary manslaughter in South Carolina. State v. Deese, 136 N.C. App. 413, 524 S.E.2d 381 (2000), cert. denied, 351 N.C. 476, 543 S.E.2d 499 (2000).

Allowing Prosecutor to Question Defendant About Juvenile Convictions Not Plain Error - Because defense counsel only made general objections to the prosecutor's questions when defendant was cross-examined during his trial for first degree murder and failed to state specific grounds for his objections, defendant's claims that the prosecutor improperly questioned him about prior bad acts and his juvenile convictions were not preserved for review; and the appellate court held that the trial court did not commit plain error by allowing the prosecutor to ask defendant about his juvenile convictions. State v. Perkins, 154 N.C. App. 148, 571 S.E.2d 645 (2002), cert. dismissed, 708 S.E.2d 309, 2011 N.C. LEXIS 544 (N.C. 2011).

Exclusion of Juvenile Convictions did not Violate Confrontation Clause. - The trial court did not violate the confrontation clause of the Sixth Amendment where it refused to allow the defendant to impeach a witness's credibility with evidence of juvenile offenses committed well after the commission of the defendant's offense where that evidence was not relevant or necessary for the fair determination of guilt or innocence. State v. McAllister, 132 N.C. App. 300, 511 S.E.2d 660 (1999), aff'd, 351 N.C. 44, 519 S.E.2d 524 (1999).

Attorney Disciplinary Proceedings. - Disciplinary Hearing Commission of the North Carolina State Bar did not violate G.S. 8C-1, N.C. R. Evid. 609(a) when it considered the fact that an attorney had two misdemeanor convictions that were almost 20 years old, after it found that the attorney was guilty of professional misconduct, because the convictions were used to consider an appropriate sanction, not to impeach the attorney's testimony. N.C. State Bar v. Rogers, 164 N.C. App. 648, 596 S.E.2d 337 (2004).

Exclusion of Victim's Prior Convictions Upheld. - Trial court did not abuse its discretion by refusing to allow defendant to impeach the State's primary witness, the victim, with her prior convictions from more than 20 years earlier, where the jury heard about the victim's earlier conviction and imprisonment for possession of stolen goods, other various larceny offenses, a guilty plea to providing false information to police, her use of various aliases, dates of birth, and social security numbers under different names, and defense counsel's unconfirmed suggestions to the witness that she had a history of cocaine and alcohol abuse; in light of all these other facts elicited about the victim's background, the probative value of the stale convictions was slight. State v. Harris, 140 N.C. App. 208, 535 S.E.2d 614 (2000).

Exclusion of Victim's Prior Convictions Upheld. - Evidence relating to instances of domestic violence that occurred more than 10 years before the instant offense was prejudicial and thus, not admissible. State v. Ray, 197 N.C. App. 662, 678 S.E.2d 378 (2009), rev'd in part 697 S.E.2d 319, 2010 N.C. LEXIS 583 (2010).

Cross-Examination Upheld. - Where defendant testified on direct examination that he had been convicted of assault, the prosecutor's question as to whether the assault involved a shooting was basically no more than an inquiry into whether the conviction was, in reality, one for a more serious offense, i.e., assault with a deadly weapon, and even if the inquiry was error, the error was not of such magnitude as to require a new trial under the test of prejudicial error contained in G.S. 15A-1443(a). State v. Rathbone, 78 N.C. App. 58, 336 S.E.2d 702 (1985), cert. denied, 316 N.C. 200, 341 S.E.2d 582 (1986).

Where, when defendant took the stand, defense counsel posed questions about his convictions within the last ten years, and defense counsel also asked defendant whether those convictions were the only convictions he had, and defendant replied in the affirmative, such a statement opened the door and allowed the State to go into a 1972 conviction. Defendant's testimony created favorable inferences as to his entire criminal record. Therefore, on cross-examination, the State could inquire into defendant's record and rebut his statement that he had not been convicted of anything other than the crimes mentioned in his testimony. State v. Chandler, 100 N.C. App. 706, 398 S.E.2d 337 (1990).

The prosecutor's cross-examination of the defendant regarding his past convictions did not exceed the scope allowed by this rule, where after the defendant denied knowing about certain past convictions, the prosecutor provided sufficient detail about the offenses to jog the defendant's memory. State v. White, 349 N.C. 535, 508 S.E.2d 253 (1998), cert. denied, 527 U.S. 1026, 119 S. Ct. 2376, 144 L. Ed. 2d 779 (1999).

Considering defendant's testimony on direct examination, which tended to minimize the seriousness of his criminal involvement (which consisted of two counts of first-degree murder, four counts of robbery with a dangerous weapon, second-degree kidnapping, larceny of a motor vehicle, assault with a deadly weapon, and numerous misdemeanors such as "traffic offenses, simple assault, and misdemeanor breaking and entering") the prosecutor did not exceed the scope of proper examination when he explored the fact scenarios behind some of the incidents. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001).

State did not exceed the scope of proper cross-examination under G.S. 8C-1-609 when, in response to defendant's testimony, the State suggested the reason police officers searched defendant's home was because they knew defendant had been convicted of selling drugs. State v. Mewborn, 178 N.C. App. 281, 631 S.E.2d 224, appeal dismissed, cert. denied, 637 S.E.2d 187 (N.C. 2006).

Trial court did not violate G.S. 8C-1-608(b) and G.S. 8C-1-609(a) in allowing the State to cross-examine a robbery defendant about his criminal history; by testifying on direct that he was not a violent person and had never robbed anyone, defendant had opened the door to this questioning. State v. Blair, 181 N.C. App. 236, 638 S.E.2d 914 (2007), cert. denied, appeal dismissed, 361 N.C. 570, 650 S.E.2d 815 (2007).

Trial court did not err in allowing the prosecutor to cross-examine defendant about prior out of state criminal convictions because defendant elicited additional evidence of his criminal history, and the State presented substantial evidence. State v. Ruffin, 232 N.C. App. 652, 754 S.E.2d 685 (2014).

Trial court did not err in permitting the prosecutor to cross-examine defendant on the details of his prior convictions because defendant opened the door to the prosecutor's questions concerning the type of weapon involved with his prior crimes; most of the details concerning tangential circumstances of the crimes were offered by defendant without prompting by the prosecutor. State v. Gayles, 233 N.C. App. 173, 756 S.E.2d 46 (2014).

The trial court properly used this section as guide in limiting the defendant's cross-examination of State's witness as to her criminal record where the defendant did not give notice of his intent to impeach her, nor make an offer of proof as to: (1) whether she was actually convicted of the offenses, (2) what the convictions were, (3) the exact nature of the offenses involved, or (4) how long ago the convictions were obtained. State v. Greene, 351 N.C. 562, 528 S.E.2d 575 (2000), cert. denied, 531 U.S. 1041, 121 S. Ct. 635, 148 L. Ed. 2d 543 (2000).

Prosecutor's Argument Held Improper. - Where evidence of defendant's past convictions was offered and admitted solely to impeach defendant's credibility, and this was the only legitimate purpose for which the evidence was admissible, it was error for the prosecutor in his argument to use defendant's prior convictions primarily to characterize him as a bad man of a violent, criminal nature and more likely to be guilty of the crime charged. State v. Tucker, 317 N.C. 532, 346 S.E.2d 417 (1986).

Line of Questioning Held Improper. - When prosecutor asked defendant if he had the money or the gun on him during a crime which was the basis for a prior conviction, the prosecutor was trying to prejudice the jury by aligning the prior conviction with the current offense, and trial court committed reversible error in allowing that line of questioning. State v. Wilson, 98 N.C. App. 86, 389 S.E.2d 626 (1990).

As prosecutor's questions on cross-examination were inquiries which went beyond the time and place of defendant's convictions and the punishment imposed, and as case turned on credibility, the defendant was prejudiced by the trial judge's overruling defendant's objections to such questions. State v. Gallagher, 101 N.C. App. 208, 398 S.E.2d 491 (1990).

Prosecutor's questioning regarding defendant's plea agreement violated G.S. 15A-1025, but defendant failed to show that the error was prejudicial as required by G.S. 15A-1443(a) because the trial court gave a limiting instruction that evidence of a prior criminal charge was not to be used as evidence of defendant's guilt. State v. Riley, 202 N.C. App. 299, 688 S.E.2d 477 (2010), cert. denied 364 N.C. 246, 699 S.E.2d 644, 2010 N.C. LEXIS 459 (2010).

Testimony regarding prior conviction was admissible, under this Rule 404(b) and was not precluded under this Rule; therefore, the trial court did not err in admitting it and there was no plain error. State v. Sexton, 336 N.C. 321, 444 S.E.2d 879, cert. denied, 513 U.S. 1006, 115 S. Ct. 525, 130 L. Ed. 2d 429 (1994), 343 N.C. 516, 472 S.E.2d 23 (1996).

Trial court did not err in denying the defendant's motion in limine seeking to exclude from cross-examination his prior conviction for malicious wounding, as the trial court had no discretion under G.S. 8C-1, Rule 609 to conduct a balancing test as the admission of the evidence was mandatory under Rule 609(a) and a balancing test was only required under Rule 609(b) if the conviction was more than 10 years old, which it was not. State v. Brown, 357 N.C. 382, 584 S.E.2d 278 (2003), cert. denied, 540 U.S. 1194, 124 S. Ct. 1447, 158 L. Ed. 2d 106 (2004).

Testimony Regarding Prior Conviction Inadmissible. - Although the State exceeded the permissible scope of inquiry into defendant's prior criminal conviction under this section by delving into his motivation for his "forgery activity," the evidence that defendant previously committed forgery to finance his drug habit could properly be admitted under G.S. 8C-1, Rule 404(b), not to show defendant had a propensity to commit forgery or other crimes, but rather to show that his need to support his drug habit and his lack of finances were the motive for the robbery and murder of the victim. State v. Barnett, 141 N.C. App. 378, 540 S.E.2d 423 (2000), appeal dismissed and cert. denied, 353 N.C. 527, 549 S.E.2d 552 (2001).

Under G.S. 8C-1, Rule 609(b), defendant was improperly cross-examined about a 15 year old aggravated battery conviction, because the conviction was stale, it shed no light on his veracity, and substantial likelihood of prejudice outweighed the minimal impeachment value of the evidence. State v. Harris, 149 N.C. App. 398, 562 S.E.2d 547 (2002).

Trial court did not err in holding that evidence of defendant's prior conviction for driving while impaired was of little probative value because the evidence of the prior conviction in an unrelated matter was highly prejudicial in nature. Headley v. Williams, 162 N.C. App. 300, 590 S.E.2d 443 (2004), cert. denied, 358 N.C. 375, 598 S.E.2d 136 (2004).

Testimony Regarding Reversed Convictions Not Admissible. - Where the principal to voluntary manslaughter pled guilty for a reduced sentence after the original conviction was reversed, the trial court which tried defendant for accessory after the fact to voluntary manslaughter did not err in denying defense counsel's attempt to elicit testimony from the principal regarding the reversed sentence because the reversal had the force of a "not guilty" verdict. State v. Jordan, 162 N.C. App. 308, 590 S.E.2d 424 (2004).

The trial court properly restricted defendant's questioning of state's witness on his prior convictions for breaking and entering and larceny on the time and place of the convictions and the penalties imposed thereon. State v. Bell, 338 N.C. 363, 450 S.E.2d 710 (1994), cert. denied, 515 U.S. 1163, 115 S. Ct. 2619, 132 L. Ed. 2d 861 (1995).

Testimony Regarding Prior Incarceration Inadmissible. - Evidence of defendant's prior incarceration constituted inadmissible character evidence that prejudiced his defense because the State improperly elicited that evidence to show defendant's propensity to commit the drug crimes for which he was on trial; the State could not purport to rebut the testimony of defendant's girlfriend with bad character evidence as she did not testify as to defendant's reputation for being law-abiding; and there was a reasonable possibility that, had the error not been committed, the jury would have reached a different result, as the evidence against defendant was largely circumstantial, and a jury could have reasonably concluded that the marijuana and cocaine were attributable to defendant's roommates. State v. Rios, 251 N.C. App. 318, 795 S.E.2d 234 (2016).

Testimony Regarding Prior Arrests Properly Denied. - Trial court properly denied defendant's motion to question victim about prior arrests, where the arrests showed nothing beyond the facts that victim was arrested and there was insufficient evidence to proceed with the charges. State v. Johnson, 128 N.C. App. 361, 496 S.E.2d 805 (1998).

Failure to Preserve Issue for Appellate Review. - Defendant had no right to raise the issue that the trial court erred in allowing the State to cross-examine him on his previous convictions because his objection was insufficient to preserve the issue for appellate review; although defendant opposed the admission of all prior conviction evidence during a voir dire hearing held before his testimony, he failed to object to the evidence in the presence of the jury when it was actually offered. State v. Joyner, 243 N.C. App. 644, 777 S.E.2d 332 (2015).

Error Not Prejudicial. - Although in a personal injury action it was error for defendant to elicit from plaintiff on cross-examination that he had been convicted of speeding, this error was not prejudicial, where there was no reasonable probability that the jury would find plaintiff's testimony incredible merely because he had been convicted on one occasion of speeding. Alexander v. Robertson, 81 N.C. App. 502, 344 S.E.2d 352 (1986).

Even if admission of two cases in which the defendant was not actually involved constituted error, it was not so prejudicial as to justify a mistrial. State v. Fisher, 318 N.C. 512, 350 S.E.2d 334 (1986).

Admission of evidence concerning the defendant's convictions for failure to follow a truck route and improper turning was improper under this rule, but the error was not prejudicial to the defendant in prosecution for driving while his license was revoked, where defendant admitted driving the van while his license was revoked. State v. Gainey, 84 N.C. App. 107, 351 S.E.2d 819 (1987).

Where it was entirely proper for prosecutor to cross-examine defendant concerning the existence of his prior conviction, prosecutor's limited inquiry as to date of arrest, while improper, did not rise to level of prejudicial error necessary to require a new trial. Knowledge that defendant committed another property crime around same time period could clearly have been gained by permissible cross-examination as to date and place of conviction. State v. Von Cunningham, 97 N.C. App. 631, 389 S.E.2d 286, cert. denied, 326 N.C. 802, 393 S.E.2d 905 (1990).

Although it appeared from the record that defendant chose not to testify at least in part because he feared being impeached with a 1975 conviction which should have been excluded, his failure to take the stand did not rise to the level of prejudicial error, where there was overwhelming evidence of his guilt. State v. Norris, 101 N.C. App. 144, 398 S.E.2d 652 (1990), discretionary review denied, 328 N.C. 335, 402 S.E.2d 843 (1991).

Admission of defendant's 19-year-old sodomy conviction where trial court's finding described no specific facts and circumstances indicating that the probative value of the conviction substantially outweighed its prejudicial effect was harmless error where there was substantial evidence of defendant's homosexuality and overwhelming evidence of defendant's guilt. State v. Ross, 329 N.C. 108, 405 S.E.2d 158 (1991).

Where the jury knew when the witness was tried for his crime, the date he was convicted, and the name of the crime that he had been convicted of, and also knew that the witness had received five years' probation for this crime, the actual date on which one count of the crime occurred could not add any impeachment value to the information about the prior conviction and the failure to allow this question was harmless. State v. Skipper, 337 N.C. 1, 446 S.E.2d 252 (1994), cert. denied, 513 U.S. 1134, 115 S. Ct. 953, 130 L. Ed. 2d 895 (1995), cert. dismissed, 342 N.C. 417, 465 S.E.2d 547 (1995).

The admission of evidence regarding a witness's pending burglary charge under G.S. 8C-1, Rule 608 was not plain error in view of the admission under this section of his first-degree burglary conviction and his own testimony that he consumed "four 40[-]ounce beers" on the evening of the shooting. State v. McEachin, 142 N.C. App. 60, 541 S.E.2d 792 (2001), cert. dismissed, 353 N.C. 392, 548 S.E.2d 151 (2001), cert. denied and appeal dismissed, 353 N.C. 392, 548 S.E.2d 152 (2001).

If it was error for the trial court to preclude defendant from cross-examining a prosecution witness about prior shoplifting convictions, nevertheless, as a second offense of shoplifting was a class 2 misdemeanor, concerning which the witness could be cross-examined under G.S. 8C-1, Rule 609(a), defendant did not show prejudice from this error. State v. Williams, 150 N.C. App. 497, 563 S.E.2d 616 (2002).

Even if there were any error in permitting questions about defendant's prior convictions, the evidence against defendant was otherwise overwhelming, and defendant failed to show that, absent the error, the jury would have reached a different result; defendant's convictions were affirmed. State v. Singletary, 163 N.C. App. 449, 594 S.E.2d 64 (2004), cert. denied, 359 N.C. 196, 608 S.E.2d 65 (2004).

Because a steamroller driver's convictions for driving without a license and driving with a revoked license were admissible under G.S. 8C-1, N.C. R. Evid. 609(a), and because the trial court had no discretion to exclude such evidence under G.S. 8C-1, N.C. R. Evid. 403, the trial court erred in granting the driver's motion in limine, but defendants had not demonstrated how they were specifically prejudiced by the trial court's error, nor had they alleged the jury verdict would have been different had the convictions been admitted. Therefore, the trial court's error was harmless. Outlaw v. Johnson, 190 N.C. App. 233, 660 S.E.2d 550 (2008).

In contending that evidence that he was a convicted felon was improperly admitted under G.S. 8C-1, N.C. R. Evid. 609, because he failed to testify, defendant failed to show that the jury would have found him not guilty of murder absent his statement in the videotape that he was a convicted felon or that admission of this evidence constituted fundamental error resulting in a miscarriage of justice. State v. Locklear, 363 N.C. 438, 681 S.E.2d 293 (Aug. 28, 2009).

Although a trial court erred in admitting evidence of a defense witness's manslaughter conviction because the conviction was outside the ten-year period prescribed in G.S. 8C-1, N.C. R. Evid. 609(b), and did not make specific findings of fact, defendant was not prejudiced by the error, G.S. 15A-1443 (2011), because there was overwhelming evidence to support the verdict of guilty; the victim and one witness testified they observed defendant's face during the assault and another witness recognized defendant's voice. State v. Ellerbee, 218 N.C. App. 596, 721 S.E.2d 296 (2012), cert. denied 366 N.C. 421, 736 S.E.2d 182, 2013 N.C. LEXIS 25 (2013), dismissed 366 N.C. 421, 736 S.E.2d 182, 2013 N.C. LEXIS 22 (2013), review denied 366 N.C. 421, 736 S.E.2d 181, 2013 N.C. LEXIS 21 (2013).

Limiting Instruction Held Proper - In a robbery prosecution, an instruction that the jury could consider defendant's prior crimes together with all other facts and circumstances bearing upon defendant's truthfulness in deciding whether to believe his testimony, but not as evidence of his guilt, was proper as the instruction explicitly left to the jury the determination of whether the prior convictions bore on defendant's truthfulness. State v. Wilson, 158 N.C. App. 235, 580 S.E.2d 386 (2003).

No Limiting Instruction on Prior Convictions. - Where defendant initially offered testimony regarding his prior crimes on his direct examination, he was not entitled to a special instruction limiting consideration of such testimony to his "truthfulness" under G.S. 8C-1, N.C. R. Evid. 609. State v. Jackson, 161 N.C. App. 118, 588 S.E.2d 11 (2003).

Defamation Privilege for Statements Made in Course of Judicial Proceeding. - Dismissal of a defamation suit against a lawyer that was based on the lawyer's alleged statement to a witness concerning plaintiff's possible drug use was proper because, under G.S. 8C-1, N.C. R. Evid. 609, the statement was related to plaintiff's credibility, and thus was related to the subject matter of an underlying case against plaintiff, and so the privilege for statements made in course of a judicial proceeding controlled. Jones v. Coward, 193 N.C. App. 231, 666 S.E.2d 877 (2008).

Applied in Frye v. Anderson, 86 N.C. App. 94, 356 S.E.2d 370 (1987); State v. Porter, 326 N.C. 489, 391 S.E.2d 144 (1990); State v. Garner, 330 N.C. 273, 410 S.E.2d 861 (1991); State v. Gibson, 333 N.C. 29, 424 S.E.2d 95 (1992); State v. Lynch, 337 N.C. 415, 445 S.E.2d 581 (1994); State v. Conaway, 339 N.C. 487, 453 S.E.2d 824 (1995), cert. denied, 355 N.C. 752, 565 S.E.2d 673 (2002); In re Hayes, 139 N.C. App. 114, 532 S.E.2d 553 (2000); State v. Weaver, 160 N.C. App. 61, 584 S.E.2d 345 (2003); State v. Little, 163 N.C. App. 235, 593 S.E.2d 113 (2004); State v. Morgan, 359 N.C. 131, 604 S.E.2d 886 (2004).

Cited in State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986); State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250 (1987); State v. Cummings, 332 N.C. 487, 422 S.E.2d 692 (1992); State v. Peterson, 337 N.C. 384, 446 S.E.2d 43 (1994); State v. Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994); State v. Best, 342 N.C. 502, 467 S.E.2d 45 (1996); State v. Dammons, 128 N.C. App. 16, 493 S.E.2d 480 (1997); State v. Bishop, 346 N.C. 365, 488 S.E.2d 769 (1997); State v. Rich, 130 N.C. App. 113, 502 S.E.2d 49 (1998), cert. denied, 349 N.C. 237, 516 S.E.2d 605 (1998); State v. Call, 349 N.C. 382, 508 S.E.2d 496 (1998); State v. Stanfield, 134 N.C. App. 685, 518 S.E.2d 541 (1999); State v. Harris, 149 N.C. App. 398, 562 S.E.2d 547 (2002); State v. Rhodes, 151 N.C. App. 208, 565 S.E.2d 266 (2002), cert. denied, 356 N.C. 173, 569 S.E.2d 273 (2002); State v. Mays, 158 N.C. App. 563, 582 S.E.2d 360 (2003), cert. denied, 357 N.C. 510, 588 S.E.2d 379 (2003), cert. denied, 358 N.C. 547, 599 S.E.2d 913 (2004); State v. Edwards, 170 N.C. App. 381, 612 S.E.2d 394 (2005); State v. McCoy, 174 N.C. App. 105, 620 S.E.2d 863 (2005); State v. Brown, 177 N.C. App. 177, 628 S.E.2d 787 (2006); State v. Browning, 177 N.C. App. 487, 629 S.E.2d 299 (2006); State v. Badgett, 361 N.C. 234, 644 S.E.2d 206 (2007); State v. Lee, 189 N.C. App. 474, 658 S.E.2d 294 (2008); State v. Little, 191 N.C. App. 655, 664 S.E.2d 432 (2008), review denied, 362 N.C. 685, 671 S.E.2d 326 (2008); Jackson v. Carland, 192 N.C. App. 432, 665 S.E.2d 553 (2008); State v. Jacobs, 195 N.C. App. 599, 673 S.E.2d 724 (2009), aff'd, 363 N.C. 815, 689 S.E.2d 859, 2010 N.C. LEXIS 195 (2010); State v. Curry, 203 N.C. App. 375, 692 S.E.2d 129 (2010); State v. Monroe, 230 N.C. App. 70, 748 S.E.2d 179 (2013), review denied 367 N.C. 1418, 752 S.E.2d 477, 2013 N.C. LEXIS 1418 (2013); State v. Blakney, 233 N.C. App. 516, 756 S.E.2d 844 (2014).


Rule 610. Religious beliefs or opinions.

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced; provided, however, such evidence may be admitted for the purpose of showing interest or bias.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 610 except for the proviso that explicitly states that evidence of religious beliefs or opinions may be admitted to show interest or bias. The rule clarifies unsettled law in North Carolina concerning whether, for impeachment purposes, a witness may be cross-examined as to his religious beliefs. See Brandis on North Carolina Evidence § 55, at 205 (1982). Evidence probative of something other than veracity is not prohibited by the rule.

CASE NOTES

This rule is a rule of evidence and does not affect jury arguments, except in support of the rule that counsel ordinarily may not argue matters not supported by the evidence. State v. James, 322 N.C. 320, 367 S.E.2d 669 (1988).

Counsel may not attack the credibility of a witness because of the witness's religious beliefs or rights of conscience. State v. James, 322 N.C. 320, 367 S.E.2d 669 (1988).

But Evidence of Beliefs May Be Admitted to Show Interest or Bias. - This rule proscribes the admissibility of evidence of the religious beliefs or opinions of a witness for the purpose of attacking his credibility. Such evidence may be admitted to show interest or bias of the witness. State v. James, 322 N.C. 320, 367 S.E.2d 669 (1988).

Indirect Reference by Prosecutor to Defendant's Affirmation. - Prosecutor's argument as to defendant's credibility held not to violate N.C. Const., Art. I, § 13, nor did it violate this rule or G.S. 8C-1, Rule 603, despite an indirect reference to defendant's affirmation as a witness. State v. James, 322 N.C. 320, 367 S.E.2d 669 (1988).

In prosecution charging defendant with being an accessory before the fact to second degree murder, where the real effect of questions about devil worship, satanic bibles, graveyard seances, and the like, could only have been to arouse the passion and prejudice of the jury, and where the relative veracity of the State's two accomplice witnesses and the defendant was critical, the trial court committed reversible error in permitting the district attorney, over objection, to ask defendant questions about devil worshipping activities. State v. Kimbrell, 320 N.C. 762, 360 S.E.2d 691 (1987).

Cited in State v. Reilly, 71 N.C. App. 1, 321 S.E.2d 564 (1984); State v. Westall, 116 N.C. App. 534, 449 S.E.2d 24 (1994), cert. denied, 338 N.C. 671, 453 S.E.2d 185 (1994); State v. Buie, 194 N.C. App. 725, 671 S.E.2d 351 (2009), review denied, 363 N.C. 375, 679 S.E.2d 135 (2009).


Rule 611. Mode and order of interrogation and presentation.

  1. Control by court. - The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
  2. Scope of cross-examination. - A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.
  3. Leading questions. - Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule, except for subdivision (b), is identical to Fed. R. Evid. 611.

The rule sets forth the objectives the court should seek to obtain rather than spelling out detailed rules. Specific statutes relating to the mode and order of interrogating witnesses and presenting evidence, e.g., G.S. 15A-1226 dealing with when rebuttal evidence may be presented, will not be overridden by the general guidelines set by this rule.

The Advisory Committee's Note says that:

"Item (1) restates in broad terms the power and obligation of the judge as developed under common law principles. It covers such concerns as whether testimony shall be in the form of a free narrative or responses to specific questions, McCormick § 5, the order of calling witnesses and presenting evidence, 6 Wigmore § 1867, the use of demonstrative evidence, McCormick § 179, and the many other questions arising during the course of a trial which can be solved only by the judge's common sense and fairness in view of the particular circumstances.

Item (2) is addressed to avoidance of needless consumption of time, a matter of daily concern in the disposition of cases. A companion piece is found in the discretion vested in the judge to exclude evidence as a waste of time in Rule 403(b).

Item (3) calls for a judgment under the particular circumstances whether interrogation tactics entail harassment or undue embarrassment. Pertinent circumstances include the importance of the testimony, the nature of the inquiry, its relevance to credibility, waste of time, and confusion. McCormick § 42. In Alford v. United States, 282 U.S. 687, 694, 51 S. Ct. 218, 75 L. Ed. 624 (1931), the Court pointed out that, while the trial judge should protect the witness from questions which 'go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate,' this protection by no means forecloses efforts to discredit the witness. Reference to the transcript of the prosecutor's cross-examination in Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935), serves to lay at rest any doubts as to the need for judicial control in this area.

The inquiry into specific instances of conduct of a witness allowed under Rule 608(b) is, of course, subject to this rule."

Subdivision (b) deals with the scope of cross-examination. "In North Carolina the substantive cross-examination is not confined to the subject matter of direct testimony plus impeachment, but may extend to any matter relevant to the issues." Brandis on North Carolina Evidence § 35, at 143 (1982). Subdivision (b) rejects the more restricted approach to cross-examination found in Fed. R. Evid. 611(b) and adopts the current North Carolina wide-open cross-examination rule.

Subdivision (c) continues the traditional view that the suggestive powers of the leading question are as general propositions undesirable. Within this tradition numerous exceptions have achieved recognition: The witness who is hostile, unwilling or biased; the child witness or the adult with communication problems; the witness whose recollection is exhausted; and undisputed preliminary matters. 3 Wigmore §§ 774-778; State v. Greene, 285 N.C. 482 (1974). As the Advisory Committee's Note points out: "The matter clearly falls within the area of control by the judge over the mode and order of interrogation and presentation and accordingly is phrased in words of suggestion rather than command."

The Note states that:

"The rule also conforms to tradition in making the use of leading questions on cross-examination a matter of right. The purpose of the qualification 'ordinarily' is to furnish a basis for denying the use of leading questions when the cross-examination is cross-examination in form only and not in fact, as for example the 'cross-examination' of a party by his own counsel after being called by the opponent (savoring more of redirect) or of an insured defendant who proves to be friendly to the plaintiff."

The last sentence of subdivision (c) deals with categories of witnesses automatically regarded and treated as hostile. N.C. Civ. Pro. Rule 43(b) permits leading questions to "an adverse party or an agent or employee of an adverse party, or an officer, director, or employee of a private corporation or of a partnership or association which is an adverse party, or an officer, agent or employee of a state, county or municipal government or agency thereof which is an adverse party." The phrase of the rule "witness identified with" an adverse party is designed to enlarge the category of witnesses who may safely be regarded as hostile without further demonstration. Upon adoption of this rule, N.C. Civ. Pro. Rule 43(b) should be repealed. N.C. Civ. Pro. Rule 30 should be amended to state that depositions are subject to the North Carolina Rules of Evidence.

Legal Periodicals. - For Survey of Developments in North Carolina Law (1992), see 71 N.C.L. Rev. 1893 (1993).

CASE NOTES

The scope of cross-examination is limited to those matters that are relevant to issues before the jury. State v. Hosey, 79 N.C. App. 196, 339 S.E.2d 414, modified, 318 N.C. 330, 348 S.E.2d 805 (1986).

Defendant was entitled to a new trial because the trial court erred in depriving defendant of the right to the closing argument to the jury where defendant did not introduce any evidence within the meaning of N.C. Gen. R. Prac. Super. & Dist. Ct. 10 during defendant's cross-examination of a witness about inconsistencies between two statements the witness gave about the shooting. State v. Wells, 171 N.C. App. 136, 613 S.E.2d 705 (2005).

Scope of Cross-Examination Is Subject to Court's Control. - Cross-Examination of an adverse witness is a matter of right, but the scope of cross-examination is subject to appropriate control by the court. State v. Hosey, 318 N.C. 330, 348 S.E.2d 805 (1986); State v. Allen, 90 N.C. App. 15, 367 S.E.2d 684 (1988).

Although cross-examination is a matter of right, the scope of cross-examination is subject to appropriate control in the sound discretion of the court. State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990), cert. denied, 421 S.E.2d 360 (1992).

Trial court did not err in its rulings regarding the railroad's cross-examination of witnesses; in particular, it did not err in not allowing the railroad to cross-examine the expert for the employee, who had brought a negligence action against the railroad for exposure to asbestos, as cross-examination regarding a pathology report would not have been proper since the expert was not relying on the report. Williams v. CSX Transp., Inc., 176 N.C. App. 330, 626 S.E.2d 716 (2006).

Scope of Testimony on Redirect Examination. - Where witness' testimony on redirect examination went beyond the scope of her testimony during direct and cross-examination but the testimony was relevant and otherwise admissible and after its admission, the trial court provided the defendant an opportunity to recross-examine the witness, the trial court did not abuse its discretion. State v. Barton, 335 N.C. 696, 441 S.E.2d 295 (1994).

Control of Court over Mode and Order of Questioning. - The trial court has authority to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence pursuant to subsection (a) of this rule. State v. Allen, 90 N.C. App. 15, 367 S.E.2d 684 (1988).

Where counsel for the defendant asked over 60 questions referencing an action arising out of events occurring some 12 to 14 years earlier and these inquiries related to an extremely remote event, they were minimally probative when compared to their prejudicial effect, and were therefore proscribed by Rule 403. Further, the continued repetitive questioning reflected the harassment and "needless consumption of time" that subsection (a) prohibits. Weston v. Daniels, 114 N.C. App. 418, 442 S.E.2d 69 (1994), cert. denied, 336 N.C. 785, 447 S.E.2d 433 (1994).

Trial court exercised its duty to reasonably control the mode and order of interrogating witnesses, and presenting evidence, in order to avoid needless consumption of time as contemplated by G.S. 8C-1, N.C. R. Evid. 611(a). Thus, defendant in a case where defendant was charged with and convicted of voluntary manslaughter did not have the examination of defendant's witnesses improperly limited, as the record in the case indicated that inquiries made by defense counsel on direct, redirect, and cross-examination were repetitive, especially since counsel had just asked, and the witnesses had just answered, the same questions either on direct examination or only moments earlier on cross-examination. State v. Moore, 194 N.C. App. 754, 671 S.E.2d 545 (2009), appeal dismissed, review denied, 363 N.C. 379, 679 S.E.2d 840 (2009).

In a custody matter, a mother's appellate complaint that a trial court violated the court's G.S. 8C-1, N.C. R. Evid. 611 duties by not intervening when a father's counsel effectively limited the mother's testimony was dismissed because the mother did not preserve the claim by raising the claim in the trial court. Cox v. Cox, 238 N.C. App. 22, 768 S.E.2d 308 (2014).

Trial court may depart from the regular order of presentation of evidence so as to make that presentation more effective for the ascertainment of the truth, and will be reversed only for abuse of discretion. State v. Brice, 320 N.C. 119, 357 S.E.2d 353 (1987).

Plaintiffs' attempt to generate an exhibit during trial while a witness was undergoing cross-examination, by extracting and charting portions of the testimony, was governed by subsection (a) of this rule, not by Rule 1006, and the trial court acted within its discretion in disallowing it as a kind of premature final argument. Marley v. Graper, 135 N.C. App. 423, 521 S.E.2d 129 (1999).

Harassment of Witness. - Where expert witness was insulted, maligned, continually interrupted and bullied, though she weathered it all with considerable fortitude, the net result may still have been a less than complete, or less than accurate, statement of her opinion; thus, the court could not conclude that the prosecutor's improper conduct toward this witness caused no prejudice to defendant. State v. Sanderson, 336 N.C. 1, 442 S.E.2d 33 (1994).

Consolidation of Testimony Not Improper. - Where the trial court in annexation case allowed consolidation of a fire chief's testimony so that he would not have to be recalled, and where petitioners failed to demonstrate that the trial court abused its discretion in allowing the chief to testify as an expert during cross-examination, trial court did not err. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

The primary purpose of impeachment is to reduce or discount the credibility of a witness for the purpose of inducing the jury to give less weight to his testimony in arriving at the ultimate facts of the case. Any circumstance tending to show a defect in the witness' perception, memory, narration or veracity is relevant to this purpose. Medina v. Town & Country Ford, Inc., 85 N.C. App. 650, 355 S.E.2d 831, appeal of right allowed pursuant to Rule 16(b) and petition allowed as to additional issues, 320 N.C. 513, 358 S.E.2d 521 (1987), aff'd, Baldwin v. Blackledge, 330 F. Supp. 183 (E.D.N.C. 1971).

Use of Videotape on Cross Examination. - The trial court did not err when it refused to allow the defendant to cross examine a witness with a tape recording of a call she made to a 911 operator after the witness testified on direct examination that she did not remember the details of the conversation; the trial judge ruled that the defendant could not play a tape recording on cross-examination, although he might introduce the tape during his case in chief. State v. Mason, 144 N.C. App. 20, 550 S.E.2d 10 (2001).

Rule Applicable to Cross-Examination of Experts. - As to the admission of expert opinions during cross-examination, this Rule provides that the court shall exercise reasonable control over the interrogation of witnesses and the presentation of evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

Cross-Examination of Expert Upheld. - State's questions regarding an expert's familiarity with relevant diagnostic treatises, reliability or truth of defendant's statements, and the degree of reliance placed upon them by the expert witness in forming his opinion, and its effort to impeach defendant's stated memory loss, were all well within the bounds of a proper cross-examination. State v. Morganherring, 350 N.C. 701, 517 S.E.2d 622 (1999), cert. denied, 529 U.S. 1024, 120 S. Ct. 1432, 146 L. Ed. 2d 322 (2000).

Trial court properly permitted the prosecutor to question whether defendant's forensic psychologist adequately considered certain recorded statements in diagnosing defendant because the impeachment of the testimony given by the psychologist on direct examination was within the broad scope of cross-examination allowed by the courts in North Carolina. State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, appeal dismissed, cert. denied, 360 N.C. 653, 637 S.E.2d 189 (2006).

Prosecutor did not violate G.S. 8C-1, N.C. R. Evid. 611(b) by questioning an expert in forensic psychiatry regarding the expert's forensic practice, the contents of the records to which the expert referred on direct examination, the expert's status as a paid witness for the Center for Death Penalty Litigation, and the expert's potential bias. State v. Taylor, 362 N.C. 514, 669 S.E.2d 239 (2008), cert. denied, 558 U.S. 851, 130 S. Ct. 129, 175 L. Ed. 2d 84 (2009).

State's expert disagreed with defendant's expert's determination that defendant suffered from a mild intellectual disability, and given the significant discrepancies between the diagnosis made by both experts, it was proper to elicit testimony indicative of potential witness bias; the prosecutor's decision to elicit evidence to the effect that defendant's expert had previously performed work for one of defendant's attorneys did not inject the prosecutor's personal opinions into defendant's intellectual capabilities. State v. Rodriguez, 371 N.C. 295, 814 S.E.2d 11 (2018).

Limitation on Cross-Examination of Expert Upheld. - Sexual assault victim's previous sexual abuse at the hands of her father properly excluded from defendant's cross examination of child psychologist since (1) the credibility of the psychologist's and the victim's testimony were not at issue, and (2) defendant made no showing that the trial court's limitation of the cross examination could have improperly influenced the jury's verdict. State v. Yearwood, 147 N.C. App. 662, 556 S.E.2d 672 (2001).

Substantive cross-examination is not confined to the subject matter of direct testimony plus impeachment, but may extend to any matter relevant to the issues. State v. Freeman, 319 N.C. 609, 356 S.E.2d 765 (1987).

Evidence of defendant's prior use of cocaine and marijuana was irrelevant and inadmissible under G.S. 8C-1, Rule 608(b), and under Rule subsection (b) of this rule, because defendant was not a key prosecution witness. State v. Wilson, 118 N.C. App. 616, 456 S.E.2d 870, cert. denied, 341 N.C. 424, 461 S.E.2d 768 (1995).

The qualification "ordinarily," used in subsection (c) of this rule, is to furnish a basis for denying the use of leading questions when the cross-examination is cross-examination in form only and not in fact. The authority to sustain objections to leading questions directed to friendly witnesses in such situations is inherent in the discretion granted the trial court in this rule. State v. Hosey, 318 N.C. 330, 348 S.E.2d 805 (1986).

The application of subsection (c) of this rule is within the discretion of the trial judge and the ruling is reversible only for abuse of discretion. State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442 (1988).

Discretion of Trial Judge to Allow Leading Questions on Direct Examination. - It is within the discretionary power of the trial judge to allow leading questions on direct examination. State v. Riddick, 315 N.C. 749, 340 S.E.2d 55 (1986).

A ruling on the admissibility of a leading question is in the sound discretion of the trial court, and these rulings are reversible only for an abuse of discretion. State v. Howard, 320 N.C. 718, 360 S.E.2d 790 (1987).

Trial court did not abuse its discretion in declaring a witness against defendant to be declared a hostile witness and in allowing the State to ask leading questions, as the witness refused to answer some questions and was evasive when he did respond since he and defendant had "made up" after defendant had shot at him. State v. Maddox, 159 N.C. App. 127, 583 S.E.2d 601 (2003).

Trial court did not abuse its discretion in allowing the State to use leading questions in its direct examination of one of its witnesses because the witness's testimony demonstrated her bias in favor of defendant, and, therefore, her adversity to the State; the witness testified that she had been defendant's girlfriend for eleven years, that she loved defendant, that they had two children together, and that she did not want defendant to go to jail. State v. Applewhite, 190 N.C. App. 132, 660 S.E.2d 240 (2008).

Counsel may be allowed to lead a witness on direct examination when the witness has difficulty in understanding the question because of immaturity or advanced age. State v. Riddick, 315 N.C. 749, 340 S.E.2d 55 (1986).

When the witness has difficulty in understanding the question because of age or maturity, or where inquiry is made into a subject of a delicate nature, such as sexual matters, leading questions are necessary to develop the witness' testimony. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, cert. denied, 320 N.C. 174, 358 S.E.2d 64 (1987).

The use of leading questions is a matter of right during cross-examination. State v. Mitchell, 317 N.C. 661, 346 S.E.2d 458 (1986).

Review of Rulings on Leading Questions. - Rulings by the trial judge on the use of leading questions are discretionary and reversible only for an abuse of discretion. State v. Riddick, 315 N.C. 749, 340 S.E.2d 55 (1986); State v. Summerlin, 98 N.C. App. 167, 390 S.E.2d 358, cert. denied, 327 N.C. 143, 394 S.E.2d 183 (1990); State v. Holmes, 101 N.C. App. 229, 398 S.E.2d 873 (1990), aff'd, 330 N.C. 826, 412 S.E.2d 660 (1992).

Leading Question Permitted. - Where the record disclosed that at the time of the crime the prosecuting witness was 14 years old, and that at the time of the trial she was 15, and her testimony, in open court, pertained to sexual matters of a delicate, sensitive, and embarrassing nature, leading questions on direct examination were permissible under such circumstances to develop the witness' testimony. State v. Dalton, 96 N.C. App. 65, 384 S.E.2d 573 (1989).

Because victim was 10 years old at the time of trial and was not only testifying about sexual matters, but was testifying against her father who was present in the courtroom, leading questions were appropriate. State v. Murphy, 100 N.C. App. 33, 394 S.E.2d 300 (1990).

The defendant failed to show abuse of discretion by the court in allowing the use of leading questions when questioning the victim's mother where the witness was having trouble answering questions that were put to her. State v. Cox, 344 N.C. 184, 472 S.E.2d 760 (1996).

The court did not abuse its discretion in allowing the prosecutor to use leading questions to extract the testimony of his chief witness during the defendant's capital murder trial, where the witness was the former girlfriend of the defendant, who had murdered the girlfriend's grandmother and the grandmother's friend, and she was not articulate and was nervous at testifying and seeing the defendant for the first time in a long while. State v. White, 349 N.C. 535, 508 S.E.2d 253 (1998), cert. denied, 527 U.S. 1026, 119 S. Ct. 2376, 144 L. Ed. 2d 779 (1999).

Where the record showed that the questions that the defendant objected to during trial were not so much "leading" as they were "bridges" or summaries of testimony, and where the case was long and complicated, the court did not err in allowing the district attorney to direct witness's attention to a certain topic by asking leading questions. State v. Smith, 135 N.C. App. 649, 522 S.E.2d 321 (1999).

While the State's question to a witness asking her to describe the clothes defendant was wearing when he shot the victim may have been a leading question, it was not objectionable, because the question was merely reiterating and further developing the witness's previous statement in which she had stated that defendant shot the victim. State v. Stafford, 150 N.C. App. 566, 564 S.E.2d 60 (2002), cert. denied, 357 N.C. 169, 581 S.E.2d 444 (2003).

Leading Questions Upheld When Delicate Subject Matter Was Involved. - Where the subject matter of the young victim's testimony, whether and how sexual act was committed, was a delicate matter, the trial judge did not abuse his discretion by allowing the district attorney to ask leading questions of the victim. State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442 (1988).

In an action charging defendant with six counts of first-degree statutory sexual offense, two counts of attempted first-degree statutory sexual offense, seven counts of taking indecent liberties with a minor, and six counts of lewd and lascivious conduct with a minor, the State was properly permitted to ask leading questions of the child victim where the victim, who was 11 years old at the time of trial, was hesitant to answer questions regarding sexual matters of a delicate nature. State v. Bates, 172 N.C. App. 27, 616 S.E.2d 280 (2005).

Leading Question to Refresh Memory Upheld. - The prosecutor's leading question eliciting the fact that the defendant spat on the decedent after shooting him was permissible where he used it in an attempt to refresh the witness' memory. State v. Lesane, 137 N.C. App. 234, 528 S.E.2d 37 (2000).

Misconstruction of Answers by Questioner. - The questioner may not distort the witness' testimony by purposely misconstruing answers and cross-examining the witness on the basis of the misconstruction. State v. Sanderson, 336 N.C. 1, 442 S.E.2d 33 (1994).

Trial court did not abuse its discretion in requiring list of defense witnesses so that jurors, during voir dire, could look at the list and answer questions concerning their knowledge of and relationship to any of the witnesses who might be called to testify. State v. Smith, 320 N.C. 404, 358 S.E.2d 329 (1987).

No Abuse of Discretion By Judge. - Where judge did no more than ensure that defense counsel was not consuming the court's time with irrelevant material and, once assured by counsel that the evidence had relevance, the court permitted the questioning to continue without further comment and expressed no opinion on the evidence, the court in no way abused its discretion nor approached the level of interference which would be error. State v. Harris, 338 N.C. 129, 449 S.E.2d 371 (1994), cert. denied, 514 U.S. 1100, 115 S. Ct. 1833, 131 L. Ed. 2d 752 (1995).

Trial court did not abuse its discretion in limiting defendant's cross-examination of a witness for hearsay reasons. State v. Alvarez, 168 N.C. App. 487, 608 S.E.2d 371 (2005).

Although defendant argued a trial court placed arbitrary time limits on the presentation of evidence and did not allow her to complete her testimony, the trial court's denial of defendant's G.S. 1A-1, N.C. R. Civ. P. 59 motion for a new trial was not an abuse of discretion because: (1) the length of the trial was discussed at pre-trial conferences and both parties agreed to a two-day trial; (2) the trial court made inquiry concerning the ability of both parties to present evidence within a two-day time frame and neither party objected during pre-trial conferences; (3) the trial court made several references to the time constraint during the trial; and (4) at the close of defendant's evidence, defendant made no objection to time limits enforced by the trial court. Wolgin v. Wolgin, 217 N.C. App. 278, 719 S.E.2d 196 (2011).

Cross-Examination of Defendant Upheld. - Where defendant testified in his own behalf and denied his guilt, it was appropriate for the State to ask him to explain, if he could, the State's evidence which was inconsistent with this denial. Such cross-examination properly challenged defendant's credibility, which ultimately was a question for the jury. State v. Freeman, 319 N.C. 609, 356 S.E.2d 765 (1987).

Where the State, on cross-examination, introduced evidence of defendant's phone conversation in which defendant allegedly made an admission that conflicted with defendant's trial testimony, this did not violate G.S. 8C-1-611(b); testing credibility and impeaching explanations were relevant and within scope of cross-examination. State v. Phillips, 171 N.C. App. 622, 615 S.E.2d 382 (2005), cert. denied, appeal dismissed, - N.C. - , 622 S.E.2d 628 (2005).

Prosecutor was entitled to cross-examine defendant regarding statements referring to an officer's testimony given during trial to challenge the credibility of defendant's testimony. State v. Parker, 187 N.C. App. 131, 653 S.E.2d 6 (2007).

Refusal of Cross-Examination Upheld. - Court's refusal to permit defendant to cross-examine detective about police department's having used defendant as an informant was proper. Defendant's purpose was to show that he had credibility with the police department, but at that time only the State had presented evidence, defendant's credibility had not been attacked, and he was not entitled to bolster it in advance. State v. Burge, 100 N.C. App. 671, 397 S.E.2d 760 (1990).

Because a sheriff had a nondelegable duty to provide medical care to inmates, defendant, who was employed by prison health services as a mental health clinician, was an agent of the sheriff as a matter of law; in a prosecution for sexual activity by a custodian, the trial court did not err in barring in limine the introduction of a contract, which according to defendant showed that he was an independent contractor and not an agent or employee of the sheriff's office, because as a matter of law defendant was acting as agent of sheriff when the crimes were allegedly committed. State v. Wilson, 183 N.C. App. 100, 643 S.E.2d 620 (2007), aff'd, 362 N.C. 162, 655 S.E.2d 359 (2008), aff'd, 362 N.C. 162, 655 S.E.2d 359 (2008), State v. Wilson, 183 N.C. App. 100, 643 S.E.2d 620 (2007), aff'd, 362 N.C. 162, 655 S.E.2d 359 (2008).

Defendant was not prejudiced, as contemplated by G.S. 15A-1443(a), by a trial court's limitation on cross examination pursuant to N.C. R. Evid. 611(b): (1) defense counsel was permitted to question a child victim about the child's relationship with the child's mother, the child's belief that the child's mother preferred the child's sisters over the child, and the child's frustration with the child's living conditions; and (2) to the extent that counsel was limited in some respects when cross-examining the child, counsel was able to elicit comparable testimony from other witnesses, defendant, and the child's mother. In light of this extensive evidence, admission of testimony about the kinds of fights the child had with the child's mother, the child's crying about having to do housework, how the child expressed the child's frustration, and the child's desire that defendant and the child's mother not marry could not have affected the verdict. State v. Cook, 195 N.C. App. 230, 672 S.E.2d 25 (2009).

Although defendant argued that the terms of the victim's probation was relevant to determine credibility and to determine whether she was intoxicated when she filed her police report, the trial court did not err in not allowing the co-defendant to cross-examine the victim regarding her probation because she did not have personal knowledge of the contents of a probation violation report, and there was no testimony from the officer that she appeared to be intoxicated while he was taking her statement. State v. Oliphant, 228 N.C. App. 692, 747 S.E.2d 117 (2013), review denied 753 S.E.2d 677, 2014 N.C. LEXIS 58 (2014), review denied, 753 S.E.2d 677, 2014 N.C. LEXIS 64 (2014).

Questions to Rebuttal Witness. - Impeaching questions about a previous alleged knifing incident asked by prosecutor of rebuttal witness held not to constitute error. State v. Price, 118 N.C. App. 212, 454 S.E.2d 820 (1995).

Cross-Examination of Defendant's Mother. - The prosecutor properly cross-examined the murder defendant's mother regarding a letter she wrote to the defendant stating that she understood the defendant's role in the murder "and everyone else that had a part in it," since the statement went to the issue of the witness' understanding or knowledge that roles or parts were played by the coconspirators in the murder. State v. Brown, 350 N.C. 193, 513 S.E.2d 57 (1999).

Relationship Between Counsel and Witness Should Be Considered. - The rule prohibiting leading questions is not based on a technical distinction between direct examination or cross-examination, but on the alleged friendliness existing between counsel and his witness. Therefore, the trial court should consider the true relationship between the interrogator and the witness in ruling on the propriety of leading questions during either direct examination or cross-examination. State v. Hosey, 318 N.C. 330, 348 S.E.2d 805 (1986).

Findings as to Hostility or Friendliness of Witness. - While the better practice would be for the trial court to make findings and conclusions and declare formally that a witness is friendly to the party cross-examining him or adverse to the party calling him as a witness, when the record on appeal manifestly shows that the witness was only ostensibly the witness of the party calling him or her and was entirely friendly to the party cross-examining him or her, the trial court does not commit reversible error by failing to make such a formal declaration. State v. Hosey, 318 N.C. 330, 348 S.E.2d 805 (1986).

Prohibition of Leading Questions Upheld. - In a prosecution for rape and incest, the trial court did not err by sustaining the State's objections to leading questions asked of defendant's wife, a State's witness who was only nominally adverse to the defendant. State v. Hosey, 318 N.C. 330, 348 S.E.2d 805 (1986).

Although the witness was called to contradict the testimony of a prior witness, defendant failed to argue the exception at trial and failed to cite any case law in support of its application in his brief on appeal; therefore, there was no abuse of discretion where the trial court sustained the timely objection of the State to what was a leading question posed by counsel on direct examination of a non-hostile witness. State v. Wiggins, 136 N.C. App. 735, 526 S.E.2d 207 (2000).

Trial court properly sustained the State's objections to six leading questions put to defendant on direct examination, where defendant had already had an opportunity to deny the charges against him and, therefore, did not need leading questions to help him do that. State v. Kimble, 140 N.C. App. 153, 535 S.E.2d 882 (2000).

Compensation of Expert Witness. - The subject of compensation of a defendant's expert witness is clearly an appropriate matter for cross-examination. State v. Atkins, 349 N.C. 62, 505 S.E.2d 97 (1998), cert. denied, 526 U.S. 1147, 119 S. Ct. 2025, 143 L. Ed. 2d 1036 (1999).

The State may cross-examine a court-appointed and state-funded expert witness about any potential bias resulting from compensation as a defense witness. State v. Lawrence, 352 N.C. 1, 530 S.E.2d 807 (2000).

Error to Prohibit Cross-Examination on Amount of Expert's Compensation. - Trial court erred in not allowing defendant to further inquire into the amount of an expert's compensation during cross-examination. State v. Singletary, 247 N.C. App. 368, 786 S.E.2d 712 (2016).

Cumulative Character Evidence. - It was not error for the trial judge, in a trial for first degree sexual offense, after the defendant had called and examined six character witnesses, to ask him to list his seven remaining character witnesses and have them stand and state their names and addresses, where the jury was informed by the comments of the court and counsel that these witness were present to attest to the defendant's good character and reputation in the community. State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986).

Factors Affecting Mental State. - Defendant was properly permitted to cross-examine plaintiff about other factors in her life which had a bearing upon her mental state such as acts of wrong-doing on the part of her children. Pelzer v. UPS, Inc., 126 N.C. App. 305, 484 S.E.2d 849 (1997), cert. denied, 346 N.C. 549, 488 S.E.2d 808 (1997).

Illustrative Cases. - The prosecutor's questions of a murder defendant's expert witness were well within the bounds of cross-examination, where the defendant's mental health expert had testified that the disparity between the defendant's answers, which were like those that only a profoundly mentally ill, psychotic, or crazy person would have given, and all other indications, which were that he was not profoundly mentally ill, could be interpreted as a cry for help, while the prosecutor's questions merely presented the alternative theory that the defendant was lying. State v. Hipps, 348 N.C. 377, 501 S.E.2d 625 (1998), cert. denied, 525 U.S. 1180, 119 S. Ct. 1119, 143 L. Ed. 2d 114 (1999).

The trial court properly excluded testimony of defendant and two witnesses regarding the general availability of weapons at the prison where he and the victim were incarcerated where the officer had already testified that he did not know how frequently the victim's cell block was searched and that he could not recall whether he or any other officers had ever found knives during a search of the victim's cell block; where defendant had already testified extensively regarding frequent violence among the inmates and that, during a cell-block search following a violent incident, officers discovered knives in twenty of the twenty-four cells in his and the victim's cell block; and where a former legal services attorney who visited the prison was in no better position than the jury to give his opinion about the prevailing conditions there at the time of the murder. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001).

Questions to defendant regarding the existence and location of a rubber vagina were premissible where the purpose of the questions was used to impeach defendant. State v. Hill, 179 N.C. App. 1, 632 S.E.2d 777 (2006).

It was error to exclude under G.S. 8C-1, N.C. R. Evid. 403, testimony that in a questionnaire the victim had stated that she sometimes saw herself as if she were looking at someone else, that she was sometimes not sure whether something that happened was real or a dream, and that she sometimes heard voices inside her head; the evidence should have been admitted under G.S. 8C-1, N.C. R. Evid. 611(b), because it went to the credibility of the victim, whose testimony was crucial to the state's case, because the victim's testimony was contradicted by two eyewitnesses, and because attacking the victim's credibility was the defense's main theory. State v. Whaley, 362 N.C. 156, 655 S.E.2d 388 (2008).

Prosecutor's questions relating to an expert's records did not violate G.S. 8C-1, N.C. R. Evid. 611; the questions were straightforward without any intimation of wrongdoing or of falsifying records. Therefore, defendant's contention that the prosecutor's cross-examination of the expert opened the door to defense counsel's question, "You didn't doctor any of these records at all because you're being paid, did you?" was without merit. State v. Taylor, 362 N.C. 514, 669 S.E.2d 239 (2008), cert. denied, 558 U.S. 851, 130 S. Ct. 129, 175 L. Ed. 2d 84 (2009).

Defendant failed to show error in the trial court's failure to restrict the scope of defendant's wife's cross-examination, as any error in the questioning regarding defendant's stepdaughter's statements to a social worker was not prejudicial and the trial court did sustain defendant's objections to argumentative questions. State v. Reaves, 196 N.C. App. 683, 676 S.E.2d 74 (2009), review denied, 363 N.C. 587, 683 S.E.2d 705 (2009).

Defendant failed to preserve for review his claim that the trial court erred in sustaining the State's objections to his cross-examination of the victim because defendant did not assert any constitutional claims in the trial court and failed to make a specific offer of proof when the trial court sustained the State's objections; even if defendant had preserved the issue, he failed to show any abuse of the trial court's discretion because the trial court gave defendant, who was acting pro se, wide latitude in his cross-examinations and closing argument, and defendant repeatedly and extensively discussed his theory that the victim and her mother were not being truthful and were out to get him and was allowed to cross-examine the victim about their relationship and her alleged dislike of him. State v. Reid, 204 N.C. App. 122, 693 S.E.2d 227 (2010), appeal dismissed, 2017 N.C. LEXIS 350 (2017).

When defendant was retried after an officer had improper contact with a juror at defendant's first trial, it was prejudicial error to exclude evidence of the officer's improper contact because (1) defendant should have been allowed to raise the misconduct when cross-examining the officer to show the officer's bias, and character for untruthfulness, under G.S. 8C-1, N.C. R. Evid. 608(b), and (2) the error barred inquiry into the officer's bias, and kept the jury from knowledgeably weighing the officer's credibility. State v. Lewis, 365 N.C. 488, 724 S.E.2d 492 (2012).

Trial court erred in refusing to allow defense counsel to cross-examine a witness, defendant's sister, with a message the witness left on another sister's answering machine to attack the witnesses credibility because the message was relevant to attack the witness's credibility and show her bias towards defendant and defendant's family. State v. Triplett, 236 N.C. App. 192, 762 S.E.2d 632 (2014).

Discovery sanctions order in a divorce did not err for a trial court's failure to consider a wife's affidavit because (1) the trial court required that the affidavit be properly presented, and (2) the wife then chose not to present the affidavit. Khaja v. Husna, 243 N.C. App. 330, 777 S.E.2d 781 (2015), dismissed, 780 S.E.2d 757, 2015 N.C. LEXIS 1310 (2015), dismissed, 781 S.E.2d 293, 2015 N.C. LEXIS 1291 (2015).

Even though the trial court erred by disallowing the defense's cross-examination of the State's witnesses concerning defendant's post-arrest interrogation during which he admitted to the abduction of the juvenile victim because it was relevant, defendant was not prejudiced because there was overwhelming evidence of his guilt, including testimony by those who either witnessed the abduction or saw defendant with the victim, testimony by the victim about the abduction and assault, and testimony by law enforcement and medical personnel. State v. Edwards, 261 N.C. App. 459, 820 S.E.2d 862 (2018), cert dismissed, 2019 N.C. LEXIS 881 (N.C. 2019).

Defendant failed to show that the trial court abused its discretion by limiting his cross-examination of the victim to exclude certain testimony about her mental health and treatment to challenge her credibility, as defendant failed to show that the excluded testimony was relevant to the victim's credibility. State v. Kowalski, - N.C. App. - , 839 S.E.2d 443 (2020).

Caution in the Examination of Physical Evidence by Jury. - The trial court's jury instruction that jury members could wear rubber gloves while examining exhibits did not indicate that the trial judge believed testimony that the defendant had HIV, but rather, was the proper exercise of reasonable control over presentation of evidence. State v. Monk, 132 N.C. App. 248, 511 S.E.2d 332 (1999).

Payment of a State's witness after her cooperation in an operation that led to defendant's arrest and prior to his trial did not render the witness's testimony inherently unreliable; the witness and a police sergeant were vigorously cross-examined and there was no evidence that the payments were quid pro quo for the witness's testimony. State v. Brice, 167 N.C. App. 72, 604 S.E.2d 356 (2004).

Applied in State v. Ruiz, 77 N.C. App. 425, 335 S.E.2d 32 (1985); Burriss v. Heavner, 83 N.C. App. 538, 350 S.E.2d 897 (1986); York v. Northern Hosp. Dist., 88 N.C. App. 183, 362 S.E.2d 859 (1987); State v. Barnes, 91 N.C. App. 484, 372 S.E.2d 352 (1988); State v. Speckman, 92 N.C. App. 265, 374 S.E.2d 419 (1988); State v. Jones, 98 N.C. App. 342, 391 S.E.2d 52 (1990); State v. Webster, 111 N.C. App. 72, 431 S.E.2d 808 (1993), aff'd, 337 N.C. 674, 447 S.E.2d 349 (1994); State v. Wilson, 335 N.C. 220, 436 S.E.2d 831 (1993); State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994), cert. denied, 115 S. Ct. 750, 130 L. Ed. 2d 650 (1995); State v. Bell, 338 N.C. 363, 450 S.E.2d 710 (1994), cert. denied, 515 U.S. 1163, 115 S. Ct. 2619, 132 L. Ed. 2d 861 (1995); State v. Carter, 338 N.C. 569, 451 S.E.2d 157 (1994); State v. Moore, 339 N.C. 456, 451 S.E.2d 232 (1994); State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995); State v. Alkano, 119 N.C. App. 256, 458 S.E.2d 258, appeal dismissed, 341 N.C. 653, 467 S.E.2d 898 (1995); State v. Walls, 342 N.C. 1, 463 S.E.2d 738 (1995); State v. Frazier, 121 N.C. App. 1, 464 S.E.2d 490 (1995); State v. Castor, 150 N.C. App. 17, 562 S.E.2d 574 (2002), cert. denied, 357 N.C. 508, 587 S.E.2d 885 (2003); State v. Prevatte, 356 N.C. 178, 570 S.E.2d 440 (2002); State v. Elkins, 210 N.C. App. 110, 707 S.E.2d 744 (2011); State v. Matthews, 218 N.C. App. 277, 720 S.E.2d 829 (2012).

Cited in State v. Crummy, 107 N.C. App. 305, 420 S.E.2d 448; State v. Perry, 69 N.C. App. 477, 317 S.E.2d 428 (1984); Green Hi-Win Farm, Inc. v. Neal, 83 N.C. App. 201, 349 S.E.2d 614 (1986); State v. Brooks, 83 N.C. App. 179, 349 S.E.2d 630 (1986); Mosley & Mosley Bldrs., Inc. v. Landin Ltd., 97 N.C. App. 511, 389 S.E.2d 576 (1990); State v. Wise, 326 N.C. 421, 390 S.E.2d 142 (1990), cert. denied, 332 N.C. 669, 424 S.E.2d 411 (1992); State v. Baldwin, 330 N.C. 446, 412 S.E.2d 31 (1992); State v. Beach, 333 N.C. 733, 430 S.E.2d 248 (1993); State v. Pharr, 110 N.C. App. 430, 430 S.E.2d 267 (1993); State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993); State v. Lee, 335 N.C. 244, 439 S.E.2d 547 (1994), cert. denied, 513 U.S. 891, 115 S. Ct. 239, 130 L. Ed. 2d 162 (1994); State v. Larrimore, 340 N.C. 119, 456 S.E.2d 789 (1995); In re Stradford, 119 N.C. App. 654, 460 S.E.2d 173 (1995); State v. Lovin, 339 N.C. 695, 454 S.E.2d 229 (1995); State v. Solomon, 340 N.C. 212, 456 S.E.2d 778 (1995); State v. Mitchell, 342 N.C. 797, 467 S.E.2d 416 (1996); Jones v. Rochelle, 125 N.C. App. 82, 479 S.E.2d 231 (1996); State v. Perkins, 345 N.C. 254, 481 S.E.2d 25 (1997), cert. denied, 522 U.S. 837, 118 S. Ct. 111, 139 L. Ed. 2d 64 (1997); State v. Page, 346 N.C. 689, 488 S.E.2d 225 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 651 (1998); State v. Call, 349 N.C. 382, 508 S.E.2d 496 (1998); State v. Shuler, 135 N.C. App. 449, 520 S.E.2d 585 (1999); State v. Walker, 139 N.C. App. 512, 533 S.E.2d 858 (2000); State v. McGill, 141 N.C. App. 98, 539 S.E.2d 351 (2000); State v. Chavis, 141 N.C. App. 553, 540 S.E.2d 404 (2000); State v. Rourke, 143 N.C. App. 672, 548 S.E.2d 188 (2001); State v. Holland, 150 N.C. App. 457, 566 S.E.2d 90 (2002), cert. denied, 356 N.C. 685, 578 S.E.2d 316 (2003); State v. Newson, 239 N.C. App. 183, 767 S.E.2d 913 (2015).


Rule 612. Writing or object used to refresh memory.

  1. While testifying. - If, while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.
  2. Before testifying. - If, before testifying, a witness uses a writing or object to refresh his memory for the purpose of testifying and the court in its discretion determines that the interests of justice so require, an adverse party is entitled to have those portions of any writing or of the object which relate to the testimony produced, if practicable, at the trial, hearing, or deposition in which the witness is testifying.
  3. Terms and conditions of production and use. - A party entitled to have a writing or object produced under this rule is entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If production of the writing or object at the trial, hearing, or deposition is impracticable, the court may order it made available for inspection. If it is claimed that the writing or object contains privileged information or information not directly related to the subject matter of the testimony, the court shall examine the writing or object in camera, excise any such portions, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing or object is not produced, made available for inspection, or delivered pursuant to order under this rule, the court shall make any order justice requires, but in criminal cases if the prosecution elects not to comply, the order shall be one striking the testimony or, if justice so requires, declaring a mistrial.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is a reorganization of Fed. R. Evid. 612 and differs substantively from the federal rule in five ways. The rule omits a reference to the Jencks Act. Also, it states explicitly that it applies to trials, hearings and depositions and that it applies to objects as well as writings. The rule explicitly provides for inspection of the writing or object if production of the object or writing at the trial is impracticable. Finally, subsection (c) adds privileged information to the grounds which may be the basis of an in camera examination and excision by the court.

If the writing is used by the witness while testifying to refresh his memory, the adverse party is entitled to production. If the writing is used before testifying for the purpose of testifying, disclosure is in the discretion of the court. Requiring disclosure of writings used before testifying is a change in North Carolina practice. See, e.g., State v. Cross, 293 N.C. 296 (1977).

As the Advisory Committee's Note points out:

"The purpose of the phrase 'for the purpose of testifying' is to safeguard against using the rule as a pretext for wholesale exploration of an opposing party's files and to insure that access is limited only to those writings which may fairly be said in fact to have an impact upon the testimony of the witness."

The phrase "for the purpose of testifying" read together with the phrase "and the court in its discretion determines that the interests of justice so require" are intended to maintain the work product "privilege" for lawyers and others who assist in preparation for trial and in most instances it is likely that the judge will exercise his discretion in such a manner to prevent discovery of statements used before testifying to refresh a witness' recollection. Saltzburg and Redden, Federal Rules of Evidence Manual, p. 417 (3d ed. 1982).

In subsection (c), by adding privileged information to those items which the court may consider in camera with possible excision of the material, the intention was to make it clear that the rule does not invade the existing authority of the court in areas such as protecting the confidentiality of the informants.

On the other hand, exculpatory writings are available to criminal defendants irrespective of Rule 612. See United States v. Agurs, 427 U.S. 97 (1976); United States v. Nobles, 422 U.S. 225 (1975); Brady v. Maryland, 373 U.S. 83 (1963); State v. Hardy, 293 N.C. 105 (1977).

CASE NOTES

Witness Need Not Establish Foundation for Use of Notes. - Defendant's assertion that this rule requires a witness to establish a foundation for the use of notes to refresh his memory was without merit; this rule stands for nothing other than the requirement that an adverse party is entitled to production of the writing or object which a witness used to refresh his or her memory. State v. Gibson, 333 N.C. 29, 424 S.E.2d 95 (1992), overruled on other grounds, 334 N.C. 402, 432 S.E.2d 349 (1993).

Notes Carried to Witness Stand. - It is not error for the trial court to refuse to afford defendant access to notes carried to the witness stand by an investigating officer who does not refer to them during his testimony. State v. Hall, 330 N.C. 808, 412 S.E.2d 883 (1992), citing State v. Jackson, 302 N.C. 101, 273 S.E.2d 666 (1981).

Records Prepared in Normal Course of Business. - An accident report was subject to disclosure under G.S. 8C-1, N.C. R. Evid. 612(b), as discovery material because it was prepared as part of a corporation's accident control program in the ordinary course of business and not for the purpose of obtaining legal advice or in anticipation of litigation. Fulmore v. Howell, 189 N.C. App. 93, 657 S.E.2d 437, review denied, 362 N.C. 470, 666 S.E.2d 119 (2008), cert. denied, 555 U.S. 1171, 129 S. Ct. 1318, 173 L. Ed. 2d 586 (2009).

This rule does not provide for the admission into evidence of writings used to refresh a witness' memory, because the admissibility of these writings is subject to the same rules of admissibility that apply to any evidence. State v. Shuford, 337 N.C. 641, 447 S.E.2d 742 (1994).

Prior Statement Permitted to Refresh Recollection. - Witness was properly allowed to a use prior statement, concerning a conversation with defendant, to refresh her recollection. Even assuming the trial court committed plain error in allowing the statement to be read into evidence, defendant could not show plain error where the witness testified independently about the statement's contents. State v. Harrison, 218 N.C. App. 546, 721 S.E.2d 371 (2012).

Trial court did not abuse its discretion in compelling, in accordance with G.S. 8C-1, N.C. R. Evid. 612, the discovery of non-privileged documents the employee reviewed in anticipation of his deposition because, although defendants argued that documents reviewed by the employee were either protected by the attorney-client privilege or the doctrine of work product, defendants failed to submit the allegedly privileged documents to either the trial court, in camera, or to the court of appeals, offering a specific explanation as to why the documents were protected. Fulmore v. Howell, 189 N.C. App. 93, 657 S.E.2d 437, review denied, 362 N.C. 470, 666 S.E.2d 119 (2008), cert. denied, 555 U.S. 1171, 129 S. Ct. 1318, 173 L. Ed. 2d 586 (2009).

Applied in In re Helms, 77 N.C. App. 617, 335 S.E.2d 917 (1985).

Cited in State v. Steele, 86 N.C. App. 476, 358 S.E.2d 98 (1987); Myers v. Liberty Lincoln-Mercury, Inc., 89 N.C. App. 335, 365 S.E.2d 663 (1988); State v. Hall, 98 N.C. App. 1, 390 S.E.2d 169 (1990); Powell v. Omli, 110 N.C. App. 336, 429 S.E.2d 774 (1993); State v. Harris, 253 N.C. App. 322, 800 S.E.2d 676 (2017), review denied, 803 S.E.2d 388, 2017 N.C. LEXIS 607 (N.C. 2017).


Rule 613. Prior statements of witnesses.

In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to subdivision (a) of Fed. R. Evid. 613. There are no North Carolina cases on the subject matter of subdivision (a).

The Advisory Committee's Note states:

"The Queen's Case, 2 Br. & B. 284, 129 Eng. Rep. 976 (1820), laid down the requirement that a cross-examiner, prior to questioning the witness about his own prior statement in writing, must first show it to the witness. Abolished by statute in the country of its origin, the requirement nevertheless gained currency in the United States. This rule abolishes this useless impediment to cross-examination. * * * Both oral and written statements are included.

The provision for disclosure to counsel is designed to protect against unwarranted insinuations that a statement has been made when the fact is to the contrary.

The rule does not defeat the application of Rule 1002 relating to production of the original when the contents of a writing are sought to be proved. Nor does it defeat the application of Rule 26(b)(3) of the Rules of Civil Procedure, as revised, entitling a person on request to a copy of his own statement, though the operation of the latter may be suspended temporarily."

The federal rule includes a subdivision (b) barring evidence of a prior inconsistent statement unless the witness has been given an opportunity to explain or deny it. Since subdivision (b) is omitted, foundation requirements for admitting inconsistent statements will be governed by case law. See Brandis on North Carolina Evidence § 48 (1982).

CASE NOTES

Statement Unfairly Prejudicial. - Where improperly admitted hearsay statement was admitted under the guise of corroboration, defendant was unfairly prejudiced and was entitled to a new trial. State v. Frogge, 345 N.C. 614, 481 S.E.2d 278 (1997).

Witness's prior statement, which contained information manifestly contradictory to his testimony at trial, did not corroborate his testimony and was improperly admitted under the guise of corroborating testimony made at trial. State v. Frogge, 345 N.C. 614, 481 S.E.2d 278 (1997).

Failure to Prove Prior Statement Was Requested. - When defense counsel failed to request that a bench conference be recorded, resulting in a lack of proof that defense counsel asked for and failed to receive the contents of defendant's prior statement, there was no violation of G.S. 8C-1, N.C. R. Evid. 613. State v. Turner, 177 N.C. App. 423, 628 S.E.2d 464 (2006), cert. denied, 361 N.C. 226, 643 S.E.2d 398 (2007).

Restricting Cross-Examination. - Trial court did not err under N.C. R. Evid. 602 in prohibiting the owner of real property in a condemnation action from cross-examining pursuant to N.C. R. Evid. 613 a North Carolina Department of Transportation expert witness about the nature of an in-house transaction involving a comparable property as the witness stated that the witness did not know what the relationship between the parties in the transaction was. DOT v. Haywood Oil Co., 195 N.C. App. 668, 673 S.E.2d 712 (2009).

Cited in State v. Frogge, 351 N.C. 576, 528 S.E.2d 893 (2000), cert. denied, 531 U.S. 994, 121 S. Ct. 487, 148 L. Ed. 2d 459 (2000).


Rule 614. Calling and interrogation of witnesses by court.

  1. Calling by court. - The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
  2. Interrogation by court. - The court may interrogate witnesses, whether called by itself or by a party.
  3. Objections. - No objections are necessary with respect to the calling of a witness by the court or to questions propounded to a witness by the court but it shall be deemed that proper objection has been made and overruled.

History

(1983, c. 701, s. 1.)

COMMENTARY

Subdivisions (a) and (b) of this rule are identical to Fed. R. Evid. 614(a) and (b).

Subdivision (a) authorizes the court to call witnesses and is consistent with North Carolina practice. See Brandis on North Carolina Evidence § 37 (1982).

Subdivision (b) authorizes the court to examine witnesses, whether called by itself or by a party, and is consistent with North Carolina practice. Id.

It is anticipated that the court will exercise its authority to call or interrogate a witness only in extraordinary circumstances.

The court may not in calling or interrogating a witness do so in a manner as to suggest an opinion as to the weight of the evidence or the credibility of the witness in violation of G.S. 15A-1222 or G.S. 1A-1, Rule 51(a). Id.

Subdivision (c) differs from Fed. R. Evid. 614(c) by providing for an automatic objection to the calling or interrogation of witnesses by the court. Subdivision (c) is consistent with N. C. Civ. Pro. Rule 46(a)(3) which provides that no objections are necessary with respect to questions propounded to a witness by the court.

CASE NOTES

Clarification of Testimony. - The court may question a witness for the purpose of clarifying the witness' testimony and for promoting a better understanding of it. Such examination must be conducted with care and in a manner which avoids prejudice to either party. State v. Chandler, 100 N.C. App. 706, 398 S.E.2d 337 (1990).

The court properly uses its authority under subsection (b) of this rule when it questions witnesses in order to clarify ambiguous testimony and to enable the court to rule on the admissibility of certain evidence and exhibits. State v. Quick, 329 N.C. 1, 405 S.E.2d 179 (1991).

Questions by judge to expert witness did not denigrate defendant's witness of her evidence, but instead helped to develop testimony favorable to the defense and assist the trial court in its task of deciding whether mitigating circumstances which might later be requested by the defense were in fact supported by the evidence. State v. Spruill, 338 N.C. 612, 452 S.E.2d 279 (1994), cert. denied, 516 U.S. 834, 116 S. Ct. 111, 133 L. Ed. 2d 63 (1995).

The court's questioning of witness to clarify the usual practice of mediation at the sheriff's department when trouble was brewing was proper since such questioning did not suggest that the court was expressing an opinion about the legitimacy of such a practice and did not aid the prosecution's case. State v. Pope, 122 N.C. App. 89, 468 S.E.2d 552 (1996).

Trial judge did not err in questioning witnesses where the questions were designed to clarify the sequence of events and the trial court did not state an opinion as to the facts or the witnesses' credibility. State v. Smarr, 146 N.C. App. 44, 551 S.E.2d 881 (2001), cert. denied, 355 N.C. 291, 561 S.E.2d 500 (2002); cert. dismissed, 792 S.E.2d 788, 2016 N.C. LEXIS 757 (2016); writ denied, 2016 N.C. LEXIS 1086 (2016); cert. dismissed, 2016 N.C. LEXIS 757 (N.C. 2016).

Trial court did not abuse its discretion in questioning witnesses in front of the jury to clarify the evidence and testimony being presented. The court's questioning during the sentencing phase, when no jury was present, was also proper. State v. Mack, 161 N.C. App. 595, 589 S.E.2d 168 (2003).

Pursuant to G.S. 8C-1, N.C. R. Evid. 614(b), a court properly interrogated a witness as to the degree of penetration there could be inside the vagina of a female with a "fixed septum"; the judge's questions were necessary to clarify a critical element of the case, and the jury could not have reasonably inferred that the judge was expressing an opinion as to the facts of the case. State v. Shepherd, 163 N.C. App. 646, 594 S.E.2d 439 (2004).

Trial court asking questions of a witness during defendant's felonious breaking and entering trial was upheld on appeal, because the trial court was merely seeking clarification of the testimony and did not rise to the level of expressing an opinion that defendant was guilty. State v. Carmon, 169 N.C. App. 750, 611 S.E.2d 211 (2005).

Defendant's conviction of first-degree murder under G.S. 14-17, was affirmed; the trial court properly denied defendant's requested jury instructions on voluntary intoxication and second-degree murder, as defendant showed no signs of intoxication when he committed the crime, and the evidence of premeditation was very strong, and the trial court did not abuse its authority to question witnesses under G.S. 8C-1, N.C. R. Crim. P. 614(b), as the trial court only questioned jurors to focus the witness, or to clarify the testimony. State v. Rios, 169 N.C. App. 270, 610 S.E.2d 764 (2005), appeal dismissed, cert. denied, - N.C. - , 623 S.E.2d 37 (2005).

Trial court did not err when it asked a juvenile court counselor to state the juvenile's probation terms and conditions; the question clarified the testimony and provided the trial court with a better understanding of the recommended disposition, and the juvenile failed to show how the trial court's question prejudiced him. In re D.A.S., 183 N.C. App. 107, 643 S.E.2d 660 (2007).

Trial court did not commit error or show bias in questioning an expert witness in a medical malpractice trial where the questions focused on the mechanics of scientific concepts involved in child delivery, the questions were clearly for the jury's benefit, and the trial court had asked the plaintiffs several times, out of the jury's presence, to put on record any questions by the court that they found prejudicial, but the plaintiffs had not done so. O'Mara v. Wake Forest Univ. Health Scis., 184 N.C. App. 428, 646 S.E.2d 400 (2007), petition allowed as to additional issues, 362 N.C. 468 (2008).

Trial court's questioning of witnesses during the termination hearing did not go beyond that needed to clarify matters addressed during the testimony of the parties and the questions posed did not tend to show that the trial court was in any way biased against the father. In re N.D.A., 373 N.C. 71, 833 S.E.2d 768 (2019).

Ability to Call Witnesses - Under G.S. 8C-1, N.C. R. Evid. 614(b), a deputy commissioner presiding over a workers' compensation case was authorized to order the deposition of the claimant's physician and to submit a written hypothetical and written follow-up questions to the physician, without violating the employer's due process right to an impartial decision maker. Handy v. PPG Indus., 154 N.C. App. 311, 571 S.E.2d 853 (2002).

Trial court did not err in calling a mother as a witness pursuant to G.S. 8C-1-614(b) in a review hearing in which it considered a change in a child's permanent plan where the dangers of expressing an opinion as to the weight of the testimony and its credibility did not exist in a bench proceeding. In re L.B., 184 N.C. App. 442, 646 S.E.2d 411 (2007).

North Carolina State Bar Disciplinary Hearing Commission has express authority to call its own witness pursuant to G.S. 8C-1, N.C. R. Evid. 614 because pursuant to N.C. St. Bar R. 1B.0114, the North Carolina Rules of Evidence apply to hearings before the Commission. N.C. State Bar v. Hunter, 217 N.C. App. 216, 719 S.E.2d 182 (2011), dismissed 365 N.C. 552, 722 S.E.2d 791, 2012 N.C. LEXIS 201 (2012).

When Judge's Question Constitutes Expression of Opinion. - A trial judge's question, propounded for the purpose of clarification, is an expression of opinion only if a jury reasonably could infer that the question intimated an opinion as to a factual issue, the witness' credibility or the defendant's guilt. State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986).

Partiality of Judge. - Defendant's rights were not violated when the trial court "moved the trial forward" by maintaining control over certain witness examinations by defense counsel; while the trial court was not allowed to show partiality toward a party, it did have the discretionary power to supervise and control the trial and no abuse of that discretion was shown. State v. Bethea, 173 N.C. App. 43, 617 S.E.2d 687 (2005).

Applied in State v. Hill, 105 N.C. App. 489, 414 S.E.2d 73 (1992).

Cited in State v. Bright, 320 N.C. 491, 358 S.E.2d 498 (1987); Grasty v. Grasty, 125 N.C. App. 736, 482 S.E.2d 752 (1997).


Rule 615. Exclusion of witnesses.

At the request of a party the court may order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause, or (4) a person whose presence is determined by the court to be in the interest of justice.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is similar to Fed. R. Evid. 615 except that the word "shall" in the first sentence has been changed to " may order witnesses excluded," and the phrase "a person whose presence is determined by the court to be in the interest of justice" has been added as a fourth exception.

The use of " may order witnesses excluded" rather than "shall," as in the federal rule, is intended to preserve discretion in the trial judge, allowing him to take into account such things as the physical setting of the trial. However, the practice should be to sequester witnesses on request of either party unless some reason exists not to.

In North Carolina the usual practice has been to separate witnesses and send them out of the hearing of the court when requested, but this has been discretionary with the trial judge and not a matter of right. See Brandis on North Carolina Evidence § 20 (1982). G.S. 15A-1225, which codifies this practice, should be amended to conform to Rule 615.

The Advisory Committee's Note states:

"The efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy and collusion. 6 Wigmore §§ 1837-1838. The authority of the judge is admitted, the only question being whether the matter is committed to his discretion or one of right. The rule takes the latter position. No time is specified for making the request.

Several categories of persons are excepted. (1) Exclusion of persons who are parties would raise serious problems of confrontation and due process. Under accepted practice they are not subject to exclusion. 6 Wigmore § 1841. (2) As the equivalent of the right of a natural-person party to be present, a party which is not a natural person is entitled to have a representative present. Most of the cases have involved allowing a police officer who has been in charge of an investigation to remain in court despite the fact that he will be a witness. * * * Designation of the representative by the attorney rather than by the client may at first glance appear to be an inversion of the attorney-client relationship, but it may be assumed that the attorney will follow the wishes of the client, and the solution is simple and workable. * * * (3) The category contemplates such persons as an agent who handled the transaction being litigated or an expert needed to advise counsel in the management of the litigation. See 6 Wigmore § 1841, n. 4."

A government investigative agent would be within the second exception. See S. Rept. No. 93-1277, 93d Cong., 2d Sess. (1974). The third category would include an expert listening to testimony for the purpose of testifying in his capacity as an expert.

A fourth exception to Rule 615 was added to provide that the rule does not authorize the exclusion of a person whose presence is determined by the court to be in the interest of justice. For example, when a minor child is testifying the court may determine that it is in the interest of justice for the parent or guardian to be present even though the parent or guardian is to be called subsequently. When this exception is relied upon the court should state the reasons supporting its determination that the presence of the person is in the interest of justice.

CASE NOTES

Purpose of Sequestration. - The aim of sequestration is two-fold; first, it acts as a restraint on witnesses tailoring their testimony to that of earlier witnesses, and second, it aids in detecting testimony that is less than candid. State v. Johnson, 128 N.C. App. 361, 496 S.E.2d 805 (1998).

Denial of Motion to Sequester Witnesses Held Proper. - Where before denying defendant's motion to sequester witnesses, the court determined that there were no eyewitnesses to the crimes and that defendant had copies of the pre-trial statements of the witnesses to use in cross-examination, defendant failed to establish an abuse of discretion in the denial of his motion. State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Denial of defendants' motions to sequester was not improper where the trial court's ruling showed adequate deliberation and weighing of the merits, and neither defendant identified any instance of a witness conforming testimony to that of another witness. State v. Brown, 177 N.C. App. 177, 628 S.E.2d 787 (2006).

Review on Appeal. - The trial court's ruling on the motion to sequester is reviewable on appeal only upon a showing of abuse of discretion. State v. Russell, 84 N.C. App. 383, 352 S.E.2d 922, appeal dismissed, 319 N.C. 677, 356 S.E.2d 784, cert. denied, 484 U.S. 946, 108 S. Ct. 336, 98 L. Ed. 2d 363 (1987); State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Trial court did not abuse its discretion in denying defendant's request to sequester because defendant did not provide a basis for the request. Moreover, defendant failed to show prejudice as a result of one of the victims tailoring the victim's testimony due to the trial court's denial of defendant's request to sequester the alleged victims. State v. Jones, 241 N.C. App. 132, 772 S.E.2d 470 (2015).

Applied in State v. Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994); State v. Geddie, 345 N.C. 73, 478 S.E.2d 146 (1996), cert. denied, 522 U.S. 825, 118 S. Ct. 86, 139 L. Ed. 2d 43 (1997); State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004).

Cited in State v. Stanley, 310 N.C. 353, 312 S.E.2d 482 (1984); State v. Jones, 337 N.C. 198, 446 S.E.2d 32 (1994).


Rule 616. Alternative testimony of witnesses with an intellectual or developmental disability in civil cases and special proceedings.

  1. Definitions. - The following definitions apply to this section:
    1. The definitions set out in G.S. 122C-3.
    2. Remote testimony. - A method by which a witness testifies outside of an open forum and outside of the physical presence of a party or parties.
  2. Remote Testimony Authorized. - An individual with an intellectual or developmental disability who is competent to testify may testify by remote testimony in a civil proceeding or special proceeding if the court determines by clear and convincing evidence that the witness would suffer serious emotional distress from testifying in the presence of a named party or parties or from testifying in an open forum and that the ability of the witness to communicate with the trier of fact would be impaired by testifying in the presence of a named party or parties or from testifying in an open forum.
  3. Hearing Procedure. - Upon motion of a party or the court's own motion, and for good cause shown, the court shall hold an evidentiary hearing to determine whether to allow remote testimony. The hearing shall be recorded unless recordation is waived by all parties. The presence of the witness is not required at the hearing unless so ordered by the presiding judge.
  4. Order. - An order allowing or disallowing the use of remote testimony shall state the findings and conclusions of law that support the court's determination. An order allowing the use of remote testimony also shall do all of the following:
    1. State the method by which the witness is to testify.
    2. List any individual or category of individuals allowed to be in or required to be excluded from the presence of the witness during testimony.
    3. State any special conditions necessary to facilitate the cross-examination of the witness.
    4. State any condition or limitation upon the participation of individuals in the presence of the witness during the testimony.
    5. State any other conditions necessary for taking or presenting testimony.
  5. Testimony. - The method of remote testimony shall allow the trier of fact and all parties to observe the demeanor of the witness as the witness testifies in a similar manner as if the witness were testifying in the open forum. Except as provided in this section, the court shall ensure that the counsel for all parties is physically present where the witness testifies and has a full and fair opportunity for examination and cross-examination of the witness. In a proceeding where a party is representing itself, the court may limit or deny the party from being physically present during testimony if the court finds that the witness would suffer serious emotional distress from testifying in the presence of the party. A party may waive the right to have counsel physically present where the witness testifies.
  6. Nonexclusive Procedure and Standard. - Nothing in this section prohibits the use or application of any other method or procedure authorized or required by law for the introduction into evidence of statements or testimony of an individual with an intellectual or developmental disability.

History

(2009-514, s. 1; 2018-47, s. 3(a).)

Editor's Note. - Session Laws 2018-47, s. 15, provides: "This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability."

Session Laws 2018-47, s. 16, made the rewriting of subsections (a), (b), and (f), by Session Laws 2018-47, s. 3(a), effective December 1, 2018, and applicable to hearings or trials commenced on or after that date.

Effect of Amendments. - Session Laws 2018-47, s. 3(a), substituted "an intellectual or developmental disability" for "developmental disabilities or mental retardation" in the section heading; substituted "Remote testimony. - A" for "'Remote testimony' means a" in subdivision (a)(2); substituted "An individual with an intellectual or developmental disability" for "A person with a developmental disability or a person with mental retardation" in subsection (b); and rewrote subsection (f). For effective date and applicability, see editor's note.

ARTICLE 7. Opinions and Expert Testimony.

Rule

Rule 701. Opinion testimony by lay witness.

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 701.

Limitation (a) retains the traditional requirement that lay opinion be based on firsthand knowledge or observation. See Brandis on North Carolina Evidence, § 122, at 468 (1982).

Limitation (b) is phrased in terms of requiring testimony to be helpful in resolving issues. This is a different test from the more traditional "collective facts exception" which allows lay opinions or inferences only where a shorthand expression is "necessary" because articulation of more primary components is impossible or highly impracticable. P. Rothstein, Rules of Evidence for United States Courts and Magistrates, at 257 (1980). See Brandis on North Carolina Evidence § 125, at 474-76 (1982). Nothing in the rule would bar evidence that is commonly referred to as a "shorthand statement of fact." Id. at 476.

As the Advisory Committee's Note points out:

"[N]ecessity as a standard for permitting opinions and conclusions has proved too elusive and too unadaptable to particular situations for purposes of satisfactory judicial administration. The rule assumes that the natural characteristics of the adversary system will generally lead to an acceptable result, since the detailed account carries more conviction than the broad assertion, and a lawyer can be expected to display his witness to the best advantage. If he fails to do so, cross-examination and argument will point up the weakness. * * * If, despite these considerations, attempts are made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by the rule."

Legal Periodicals. - For article, "Evidence on Fire," see 97 N.C.L. Rev. 483 (2019).

CASE NOTES

Section 8C-1, Rule 704 does allow the admission of lay opinion evidence on ultimate issues, but to qualify for admission, the opinion must be helpful to the jury. Mobley v. Hill, 80 N.C. App. 79, 341 S.E.2d 46 (1986).

Test for the admissibility of an opinion of either a lay or expert witness under this rule and G.S. 8C-1, Rule 702, respectively, is helpfulness to the trier of fact. In re Wheeler, 87 N.C. App. 189, 360 S.E.2d 458 (1987).

Trial court did not err in admitting the testimony of the employee's former co-workers as lay opinion testimony regarding the employee's exposure to asbestos, as the employee showed that the former co-workers had rationally based perceptions since they worked around the employee and that their testimony would be helpful to understanding the employee's exposure to asbestos. Williams v. CSX Transp., Inc., 176 N.C. App. 330, 626 S.E.2d 716 (2006).

Truth of the Matter Asserted. - Testimony by defendant's attorney concerning the attorney's conversation with a witness would not have amounted to an attempt to prove the truth of the matter asserted. Instead, the attorney's testimony concerning the attorney's conversation with the witness, which included an account of the shooting for which defendant was on trial, would have been admissible to impeach the testimony of the witness concerning a material issue of fact. State v. Hyman, 371 N.C. 363, 817 S.E.2d 157 (2018).

Shorthand Statements of Fact. - This exception includes what are frequently called shorthand statements of fact. The comment "he was enjoying what he was doing" represents an instantaneous conclusion of the witness based on his perception of defendant's appearance, facial expressions, mannerisms, etc., and as such, it is a shorthand statement of fact. State v. Eason, 336 N.C. 730, 445 S.E.2d 917 (1994), cert. denied, 513 U.S. 1096, 115 S. Ct. 764, 130 L. Ed. 2d 661 (1995).

Witness's testimony that defendant was "going to do something" and that they did not have time to leave before defendant approached, represented an instantaneous conclusion based on observation of a variety of facts, and could be characterized as a "shorthand statement of fact". State v. Johnston, 344 N.C. 596, 476 S.E.2d 289 (1996).

Witnesses' testimony of their impressions of the murder victim, the defendant/wife, and their problematic marital relationship was properly admitted in the wife's murder prosecution since the impressions were based on their personal observations and were as such shorthand statements of fact. State v. Brown, 350 N.C. 193, 513 S.E.2d 57 (1999).

The witness' statement that it looked to him like the defendant was trying to shoot the decedent in the head was a permissible opinion in the form of a "shorthand statement of fact;" asking the witness to recite the precise position of the decedent, the stance of the defendant, and the angle of the gun would have been impractical. State v. Lesane, 137 N.C. App. 234, 528 S.E.2d 37 (2000).

The following testimony was admissible under this rule as shorthand statements of fact: An officer's testimony that the victim's screaming sounded like somebody fearing for his life and that the crime scene was worse than a hog killing; another officer's testimony that defendant looked guilty when, as defendant saw the officer approaching, he immediately raised his hands; and, finally, the testimony of two other witnesses that defendant appeared calm, relaxed, and without remorse. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001).

Challenged testimony by a sexual abuse victim's mother concerning her observations of the abuser related to conclusions as to the mental state of the abuser derived from observation of a variety of facts and circumstances, and the testimony was properly admitted under G.S. 8C-1, N.C. R. Evid. 701, as shorthand statements of facts. State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643 (2002).

As a victim's statement was properly admissible as a shorthand restatement of the victim's perception at the time of the attack that defendant was the aggressor and would have done the victim severe bodily harm, the supreme court could not say that the trial court abused its discretion by admitting this statement into evidence. State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004).

Trial court properly admitted, under G.S. 8C-1, Rule 701, G.S. 8C-1, Rule 704, lay opinion testimony of various law enforcement officers that defendant "tried to kill" one of the responding officers because their testimony amounted to nothing more than shorthand statements of fact based on their knowledge and observations and did not implicate defendant's guilt, mental state, or intent. The officers' testimony was based on their perceptions after witnessing defendant shoot the officer, and was not objectionable merely because it embraced an ultimate issue to be decided by the trier of fact. State v. McVay, 174 N.C. App. 335, 620 S.E.2d 883 (2005).

In defendant's trial for burglary and assault with a deadly weapon with intent to kill inflicting serious injury, the trial court did not err by admitting testimony from two officers that when they approached the victim's house they saw the door standing ajar but still bolted with a splintered door frame as the testimonial statements were simply instantaneous conclusions drawn by the witnesses upon seeing the door and were shorthand statements of fact not barred by N.C. R. Evid. 701. State v. Graham, 186 N.C. App. 182, 650 S.E.2d 639 (2007), review denied, appeal dismissed, 362 N.C. 477, 666 S.E.2d 765 (2008).

Admission of a detective's testimony under G.S. 8C-1, N.C. R. Evid. 701 was not plain error as the detective did not vouch for the victim, but made a shorthand statement of fact as she described the victim's appearance and behavior as she observed it during their meeting; the challenged testimony consisted of nothing more than a permissible discussion of the manner in which the victim communicated with the detective, including the limitations to which the victim's ability to recount past events was subject, based on the detective's observations during her meeting with the victim. State v. Dew, 225 N.C. App. 750, 738 S.E.2d 215 (2013), review denied, 743 S.E.2d 187, 2013 N.C. LEXIS 511 (2013).

Foundation for Lay Person's Opinion Required. - Where there was no foundation showing that the opinion called for was rationally based on a lay witness' perception, the opinion was inadmissible. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

The trial court properly refused to admit testimony by an officer about the trajectory of a bullet fired from defendant's pistol without some showing that the witness was qualified to testify, either as a lay witness or as an expert. State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388 (2000), cert denied, 353 N.C. 396, 547 S.E.2d 427 (2001).

Even though the trial court erred by permitting defendant's girlfriend and a detective to testify that defendant concealed evidence using a smartphone texting app, as the State laid no foundation regarding how the girlfriend was familiar with the data retention questions at issue, the error was not plain because the jury heard testimony from the girlfriend that defendant was communicating with her brother on her phone and the detective testified that defendant's phone records revealed no communications between defendant and her brother during the relevant time frame. State v. Mitchell, - N.C. App. - , 840 S.E.2d 276 (2020).

Instantaneous Conclusions of the Mind. - A witness may state the instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time. State v. Brown, 350 N.C. 193, 513 S.E.2d 57 (1999).

Witnesses were permitted to testify, based on their personal observations, about the mental state of the victim shortly after a pawnshop confrontation with the defendant, in which the defendant threatened to get the victim. State v. Smith, 152 N.C. App. 29, 566 S.E.2d 793 (2002).

Detective's testimony about his observations regarding the demeanor of the State's main witness, a co-perpetrator of the sex crimes that were charged against defendant, was lay opinion testimony because it was based on the detective's observations of defendant and was not expert testimony because the detective was not testifying to anything concerning specialized knowledge; while that testimony should not have been admitted because the detective vouched for the veracity of the witness and the detective's testimony was thus not helpful to the jury, the error in admitting the testimony was not plain error since defendant was impeached by other evidence apart from the detective's testimony. State v. Gobal, 186 N.C. App. 308, 651 S.E.2d 279 (2007), aff'd, 362 N.C. 342, 661 S.E.2d 732 (2008).

It is not necessary for a witness to have observed the action described continuously; it is only necessary that the witness have perceived the incident sufficiently to have gained a rational basis on which to formulate an opinion. Eason v. Barber, 89 N.C. App. 294, 365 S.E.2d 672 (1988).

The relevant weight to be given lay opinions is within the province of the jury. State v. Davis, 321 N.C. 52, 361 S.E.2d 724 (1987).

A hypothetical question posed to a lay witness was held impermissible, where nursing home administrator was asked whether a fire station would be able to provide an adequate response to a nursing home fire if a particular road were blocked. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

Lay Opinion on Speed of Vehicle. - The general rule for admission of opinion testimony on speed is that a person of ordinary intelligence and experience is competent to state his opinion as to the speed of a vehicle when he has had a reasonable opportunity to observe the vehicle and judge its speed. State v. Grice, 131 N.C. App. 48, 505 S.E.2d 166 (1998).

A non-expert may not testify as to the speed of a vehicle involved in an accident if that individual did not actually witness the accident. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124 (2003), cert. denied, 357 N.C. 169, 581 S.E.2d 447 (2003).

Lay Opinion on Location of Boundary. - Testimony of a lay witness is admissible concerning the location of a boundary in a boundary dispute case. Wrightsville Winds Townhouses Homeowners' Assoc. v. Miller, 100 N.C. App. 531, 397 S.E.2d 345 (1990), cert. denied, 328 N.C. 275, 400 S.E.2d 463 (1991).

Lay Opinion on Acting in Concert. - Where testimony was helpful to a clear understanding of a fact in issue, whether defendant acted in concert, testimony was admissible. State v. Bishop, 343 N.C. 518, 472 S.E.2d 842 (1996), cert. denied, 519 U.S. 1097, 117 S. Ct. 779, 136 L. Ed. 2d 723 (1997).

Lay Opinion on Ownership of Church Property. - Although trial court may have erred in admitting, over objection, certain lay opinion testimony regarding the ownership of church property, this did not constitute reversible error. Fire Baptized Holiness Church of God of Ams., Inc. v. McSwain, 134 N.C. App. 676, 518 S.E.2d 558 (1999).

Opinion of the Value of Personal Property. - A nonexpert witness who has knowledge of value gained from experience, information, and observation may give his opinion of the value of personal property. Maintenance Equip. Co. v. Godley Bldrs., 107 N.C. App. 343, 420 S.E.2d 199 (1992), cert. denied, 333 N.C. 345, 426 S.E.2d 707 (1993).

Lay Opinion Regarding Property Value in Condemnation Proceeding. - Trial court in a condemnation proceeding did not err in excluding opinion testimony as to property value offered by four witnesses, where the opinions were based upon prior condemnation sales, which were an improper basis for valuing property in a current condemnation proceeding, or based on sales of property which was insufficiently similar to the property in question. City of Charlotte v. Ertel, 170 N.C. App. 346, 612 S.E.2d 438 (2005).

Lay Opinion on Profits and Lost Profits. - The trial court properly permitted the plaintiff's witness to testify as to the percentage of profits realized on plaintiff's gross revenues, and as to plaintiff's lost profits due to defendant's use of the cost history records in securing eight contracts where his opinion testimony was based on his recollection of the revenues realized by plaintiff on the contracts and his knowledge, based on experience, of plaintiff's percentage of profit on gross sales. Byrd's Lawn & Landscaping, Inc. v. Smith, 142 N.C. App. 371, 542 S.E.2d 689 (2001).

Lay Opinion on Impressions. - Testimony by crime scene technician that impressions in the dirt around victim's house were similar to the cinder block and rock tied to the victim's body was rationally based on his personal perception and was helpful to the jury. State v. Rick, 126 N.C. App. 612, 486 S.E.2d 449 (1997).

Lay Opinion On Drugs. - Admissible testimony and opinions of woman who, with victim who died from smoking methamphetamine and defendant, smoked an eight-ball of meth was sufficient evidence to convict defendant of possession and its sale, by exchange for work, under G.S. 90-95 and involuntary manslaughter under G.S. 14-18. State v. Yelton, 175 N.C. App. 349, 623 S.E.2d 594 (2006).

Testimony and opinions of woman who, with victim who died from smoking methamphetamine (meth) and defendant, smoked an eight-ball of it was admissible based upon her six-year meth smoking experiences, that it was meth and that the victim smoked some of it. The testimony was admissible to prove elements of the charged crimes and to prove that defendant possessed the meth and gave it to the victim, and assisted the jury to otherwise understand what transpired. State v. Yelton, 175 N.C. App. 349, 623 S.E.2d 594 (2006).

Trial court did not commit plain error in allowing an officer to testify that the substance seized was crack cocaine because the officer had been with the police department for eight years, the officer had been in contact with crack cocaine between 500 and 1000 times, and the testimony was helpful for a clear understanding of the officer's overall testimony and the facts surrounding defendant's arrest. State v. Freeman, 185 N.C. App. 408, 648 S.E.2d 876 (2007), appeal dismissed, 362 N.C. 178, 657 S.E.2d 663 (2008).

Police officers could testify that cocaine was packaged for sale rather than personal use and that the amount of money defendant was carrying, over $500, was consistent with cocaine sales because their testimony was based on their training, personal observations, and personal knowledge of drug practices. State v. Hargrave, 198 N.C. App. 579, 680 S.E.2d 254 (2009).

Substantial evidence supported defendant's G.S. 90-108 conviction as although without the erroneously admitted lab analyses and related testimony, there was no expert testimony or documentary evidence that defendant possessed cocaine in the car of defendant's mother on two days, an accomplice's testimony that the accomplice and defendant had transported cocaine "eightballs" sold to a buyer on the two days in the mother's car was admissible lay testimony under G.S. 8C-1-701, and a special agent gave expert testimony that the substance defendant possessed on a third day was cocaine. State v. Craven, 205 N.C. App. 393, 696 S.E.2d 750 (2010), dismissed and review granted, 732 S.E.2d 351, 2012 N.C. LEXIS 842 (2012), review denied, 732 S.E.2d 351, 2012 N.C. LEXIS 964 (2012), aff'd in part and rev'd in part, 367 N.C. 51, 744 S.E.2d 458, 2013 N.C. LEXIS 655 (2013).

Lay opinion testimony under G.S. 8C-1-701 that the substance was cocaine did not render the erroneous admission of the forensic analyses and a special agent's related testimony about the substances obtained on two dates, which constituted a violation of defendant's confrontation rights, harmless beyond a reasonable doubt under G.S. 15A-1443(b) as there was a reasonable possibility that the erroneous admission might have contributed to defendant's conviction under G.S. 90-95; scientific testing by an expert forensic analyst under G.S. 8C-1-702 would generally be much more influential than lay opinion from an admitted drug user. State v. Craven, 205 N.C. App. 393, 696 S.E.2d 750 (2010), dismissed and review granted, 732 S.E.2d 351, 2012 N.C. LEXIS 842 (2012), review denied, 732 S.E.2d 351, 2012 N.C. LEXIS 964 (2012), aff'd in part and rev'd in part, 367 N.C. 51, 744 S.E.2d 458, 2013 N.C. LEXIS 655 (2013).

Lay Opinion on Psychiatric Diagnosis. - The admission of testimony by a lay witness that defendant suffered from multiple personality disorder, in violation of this section, was not prejudicial in light of the other evidence properly admitted at trial. State v. Merrill, 138 N.C. App. 215, 530 S.E.2d 608 (2000).

Police officer was not qualified as an expert in the field of psychology, and should not have testified to defendant's "paranoia;" however, where, after being questioned by the trial court, the officer explained to the jury exactly what was meant by the term, "paranoia," any error was harmless. State v. Carmon, 156 N.C. App. 235, 576 S.E.2d 730 (2003), aff'd, 357 N.C. 500, 586 S.E.2d 90 (2003).

Trial court properly prohibited a lay witness from testifying about a specific psychiatric diagnosis for defendant, as she was not qualified as an expert for such testimony; rather, she was permitted to testify about defendant's mental state based upon her occasional observations of him. State v. Storm, 228 N.C. App. 272, 743 S.E.2d 713 (2013).

Assuming the alleged error was not invited, defendant could not show that, but for the impermissible testimony of a lay witness regarding defendant's mental capacity, there was a reasonable possibility that a different result would have been reached at trial; the State introduced an abundance of evidence showing that defendant intended to commit the crimes in question, including in part that he reported to someone that he had shot the victim, plus an eyewitness testified that defendant seemed as if he understood what he was doing. State v. Yarborough, - N.C. App. - , 843 S.E.2d 454 (2020), review denied, 851 S.E.2d 373, 2020 N.C. LEXIS 1151 (N.C. 2020).

Lay Opinions on Sanity. - The adoption of this rule did not effect a substantive change in the law regarding the admissibility of lay opinions of sanity. State v. Strickland, 321 N.C. 31, 361 S.E.2d 882 (1987).

Under this rule, lay opinions regarding a defendant's insanity are admissible if they are based on first-hand knowledge and if they are helpful to the jury. State v. Davis, 321 N.C. 52, 361 S.E.2d 724 (1987).

The mental condition of another is an appropriate subject for lay opinion. State v. Bond, 345 N.C. 1, 478 S.E.2d 163 (1996), reh'g denied, 345 N.C. 355, 479 S.E.2d 210, cert. denied, 521 U.S. 1124, 117 S. Ct. 2521, 138 L. Ed. 2d 1022 (1997).

Same - Murder Trial. - To offer admissible, lay opinion testimony as to defendant's sanity in a murder trial, witnesses had to have personal knowledge of defendant and their opinions had to be helpful to the jury. However, the fact that neither witness had the opportunity to observe defendant immediately before the crime did not require exclusion of their testimony. State v. Davis, 321 N.C. 52, 361 S.E.2d 724 (1987).

The trial court in a murder case did not err when it allowed the State to ask defendant's wife whether defendant knew the difference between right and wrong at the time of the killing and when it allowed her affirmative response. State v. Strickland, 321 N.C. 31, 361 S.E.2d 882 (1987).

It would have been error not to allow lay witness who had known defendant for 3 to 5 years and had spent several hours with him on the date in question to testify to his opinion as to whether defendant was in his right mind and knew the difference between right and wrong. State v. Strickland, 321 N.C. 31, 361 S.E.2d 882 (1987).

Murder defendant was mentally retarded so he was not sentenced to death under G.S. 15A-2005(a)(1); but (1) experts testified he was competent under G.S. 15A-1001(a) to stand trial; and (2) evidence and his girlfriend's opinion testimony under G.S. 8C-1, N.C. R. Evid. 701, that he was "fine" and "not mentally retarded," indicated he was able to form the requisite "deliberation" and "cool state of blood" (as defined State v. Ruof jury instructions and which were properly given to the jury in response to a deliberation question under G.S. 15A-1234(a)(1)) when he shot a coworker who teased him about being mentally retarded. State v. McClain, 169 N.C. App. 657, 610 S.E.2d 783 (2005).

Lay Opinion on Defendant's Remorse. - Trial court did not commit error, much less plain error, in allowing the opinion of an officer, who had spent five hours with the defendant, that he demonstrated no remorse for his previous two murders. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001).

In defendant's trial on a charge of murder in the first degree, the trial court properly excluded testimony by a lay witness that "I think if he could take it back, he would." State v. Latham, 157 N.C. App. 480, 579 S.E.2d 443 (2003), cert. denied, 357 N.C. 509, 588 S.E.2d 376 (2003).

Lay Opinion on Defendant's Age. - Victim's testimony was helpful to the determination of defendant's age at the time of the offenses because she attended the same high school as defendant where, at the time, she was a member of the freshman class, and he was a member of the senior class, and they engaged in an intimate relationship that lasted for several months. State v. Diaz, 372 N.C. 493, 831 S.E.2d 532 (2019).

Lay Opinion on Victim's Viability. - Court properly allowed lay opinion that the victim remained alive for a period of time following shooting. Dobson v. Harris, 350 N.C. 776, 517 S.E.2d 605 (1999), cert. denied, 529 U.S. 1006, 120 S. Ct. 1274, 146 L. Ed. 2d 223 (2000).

Capacity of Defendant to Commit Rape. - "Rape" is a legal term of art and accordingly witness' opinion testimony concerning whether defendant was "capable of rape" was properly excluded. State v. Najewicz, 112 N.C. App. 280, 436 S.E.2d 132 (1993), cert. denied, 335 N.C. 362, 441 S.E.2d 130 (1994).

Question as to Fault Properly Struck. - In an action for personal injuries arising out of a car accident, the court did not err in striking question and answer as to whether the accident was the fault of one defendant, elicited on cross-examination of one plaintiff. Mobley v. Hill, 80 N.C. App. 79, 341 S.E.2d 46 (1986).

Sound alone is sufficient for a lay witness to give his opinion of the speed of a vehicle in relative terms, such as "fast," "flying by," etc. Hicks v. Reavis, 78 N.C. App. 315, 337 S.E.2d 121 (1985), cert. denied, 316 N.C. 553, 344 S.E.2d 7 (1986).

But Not for Giving Opinion on Actual Speed. - Sound alone does not provide sufficient perception for a layman to have a rational basis for giving an opinion on actual speed of a vehicle. Hicks v. Reavis, 78 N.C. App. 315, 337 S.E.2d 121 (1985), cert. denied, 316 N.C. 553, 344 S.E.2d 7 (1986).

Opinion on Actual Speed Based on Physical Evidence Is Not Admissible. - With respect to the actual speed of a vehicle, the opinion of a lay or expert witness will not be admitted where he did not observe the accident, but bases his opinion on the physical evidence at the scene. Hicks v. Reavis, 78 N.C. App. 315, 337 S.E.2d 121 (1985), cert. denied, 316 N.C. 553, 344 S.E.2d 7 (1986).

Implicit Finding of Lay Witness as Expert. - Although State did not tender lieutenant in city fire department as an expert, the trial court implicitly found him to be an expert on arson, therefore, any error in permitting the witness to state opinions as an expert was harmless. State v. Greime, 97 N.C. App. 409, 388 S.E.2d 594 (1990).

Police sergeant, who also worked part time at a car repair workshop, was qualified to give testimony that he found red oxide primer rather than blood on the inside of defendant's truck. State v. Kandies, 342 N.C. 419, 467 S.E.2d 67 (1996), cert. denied, 519 U.S. 894, 117 S. Ct. 237, 136 L. Ed. 2d 167 (1996).

Police Officer's Testimony Regarding Intoxication. - A police officer with more than three years' experience in the enforcement of motor vehicle laws and who had been personally involved in the investigations of nearly 200 driving while impaired cases was competent to express an opinion that the defendant was under the influence of alcohol when he collided with the victims' vehicle. State v. Rich, 132 N.C. App. 440, 512 S.E.2d 441 (1999), aff'd, 351 N.C. 386, 527 S.E.2d 299 (2000).

The opinion testimony of a police officer, who posited that the defendant was impaired at the time of the accident, was admissible for purposes of showing malice; notwithstanding his cross-examination testimony which tended to show that he relied on the moderate to strong odor of alcohol coming from the defendant almost two hours after the accident in forming his opinion, the Supreme Court believed him to have based his opinion not only on the odor of alcohol, but also on his investigation of the accident and upon his experience enforcing traffic laws and dealing with intoxicated drivers. State v. Rich, 351 N.C. 386, 527 S.E.2d 299 (2000).

Where the voluntariness of a defendant's confession was at issue, a police officer who had observed the defendant over an extended period of time, interviewed the defendant, and observed the defendant speaking to other individuals was properly allowed to state his opinion as to whether defendant was intoxicated during their conversation. State v. Patterson, 146 N.C. App. 113, 552 S.E.2d 246 (2001), cert. denied, 354 N.C. 578, 559 S.E.2d 549 (2001).

Deputy's testimony that defendant fell over when the deputy asked defendant to stand on one leg and hop was relevant to the deputy's lay opinion that defendant was impaired. State v. Streckfuss, 171 N.C. App. 81, 614 S.E.2d 323 (2005).

Trial court did not err in allowing a deputy to testify as to the deputy's opinion that defendant was impaired because there was no dispute that the deputy personally observed defendant and that the deputy's opinion was based on those observations. State v. Johnson, 186 N.C. App. 673, 651 S.E.2d 907 (2007).

Deputy's Testimony Regarding Fingerprinting Technique - Deputy's testimony regarding fingerprinting techniques was properly admitted under G.S. 8C-1, N.C. R. Evid. 701, because, as the officer in charge of the investigation, the deputy was in a position to review the facts more accurately than anyone and his testimony aided the jury in understanding why fingerprints were not recovered from the stolen property. State v. Friend, 164 N.C. App. 430, 596 S.E.2d 275 (2004).

Opinion Based on Personal Observation of Intoxicated Person. - A lay witness who has personally observed a person may give his opinion as to whether that person was under the influence of intoxicants. State v. Adkerson, 90 N.C. App. 333, 368 S.E.2d 434 (1988).

Lay witness who was at the crash site immediately after the crash and who detected a strong odor of alcohol on defendant and observed that defendant was unable to maintain balance, incoherent, acting in an inebriated fashion, and disoriented was allowed to testify that defendant was impaired; any challenge to the testimony went to its weight, not admissibility. State v. Norman, 213 N.C. App. 114, 711 S.E.2d 849 (2011), review denied, 718 S.E.2d 401, 2011 N.C. LEXIS 940 (2011).

Testimony of a Case Worker and a Juvenile Investigator Upheld. - In prosecution for the first-degree rape of defendant's nine year old stepdaughter, the trial court did not err by allowing a case worker and a juvenile investigator to testify to the characteristics of sexually abused children, as the nature of their jobs and the experience which they possessed made them better qualified than the jury to form an opinion as to the characteristics of abused children. State v. Aguallo, 322 N.C. 818, 370 S.E.2d 676 (1988).

Testimony of Psychological Associate. - Testimony by a licensed psychological associate was admissible under this rule, where she testified that a child sexual abuse victim "illustrated" fellatio and anal intercourse with anatomically correct dolls, and this testimony represented her non-expert instantaneous conclusion based on her perception of the child's appearance, condition, and actions, which constituted a "short-hand statement of fact." State v. Waddell, 130 N.C. App. 488, 504 S.E.2d 84 (1998), aff'd in part and modified in part, 351 N.C. 413, 527 S.E.2d 644 (2000).

Testimony of Detectives At Time of Confession. - The detectives' testimony was properly admitted where their opinions were based upon their personal perception of defendant at the time of the confession and helped the trial court determine the ultimate issue of the voluntariness of the defendant's statement. State v. Johnson, 136 N.C. App. 683, 525 S.E.2d 830 (2000).

Testimony by Police Officer Which Required No Expertise Upheld. - Opinion that two shoes share wear patterns could properly be given by police officer, since it required no expertise, and defendant's argument that this testimony was outside the witness' realm of expertise was untenable. State v. Shaw, 322 N.C. 797, 370 S.E.2d 546 (1988).

Trial court did not abuse its discretion by admitting testimony of police captain concerning the gait of a robber on a surveillance tape where the officer testified that, as part of his training as an undercover narcotics officer, he studied different mannerisms and characteristics of people and was trained to notice differences in the actual ways people walk; furthermore, he was experienced in watching people both in person and on film and had attended several schools for electronic and technical surveillance, and his testimony bore on the jury's determination of the identity of the perpetrator and was not barred by G.S. 8C-1, Rule 701. State v. Thorne, 173 N.C. App. 393, 618 S.E.2d 790 (2005).

Officer's opinion that defendant appeared to be high and that he had consumed an impairing substance, was based on his personal observation and was helpful to the jury as to defendant's condition. Therefore, the trial court correctly allowed him to offer his opinion on this matter. State v. Adkerson, 90 N.C. App. 333, 368 S.E.2d 434 (1988).

Testimony of police officers which stemmed from their personal experience combined with their observation of defendant and was helpful to a clear understanding of a relevant issue - defendant's demeanor shortly after the crime - was admissible under this rule and relevant under Rule 401. State v. Lambert, 341 N.C. 36, 460 S.E.2d 123 (1995).

A police officer did not have to be qualified as an expert to testify that the markings of the shoes worn by the defendant when he was picked up for questioning in an armed robbery were "very consistent" with the shoes worn by the perpetrator in a video. State v. Mewborn, 131 N.C. App. 495, 507 S.E.2d 906 (1998).

The police officer's opinion that the defendant appeared intoxicated was rationally based on her perception, and the trial court did not err in allowing the police officer to answer the question of whether defendant appeared intoxicated. State v. Locklear, 136 N.C. App. 716, 525 S.E.2d 813 (2000).

Arresting officers properly testified as to their opinion that defendant's demeanor was unusually calm after his arrest for murder, as the probative value of the testimony was not substantially outweighed by unfair prejudice. State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001).

Narcotics detective's testimony concerning the detective's personal observation of events surrounding defendants' check-in at a motel was admissible in defendants' cocaine trafficking and possession trial, as the detective was merely explaining why the detective became suspicious of defendants after observing their conduct. State v. Diaz, 155 N.C. App. 307, 575 S.E.2d 523 (2002), cert. denied, 357 N.C. 464, 586 S.E.2d 271 (2003), cert. denied, 357 N.C. 659, 590 S.E.2d 396 (2003).

Court properly allowed a police officer to testify concerning the type of pistol used in assault as the officer's testimony regarding the location of shell casings when a bullet was fired from two different weapons was based not upon any specialized expertise or training, but merely upon his own personal experience and observations in firing different kinds of weapons; defendant's due process rights were not violated by the destruction of the shell casings as the police had no duty to preserve the casings when defendant did not file a discovery request for the casings. State v. Fisher, 171 N.C. App. 201, 614 S.E.2d 428 (2005), cert. denied, 361 N.C. 223, 642 S.E.2d 711 (2007).

Officers were competent to testify that they observed a hair on a wall, since nothing about such an observation suggested the necessity for any particular degree of expertise in order to provide such testimony. State v. McDowell, 215 N.C. App. 184, 715 S.E.2d 602 (2011), dismissed and review denied 365 N.C. 572, 724 S.E.2d 918, 2012 N.C. LEXIS 329 (N.C. 2012).

Police Officer's Testimony Regarding Investigation Procedure - Detective's testimony was in accordance with the rule for lay opinion testimony as the detective was not offering an opinion that the victim had been assaulted, kidnapped, and raped by defendant, but was explaining why the detective did not pursue as much scientific testing of physical evidence as the detective would a murder case because the victim survived and was able to identify the assailant. State v. O'Hanlan, 153 N.C. App. 546, 570 S.E.2d 751 (2002), cert. denied, 358 N.C. 158, 593 S.E.2d 397 (2004).

Police officer's testimony that the victim's hair found embedded in a wall of the victim's home was inconsistent with defendant's version of the subject incident was not an impermissible statement that defendant was not telling the truth. The officer's testimony served to provide the jury a clear understanding of why officers returned to the victim's home after their initial investigation and how officers came to discover the hair and request forensic testing of that evidence.. State v. Houser, 239 N.C. App. 410, 768 S.E.2d 626 (2015).

Police detective's testimony that the detective captured a screen shot from the display on the detective's computer whenever the detective found anything that appeared to have been cyber-bullying by defendant, was admissible. The lay opinion testimony was not proffered as an opinion of defendant's guilt, but was rationally based on the detective's perception, and was helpful in presenting to the jury a clear understanding of the detective's investigative process. State v. Bishop, 241 N.C. App. 545, 774 S.E.2d 337 (2015).

Trial court did not plainly err by allowing an investigator to testify as to his perception of defendant's demeanor and text messages sent from the victim's cellphone because they served to assist the jury in understanding his investigative process and why he chose to continue investigating defendant. State v. Daughtridge, 248 N.C. App. 707, 789 S.E.2d 667 (2016), cert. denied, 795 S.E.2d 370, 2017 N.C. LEXIS 59 (2017); cert. denied, 795 S.E.2d 363, 2017 N.C. LEXIS 63 (2017); review denied, 2017 N.C. LEXIS 59 (2017); review denied 2017 N.C. LEXIS 63 (2017).

Testimony Upheld. - In a prosecution under G.S. 14-72.1(a) for willfully concealing merchandise, testimony of witness who characterized defendant's activities in store as "concealing" merchandise merely described, in a shorthand form, the actions the witness observed defendant make, and no error was committed. State v. Daye, 83 N.C. App. 444, 350 S.E.2d 514 (1986).

In murder trial, it would not have been error to admit officer's testimony to the effect that he observed that the victim had been shot, as he was stating the instantaneous conclusions of his mind as to the appearance or condition of the victim, and such testimony was admissible as a shorthand statement of facts; thus it was not error for the court to fail to instruct the jury to disregard such testimony. State v. Williams, 319 N.C. 73, 352 S.E.2d 428 (1987).

Witnesses who were 17 and 18 years old and had only nine and 14 months of driving experience, respectively, were nevertheless competent to testify as to the speed of plaintiff's motorcycle as it approached intersection. Eason v. Barber, 89 N.C. App. 294, 365 S.E.2d 672 (1988).

In a case involving first-degree sexual offense, testimony of one officer that two conversations which he had had, one with another officer and the other with the victim himself, revealed, in his opinion, the same account of the events, as well as testimony of a second officer that the statement he had taken from the victim revealed the same story as the victim had previously related to law enforcement officials, rendered lay opinions based upon the officers' own personal perceptions, which were helpful in determining the precise nature of the sexual offense perpetrated by defendant, and there was no error in the admission of these statements. State v. Rhinehart, 322 N.C. 53, 366 S.E.2d 429 (1988).

In prosecution for conspiracy to commit robbery with a dangerous weapon and robbery with a dangerous weapon, coconspirator's testimony concerning defendant's intent when he said he was going to "do it" met the requirements of this rule, and there was no error in allowing this statement. State v. Colvin, 90 N.C. App. 50, 367 S.E.2d 340, cert. denied, 322 N.C. 608, 370 S.E.2d 249 (1988), holding, furthermore, that if there was any error, it was not prejudicial because there was ample other evidence to prove defendant's involvement in the conspiracy.

Testimony of the wife of a slander plaintiff as to the Japanese perception of lawsuits was properly admitted under this section where the suit involved slanderous statements made to Japanese businessmen and scientists and the trial court found her opinion was helpful to a clear understanding of her testimony. Raymond U v. Duke Univ., 91 N.C. App. 171, 371 S.E.2d 701, cert. denied, 323 N.C. 629, 374 S.E.2d 590 (1988).

Plaintiff demonstrated sufficient personal knowledge to testify regarding his opinion of the fair rental value of the property where he testified he was a real estate developer, that he had owned and developed other lake front property; furthermore, he testified as to the amount he paid for the property he owned and to the amount of revenue generated for defendants from rentals over the disputed property. Zagaroli v. Pollock, 94 N.C. App. 46, 379 S.E.2d 653, cert. denied, 325 N.C. 437, 384 S.E.2d 548 (1989).

In trial on charges of trafficking in marijuana, where customs agent testified that boat parked in front of beach cottage was type often used in drug smuggling, that the repeated travel by vehicle over the same roads indicated that it was involved in a smuggling operation, and that he could identify the smell of marijuana coming from the truck because he had many years of experience smelling marijuana, trial court did not err in overruling defendant's objection to these statements since opinions and inferences stated by agent were rationally based on his perceptions, and these statements were helpful to a clear understanding of testimony regarding circumstances related to the investigation which resulted in defendant's arrest. State v. Drewyore, 95 N.C. App. 283, 382 S.E.2d 825 (1989).

Lay witness' statement to the effect that victim had told social worker and policeman "very much the same thing" that she had previously told lay witness was clearly and rationally based on the witness' own perception and was also helpful to the determination of whether and to what extent defendant had sexually abused the victim. As such, it came within the requirements of this rule and was properly admitted. State v. Murphy, 100 N.C. App. 33, 394 S.E.2d 300 (1990).

Testimony of a murder witness as to what he believed the defendant meant when he warned the witness not to tell anyone about what he saw was admissible; it met the requirements of this rule in that it was both rationally based on his perception and it was helpful to the jury in explaining why the witness did not report the victim's death to law enforcement authorities. State v. McElroy, 326 N.C. 752, 392 S.E.2d 67 (1990).

Mother's testimony in rape prosecution that 10-year-old victim had never lied to her before about anything of this magnitude did not constitute improper lay opinion testimony. When read in context, the challenged testimony was helpful to the jury in understanding her testimony and its admission was proper. State v. Love, 100 N.C. App. 226, 395 S.E.2d 429 (1990), cert. denied, appeal dismissed, 328 N.C. 95, 402 S.E.2d 423 (1991).

Testimony of lay witness, a homeowner and member of homeowner's association, concerning location of a boundary was competent, even though it conflicted with testimony of an expert land surveyor. Wrightsville Winds Townhouses Homeowners' Assoc. v. Miller, 100 N.C. App. 531, 397 S.E.2d 345 (1990), cert. denied, 328 N.C. 275, 400 S.E.2d 463 (1991).

A police officer's testimony that, while he was driving "Johnny Gustud" to possible crime scenes, the defendant (who claimed to have multiple personalities and that the "Gustud" personality committed the crimes) "pretended" to be asleep and then woke up as the defendant, was admissible. This rule allows lay opinions when they are "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of the fact in issue," and the officer's opinion that the defendant "pretended" to be asleep in the patrol car met these criteria. State v. Woodard, 102 N.C. App. 687, 404 S.E.2d 6 (1990), cert. denied, 329 N.C. 504, 407 S.E.2d 550 (1991).

Where, in the course of her testimony, a physician repeated the victim's statements that the defendant had sexually abused her, defendant's objection that the doctor's testimony was improper because it was to the effect that defendant was the perpetrator was without merit. The testimony was derived from information obtained by the doctor in the course of the victim's treatment and evaluation and was admissible. Furthermore, the victim testified at trial and identified defendant as the perpetrator. Therefore, the doctor's testimony corroborates her testimony and was properly admitted on that ground. State v. Speller, 102 N.C. App. 697, 404 S.E.2d 15, cert. denied, 329 N.C. 503, 407 S.E.2d 548 (1991).

In prosecution for first-degree sexual offense and taking indecent liberties with children, the trial court did not err in allowing the deputy to testify, over defendant's objection, that in his opinion defendant appeared to be between 29 and 30 years of age, where his opinion was rationally based on his perception of defendant, it was helpful to the jury in determining the age requirement of the crimes charged, and it was not necessary for the State to prove defendant's exact age in order to convict him of any of the crimes with which he was charged. State v. Banks, 322 N.C. 753, 370 S.E.2d 398 (1988).

In light of strong and unequivocal evidence of direct threats against a woman, made by the defendant while she was in his presence and he was armed with a firearm, there was no reasonable possibility that admitting the opinion testimony of a security guard, who testified that defendant "said something else to me that indicated to me that he was planning to shoot a woman," affected the result reached by the jury at trial. Therefore, any error in the admission of this testimony was harmless. State v. Harvell, 334 N.C. 356, 432 S.E.2d 125 (1993).

Where the detective expressed a lay opinion that he did not believe the witness's pretrial statement, and this opinion was rationally based on his own firsthand knowledge and observations, this opinion was helpful to explain his earlier testimony and was properly admissible under this rule. State v. Westall, 116 N.C. App. 534, 449 S.E.2d 24 (1994), cert. denied, 338 N.C. 671, 453 S.E.2d 185 (1994).

Testimony by son and daughter of pedestrian struck by vehicle that plaintiff was in very poor emotional state, that plaintiff's leg was broken in three different places, that plaintiff looked very uncomfortable and that he was bleeding from his left ear which was the ear he had problems hearing out of were merely giving a factual account of what they observed. Thus, defendant's argument that the statements were opinion was without merit. Bowden v. Bell, 116 N.C. App. 64, 446 S.E.2d 816 (1994).

Where witness' testimony was rationally based on his perception, as the witness worked with defendant and routinely overheard defendant's conversations, testimony was admissible opinion testimony by a lay witness. State v. Bishop, 343 N.C. 518, 472 S.E.2d 842 (1996), cert. denied, 519 U.S. 1097, 117 S. Ct. 779, 136 L. Ed. 2d 723 (1997).

Lay testimony by a co-worker of murder victim was admissible to show the victim's state of mind, where the co-worker testified as to the victim's demeanor during the days prior to her being shot and killed by her ex-husband, including that she was "upset" and "would hold her stomach crying." State v. Childers, 131 N.C. App. 465, 508 S.E.2d 323 (1998).

The testimony of a trooper as to what happens to a vehicle tire when it is towed from an accident scene was not improperly admitted, in violation of this rule, to show the lanes each vehicle was in prior to the accident, which was the ultimate fact in issue. State v. Miller, 142 N.C. App. 435, 543 S.E.2d 201 (2001).

Witness was permitted to testify that defendant by his actions apparently knew and recognized a person who entered the courtroom where defendant claimed that he did not know the person. State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808 (2003).

Child's statements in the 911 call were clearly probative as to whether defendant had shot the victim; the child was in the next room when he heard the shot and the surrounding circumstances established that defendant had been inside when the shooting occurred. State v. Wright, 151 N.C. App. 493, 566 S.E.2d 151 (2002).

There was no error in allowing lay testimony in a will contest in which undue influence was alleged that the witness could have swayed the testatrix in making decisions, had the witness so desired; the opinion was rationally based on the witness's perception of the testatrix over the course of many dealings with the testatrix, and was also helpful to a determination of a fact in issue: whether the testatrix was susceptible to influence in the time leading up to the execution of the will. In re Will of McDonald, 156 N.C. App. 220, 577 S.E.2d 131 (2003).

Non-expert testimony of nurse regarding the effects of a specific dosage of Valium was properly permitted under G.S. 8C-1, N.C. R. Evid. 701, because it was helpful in the determination of whether defendant was so impaired when he killed the victim that he could not have killed with premeditation and deliberation. State v. Smith, 357 N.C. 604, 588 S.E.2d 453 (2003), cert. denied, - U.S. - , 124 S. Ct. 2915, 159 L. Ed. 2d 819 (2004).

Officer's testimony regarding defendant's pretrial statements to the police implicating a man as an accomplice in a felonious breaking and entering was properly admitted at trial where the testimony of the alleged accomplice's denial of involvement was admissible not as to his general credibility and character, but rather as an explanation for why he was not arrested. State v. Carmon, 169 N.C. App. 750, 611 S.E.2d 211 (2005).

In a trial for attempted murder, the trial court properly admitted testimony by the victim that it was defendant who shot him, as the victim had sufficient personal knowledge under G.S, 8C-1, N.C. R. Evid. 602, and the victim's opinion was rationally based on his perception of the shooting as required by G.S. 8C-1, N.C. R. Evid. 701. State v. Watkins, 169 N.C. App. 518, 610 S.E.2d 746 (2005), cert. denied, appeal dismissed, - N.C. - , 624 S.E.2d 632 (2005).

Detective's testimony regarding the manner in which sexually abused children usually testify constituted permissible lay witness testimony because it was not offered to bolster the victim's credibility. State v. Wallace, 179 N.C. App. 710, 635 S.E.2d 455 (2006), cert. denied, appeal dismissed, 361 N.C. 436, 649 S.E.2d 896 (2007).

Trial court did not commit plain error by admitting under G.S. 8C-1-602 a victim's testimony that defendant shot the victim even though the victim did not see defendant shoot the victim, since the victim's testimony was based on what the victim perceived as the shooting occurred, and the victim's brother testified that he also heard defendant's voice shortly after the shooting and that he had known defendant "since the day he was born"; the brother had sufficient personal knowledge to identify defendant and his opinion was rationally based on his perception of the shooting under G.S. 8C-1-701. State v. Watkins, 181 N.C. App. 502, 640 S.E.2d 409 (2007), appeal dismissed, 361 N.C. 436, 649 S.E.2d 896 (2007).

In a suit between a lender and a broker who shared ownership of a corporation, where it was found that the lender breached fiduciary duties by depreciating the value of properties, it was not an abuse of discretion to admit the broker's lay testimony as to the value of the properties, because the broker had an extensive real estate background and specific knowledge of the properties. Bluebird Corp. v. Aubin, 188 N.C. App. 671, 657 S.E.2d 55 (2008), review denied, 362 N.C. 679, 669 S.E.2d 741 (2008).

Trial court did not abuse the court's discretion in allowing plaintiff's employer to testify concerning plaintiff's diminished earning capacity as the employer testified to working with plaintiff, both before and after plaintiff's injury; thus, the employer was familiar with the duties associated with plaintiff's position, as well as plaintiff's limitations with respect to the fulfillment of those duties. Based on this knowledge, the employer delivered opinions as to plaintiff's ability to perform plaintiff's job and plaintiff's earning capacity. Jackson v. Carland, 192 N.C. App. 432, 665 S.E.2d 553 (2008).

Witness's perception was simply that her husband sold drugs out of the back bedroom and that he went into the back bedroom with defendant; she did not hear defendant ask for drugs or see any drugs, thus the evidence supporting the assumption that her husband sold drugs to defendant was not based upon personal knowledge or perception, and her inference that a drug deal occurred was a supposition based largely on guesswork and speculation. However, in light of the other evidence against defendant and the relative insignificance of this evidence of one purported drug sale, the error was not prejudicial. State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009), cert. denied 130 S. Ct. 2104, 2010 U.S. LEXIS 3379, 176 L. Ed. 2d 734 (U.S. 2010).

When witness testified that she observed that her husband had procured firearms after speaking with defendant; that when defendant and codefendant arrived, the husband showed the weapons to defendant; that she heard defendant explain his need for a firearm; that she noticed that weapons were missing from the house after defendant departed; and that afterwards she saw that her husband had a substantial amount of cash, the witness's natural inference that a sale took place was supported by her perceptions and was admissible under G.S. 8C-1, N.C. R. Evid. 701. Moreover, even if the witness's testimony that her husband sold the weapons to defendant was improper, any error in its admission was not prejudicial; the gravamen of her testimony was that defendant obtained from her husband weapons with which to kill some people who had stolen from him - whether or not defendant obtained them through a sale is immaterial. State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009), cert. denied 130 S. Ct. 2104, 2010 U.S. LEXIS 3379, 176 L. Ed. 2d 734 (U.S. 2010).

Detective's testimony regarding the calibers of the projectiles recovered from a vehicle was admissible under G.S. 8C-1-701 because it was based on the detective's own personal experience and observations relating to various caliber weapons. State v. Crandell, 208 N.C. App. 227, 702 S.E.2d 352 (2010), review denied 365 N.C. 194, 710 S.E.2d 34, 2011 N.C. LEXIS 505 (N.C. 2011).

Trial court did not err by allowing a witness's testimony that he believed that defendant had a gun under his jacket during a robbery as the testimony was rationally based on the witness's firsthand observation of defendant hiding his arm under his jacket and was more than mere speculation or conjecture. State v. Elkins, 210 N.C. App. 110, 707 S.E.2d 744 (2011).

In a murder trial, a witness's statements that defendant "had it planned out" and "knew before he ever got there what was going to happen" were helpful to an understanding of the witness's testimony and were rationally based on the witness's perceptions and, therefore, were admissible lay testimony under G.S. 8C-1, N.C. R. Evid. 701. State v. Phillips, 365 N.C. 103, 711 S.E.2d 122 (2011), cert. denied, 132 S. Ct. 1541, 2012 U.S. LEXIS 1493, 182 L. Ed. 2d 176 (U.S. 2012).

Detective's testimony that the presence of a series of subtotals on a Wal-Mart receipt could indicate a purchase with a stolen credit card was based on the detective's investigative training and background as a police officer, and was a proper basis for lay opinion testimony. State v. Howard, 215 N.C. App. 318, 715 S.E.2d 573 (2011).

Trial court did not commit plain error by admitting the lay opinion testimony of a police officer, pursuant to G.S. 8C-1, N.C. R. Evid. 701, identifying defendant as the person depicted on a videotape of a controlled drug buy because the officer had a sufficient level of familiarity with defendant's appearance to aid the jury in its determination and the officer's testimony was not prejudicial to defendant. State v. Collins, 216 N.C. App. 249, 716 S.E.2d 255 (2011).

Police officers who had investigated an assault were properly allowed to testify, cased on their experience in law enforcement, that there was blood on a driveway and on a lawn chair laying close to the blood on the driveway. The statements were those of conception and were permissible opinion testimony. State v. Mills, 221 N.C. App. 409, 726 S.E.2d 926 (2012).

In a murder case, a trial court did not err by allowing testimony from a witness regarding another person's struggle with defendant because this was proper opinion testimony; the witness merely gave his understanding and interpretation of what went on at a door based on his sitting in the next room and being able to hear the whole situation. State v. Sharpless, 221 N.C. App. 132, 725 S.E.2d 894 (2012).

Deputy's observation of wooden kitchen table chairs and of defendant throwing one chair in an overhand motion like a baseball was sufficient to support deputy's opinion that the chair weighed approximately 10 pounds, and as the chair was not introduced at trial, deputy's testimony, along with a photo of the chairs, was likely helpful to the jury. State v. James, 224 N.C. App. 164, 735 S.E.2d 627 (2012).

Officer's testimony about data from the electronic monitoring device worn by defendant was admissible, as the testimony was rationally based on the officer's perception of the data. State v. Jackson, 229 N.C. App. 644, 748 S.E.2d 50 (2013).

Allowing the victim's mother to testify pursuant to G.S. 8C-1, N.C. R. Evid. 701 (2013), was proper where she merely described the differences she observed in her daughter after the assault. State v. Pace, 240 N.C. App. 63, 770 S.E.2d 677 (2015).

Officer's lay testimony identifying defendant from a surveillance video was admissible because (1) the officer was uniquely familiar with defendant's appearance, and (2) defendant changed that appearance prior to trial. State v. Weldon, 258 N.C. App. 150, 811 S.E.2d 683 (2018).

In a case in which defendant was convicted of seven out of eight counts of discharging a firearm into an occupied vehicle, the trial court properly admitted the victim's lay testimony that the shots he heard were not from an automatic weapon because the victim had served in the military for nearly 27 years; he was familiar with both automatic and semi-automatic rifle fire; he clearly heard the shots that were fired; and the shots he heard were not from an automatic weapon. State v. Morrison, - N.C. App. - , - S.E.2d - (Aug. 4, 2020), review denied, 851 S.E.2d 48, 2020 N.C. LEXIS 1116 (N.C. 2020).

Testimony Held Inadmissible. - Testimony of police officer, testifying as a lay witness on redirect examination, that a "child of that age does not have the necessary information about sexuality to fantasize any of it" was so prejudicial as to warrant a new trial, where the State's case against the defendant was almost totally dependent on the credibility of the victim. State v. Bowman, 84 N.C. App. 238, 352 S.E.2d 437 (1987).

The trial court did not abuse its discretion by refusing to admit testimony where defendant made no showing that the proffered opinion testimony was rationally based on the perception of the witness or that it would be helpful to a determination of the issue of the distance from which the victim was shot. State v. Shuford, 337 N.C. 641, 447 S.E.2d 742 (1994).

A police officer's testimony was improper opinion, where he was asked if he believed the murder defendant's statement after his arrest concerning the murder of the mother of his child, because there was no indication that this testimony would help the jury to understand his testimony or to make their determination. State v. Owen, 130 N.C. App. 505, 503 S.E.2d 426 (1998), cert. denied, 349 N.C. 372, 525 S.E.2d 188 (1998).

A jail nurse was not qualified to testify as to whether a capital murder defendant appeared to be psychotic upon his admission to jail, where the nurse evaluated the defendant upon his admission to jail following a shooting spree at the business from which he was fired, but the nurse was not an expert witness. State v. Davis, 349 N.C. 1, 506 S.E.2d 455 (1998), cert. denied, 526 U.S. 1161, 119 S. Ct. 2053, 144 L. Ed. 2d 219 (1999).

Testimony about a defendant's motivation for confessing to a crime, where the opinion is based on a telephone conversation and a prior relationship with a defendant, is beyond the purview of G.S. 8C-1, N.C. R. Evid. 701. State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004).

Affidavit of licensed social worker and counselor who had counseled decedent for alcohol and substance abuse was not sufficient to raise a genuine issue of material fact and preclude summary judgment in a case where the claimant was trying to recover as a beneficiary under decedent's life insurance policy; the policy excluded recovery for an insured's ingestion of a drug, medicine, or sedative, except as prescribed by a physician, and the licensed social worker and counselor's opinions contained in the affidavit regarding decedent's ingestion of methadone were neither based on his personal knowledge nor proffered as expert opinions. Duncan v. Cuna Mut. Ins. Soc'y, 171 N.C. App. 403, 614 S.E.2d 592 (2005).

Testimony offered by a detective, offering his opinion about the events depicted in two poor quality bank surveillance tapes, concluding that the video corroborated the victim's testimony that she was forced to withdraw money from an ATM against her will, was an inadmissible lay opinion testimony under G.S. 8C-1, N.C. R. Evid. 701 that invaded the province of the jury and should not have been admitted; however, the error was not prejudicial to defendant as the trial court's instruction to the jury that they were charged with evaluating the images on the videotape and were free to disagree with the detective's interpretation likely cured any impermissible reliance by the jury on the detective's statements. Further, the victim's own testimony as to what happened in the parking lot and at the bank, the knife recovered from the crime scene, and the victim's report of her rape and abduction constituted sufficient evidence to support the jury's decision, independent from the detective's testimony, and required a finding that the error was not prejudicial to defendant under G.S. 15A-1443(a). State v. Buie, 194 N.C. App. 725, 671 S.E.2d 351 (2009), review denied, 363 N.C. 375, 679 S.E.2d 135 (2009).

In a case in which defendant appealed his conviction for felony breaking and entering, felony larceny after breaking and entering, and obtaining habitual felon status, he argued successfully that the trial court erred by allowing a police officer to testify that defendant was the individual depicted in a surveillance video tape. The officer was in no better position to identify defendant than was the jury, and the error required a new trial because the officer's identification testimony played a significant if not vital role in the State's case, making it reasonably possible that, had her testimony been excluded, a different result would have been reached at trial. State v. Belk, 201 N.C. App. 412, 689 S.E.2d 439 (2009), review denied 364 N.C. 129, 695 S.E.2d 761, 2010 N.C. LEXIS 327 (2010).

In a felony death by vehicle case, trial court properly precluded defendant from testifying that he would have been able to stop the car if the brakes worked properly because lay opinion under G.S. 8C-1-701 must be based on the witness's perception and there was no evidence defendant had perceived his ability to stop the car under the circumstances. State v. Ziglar, 209 N.C. App. 461, 705 S.E.2d 417 (2011), review denied 365 N.C. 200, 710 S.E.2d 30, 2011 N.C. LEXIS 438 (N.C. 2011).

In a motorcyclist's negligence action against a driver, a trial court did not abuse its discretion in excluding a police officer's testimony, pursuant to G.S. 8C-1, N.C. R. Evid. 701, regarding his opinion as to which party had the right of way because the officer did not personally witness the accident or observe the placement of the vehicles at the time of the accident. Joines v. Moffitt, 226 N.C. App. 61, 739 S.E.2d 177 (2013).

Admitting lay opinion testimony on the value of stolen property erred because the testimony was based on the witness's observation of an inadmissible videotape, rather than on the witness's personal perception. State v. Snead, 239 N.C. App. 439, 768 S.E.2d 344 (2015).

Erroneous admission of lay opinion testimony in a larceny prosecution was not harmless because nothing else showed the value of the property taken. State v. Snead, 239 N.C. App. 439, 768 S.E.2d 344 (2015).

Trial court abused its discretion in admitting the lay opinion testimony of a state trooper, over defendant's objections, identifying defendant as the driver of a vehicle at the time of an auto accident in which an occupant of the car was killed when an expert accident reconstruction analyst was unable to form an expert opinion based upon the same information that was available to the trooper. State v. Denton, - N.C. App. - , 829 S.E.2d 674 (2019), review denied, 373 N.C. 254, 835 S.E.2d 447, 2019 N.C. LEXIS 1199 (2019).

Admission of Testimony Erroneous But Not Prejudicial. - In a termination of parental rights proceeding, the trial court erroneously, but not prejudicially, admitted a letter from respondent's psychiatrist, who was not tendered as an expert witness, based on a misstatement by counsel for petitioner. In re Brim, 139 N.C. App. 733, 535 S.E.2d 367 (2000).

Where a police officer testified in part as an expert and in part as a layman, but there was no showing of his expertise concerning the original ownership of a television, and there was no indication that the officer was in a better position than was the jury to deduce the ownership of the television, the admission of the officer's testimony was error, but it was not prejudicial error, because there was no showing that a different result would have been reached if the testimony had not been admitted. State v. White, 154 N.C. App. 598, 572 S.E.2d 825 (2002).

Even though the trial court erred by allowing a witness to testify as to his opinion regarding where defendant was driving or why and to speculate as to whether defendant planned the victim's shooting, as the jury was as well qualified as the witness to draw the inferences and conclusions from the facts, the error was harmless because three eyewitnesses testified that defendant shot the victim. State v. Malone-bullock, - N.C. App. - , - S.E.2d - (Aug. 3, 2021).

Plain Error Not Found. - Admission of the testimony of the victims' mother under G.S. 8C-1, N.C. R. Evid. 701 that she believed the victims was not plain error as: (1) the statement was made during a discussion of the mother's emotional state when the victims told her that defendant had sexually abused them; (2) the statement was relatively incidental; (3) most jurors were likely to assume that a mother would believe sexual abuse accusations made by her children; and (4) the statement did not have a significant impact on defendant's conviction. State v. Dew, 225 N.C. App. 750, 738 S.E.2d 215 (2013), review denied, 743 S.E.2d 187, 2013 N.C. LEXIS 511 (2013).

Lieutenant testified that the victim seemed truthful, and this was an opinion that vouched for the veracity of another witness; this opinion was not helpful to the jury and admission of this testimony amounted to error, but not plain error given the other testimony that corroborated the victim's testimony. State v. McLean, 251 N.C. App. 850, 796 S.E.2d 804 (2017).

There was no plain error by allowing the victim's mother to vouch for the victim's credibility because it was not likely that the jury's decision to convict defendant was significantly impacted by the mother's statement that the victim would tell her the truth about an incident of sexual abuse; assuming that the admission of the mother's testimony was improper, defendant failed to demonstrate that the jury would have probably reached a different result absent the error. State v. Orellana, 260 N.C. App. 110, 817 S.E.2d 480 (2018).

There was no error in the admission of a detective's testimony about his observation of the victim's demeanor during his interview with her because the testimony did not constitute an opinion as to the victim's credibility. State v. Orellana, 260 N.C. App. 110, 817 S.E.2d 480 (2018).

Admission of a nurse's testimony was not an abuse of discretion and did not constitute plain error because the nurse stated the victim's erythema was consistent with touching but also could be consistent with a multitude of things, and that testimony did not improperly vouch for the victim's credibility. State v. Orellana, 260 N.C. App. 110, 817 S.E.2d 480 (2018).

Reversible Error Not Found. - Given the jury's opportunity to observe each image and make an individualized determination of the nature of the image coupled with the fact that the image files frequently had titles noting the subject's status as a minor and the sexual act depicted, defendant could not establish that he was prejudiced by the admission of the officers' testimony that some of the inmates depicted minors engaging in sexual activity. State v. Williams, 232 N.C. App. 152, 754 S.E.2d 418 (2014).

Applied in State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990); State v. Sherrill, 99 N.C. App. 540, 393 S.E.2d 352 (1990); State v. Shook, 327 N.C. 74, 393 S.E.2d 819 (1990); Booher v. Frue, 98 N.C. App. 570, 394 S.E.2d 816 (1990); State v. Hill, 105 N.C. App. 489, 414 S.E.2d 73 (1992); State v. Marlow, 334 N.C. 273, 432 S.E.2d 275 (1993); State v. Parker, 111 N.C. App. 359, 432 S.E.2d 705 (1993); State v. Petersilie, 334 N.C. 169, 432 S.E.2d 832 (1993); State v. Dial, 122 N.C. App. 298, 470 S.E.2d 84 (1996); State v. Hart, 361 N.C. 309, 644 S.E.2d 201 (2007); State v. Cummings, 361 N.C. 438, 648 S.E.2d 788 (2007), cert. denied, 552 U.S. 1319, 128 S. Ct. 1888, 170 L. Ed. 2d. 760 (2008); State v. Harris, 236 N.C. App. 388, 763 S.E.2d 302 (2014); State v. Harris, 243 N.C. App. 728, 778 S.E.2d 875 (2015); State v. Patterson, 249 N.C. App. 659, 791 S.E.2d 517 (2016), review denied, 794 S.E.2d 328, 2016 N.C. LEXIS 1053 (2016).

Cited in State v. Slone, 76 N.C. App. 628, 334 S.E.2d 78 (1985); Martin v. Hare, 78 N.C. App. 358, 337 S.E.2d 632 (1985); State v. West, 317 N.C. 219, 345 S.E.2d 186 (1986); Williams v. Sapp, 83 N.C. App. 116, 349 S.E.2d 304 (1986); State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986); Welborn v. Roberts, 83 N.C. App. 340, 349 S.E.2d 886 (1986); Stonewall Ins. Co. v. Fortress Reinsurers Managers, Inc., 83 N.C. App. 263, 350 S.E.2d 131 (1986); Phelps v. Duke Power Co., 86 N.C. App. 455, 358 S.E.2d 89 (1987); State v. Browning, 321 N.C. 535, 364 S.E.2d 376 (1988); Klassette ex rel. Klassette v. Mecklenburg County Area Mental Health, Mental Retardation & Substance Abuse Auth., 88 N.C. App. 495, 364 S.E.2d 179 (1988); State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988); State v. Greene, 324 N.C. 1, 376 S.E.2d 430 (1989); State v. Hunt, 325 N.C. 187, 381 S.E.2d 453 (1989); State v. Givens, 95 N.C. App. 72, 381 S.E.2d 869 (1989); State v. Brewer, 325 N.C. 550, 386 S.E.2d 569 (1989); State v. Davis, 97 N.C. App. 259, 388 S.E.2d 201 (1990); State v. Hardison, 326 N.C. 646, 392 S.E.2d 364 (1990); State v. Bunch, 104 N.C. App. 106, 408 S.E.2d 191 (1991); State v. Madric, 328 N.C. 223, 400 S.E.2d 31 (1991); State v. Wynne, 329 N.C. 507, 406 S.E.2d 812 (1991); State v. Stallings, 107 N.C. App. 241, 419 S.E.2d 586 (1992); State v. Palmer, 334 N.C. 104, 431 S.E.2d 172 (1993); State v. Hutchens, 110 N.C. App. 455, 429 S.E.2d 755 (1993); Powell v. Omli, 110 N.C. App. 336, 429 S.E.2d 774 (1993); State v. Jennings, 333 N.C. 579, 430 S.E.2d 188 (1993); State v. Dukes, 110 N.C. App. 695, 431 S.E.2d 209 (1993); State v. Alexander, 337 N.C. 182, 446 S.E.2d 83 (1994); Beam v. Kerlee, 120 N.C. App. 203, 461 S.E.2d 911 (1995); State v. Mitchell, 342 N.C. 797, 467 S.E.2d 416 (1996); State v. Dickens, 346 N.C. 26, 484 S.E.2d 553 (1997); Sherrod v. Nash Gen. Hosp., 126 N.C. App. 755, 487 S.E.2d 151 (1997), rev'd on other grounds, 348 N.C. 526, 500 S.E.2d 708 (1998); State v. Hurst, 127 N.C. App. 54, 487 S.E.2d 846 (1997), cert. denied, 523 U.S. 1031, 118 S. Ct. 1324, 140 L. Ed. 2d 486 (1998); Tate v. Hayes, - N.C. App. - , 489 S.E.2d 418 (1997); State v. Strickland, 346 N.C. 443, 488 S.E.2d 194 (1997), cert. denied, 522 U.S. 1078, 118 S. Ct. 858, 139 L. Ed. 2d 757 (1998); Reis v. Hoots, 131 N.C. App. 721, 509 S.E.2d 198 (1998); State v. Anthony, 354 N.C. 372, 555 S.E.2d 557 (2001); State v. Faulkner, 180 N.C. App. 499, 638 S.E.2d 18 (2006); State v. Theer, 181 N.C. App. 349, 639 S.E.2d 655 (2007), cert. denied, - U.S. - , 128 S. Ct. 2473, 171 L. Ed. 2d 769 (2008); State v. Hall, 186 N.C. App. 267, 650 S.E.2d 666 (2007); Crocker v. Roethling, 363 N.C. 140, 675 S.E.2d 625 (2009); State v. Ward, 199 N.C. App. 1, 681 S.E.2d 354 (2009), aff'd 2010 N.C. LEXIS 424 (2010); State v. Williams, 363 N.C. 689, 686 S.E.2d 493 (2009), cert. denied 131 S. Ct. 149, 2010 U.S. LEXIS 6797, 178 L. Ed. 2d 90 (U.S. 2010); State v. Armstrong, 203 N.C. App. 399, 691 S.E.2d 433 (2010); State v. Ligon, 206 N.C. App. 458, 697 S.E.2d 481 (2010); State v. Hunt,
211 N.C. App. 452, 710 S.E.2d 339 (2011), review denied 717 S.E.2d 368, 2011 N.C. LEXIS 647 (N.C. 2011); State v. Johnson, 225 N.C. App. 440, 737 S.E.2d 442 (2013); State v. Gillespie, 240 N.C. App. 238, 771 S.E.2d 785 (2015), review denied 777 S.E.2d 62, 2015 N.C. LEXIS 986 (2015).


Rule 702. Testimony by experts.

  1. If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if all of the following apply:
    1. The testimony is based upon sufficient facts or data.
    2. The testimony is the product of reliable principles and methods.
    3. The witness has applied the principles and methods reliably to the facts of the case.
  2. Notwithstanding any other provision of law, a witness may give expert testimony solely on the issue of impairment and not on the issue of specific alcohol concentration level relating to the following:
    1. The results of a Horizontal Gaze Nystagmus (HGN) Test when the test is administered in accordance with the person's training by a person who has successfully completed training in HGN.
    2. Whether a person was under the influence of one or more impairing substances, and the category of such impairing substance or substances, if the witness holds a current certification as a Drug Recognition Expert, issued by the State Department of Health and Human Services.
  3. In a medical malpractice action as defined in G.S. 90-21.11, a person shall not give expert testimony on the appropriate standard of health care as defined in G.S. 90-21.12 unless the person is a licensed health care provider in this State or another state and meets the following criteria:
    1. If the party against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:
      1. Specialize in the same specialty as the party against whom or on whose behalf the testimony is offered; or
      2. Specialize in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients.
    2. During the year immediately preceding the date of the occurrence that is the basis for the action, the expert witness must have devoted a majority of his or her professional time to either or both of the following:
      1. The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, the active clinical practice of the same specialty or a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients; or
      2. The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.
  4. Notwithstanding subsection (b) of this section, if the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the action, must have devoted a majority of his or her professional time to either or both of the following:
    1. Active clinical practice as a general practitioner; or
    2. Instruction of students in an accredited health professional school or accredited residency or clinical research program in the general practice of medicine.
  5. Notwithstanding subsection (b) of this section, a physician who qualifies as an expert under subsection (a) of this Rule and who by reason of active clinical practice or instruction of students has knowledge of the applicable standard of care for nurses, nurse practitioners, certified registered nurse anesthetists, certified registered nurse midwives, physician assistants, or other medical support staff may give expert testimony in a medical malpractice action with respect to the standard of care of which he is knowledgeable of nurses, nurse practitioners, certified registered nurse anesthetists, certified registered nurse midwives, physician assistants licensed under Chapter 90 of the General Statutes, or other medical support staff.
  6. Upon motion by either party, a resident judge of the superior court in the county or judicial district in which the action is pending may allow expert testimony on the appropriate standard of health care by a witness who does not meet the requirements of subsection (b) or (c) of this Rule, but who is otherwise qualified as an expert witness, upon a showing by the movant of extraordinary circumstances and a determination by the court that the motion should be allowed to serve the ends of justice.
  7. In an action alleging medical malpractice, an expert witness shall not testify on a contingency fee basis.
  8. This section does not limit the power of the trial court to disqualify an expert witness on grounds other than the qualifications set forth in this section.
  9. Notwithstanding subsection (b) of this section, in a medical malpractice action as defined in G.S. 90-21.11(2)b. against a hospital, or other health care or medical facility, a person shall not give expert testimony on the appropriate standard of care as to administrative or other nonclinical issues unless the person has substantial knowledge, by virtue of his or her training and experience, about the standard of care among hospitals, or health care or medical facilities, of the same type as the hospital, or health care or medical facility, whose actions or inactions are the subject of the testimony situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.
  10. A witness qualified as an expert in accident reconstruction who has performed a reconstruction of a crash, or has reviewed the report of investigation, with proper foundation may give an opinion as to the speed of a vehicle even if the witness did not observe the vehicle moving.

History

(1983, c. 701, s. 1; 1995, c. 309, s. 1; 2006-253, s. 6; 2007-493, s. 5; 2011-283, s. 1.3; 2011-400, s. 4; 2017-57, s. 17.8(b); 2017-212, s. 5.3.)

COMMENTARY

This rule is identical to Fed. R. Evid. 702, except that the words "or otherwise" which appear at the end of the federal rule after the word "opinion" have been deleted.

The rule is identical to G.S. 8-58.13, which should be repealed when Rule 702 becomes effective. The rule is consistent with North Carolina practice. Brandis on North Carolina Evidence § 134, at 520, n. 25 (1982).

Editor's Note. - Session Laws 2011-283, s. 1.3, which added "or otherwise, if all of the following apply" in the introductory paragraph of subsection (a), and added subdivisions (a)(1) through (a)(3), was applicable to actions commenced on or after October 1, 2011.

Effect of Amendments. - Session Laws 2006-253, s. 6, effective August 21, 2006, and applicable to hearings held on or after that date, added subsections (a1) and (i). For change in effective date, see Editor's note.

Session Laws 2011-400, s. 4, effective October 1, 2011, and applicable to actions commenced on or after that date, in subsection (h), inserted "as defined in G.S. 90-21.11(2)b.," and substituted "shall not give" for "may give" and "unless the person" for "if the person."

Session Laws 2017-57, s. 17.8(b), as added by Session Laws 2017-212, s. 5.3, effective June 28, 2017, rewrote subsection (a1).

Legal Periodicals. - For comment, "The Use of Rape Trauma Syndrome as Evidence in a Rape Trial: Valid or Invalid?," see 21 Wake Forest L. Rev. 93 (1985).

For note, "State v. Stafford: Rape Trauma Syndrome and the Admissibility of Statements Made by Rape Victims," see 64 N.C.L. Rev. 1364 (1986).

For note, "Nurse Malpractice in North Carolina: The Standard of Care," see 65 N.C.L. Rev. 579 (1987).

For note, "Discovery and Testimony of Unretained Experts: Creating a Clear and Equitable Standard to Govern Compliance with Subpoenas," see 1987 Duke L.J. 140 (1987).

For article, "The Syllogistic Structure of Scientific Testimony of Expert Testimony," see 67 N.C.L. Rev. 1 (1988).

For comment, "Admissibility of DNA Evidence: Perfecting the 'Search for Truth' ," see 25 Wake Forest L. Rev. 591 (1990).

For article concerning the admissibility of DNA profiling, see 13 Campbell L. Rev. 209 (1991).

For article, "Expert Testimony Regarding the Speed of a Vehicle: The Status of North Carolina Law and the State of the Art," see 16 Campbell L. Rev. 191 (1994).

For article, "DNA Profiling in North Carolina," see 21 N.C. Cent. L.J. 300 (1995).

For survey, "State v. Daniels: Chief Justice Exum's Quantum Theory of Expert Psychiatric Testimony," see 73 N.C.L. Rev. 2326 (1995).

For article, "Issues Once Moot: The Other Evidentiary Objections to the Admission of Exculpatory Polygraph Examinations," see 32 Wake Forest L. Rev. 1045 (1997).

For comment, "Punitive Damages in Medical Malpractice: An Economic Evaluation," see 81 N.C.L. Rev. 2371 (2003).

For note, "Making Waves in a Sea of Uncertainty: Howerton Muddies the Waters of Expert Testimony Admissibility Standards in North Carolina," see 83 N.C. L. Rev. 1613 (2005).

For article, "The Admissibility of Expert Testimony in North Carolina After Howerton: Reconciling the Ruling with the Rules of Evidence," see 28 Campbell L. Rev. 109 (2005).

For casenote, "Howerton v. Arai Helmet, Ltd.: Last Dance with the Daubert-Kumho Decisions: One Step Forward from Two Steps Back," see 28 N.C. Cent. L.J. 109 (2005).

For comment, "Corrosion of the Confrontation Clause in North Carolina: A Comparison of State v. Brewington and State v. Ortiz-Zape with State v. Craven," see 36 N.C. Cent. L. Rev. 295 (2014).

CASE NOTES

I. GENERAL CONSIDERATION.

General Construction. - The statute was interpreted to apply as follows: Health care providers other than physicians were governed exclusively by subsection (b). Subsection (c) applied only to physicians who were "general practitioners," while subsection (b) applied only to physicians who were "specialists." Formyduval v. Bunn, 138 N.C. App. 381, 530 S.E.2d 96 (2000).

For purposes of applying the recent amendment to the expert testimony evidentiary rule, in criminal proceedings, the operative date is the date that the indictment was filed; because defendant was indicted on May, 17, 2010, the amendment to the rule did not apply State v. Gamez, - N.C. App. - , 743 S.E.2d 700 (July 2, 2013).

This rule does not require that claims against hospitals pertaining to administrative or nonclinical issues be certified under G.S. 1A-1, Rule 9(j) as medical malpractice actions since this rule is a rule of evidence, rather than substantive law. Estate of Waters v. Jarman, 144 N.C. App. 98, 547 S.E.2d 142, cert. denied, 354 N.C. 68, 553 S.E.2d 213 (2001).

Expert testimony is properly admissible when such testimony can assist the jury to draw certain inferences from facts because the expert is better qualified. State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984); State v. Knox, 78 N.C. App. 493, 337 S.E.2d 154 (1985); State v. Anderson, 322 N.C. 22, 366 S.E.2d 459, cert. denied, 488 U.S. 975, 109 S. Ct. 513, 102 L. Ed. 2d 548 (1988); State v. Locklear, 349 N.C. 118, 505 S.E.2d 277 (1998), cert. denied, 526 U.S. 1075, 119 S. Ct. 1475, 143 L. Ed. 2d 559 (1999).

This rule admits expert testimony when it will assist the jury in drawing certain inferences from facts, and when the expert is better qualified than the jury to draw such inferences. State v. Parks, 96 N.C. App. 589, 386 S.E.2d 748 (1989).

In order for one qualified as an expert to present an opinion based upon his specialized knowledge, his opinion must assist the trier of fact. State v. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987).

It was not error to admit a detective's testimony translating defendant's conversation in Jamaican patois because (1) defendant never requested a specific finding by the trial court as to the witness's qualifications as an expert, and, (2) accordingly, a finding that the witness was qualified as an expert was implicit in the trial court's ruling admitting the witness's opinion testimony, but, (3) while defendant objected to the witness being tendered as an expert witness initially, (4) defendant never objected on grounds of accuracy to admission of transcripts containing the witness's translations, such that (5) the content of the witness's expert translations ultimately came in without objection. State v. Powell, 223 N.C. App. 77, 732 S.E.2d 491 (2012).

The test for admissibility of expert testimony is whether the jury can receive appreciable help from the expert witness. State v. Knox, 78 N.C. App. 493, 337 S.E.2d 154 (1985); State v. Anderson, 85 N.C. App. 104, 354 S.E.2d 264, rev'd on other grounds, 322 N.C. 22, 366 S.E.2d 459 (1988).

The test for the admissibility of an opinion of either a lay or expert witness under this rule and G.S. 8C-1, Rule 701, respectively, is helpfulness to the trier of fact. In re Wheeler, 87 N.C. App. 189, 360 S.E.2d 458 (1987).

Section 8C-1, Rule 704 does not eliminate the helpfulness requirement set forth in this rule. Although an expert's opinion testimony is not objectionable merely because it embraces an ultimate issue, it must be of assistance to the trier of fact in order to be admissible. State v. Jackson, 320 N.C. 452, 358 S.E.2d 679 (1987).

Medical Malpractice Pleading. - In a medical malpractice case, the wording of a complaint did not sufficiently allege that medical records were reviewed by a person reasonably expected to qualify as an expert under G.S. 8C-1, Rule 702 where the only information was "Board Certified." It was unclear whether the person was a doctor, nurse, or some other health care professional. Alston v. Hueske, 244 N.C. App. 546, 781 S.E.2d 305 (2016).

In a medical malpractice action, the trial court erred in granting summary judgment in favor of defendants because it was error for the trial court to make "undisputed findings of fact" at summary judgment when the trial court's findings actually resolved a genuine issue of material fact as to whether the patient's expert reviewed the patient's medical records prior to the filing of the complaint, as required by G.S. 1A-1, Rule 9. Mangan v. Hunter, - N.C. App. - , 835 S.E.2d 878 (2019).

Who May Be Experts. - The rule permitting experts to testify to opinions they have formed based on information which is not itself admissible as substantive evidence is not limited to opinions of physicians and other medical experts. State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169 (1985).

For witness' testimony to be admissible as expert testimony, the witness must be qualified by knowledge, skill, experience, training, or education. The expert only needs to be better qualified than the jury as to the subject at hand, with the testimony being "helpful" to the jury. Whether the witness qualifies as an expert is exclusively within the trial judge's discretion, and is not to be reversed on appeal absent a complete lack of evidence to support his ruling. State v. Davis, 106 N.C. App. 596, 418 S.E.2d 263 (1992), cert. denied, 333 N.C. 347, 426 S.E.2d 710 (1993).

Because the doctor was a practicing emergency physician at the time plaintiff filed the complaint, the trial court correctly concluded that plaintiff exercised reasonable diligence in assuring the certification was true and she reasonably believed the doctor would qualify as an expert and testify as a witness against defendants. Miller v. Carolina Coast Emergency Physicians, LLC, - N.C. App. - , - S.E.2d - (May 18, 2021).

Who May Be a Specialist. - A doctor who is either board certified in a specialty or who holds himself out to be a specialist or limits his practice to a specific field of medicine is properly deemed a "specialist" for purposes of this rule. Formyduval v. Bunn, 138 N.C. App. 381, 530 S.E.2d 96 (2000).

Rejection of Daubert test. - North Carolina is not, nor has it ever been, a Daubert jurisdiction, and the state supreme court expressly rejects the federal Daubert standard because it believes that on balance the North Carolina law which coalesced in Goode establishes a more workable framework for ruling on the admissibility of expert testimony than Daubert under G.S. 8C-1, N.C. R. Evid. 702. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004).

Three-Step Inquiry for Evaluating Admissibility. - Goode sets forth a three-step inquiry for evaluating the admissibility of expert testimony: (1) Is the expert's proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert's testimony relevant? Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004).

Opinion Evidence Allowed in Certain Cases. - This rule is a rule of admission which allows opinion evidence in certain cases. If a witness, whether or not an expert, has knowledge of facts which would be helpful to a jury in reaching a decision, he may testify to such relevant facts. State v. Fletcher, 322 N.C. 415, 368 S.E.2d 633 (1988).

Basis of Opinion. - While baseless speculation can never "assist" the jury under this rule and is therefore inadmissible, an expert need not reveal the basis of his or her opinion absent a specific request by opposing counsel under G.S. 8C-1, Rule 705. Cherry v. Harrell, 84 N.C. 598, 353 S.E.2d 433, cert. denied, 320 N.C. 167, 358 S.E.2d 49 (1987).

Detective's testimony about his observations regarding the demeanor of the State's main witness, a co-perpetrator of the sex crimes that were charged against defendant, was lay opinion testimony because it was based on the detective's observations of defendant and was not expert testimony because the detective was not testifying to anything concerning specialized knowledge; while that testimony should not have been admitted because the detective vouched for the veracity of the witness and the detective's testimony was thus not helpful to the jury, the error in admitting the testimony was not plain error since defendant was impeached by other evidence apart from the detective's testimony. State v. Gobal, 186 N.C. App. 308, 651 S.E.2d 279 (2007), aff'd, 362 N.C. 342, 661 S.E.2d 732 (2008).

Although home buyers contended that the trial court had no need to assess the facts or data utilized by an expert in mold and water remediation and that, by doing so, the court created a backdoor Daubert challenge which prejudiced the buyers, the trial court actually found that the expert's opinion was based upon insufficient facts or data as a matter of credibility, not admissibility. Glover v. Dailey, 254 N.C. App. 46, 802 S.E.2d 136 (2017).

Forensic biologist's testimony was expert testimony rather than lay testimony because the biologist was asked and rendered expert opinion testimony and interpretations as the alleles the biologist "saw" were numbers on the graphs the biologist had prepared, using the biologist's expertise and experience as a forensic scientist. The biologist's testimony moved beyond reporting what the biologist had seen through the biologist's senses and turned to assessment and analysis based on the biologist's specialized knowledge. State v. Phillips, - N.C. App. - , 836 S.E.2d 866 (2019).

An opinion based upon reviews of evaluations of doctors who had interviewed defendant and personal discussions with doctors in whose care defendant had been placed were just as reliable as an opinion based on a hypothetical question. State v. Daniels, 337 N.C. 243, 446 S.E.2d 298 (1994), cert. denied, 513 U.S. 1135, 115 S. Ct. 953, 130 L. Ed. 2d 895 (1995).

Expert Could Base His Opinion on Another Doctor's Medical Records. - Trial court did not err by overruling plaintiff's objection to the expert's opinion testimony based on plaintiff's medical records, as such was permitted by the rule, plus plaintiff had full access to the materials from which the expert formed his opinion; even if the trial court erred by permitting the expert to base his opinion testimony entirely on plaintiff's medical records, such error would have been harmless, given another expert's similar testimony to which plaintiff did not object and actually elicited. Keller v. Deerfield Episcopal Ret. Cmty., Inc., - N.C. App. - , 845 S.E.2d 156 (2020), review denied, 851 S.E.2d 372, 2020 N.C. LEXIS 1179 (N.C. 2020).

Personal Interview Not Required. - This rule does not require that an expert personally interview a defendant in order to express an opinion about that defendant's mental condition. State v. Daniels, 337 N.C. 243, 446 S.E.2d 298 (1994), cert. denied, 513 U.S. 1135, 115 S. Ct. 953, 130 L. Ed. 2d 895 (1995).

Medical testimony did not have to be expressed in terms of reasonable probability or certainty, where the testimony objected to simply stated what the doctor did and did not find in examining and treating plaintiff. Polk v. Biles, 92 N.C. App. 86, 373 S.E.2d 570 (1988), cert. denied, 324 N.C. 337, 378 S.E.2d 798 (1989).

Doctor's Opinion Met First Prong of Reliability Test. - Doctor testified that he reviewed the custody order and obtained information from the social worker and met with the child and the parents, and had the parents complete behavioral questionnaires; this testimony showed that the doctor formed his opinion based upon sufficient facts or data relevant to this case; thus, the first prong of the reliability test was satisfied. In re M.M., - N.C. App. - , 845 S.E.2d 888 (2020).

Doctor's Opinion Met Second And Third Prongs of Reliability Test. - Testimony showed that doctor followed a clinical protocol for determining if a child has been emotionally abused, which included interviewing relevant individuals, reviewing behavioral and parenting questionnaires completed by the parents, and analyzing documents and historical information; this evidence was sufficient to support a determination that the doctor's testimony was the product of reliable principles and methods. In re M.M., - N.C. App. - , 845 S.E.2d 888 (2020).

Horizontal Gaze Nystagmus (HGN) Test. - Horizontal Gaze Nystagmus (HGN) test is a scientific test, and therefore any testimony regarding the HGN test would be scientific testimony, which is subject to Fed. R. Evid. 702 and the standards established in Daubert ; G.S. 8C-1-702(a)(1) also requires expert testimony on HGN tests. United States v. Van Hazel, 468 F. Supp. 2d 792 (E.D.N.C. 2006).

It was error to allow an arresting officer, who had not been qualified as an expert, to testify as to impairment based on Horizontal Gaze Nystagmus test results because there was never a formal offer to tender him as an expert witness; the error was prejudicial because a reasonable possibility existed that had the test results not been admitted, a different result would have been reached since there was conflicting evidence regarding defendant's performance on the other field sobriety tests. State v. Godwin, 247 N.C. App. 184, 786 S.E.2d 34 (2016).

Officer's horizontal gaze nystagmus test testimony was admissible without determining the testimony's reliability because a holding that the State did not have to prove the testing's reliability survived subsequent amendments adopting the Daubert reliability test. State v. Younts, 254 N.C. App. 581, 803 S.E.2d 641 (2017).

Because the rule established that Horizontal Gaze Nystagmus (HGN) tests are sufficiently reliable to be admitted in North Carolina courts, the trial court did not abuse its discretion in admitting the results of the HGN test. State v. Barker, 257 N.C. App. 173, 809 S.E.2d 171 (2017).

Trial court's important role includes examining the qualifications of a witness tendered as an expert, the basis for the witness's opinions, and the extent of the witness's testimony, and the depth of the inquiry is limited only in the context of Horizontal Gaze Nystagmus testing, where the General Assembly has clearly signaled that the requirements be applied leniently; in this case, there was sufficient evidence to support the trial court's determination that the trooper was qualified to testify as an expert as to the reliability of the test. State v. Barker, 257 N.C. App. 173, 809 S.E.2d 171 (2017).

"Educated Guess" by Expert. - Defendant's contention that physician admitted to speculating by stating that the figure was a relatively educated guess was without merit. The use of the word "guess" does not render an opinion inadmissible. The physician's choice of words as merely indicated that there was a margin of error (somewhere between ten and twenty percent) in his calculations. The existence of this margin of error also does not affect the admissibility of his testimony. State v. West, 103 N.C. App. 1, 404 S.E.2d 191 (1991).

Reliability of Expert's Scientific Technique. - While the scientific technique on which an expert bases a proffered opinion must be recognized as reliable, absolute certainty of result is not required. The technique must have achieved general acceptance in the relevant scientific community and provide scientific assurance of accuracy and reliability. State v. Catoe, 78 N.C. App. 167, 336 S.E.2d 691 (1985), cert. denied, 316 N.C. 380, 344 S.E.2d 1 (1986).

The expert's scientific technique on which he bases his opinion must be such that its accuracy and reliability has become established and recognized. However, the focus is on the reliability of the scientific method rather than its establishment and recognition. State v. Huang, 99 N.C. App. 658, 394 S.E.2d 279 (1990), vacated in part, 107 N.C. App. 710, 421 S.E.2d 812 (1992).

Under Goode, to determine whether an expert's area of testimony is considered sufficiently reliable, a court may look to testimony by an expert specifically relating to the reliability, may take judicial notice, or may use a combination of the two. Initially, the trial court should look to precedent for guidance in determining whether the theoretical or technical methodology underlying an expert's opinion is reliable, but where a trial court is without precedential guidance or faced with novel scientific theories, unestablished techniques, or compelling new perspectives on otherwise settled theories or techniques, it should generally focus on the following nonexclusive "indices of reliability": the expert's use of established techniques, the expert's professional background in the field, the use of visual aids before the jury so that the jury is not asked to sacrifice its independence by accepting the scientific hypotheses on faith, and independent research conducted by the expert. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004).

Allowing the captain of the county sheriff's office to testify as to the results of a NarTest machine was an abuse of discretion because the State did not present any evidence of the reliability of the machine beyond the captain's opinion that it was reliable based upon his personal experience of using the machine and the fact that some of the test results had been confirmed by the NarTest manufacturer, and the captain did not testify about the methodology used by the machine to perform its analysis but only about how it was used; the State did not present any evidence that would indicate that the NarTest machine used an established technique for analysis of controlled substances or that it had been recognized by experts in the field of chemical analysis of controlled substances as a reliable testing method, and the NarTest machine had not been designated as an approved method of identification of controlled substances by the State or any agency of the State. State v. Meadows, 201 N.C. App. 707, 687 S.E.2d 305 (2010), review denied 2010 N.C. LEXIS 453 (2010).

Trial court properly allowed an expert to offer her opinion that the substance a confidential informant received from defendant was methamphetamine, because, while the court did not require that she explain how she applied the testing, the expert testified that she conducted the test, obtained positive results identifying the substance the informant received from defendant to be methamphetamine, and produced a lab report recording the results of her analysis State v. Sasek, - N.C. App. - , 844 S.E.2d 328 (2020), review denied, 851 S.E.2d 49, 2020 N.C. LEXIS 1158 (N.C. 2020).

Trial court's decision to admit expert testimony about an experiment that the State of North Carolina conducted using the gun from the crime scene to determine the direction and average distances shell casings traveled after being ejected from the gun was within the court's sound discretion because the court conducted a lengthy voir dire before admitting the testimony and the court's determination that the experiment met the criteria for reliability was a reasoned one and not manifestly arbitrary. State v. Turner, - N.C. App. - , - S.E.2d - (Oct. 6, 2020), review denied, 376 N.C. 901, 854 S.E.2d 797, 2021 N.C. LEXIS 234 (2021).

Method of Proof. - Once the trial court has determined that the method of proof is sufficiently reliable as an area for expert testimony, the next level of inquiry is whether the witness testifying at trial is qualified as an expert to apply this method to the specific facts of the case. State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995).

Trial court erred in permitting a city's expert to give opinion, pursuant to G.S. 8C-1, N.C. R. Evid. 702, as to the value of a temporary taking of owners' property because the expert's opinion lacked a sufficiently reliable method of proof; the expert based his valuation of the taking for a temporary construction easement on his experience rather than an actual assessment and did not take into consideration the owners' denial of access. City of Charlotte v. Combs, 216 N.C. App. 258, 719 S.E.2d 59 (2011).

There are two overriding reasons for excluding testimony which suggests whether legal conclusions should be drawn or whether legal standards are satisfied; the first is that such testimony invades not the province of the jury but the province of the court to determine the applicable law and to instruct the jury as to that law, and the second reason is that an expert is in no better position to conclude whether a legal standard has been satisfied or a legal conclusion should be drawn than is a jury which has been properly instructed on the standard or conclusion. HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C. 578, 403 S.E.2d 483 (1991).

It is not error for trial court to refuse to admit expert testimony embracing a legal conclusion that the expert is not qualified to make. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988).

An expert may generally not testify that a certain legal standard has or has not been met. Pelzer v. UPS, Inc., 126 N.C. App. 305, 484 S.E.2d 849 (1997), cert. denied, 346 N.C. 549, 488 S.E.2d 808 (1997).

Attorney Testimony as to Legal Conclusions. - Allowing plaintiffs' expert, an attorney, to testify to his individual interpretation of North Carolina law was improper as it amounted to no more than a jury instruction. Smith v. Childs, 112 N.C. App. 672, 437 S.E.2d 500 (1993).

Testimony Embracing Legal Conclusions Properly Excluded. - Fact that expert "found adult material" at several locations in the county did not provide a sufficient basis to support the admission of his expert testimony concerning whether the average adult in the community would find the materials which defendant was accused of selling to be patently offensive. His study was simply too unfocused and unspecific to provide him with a sufficient basis to give an expert opinion as to whether the average adult applying contemporary community standards would find the magazines at issue to be patently offensive. Thus, the trial court properly exercised its discretion by excluding his expert opinion testimony concerning whether the magazines in question were patently offensive to the average adult, applying contemporary community standards, on the ground that he was no better qualified than the jury to address the question and could not assist the jury. State v. Anderson, 322 N.C. 22, 366 S.E.2d 459, cert. denied, 488 U.S. 975, 109 S. Ct. 513, 102 L. Ed. 2d 548 (1988).

The trial court in a murder case did not err in refusing to admit testimony whereby defendant sought to have the experts tell the jury that certain legal standards had not been met. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988).

Doctor's opinion that defendant could not have premeditated or deliberated the killings would have been inadmissible as a conclusion that a legal standard had not been met. State v. Rose, 323 N.C. 455, 373 S.E.2d 426 (1988).

Doctor was improperly permitted to testify about the law of voluntary intoxication in North Carolina and its effect on defendant's insanity defense where he stated: "In North Carolina we still hold people responsible for whatever they do, if they are intoxicated"; doctor's testimony offered interpretation of the law implying that if defendant were voluntarily intoxicated, she was responsible for her actions even if her underlying mental disorder might otherwise render her legally insane. State v. Silvers, 323 N.C. 646, 374 S.E.2d 858 (1989).

Expert witness' answer on cross-examination that his opinion about the "improbability" of hair originating from a source other than defendant was based on nonscientific considerations, addressed the credibility of other witnesses and was an expression of opinion as to defendant's guilt and thus violated the Rules of Evidence. State v. Faircloth, 99 N.C. App. 685, 394 S.E.2d 198 (1990).

The treating doctor's opinion that the victim had been raped and kidnapped, although it went beyond the scope of permissible expert testimony, did not rise to the level of plain error because there was overwhelming evidence of defendant's guilt, and following the testimony, the trial court gave a limiting instruction reminding the jurors that the doctor's opinion was limited in certain areas and that they were the fact-finder. State v. O'Hanlan, 153 N.C. App. 546, 570 S.E.2d 751 (2002), cert. denied, 358 N.C. 158, 593 S.E.2d 397 (2004).

Value of Professional Association. - The criteria set out in Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266, disc. rev. denied, 314 N.C. 543, 335 S.E.2d 316 (1985), are factors for the court to consider in valuing the professional interest, and are not criteria for admissibility of the expert's opinion. McLean v. McLean, 88 N.C. App. 285, 363 S.E.2d 95 (1987), aff'd, 323 N.C. 543, 374 S.E.2d 376 (1988).

What Defendant Is Required to Show. - A defendant is required to make an ex parte threshold showing that the matter subject to expert testimony is likely to be a significant factor in the defense, show that an expert would assist him materially in the preparation of his defense, or show that the denial of expert assistance would deprive him of a fair trial. State v. Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994).

Premeditation. - Where defendant's state of mind at time of killing was the central issue, and without the challenged testimony of the State's expert, the only testimony going to the mens rea of first degree murder was lay opinion testimony that defendant knew right from wrong, and the contradictory testimony of three experts called by defendant regarding defendant's ability to plan or to form specific intent, and where error in allowing State's expert testimony that defendant was capable of premeditating was compounded by the State's argument to the jury, defendant was entitled to a new trial on first degree murder charge. State v. Rose, 327 N.C. 599, 398 S.E.2d 314 (1990).

Expert Witness Opinions Should Have Been Disclosed. - State failed to comply with the statute when responding to defendant's motion for discovery because two expert witnesses gave expert opinions that should have been disclosed in discovery; the experts offered expert opinion testimony about the characteristics of child sexual abuse victims, and the testimony went beyond the facts of the case and relied on inferences to reach the conclusion that certain characteristics were common among child sexual assault victims. State v. Davis, 368 N.C. 794, 785 S.E.2d 312 (2016).

Failure to Tender Qualified Expert. - Trial court did not abuse its discretion when it dismissed plaintiff's medical malpractice action with prejudice on the basis that she failed to comply with G.S. 1A-1, Rule 9(j) by tendering as a witness a general surgeon whom she could not have reasonably expected to qualify as an expert witness against defendant general practitioner under this rule. Allen v. Carolina Permanente Med. Group, P.A., 139 N.C. App. 342, 533 S.E.2d 812 (2000).

Erroneous Admission. - Lay opinion testimony under G.S. 8C-1-701 that the substance was cocaine did not render the erroneous admission of the forensic analyses and a special agent's related testimony about the substances obtained on two dates, which constituted a violation of defendant's confrontation rights, harmless beyond a reasonable doubt under G.S. 15A-1443(b) as there was a reasonable possibility that the erroneous admission might have contributed to defendant's conviction under G.S. 90-95; scientific testing by an expert forensic analyst under G.S. 8C-1-702 would generally be much more influential than lay opinion from an admitted drug user. State v. Craven, 205 N.C. App. 393, 696 S.E.2d 750 (2010), dismissed and review granted, 732 S.E.2d 351, 2012 N.C. LEXIS 842 (2012), review denied, 732 S.E.2d 351, 2012 N.C. LEXIS 964 (2012), aff'd in part and rev'd in part, 367 N.C. 51, 744 S.E.2d 458, 2013 N.C. LEXIS 655 (2013).

Trial court abused its discretion in admitting the lay opinion testimony of a state trooper, over defendant's objections, identifying defendant as the driver of a vehicle at the time of an auto accident in which an occupant of the car was killed when an expert accident reconstruction analyst was unable to form an expert opinion based upon the same information that was available to the trooper. State v. Denton, - N.C. App. - , 829 S.E.2d 674 (2019), review denied, 373 N.C. 254, 835 S.E.2d 447, 2019 N.C. LEXIS 1199 (2019).

Absolute Right to Dismiss and Refile Malpractice Case Despite Issue on Qualification of Expert. - Dismissal of an administratrix's second medical malpractice complaint filed after her earlier malpractice complaint was voluntarily dismissed was error because there was no evidence that the initial complaint's N.C. R. Civ. P. 9(j) certification was insufficient; the administratrix had an absolute right under N.C. R. Civ. P. 41(a)(1) to dismiss the original action and re-file her claim within one year, regardless of whether there had been a ruling on her G.S. 8C-1, N.C. R. Evid. 702(e) motion to qualify the witness she used for the certification of her original complaint as an expert. The fact that the second complaint relied on Rule 9(j)(1) instead of Rule 9(j)(2) did not give rise to an inference that the administratrix did not reasonably expect her expert for the first certification to qualify, and no basis existed for dismissal of the re-filed action pursuant to N.C. R. Civ. P. 12(b)(6). Ford v. McCain, 192 N.C. App. 667, 666 S.E.2d 153 (2008).

Applied in State v. Mayes, 86 N.C. App. 569, 359 S.E.2d 30 (1987); State v. Ayers, 92 N.C. App. 364, 374 S.E.2d 428 (1988); Tompkins v. Log Sys., 96 N.C. App. 333, 385 S.E.2d 545 (1989); State v. Everett, 98 N.C. App. 23, 390 S.E.2d 160 (1990); State v. Torres, 99 N.C. App. 364, 393 S.E.2d 535 (1990); State v. Murphy, 100 N.C. App. 33, 394 S.E.2d 300 (1990); State v. Annadale, 329 N.C. 557, 406 S.E.2d 837 (1991); Woodlief v. North Carolina State Bd. of Dental Exmrs., 104 N.C. App. 52, 407 S.E.2d 596 (1991); Jones ex rel. Jones v. Hughes, 110 N.C. App. 262, 429 S.E.2d 399 (1993); State v. Shoemaker, 334 N.C. 252, 432 S.E.2d 314 (1993); State v. Richardson, 112 N.C. App. 58, 434 S.E.2d 657 (1993); State v. Hammond, 112 N.C. App. 454, 435 S.E.2d 798 (1993); Griffith ex rel. Griffith v. McCall, 114 N.C. App. 190, 441 S.E.2d 570 (1994); State v. Fisher, 336 N.C. 684, 445 S.E.2d 866 (1994); State v. Jones, 337 N.C. 198, 446 S.E.2d 32 (1994); In re Carr, 116 N.C. App. 403, 448 S.E.2d 299 (1994); Beam v. Kerlee, 120 N.C. App. 203, 461 S.E.2d 911 (1995); Trapp v. Maccioli, 129 N.C. App. 237, 497 S.E.2d 708 (1998); Davis v. City of Mebane, 132 N.C. App. 500, 512 S.E.2d 450 (1999); Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589, 528 S.E.2d 568 (2000); State v. Stokes, - N.C. App. - , 561 S.E.2d 547 (2002); State v. Stokes, 150 N.C. App. 211, 565 S.E.2d 196 (2002), cert. denied, 356 N.C. 175, 569 S.E.2d 277 (2002); Gregory v. Kilbride, 150 N.C. App. 601, 565 S.E.2d 685 (2002), cert. denied, 357 N.C. 164, 580 S.E.2d 365 (2003); Crocker v. Roethling, 363 N.C. 140, 675 S.E.2d 625 (2009); State v. Paddock, 204 N.C. App. 280, 696 S.E.2d 529 (2010), review denied, 364 N.C. 330, 701 S.E.2d 251, 2010 N.C. LEXIS 594 (2010); State v. Brunson, 204 N.C. App. 357, 693 S.E.2d 390 (2010); Rabon v. Hopkins, 208 N.C. App. 351, 703 S.E.2d 181 (2010), review denied 365 N.C. 195, 710 S.E.2d 22, 2011 N.C. LEXIS 470 (N.C. 2011); State v. Trogdon, 216 N.C. App. 15, 715 S.E.2d 635 (2011), review denied, 719 S.E.2d 35, 2011 N.C. LEXIS 1016 (2011); Gause v. New Hanover Reg'l Med. Ctr., 251 N.C. App. 413, 795 S.E.2d 411 (2016).

Cited in State v. Hughes, 114 N.C. App. 742, 443 S.E.2d 76, cert. denied, 337 N.C. 697, 448 S.E.2d 536 (1994); Williams v. Sapp, 83 N.C. App. 116, 349 S.E.2d 304 (1986); Welborn v. Roberts, 83 N.C. App. 340, 349 S.E.2d 886 (1986); In re Conditional Approval of Certificate of Need Application of Health Care & Retirement Corp. of Am., 88 N.C. App. 563, 364 S.E.2d 150 (1988); Klassette ex rel. Klassette v. Mecklenburg County Area Mental Health, Mental Retardation & Substance Abuse Auth., 88 N.C. App. 495, 364 S.E.2d 179 (1988); State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988); State v. McKoy, 323 N.C. 1, 372 S.E.2d 12 (1988); State v. Fletcher, 92 N.C. App. 50, 373 S.E.2d 681 (1988); State v. Garvick, 98 N.C. App. 556, 392 S.E.2d 115 (1990); State v. Hall, 98 N.C. App. 1, 390 S.E.2d 169 (1990); State v. Bearthes, 329 N.C. 149, 405 S.E.2d 170 (1991); Jennings v. Jessen, 103 N.C. App. 739, 407 S.E.2d 264 (1991); Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991); State v. Moore, 107 N.C. App. 388, 420 S.E.2d 691 (1992); State v. Moore, 107 N.C. App. 388, 420 S.E.2d 691 (1992); State v. Hutchens, 110 N.C. App. 455, 429 S.E.2d 755 (1993); State v. Black, 111 N.C. App. 284, 432 S.E.2d 710 (1993); State v. Barton, 335 N.C. 696, 441 S.E.2d 295 (1994); State v. Robertson, 115 N.C. App. 249, 444 S.E.2d 643 (1994); Arrington v. Texfi Indus., 123 N.C. App. 476, 473 S.E.2d 403 (1996); NationsBank v. American Doubloon Corp., 125 N.C. App. 494, 481 S.E.2d 387, cert. denied, 346 N.C. 882, 487 S.E.2d 551 (1997); State v. Lawrence, 352 N.C. 1, 530 S.E.2d 807 (2000); Hylton v. Koontz, 138 N.C. App. 511, 530 S.E.2d 108 (2000); Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C. App. 449, 553 S.E.2d 431 (2001); Walter v. Walter, 149 N.C. App. 723, 561 S.E.2d 571 (2002); Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35 (2002), cert. denied, 356 N.C. 675, 577 S.E.2d 630 (2003); Cox v. Steffes, 161 N.C. App. 237, 587 S.E.2d 908 (2003); Elliott v. Muehlbach, 173 N.C. App. 709, 620 S.E.2d 266 (2005); Worthey v. York, - F. Supp. 2d - (W.D.N.C. Sept. 13, 2005); State v. Burgess, 181 N.C. App. 27, 639 S.E.2d 68 (2007), cert. denied 717 S.E.2d 384, 2011 N.C. LEXIS 728 (N.C. 2011); State v. Theer, 181 N.C. App. 349, 639 S.E.2d 655 (2007), cert. denied, - U.S. - , 128 S. Ct. 2473, 171 L. Ed. 2d 769 (2008); State v. Hall, 186 N.C. App. 267, 650 S.E.2d 666 (2007); Sturgill v. Ashe Mem'l Hosp., Inc., 186 N.C. App. 624, 652 S.E.2d 302 (2007), review denied, 362 N.C. 180, 658 S.E.2d 662 (2008); Worthy v. Ivy Cmty. Ctr., Inc., 198 N.C. App. 513, 679 S.E.2d 885, review denied, 363 N.C. 748, 689 S.E.2d 874 (2009); Carlton v. Melvin, 205 N.C. App. 690, 697 S.E.2d 360 (2010); State v. Register, 206 N.C. App. 629, 698 S.E.2d 464 (2010); State v. Nabors, 207 N.C. App. 463, 700 S.E.2d 153 (2010), rev'd, 365 N.C. 306, 718 S.E.2d 623, 2011 N.C. LEXIS 994 (N.C. 2011); State v. Lane, 365 N.C. 7, 707 S.E.2d 210 (2011); State v. Towe, 210 N.C. App. 430, 707 S.E.2d 770 (2011), aff'd and modified 366 N.C. 56, 732 S.E.2d 564, 2012 N.C. LEXIS 420 (N.C. 2012); Urquhart v. E. Carolina Sch. of Med., 211 N.C. App. 124,
712 S.E.2d 200 (2011); State v. Hunt, 211 N.C. App. 452, 710 S.E.2d 339 (2011), review denied 717 S.E.2d 368, 2011 N.C. LEXIS 647 (N.C. 2011); McKoy v. Beasley, 213 N.C. App. 258, 712 S.E.2d 712 (2011); Smith v. Axelbank, 222 N.C. App. 555, 730 S.E.2d 840 (2012); Estate of Ray v. Forgy, 227 N.C. App. 24, 744 S.E.2d 468 (2013), review denied 367 N.C. 271, 752 S.E.2d 475, 2013 N.C. LEXIS 1392 (2013), review dismissed, as moot, 752 S.E.2d 475, 2013 N.C. LEXIS 1511 (2013); State v. Ortiz-Zape, 367 N.C. 1, 743 S.E.2d 156 (2013), cert. denied 134 S. Ct. 2660, 2014 U.S. LEXIS 3730, 189 L. Ed. 2d 208 (U.S. 2014); Robinson v. Duke Univ. Health Sys., 229 N.C. App. 215, 747 S.E.2d 321 (2013), review denied, 755 S.E.2d 618, 2014 N.C. LEXIS 215 (2014); State v. Walston, 229 N.C. App. 141, 747 S.E.2d 720 (2013), review denied 753 S.E.2d 666, 2014 N.C. LEXIS 28 (2014), rev'd 367 N.C. 721, 766 S.E.2d 312, 2014 N.C. LEXIS 953 (2014); Seraj v. Duberman, 248 N.C. App. 589, 789 S.E.2d 551 (2016); State v. Stimson, 246 N.C. App. 708, 783 S.E.2d 749 (2016); Vaughan v. Mashburn, - N.C. App. - , - S.E.2d - (June 21, 2016), review denied, 797 S.E.2d 4, 2017 N.C. LEXIS 139 (2017); State ex rel. Comm'r of Ins. v. N.C. Rate Bureau (In re Filing Dated January 3, 2014 by N.C. Rate Bureau), 248 N.C. App. 602, 791 S.E.2d 211 (2016), appeal dismissed, review denied, 794 S.E.2d 524, 2016 N.C. LEXIS 1151 (2016); review denied, 2017 N.C. LEXIS 94 (2017); DOT v. Jay Butmataji, LLC, 260 N.C. App. 516, 818 S.E.2d 171 (2018), review denied, 832 S.E.2d 717, 2019 N.C. LEXIS 937 (N.C. 2019).

Lloyd v. Norfolk S. Ry. Co., 231 N.C. App. 368, 752 S.E.2d 704 (2013); Peter v. Vullo, 234 N.C. App. 150, 758 S.E.2d 431 (2014); Wright v. WakeMed, 238 N.C. App. 603, 767 S.E.2d 408 (2014); State v. Davis, 239 N.C. App. 522, 768 S.E.2d 903 (2015); State v. McLaughlin, 246 N.C. App. 306, 786 S.E.2d 269 (2016); Bennett v. Hospice & Palliative Care Ctr. of Alamance-Caswell, 246 N.C. App. 191, 783 S.E.2d 260 (2016); N.C. DOT v. Mission Battleground Park, DST, 249 N.C. App. 333, 791 S.E.2d 478 (2016), aff'd in part and rev'd in part, 2018 N.C. LEXIS 61 (N.C. 2018); State v. McLean, 251 N.C. App. 850, 796 S.E.2d 804 (2017); Locklear v. Cummings, 253 N.C. App. 457, 801 S.E.2d 346 (2017).

II. QUALIFICATION OF EXPERT.

Qualification of Expert Within Exclusive Province of Trial Judge. - The determination whether a witness has the requisite level of skill to qualify as an expert witness is ordinarily within the exclusive province of the trial judge, and a finding by the trial judge that the witness possesses the requisite skill will not be reversed on appeal unless there is no evidence to support it. State v. Parks, 96 N.C. 589, 386 S.E.2d 748 (1989).

Surgeon who was board certified in laparoscopic procedures, and was the director of the emergency room of a major university hospital, who examined and diagnosed patients who, after surgery, presented signs and symptoms similar to those of a decedent who died after having a laparoscopic cholecystectomy performed to remove her gall bladder, and who instructed residents in the emergency room regarding patients he treated, was qualified to testify as an expert in a medical malpractice action arising from the decedent's death. Sweatt v. Wong, 145 N.C. App. 33, 549 S.E.2d 222 (2001).

Question of Fact. - Whether a witness has the requisite skill to qualify him as an expert is chiefly a question of fact, the determination of which is ordinarily within the exclusive province of the trial judge. State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984).

Discretion of Judge. - The decision to qualify a witness as an expert is ordinarily within the exclusive province of the trial judge or hearing officer. State ex rel. Commissioner of Ins. v. North Carolina Rate Bureau, 75 N.C. App. 201, 331 S.E.2d 124, cert. denied, 314 N.C. 547, 335 S.E.2d 319 (1985).

The decision as to whether scientific opinion evidence is sufficiently reliable and relevant remains largely within the discretion of the trial judge. State v. Catoe, 78 N.C. App. 167, 336 S.E.2d 691 (1985), cert. denied, 316 N.C. 380, 344 S.E.2d 1 (1986).

Ordinarily whether a witness qualifies as an expert is exclusively within the discretion of the trial judge and is not to be reversed on appeal absent a complete lack of evidence to support his ruling. State v. Howard, 78 N.C. App. 262, 337 S.E.2d 598 (1985), appeal dismissed, 316 N.C. 198, 341 S.E.2d 581 (1986).

The trial judge is afforded wide latitude of discretion when making a determination about the admissibility of expert testimony. State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984); State v. Knox, 78 N.C. App. 493, 337 S.E.2d 154 (1985); State v. Mancuso, 321 N.C. 464, 364 S.E.2d 359 (1988).

A trial court is afforded wide latitude in applying this rule and will be reversed only for an abuse of discretion. State v. Parks, 96 N.C. App. 589, 386 S.E.2d 748 (1989).

The trial court's statement to the jury that "[the expert] will be allowed to testify as an expert in the field of DNA analysis if [the jury] finds her to be so qualified" was harmless error, if error at all, where the court, in effect, qualified her as an expert in the field of DNA analysis and permitted her to give expert testimony in this field. State v. McCord, 140 N.C. App. 634, 538 S.E.2d 633 (2000), review denied, 353 N.C. 392 (2001).

While a trial court erred in allowing certain expert testimony, the error was harmless in light of the fact that the State presented sufficient evidence even without the testimony and the evidence was cumulative of evidence that had already been admitted. State v. Armstrong, 203 N.C. App. 399, 691 S.E.2d 433 (2010).

Questions Concerning Weight of Expert's Conclusions Are for the Jury. - Once a trial court makes a preliminary determination that the scientific or technical area underlying a qualified expert's opinion is sufficiently reliable (and, of course, relevant), any lingering questions or controversy concerning the quality of the expert's conclusions go to the weight of the testimony rather than its admissibility. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004).

Once an expert passed G.S. 8C-1-702's threshold of admissibility, lingering questions or controversy concerning the quality of the expert's conclusions went to the weight of the testimony rather than its admissibility; an employee's contentions on appeal only challenged the methodology of an expert's opinion, which went to the weight of her testimony and not the admissibility, and the appellate court did not address such issues. Lane v. Am. Nat'l Can Co., 181 N.C. App. 527, 640 S.E.2d 732 (2007), review denied, 362 N.C. 236, 659 S.E.2d 735 (2008).

Trial court did not abuse its discretion by accepting a licensed general contractor and licensed home inspector in North Carolina, who was in the construction industry for approximately 30 years and was performing home inspections for nearly 10 years, as an expert on the subject of home inspections and whether a rental house met general standards of fitness and habitability. Pierce v. Reichard, 163 N.C. App. 294, 593 S.E.2d 787 (2004).

Trial court did not abuse its discretion in ruling a field technician as an expert because the technician demonstrated specialized knowledge, skill, experience, and training in the field of expertise; defendant merely invoked an objection to the technician's qualification, not his reliability, and the terminology the technician used was not critical to his qualification since the calculations were based on well-recognized and accepted scientific formula and applicable methodology. State v. Turbyfill, 243 N.C. App. 183, 776 S.E.2d 249 (2015), review denied 780 S.E.2d 560, 2015 N.C. LEXIS 1218 (2015).

Trial Court Abused its Discretion. - Because the estate's expert witnesses were in a better position than the trier of fact to have an opinion on the subject of whether decedent would have suffered a stroke but for the doctor's failure to read an MRI, the trial court erred by granting the doctor's motion in limine to exclude the expert witnesses in the medical malpractice action. Hamilton v. Thomasville Med. Assocs., 187 N.C. App. 789, 654 S.E.2d 708 (2007), review denied, 362 N.C. 681, 670 S.E.2d 232 (2008).

Trial court abused its discretion in excluding defendant's expert from testifying about tampering on defendant's computer, as the expert was experienced with the subject matter and was in a better position to have an opinion on the subject than was the trier of fact. State v. Cooper, 229 N.C. App. 442, 747 S.E.2d 398 (2013), dismissed, 367 N.C. 290, 753 S.E.2d 783, 2014 N.C. LEXIS 96 (2014).

Trial court erred in dismissing plaintiffs' wrongful death claims against the doctors based on a failure to comply with G.S.1A-1, N.C. R. Civ. P. 9(j), because plaintiffs' complaint complied with Rule 9(j) and there had been no discovery conclusively establishing that plaintiffs were not reasonable in expecting their Rule 9(j) expert would qualify as an expert at the time they filed their complaint. Robinson v. Halifax Reg'l Med. Ctr., - N.C. App. - , 843 S.E.2d 265 (2020).

The Industrial Commission had the power to determine whether physician was qualified to testify as an expert in stating his opinion as to deceased employee's intoxication at 2:50 p.m. based on a blood alcohol test administered at 5:00 p.m. Torain v. Fordham Drug Co., 79 N.C. App. 572, 340 S.E.2d 111 (1986).

Evidence supported the Industrial Commission's determination that an employer's witnesses were sufficiently qualified in their respective fields to testify as experts, and the Commission was within its discretion to determine the credibility of their testimony and the weight to be given to that testimony because a veterinarian was not called to testify about the treatment or diagnosis of asbestos exposure in humans but to interpret a medical study that was within his area of expertise. Wise v. Alcoa, Inc., 231 N.C. App. 159, 752 S.E.2d 172 (2013).

Expert Testimony Regarding Causation in Workers' Compensation Case. - Where the employee's primary care physician and a psychologist both provided competent expert testimony as to the cause of an employee's injuries based on their evaluations and treatment of the employee, the North Carolina Industrial Commission did not err in relying on their opinions in determining that the employee suffered a compensable injury. Pickett v. Advance Auto Parts, 245 N.C. App. 246, 782 S.E.2d 66 (2016).

North Carolina Industrial Commission did not err in relying on the testimony of an employee's primary care physician regarding causation because there was a sufficient basis for the physician's expert opinion testimony as to the cause of the employee's injuries; the physician's impressions were based on his impressions of the employee's account of a robbery and his symptoms, the exclusion of other potential causes, and the temporal link between the occurrence of the symptoms and the robbery. Pickett v. Advance Auto Parts, 245 N.C. App. 246, 782 S.E.2d 66 (2016).

Qualifications of Expert. - It is not necessary that an expert be experienced with the identical subject area in a particular case or that the expert be a specialist, licensed or even engaged in a specific profession. State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984); Robinson v. Seaboard Sys. R.R., 87 N.C. App. 512, 361 S.E.2d 909 (1987), cert. denied, 321 N.C. 474, 364 S.E.2d 924 (1988).

To qualify, an expert need not have had experience in the very subject at issue; it is enough that through study or experience the expert is better qualified than the jury to render an opinion regarding the particular subject. State v. Howard, 78 N.C. App. 262, 337 S.E.2d 598 (1985), appeal dismissed, 316 N.C. 198, 341 S.E.2d 581 (1986).

Witnesses who are experts in a field may offer opinion testimony regarding matters within the area of their expertise; if a witness is better qualified than the jury to form an opinion from certain facts, his opinion is admissible. Mills v. New River Wood Corp., 77 N.C. App. 576, 335 S.E.2d 759 (1985).

In the absence of a stipulation, witness whom a party is attempting to qualify as an expert must testify to his qualifications as set forth in this rule. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, cert. denied, 320 N.C. 174, 358 S.E.2d 64 (1987).

An expert need not have had experience in the very subject at issue. It is enough that through study or experience the expert is better qualified than the fact-finder to render the opinion regarding the particular subject. In re Chasse, 116 N.C. App. 52, 446 S.E.2d 855 (1994).

Doctor's lack of clinical experience should not have disqualified him from giving expert opinion testimony. His acknowledged expertise in the field of adolescent sex offenders and his study of articles on treatment of adult sexual offenders made him better qualified than the trial court to render an opinion on the length and efficacy of adult sexual offender therapy, and his testimony, therefore, would have been helpful to the trier of fact. In re Chasse, 116 N.C. App. 52, 446 S.E.2d 855 (1994).

Neurologist could testify, as an expert witness for the patient about the relevant standard of care in a medical malpractice case because the witness, a board certified neurologist, specialized in the same specialty as one of the health care providers, who had a specialty in general consulting neurology. Billings v. Rosenstein, 174 N.C. App. 191, 619 S.E.2d 922 (2005), cert. denied, 360 N.C. 478, 630 S.E.2d 664 (2006).

Trial court erred in granting a physician and a hospital summary judgment in a child's action alleging medical negligence and breach of contract because the child's proposed experts, a doctor and a registered nurse, satisfied the elements of G.S. 8C-1, N.C. R. Evid. 702, thereby satisfying the pleading requirements of G.S. 1A-1, N.C. R. Civ. P. 9(j)(1), since the doctor was a licensed physician, and in the year prior to the incident, she spent a majority of her time in either clinical practice or teaching; the nurse had been certified as a nurse-midwife in North Carolina, she and the nurses in the case all specialized in obstetrics, and in the year prior to the incident, she spent the majority of her time actively practicing obstetrical nursing at a hospital. Grantham v. Crawford, 204 N.C. App. 115, 693 S.E.2d 245, review denied, 364 N.C. 325, 700 S.E.2d 752, 2010 N.C. LEXIS 621 (2010).

Case where a physician and a hospital were granted summary judgment in a child's action alleging medical negligence and breach of contract was remanded to the trial court to conduct a voir dire examination of the child's proposed experts, a doctor and a registered nurse, because although neither the doctor nor the nurse seemed unsure of the standard she applied to actions of the physician and hospital, the physician and hospital nonetheless questioned whether the their knowledge with respect to the hospital was sufficient to make their testimonies relevant; the doctor and nurse shared knowledge in their affidavits with respect to the community, the number of beds in the hospital, and the number of beds in the obstetrics unit, and they both also stated that they had practiced in community hospitals with similar equipment and facilities as the hospital and in an area of similar per capita income, but their deposition testimonies several months earlier generally had been lacking such specific information. Grantham v. Crawford, 204 N.C. App. 115, 693 S.E.2d 245, review denied, 364 N.C. 325, 700 S.E.2d 752, 2010 N.C. LEXIS 621 (2010).

Denial of workers' compensation benefits was proper because the record clearly supported the determination that two doctors, based upon their knowledge, skill, experience, training, or education, were qualified as experts in the subject area about which they testified. Huffman v. Moore County, 208 N.C. App. 471, 704 S.E.2d 17 (2010).

Witness was rightfully accepted as an expert in breath alcohol testing for a certain type of breathalyzer and in blood alcohol physiology, pharmacology, and related research as, beyond his formal education, the witness had training that came from reading peer-reviewed papers, the instruction he received at a university, and his own experience in dosing individuals with alcohol; witness was better informed than the jury regarding the subject of alcohol and its relation to human physiology and pharmacology. State v. Green, 209 N.C. App. 669, 707 S.E.2d 715 (2011).

Where the proffered expert had a bachelor's degree in chemistry and biology, had been trained on substance analysis at the State Bureau of Investigation (SBI), had been a special agent at the SBI for 25 years assigned to the drug laboratory, and had worked on evidence in over 50,000 cases, the trial court did not err in finding that the indices of reliability were sufficient to justify admission of the expert's testimony. State v. McDonald, 216 N.C. App. 161, 716 S.E.2d 250 (2011).

Despite a witness's lack of a formal degree or certification in the relevant field, the witness's extensive practical experience, including work as the head of the Forensic Test for Alcohol branch of the North Carolina Department of Health and Human Services, training of law enforcement officers on the operation of alcohol breath test instruments, and training on the effects of alcohol and drugs on the body, qualified him as an expert. State v. Norman, 213 N.C. App. 114, 711 S.E.2d 849 (2011), review denied, 718 S.E.2d 401, 2011 N.C. LEXIS 940 (2011).

In a medical malpractice action, although an expert for the parents of a deceased child was never specifically asked whether he had a medical license, a jury could reasonably infer the expert was a licensed physician because the expert testified he was board certified in emergency medicine, had stopped practicing in emergency medicine less than a year earlier, and at the time of trial, he was practicing in occupational medicine and urgent care and had urgent care privileges at certain hospitals. Day v. Brant, 218 N.C. App. 1, 721 S.E.2d 238, review denied, 366 N.C.219, 726 S.E.2d 179, 2012 N.C. LEXIS 429 (N.C. 2012).

Doctor of dental medicine was a qualified expert on medical causation under G.S. 8C-1, N.C. R. Civ. P. 702(a), where his knowledge, skill, experience, training, and education qualified him to opine as to the causation of bronchopneumonia. Webb v. Wake Forest Univ. Baptist Med. Ctr., 232 N.C. App. 502, 756 S.E.2d 741 (2014).

North Carolina Industrial Commission did not err in determining that a psychologist was an expert in psychology because its designation was supported by the psychologist's education and experience. Pickett v. Advance Auto Parts, 245 N.C. App. 246, 782 S.E.2d 66 (2016).

Trial court did not abuse its discretion in qualifying a witness as an expert on cabinetry, given that he had 17 years of experience doing cabinets, and other statements spoke not to his qualifications but instead to his credibility. Bradley Woodcraft, Inc. v. Bodden, 251 N.C. App. 27, 795 S.E.2d 253 (2016).

General Assembly made clear provision to allow testimony from an individual who has successfully completed training in Horizontal Gaze Nystagmus and meets the criteria set forth in subsection (a). State v. Godwin, 369 N.C. 605, 800 S.E.2d 47 (2017).

Doctor was an endocrinologist whose expertise included automatism primarily as it related to responsibility in driving motor vehicles and collisions by those suffering from hypoglycemia, and the trial court properly found that the doctor was an expert in the signs and symptoms that accompany automatism caused by hypoglycemia and that his testimony was based on sufficient data and facts. State v. Coleman, 254 N.C. App. 497, 803 S.E.2d 820 (2017).

Expert who began his career in the 1980's constructing electrical wiring systems and subsequently advanced to inspecting such systems for 15 years was allowed to testify; while he lacked a post-secondary degree in electrical engineering, such a formal credential had never been required. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708 (2018), review denied, 824 S.E.2d 415, 2019 N.C. LEXIS 272 (2019).

Patient's experts could not reasonably have been expected to testify to the applicable standard of care in a malpractice action against a dentist because the dentist was a general dentist and the malpractice claims related to the practice of general dentistry, while the experts which the patient identified were a periodontist and an oral surgeon, neither of whom regularly practiced in the field of general dentistry. The trial court on remand was to make the required findings to permit the appellate court to engage in a meaningful review. Kennedy v. Deangelo, 264 N.C. App. 65, 825 S.E.2d 15 (2019).

Trial court did not err in finding that a scientist was an expert in toxicology and forensic analysis where she testified that she had a bachelor's degree in biology, approximately 19 years of experience in analyzing blood work, and completed a graduate course in forensic toxicology that discussed various drug classifications. State v. Neal, - N.C. App. - , 833 S.E.2d 367 (2019).

Trial court did not abuse its discretion by admitting the nurse as an expert witness because her testimony showed that she had approximately two decades of experience collecting sexual assault victim kits and had been trained on how to properly collect such kits and she had trained other nurses in the collection process. State v. Elder, - N.C. App. - , - S.E.2d - (July 20, 2021).

Implicit Qualification as Expert. - Although plaintiff made no request at trial for a finding as to the qualification of defendant as an expert, where the court itself asked for the opinion of defendant, he was implicitly admitted as an expert. Cato Equip. Co. v. Matthews, 91 N.C. App. 546, 372 S.E.2d 872 (1988).

Trial court's overruling of defense counsel's objection to opinion testimony constituted an implicit finding that the witness was an expert. State v. Wise, 326 N.C. 421, 390 S.E.2d 142 (1990), cert. denied, 498 U.S. 853, 111 S. Ct. 146, 112 L. Ed. 2d 113 (1990).

Although State did not tender lieutenant in city fire department as an expert witness, the trial court implicitly found him to be an expert on arson, therefore, any error in permitting the witness to state opinions as an expert was harmless. State v. Greime, 97 N.C. App. 409, 388 S.E.2d 594 (1990).

In a suit brought by parents against caregivers of the parents' son alleging that the caregivers were negligent when they failed to discover and treat liver lacerations suffered by the son in an accident, a directed verdict should not have been granted to the caregivers as, although the parents' expert did not specifically testify he was a licensed physician, which was required under G.S. 8C-1-702 in order for the expert to be able to testify about the standard of care set out in G.S. 90-21.12, the jury could infer from his testimony that he had a medical license; also, his testimony was sufficient to establish his familiarity with the caregivers and the standard of care in their community. Day v. Brant, 205 N.C. App. 348, 697 S.E.2d 345 (2010), superseded, 721 S.E.2d 238, 2012 N.C. App. LEXIS 61 (N.C. Ct. App. 2012), review denied, 366 N.C. 219, 726 S.E.2d 179, 2012 N.C. LEXIS 429 (N.C. 2012).

Formal Recognition as Expert Witness. - In a medical malpractice action, the exclusion of expert testimony regarding a physician's assistant's standard of care was error under G.S. 8C-1, N.C. R. Evid. 702(d), as there was no need for the expert to have been formally recognized as an expert witness in the presence of the jury in order to offer his opinion. Katy v. Capriola, 226 N.C. App. 470, 742 S.E.2d 247 (2013).

Formal Ruling Held Unnecessary. - There was no need for the court to make a formal ruling that the witness was an expert where her qualifications had already been presented to the court. State v. Wise, 326 N.C. 421, 390 S.E.2d 142, cert. denied, 498 U.S. 853, 111 S. Ct. 146, 112 L. Ed. 2d 113 (1990).

Assuming arguendo that the trial court's failure to formally qualify the witness as an expert was error, it was harmless error in light of the evidence of her qualifications, the court's obvious conviction that the witness was an expert, and the fact that the witness' opinion testimony fit within the definition of expert testimony. State v. Wise, 326 N.C. 421, 390 S.E.2d 142, cert. denied, 498 U.S. 853, 111 S. Ct. 146, 112 L. Ed. 2d 113 (1990).

Failure to Lay Sufficient Foundation Showing Expert Had Sufficient Knowledge. - Trial court erred in allowing expert testimony that alleged victim was suffering from post-traumatic stress disorder, where the State failed to lay a sufficient foundation showing expert witness to have sufficient skill, knowledge, or experience in or related to the syndrome to qualify as an expert thereon. State v. Goodwin, 320 N.C. 147, 357 S.E.2d 639 (1987).

Court may not rule that a witness is an expert on the basis that another court has found him to be an expert. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, cert. denied, 320 N.C. 174, 358 S.E.2d 64 (1987).

Motion to Strike Expert Testimony Denied. - Trial court did not abuse its discretion in declining to strike an expert's testimony; although the trial court could have granted the motion to strike, the trial court could have viewed the testimony differently, and the denial of a motion to strike was not so arbitrary that it could not have been the result of a reasoned decision. Kearney v. Bolling, 242 N.C. App. 67, 774 S.E.2d 841 (2015).

Licensed Clinical Psychologist. - The witness-doctor who had her masters in psychology, had a Ph.D., and was a licensed clinical psychologist who specialized in anxiety disorders (including PTSD), was well qualified to testify as an expert; her testimony was properly admitted as expert testimony. State v. Chavis, 141 N.C. App. 553, 540 S.E.2d 404 (2000).

Plaintiff's doctor did not have to qualify as a psychiatrist or psychologist to testify that he saw nothing in his examination and treatment of the plaintiff to indicate that she was malingering. Polk v. Biles, 92 N.C. App. 86, 373 S.E.2d 570 (1988), cert. denied, 324 N.C. 337, 378 S.E.2d 798 (1989).

Doctor in Medical Malpractice - Doctor was properly qualified as an expert witness in a medical malpractice action pursuant to G.S. 8C-1, N.C. R. Evid. 702, as the doctor specialized in the same specialty as the defendant doctor, and during the year preceding 29 March 1997, the witness spent all of his professional time teaching at an accredited health professional school and the majority of it teaching in the specialty. Coffman v. Roberson, 153 N.C. App. 618, 571 S.E.2d 255 (2002), cert. denied, 356 N.C. 668, 577 S.E.2d 111 (2003).

Expert could not reasonably be expected to qualify as an expert witness as required by G.S. 1A-1, N.C. R. Civ. P. 9(j), and did not qualify as an expert witness under G.S. 8C-1, N.C. R. Evid. 702(b) or (c) as: (1) the expert was a board certified obstetrician, (2) doctor one was a board certified emergency room physician and doctor two was a board certified trauma surgeon, (3) both doctors were acting within their capacities as specialists in treating a decedent as a trauma patient, (4) both doctor one and doctor two were properly deemed as specialists under Rule 702, and (5) the expert was not certified as either an emergency room physician or a trauma surgeon, nor did the expert practice in either of these areas. Knox v. Univ. Health Sys. of E. Carolina, Inc., 187 N.C. App. 279, 652 S.E.2d 722 (2007).

Wife's proposed expert could not be accepted under G.S. 8C-1, N.C. R. Evid. 702(e), as there were no extraordinary circumstances to support the certification of the expert under Rule 702(e), nor did the wife argue such circumstances existed. Knox v. Univ. Health Sys. of E. Carolina, Inc., 187 N.C. App. 279, 652 S.E.2d 722 (2007).

In a medical malpractice suit against an oral surgeon, the trial court erred by striking the patient's standard of care witness because (1) the expert fulfilled the "performance of the procedure" and "prior experience" requirements since the expert was licensed to perform oral surgery and performed the surgical extraction of molars, (2) the expert was a general dentist who specialized in the practice of oral surgery, and (3) the expert possessed sufficient familiarity with the city of Charlotte and the practice of dentistry therein. Roush v. Kennon, 188 N.C. App. 570, 656 S.E.2d 603 (2008), review denied, 362 N.C. 361, 664 S.E.2d 309 (2008), review dismissed, as moot, 362 N.C. 361, 664 S.E.2d 310 (2008).

Exclusion of the estate's proffered expert in a medical negligence action was proper, because the proffered expert did not spend sufficient time, including the expert's surgery and teaching time, to meet the requirements of G.S. 8C-1, Rule 702(b). Cornett v. Watauga Surgical Group, P.A., 194 N.C. App. 490, 669 S.E.2d 805 (2008).

For purposes of certification under G.S. 1A-1, N.C. R. Civ. P. 9(j), a doctor reasonably could have been expected to qualify as an expert under G.S. 8C-1, N.C. R. Evid. 702(b), because the doctor was an orthopedic surgeon, and at the time of the acts underlying the medical malpractice claim, he had been chief of adult reconstructive orthopedic surgery and an assistant professor of orthopedic surgery at a university medical center for four years. Morris v. Southeastern Orthopedics Sports Med. & Shoulder Ctr., P.A., 199 N.C. App. 425, 681 S.E.2d 840 (2009), review denied, 363 N.C. 745, 688 S.E.2d 456 (2009).

Trial court erred in granting summary judgment in favor of defendants and in dismissing plaintiff's medical malpractice complaint because it misapplied G.S. 1A-1, N.C. R. Civ. P. 9(j)(1) when it decided that plaintiff's tendered expert witness could not reasonably be expected to qualify since the witness would not meet the requirements for expert qualification under N.C. R. Evid. 702(b); the trial court failed to make any findings of fact, and whether the witness met the "professional time" standard of Rule 702 appeared to be a highly disputed fact, which had to be reviewed in the light most favorable to the nonmoving party. Moore v. Proper, 215 N.C. App. 202, 715 S.E.2d 586 (2011), aff'd in part 366 N.C. 25, 726 S.E.2d 812, 2012 N.C. LEXIS 411 (N.C. 2012).

There is a difference between whether a plaintiff could "reasonably expect" an expert to qualify as such under G.S. 1A-1, N.C. R. Civ. P. 9(j)(1) and whether the expert does in fact qualify as an expert; whether the proposed expert is reasonably expected to qualify is resolved at the time the complaint is filed, and whether the proposed expert does in fact qualify as such is resolved after discovery is completed. Moore v. Proper, 215 N.C. App. 202, 715 S.E.2d 586 (2011), aff'd in part 366 N.C. 25, 726 S.E.2d 812, 2012 N.C. LEXIS 411 (N.C. 2012).

When a trial court based a dismissal, under G.S. 1A-1, N.C. R. Civ. P. 9(j), of a patient's dental malpractice complaint on a finding that no reasonable person could find the patient's proffered expert would qualify as an expert under G.S. 8C-1, N.C. R. Evid. 702(b)(2), the court's analysis was erroneous because whether the expert would ultimately qualify under G.S. 8C-1, N.C. R. Evid. 702(b)(2) was a separate question from whether, under G.S. 1A-1, N.C. R. Civ. P. 9(j), the patient, based on what the patient reasonably knew or should have known at the time of filing the patient's complaint, reasonably expected that the expert would so qualify. Moore v. Proper, 366 N.C. 25, 726 S.E.2d 812 (2012).

It was error for a trial court to grant summary judgment dismissing a patient's dental malpractice complaint based on a finding, under G.S. 1A-1, N.C. R. Civ. P. 9(j), that no reasonable person could find the patient's proffered expert would qualify as an expert under G.S. 8C-1, N.C. R. Evid. 702(b)(2), because, when the patient filed the complaint, the patient knew or should have known (1) the proffered expert was a licensed dentist with over 35 years of full-time experience, (2) after retiring, the expert participated in continuing education and practiced dentistry on a fill-in basis, (3) it could be inferred that the expert engaged in fairly regular practice for enough hours to amount to active clinical practice, and (4) all the expert's time in the profession was spent in clinical practice, so the patient reasonably expected the expert devoted most professional time to active clinical practice during the relevant time, satisfying G.S. 1A-1, N.C. R. Civ. P. 9(j)(1), and reasonably expected the expert to qualify as an expert under G.S. 8C-1, N.C. R. Evid. 702(b)(2). Moore v. Proper, 366 N.C. 25, 726 S.E.2d 812 (2012).

Trial court erred in dismissing an executrix's medical malpractice action because the trial court neglected to enter findings of fact and conclusions of law with respect to whether the complaint presented claims against physicians and other non-nursing healthcare professionals who fell outside the purview of an expert's expertise; even if the complaint presented claims against non-nursing healthcare professionals, that fact alone would not necessarily justify the trial court's dismissal of the entire complaint. Estate of Wooden v. Hillcrest Convalescent Ctr., Inc., 222 N.C. App. 396, 731 S.E.2d 500 (2012).

Trial court erred by dismissing a medical malpractice complaint, which contained a certification under G.S. 1A-1, N.C. R. Civ. P. 9(j), because the administratrix of the decedent's estate, when the administratrix filed the complaint, could reasonably have had an expectation that a doctor would qualify as an expert, under G.S. 8C-1, N.C. R. Evid. 702. Braden v. Lowe, 223 N.C. App. 213, 734 S.E.2d 591 (2012).

Although an expert's cross-examination concerning certain guidelines might have raised questions about credibility and motive to testify in this medical malpractice case, it did not undermine the ruling that he was qualified to render expert testimony. Kearney v. Bolling, 242 N.C. App. 67, 774 S.E.2d 841 (2015).

Patient's argument, that the expert was not qualified as a medical expert because he did not show that he was familiar with the community standard of care in Winston-Salem, was rejected; the expert testified that he was familiar with Beaumont, Texas, which he believed to be similar to Winston-Salem and that he associated with surgeons from a hospital in Winston-Salem, and there was no abuse of discretion in the finding that he was familiar with the standard of care in Winston-Salem. Kearney v. Bolling, 242 N.C. App. 67, 774 S.E.2d 841 (2015).

G.S. 1A-1, N.C. R. Civ. P. 9(j) only requires that an expert witness have experience performing the procedure that is the subject of the complaint and treats similar patients, as in this case, not that both the defendant and the testifying witness have the exact same professional qualifications. Preston v. Movahed, 374 N.C. 177, 840 S.E.2d 174 (2020).

Plaintiff's expectation that the expert would qualify to testify was reasonable; a cardiologist who annually interprets hundreds of treadmill tests can testify about the standards of care relevant to treadmill tests in a case where the treadmill test results were not properly handled by a nuclear cardiologist. The expert was also board-certified in internal medicine and cardiovascular disease and for over 40 years, he had practiced as a cardiologist, engaged in active clinical practice treating patients like the decedent. Preston v. Movahed, 374 N.C. 177, 840 S.E.2d 174 (2020).

Emergency Room Nurses. - Three emergency room nurses were qualified to render their opinions as experts about the possibility that the victim accidentally swallowed the piece of plastic on which he choked to death; nurses are qualified to render expert opinions as to the cause of a physical injury even though they are not licensed to diagnose illnesses or prescribe treatment, and there is no basis for any preference of licensed physicians for such medical testimony. State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995).

Forensic Pathologist. - Witness, who was properly qualified as a forensic pathologist to testify to the nature of the wounds inflicted on a homicide victim and to the cause of her death, was not qualified as an expert on the pattern that a knife blade makes when it is wiped on a shirt. This was a matter of common sense, best left to the jury. State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898, cert. denied, 484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384 (1987).

Expert testimony of forensic pathologists was admissible because: (1) the testimony was sufficiently reliable to let a jury find weight; (2) the witnesses were qualified, as one had done 6,700 to 6,800 forensic autopsies and both were cross-examined; and (3) the testimony on cause of death was relevant. State v. Borders, 236 N.C. App. 149, 762 S.E.2d 490 (2014).

Forensic Serologist. - Forensic serologist qualified as an expert, and his scientific testimony could assist the jury in determining whether defendant killed the victim; thus, he was competent to testify and allowing him to do so did not violate this rule. State v. Daughtry, 340 N.C. 488, 459 S.E.2d 747 (1995), cert. denied, 516 U.S. 1079, 116 S. Ct. 789, 133 L. Ed. 2d 739 (1996).

Where there was testimony which established that the witness had particularized training and experience in forensic serology, the witness was properly accepted by the trial court as an expert in that area. State v. Hairston, 123 N.C. App. 753, 475 S.E.2d 242 (1996).

Police Officer. - Trial court properly found the length of a police officer's employment as a narcotics officer, as well as his knowledge of cocaine manufacturing, the division and packaging of the drug, and his extensive knowledge of illegal drug operations provided him with the requisite expertise to testify to a hypothetical question based on the facts of a case as an expert. State v. Moore, 152 N.C. App. 156, 566 S.E.2d 713 (2002).

Although the trial court should have recognized a police lieutenant as an expert witness before it allowed him to offer his interpretation of evidence that was found at the scene of a double homicide, the record revealed that the court implicitly found that the lieutenant was an expert in crime scene investigation and admitted his testimony under G.S. 8C-1, N.C. R. Evid. 702(a), and the state supreme court refused to reverse defendant's convictions for first-degree murder because the lieutenant was not recognized formally as an expert witness. State v. Jones, 358 N.C. 330, 595 S.E.2d 124 (2004).

Trial court did not abuse its discretion in allowing the investigating officer to testify as an expert under G.S. 8C-1-702(a) regarding the lividity of pooled blood found at the homicide crime scene and as to approximate time of death, as the State offered ample evidence, which included the officer's education, experience, and specialized training, that the officer was better qualified to give an opinion on the subject than the trier of fact; although the officer was not a medical expert, the applicable standard did not require an expert to be licensed or a specialist in the field in which the expert testified. State v. Steelmon, 177 N.C. App. 127, 627 S.E.2d 492 (2006).

Trial court erred by admitting a deputy's testimony on the issue of impairment relating to the results of the Horizontal Gaze Nystagmus (HGN) test without first determining if he was qualified to give expert testimony under G.S. 8C-1, Rule 703 where he effectively informed the jury that, based on the results of the HGN test, there was more than a 77% chance that defendant's blood alcohol level was .10 or higher. State v. Torrence, 247 N.C. App. 232, 786 S.E.2d 40 (2016).

In a case where defendant was convicted of driving while impaired, defendant was not entitled to a new trial because, although the officer was not tendered as an expert in Horizontal Gaze Nystagmus (HGN) interpretation, defendant was not prejudiced by the admission of the officer's testimony regarding the HGN test as there was overwhelming evidence of defendant's impairment even without that testimony because the officer observed defendant's slurred speech, glassy, red eyes, and strong odor of alcohol; there were two positive breath test results; defendant did not successfully complete two other sobriety tests; and the blood alcohol test results indicated legal impairment with a blood alcohol content of 0.10. State v. Killian, 250 N.C. App. 443, 792 S.E.2d 883 (2016), review denied, stay lifted, stay denied, 797 S.E.2d 11, 2017 N.C. LEXIS 187 (2017).

Court of appeals erred in holding a law enforcement officer's expert testimony was erroneously admitted because he qualified as an expert since he completed training on how to administer the Horizontal Gaze Nystagmus test he administered to defendant; in overruling defendant's objection, the trial court implicitly found the officer was qualified to testify as an expert, and he could give expert testimony solely on the issue of impairment and not on the specific alcohol concentration level. State v. Godwin, 369 N.C. 605, 800 S.E.2d 47 (2017).

Expert in Pediatric Gastroenterology. - Expert's certification in, and practice of, the subspecialty pediatric gastroenterology, did not preclude him under this section from being qualified to testify against defendant-pediatrician; the plaintiff's expert testified that he was "a distinguished professor of pediatrics in the Department of Pediatrics at the University of California" and his testimony as well as his curriculum vitae showed that he had been certified as a pediatrician since 1968. Edwards v. Wall, 142 N.C. App. 111, 542 S.E.2d 258 (2001).

Experts in Child Sexual Abuse Case. - The trial court did not err in qualifying a child sexual abuse counselor and a social worker as experts in child sexual abuse and admitting their testimony, where both witnesses testified to having received advanced degrees in psychology and counseling, to having had extensive experience in evaluating victims of child abuse, and to having testified on numerous prior occasions before the courts of this State as experts in the field of child sexual abuse. State v. Parks, 96 N.C. App. 589, 386 S.E.2d 748 (1989).

Individual who had counseled children suspected of being sexually abused for five years and had interviewed between 500 and 600 children in her capacity as a sexual abuse counselor, and who had a bachelor's degree in psychology, a master's degree in counseling, and had attended specialized training in the areas of sexual abuse counseling and investigation, was properly qualified by the court as an expert in counseling for sexually abused children. State v. Love, 100 N.C. App. 226, 395 S.E.2d 429 (1990), cert. denied, appeal dismissed, 328 N.C. 95, 402 S.E.2d 423 (1991).

Physician who had completed a pediatrics residency, had attended various educational workshops on child sexual abuse, and gave workshops and lectures on child sexual abuse throughout North Carolina, who had seen 300 children for evaluation of suspected sexual abuse, was properly qualified as an expert in the field of child sexual abuse. State v. Love, 100 N.C. App. 226, 395 S.E.2d 429 (1990), cert. denied, appeal dismissed, 328 N.C. 95, 402 S.E.2d 423 (1991).

Doctor's expert opinion that children did not tend to make up stories about sexual abuse was admissible; this general statement of opinion did not vouch for the child's credibility, but instead merely described the profile of a sexually abused child. State v. Worley, - N.C. App. - , 836 S.E.2d 278 (2019), review denied, 846 S.E.2d 285, 2020 N.C. LEXIS 749 (N.C. 2020).

Expert opined that the child victim needed the extra support for trauma-focused therapy because of the sexual abuse that the child experienced, and the expert stated that the expert believed the victim; the expert's direct commentary on the victim's credibility was erroneously admitted, but given the extensive testimony by the victim, which was corroborated by other witness testimony and medical evidence, the error did not rise to the level of plain error. State v. Worley, - N.C. App. - , 836 S.E.2d 278 (2019), review denied, 846 S.E.2d 285, 2020 N.C. LEXIS 749 (N.C. 2020).

In accordance with the expert's area of expertise, it was permissible for the expert to testify that trauma-focused therapy would be recommended because of a specific event that happened to the child, plus the expert could properly comment as to how children like the child in this case were generally encouraged during a therapy session to tell the whole story of what happened to them. Nothing directly concerned the child in this case or the substance of the expert's interview. State v. Worley, - N.C. App. - , 836 S.E.2d 278 (2019), review denied, 846 S.E.2d 285, 2020 N.C. LEXIS 749 (N.C. 2020).

Social Worker Not Qualified as Expert - Trial court properly determined that the social worker was not entitled to offer any opinion as to medical treatment, where the social worker testified that she was not qualified to render a medical diagnosis and never made any such diagnosis based on the victim's behavior. State v. Carter, 216 N.C. App. 453, 718 S.E.2d 687 (2011).

Termination of Parental Rights. - In a parental rights termination case, a mother's proffer was sufficient for the trial court to understand a clinical psychologist's evaluation of the case and opinions, but also sufficient for the trial court to determine that the psychologist's lack of a personal evaluation of the mother's child and the psychologist's lack of juvenile court experience rendered her testimony of no use to the trial court. In re K.G.W., 250 N.C. App. 62, 791 S.E.2d 540 (2016).

Actuary. - An individual's educational qualifications and experience as a property and casualty actuary qualified him as an expert witness in a farm owner rate hearing, although he had never before testified in such a hearing. State ex rel. Commissioner of Ins. v. North Carolina Rate Bureau, 75 N.C. App. 201, 331 S.E.2d 124, cert. denied, 314 N.C. 547, 335 S.E.2d 319 (1985).

Arson Expert. - Arson expert's testimony that the burning of victim's home was intentional was proper, where the agent had attended over 500 hours of arson investigation courses and numerous seminars organized by the International Association of Arson Investigators, was certified as a fire investigator by the North Carolina Fire and Rescue Commission, had taught classes on arson, and had participated in approximately 125 to 135 arson investigations. State v. Blakeney, 352 N.C. 287, 531 S.E.2d 799 (2000), cert. denied, 531 U.S. 1117, 121 S. Ct. 868, 148 L. Ed. 2d 780 (2001).

Law Enforcement Officer As Expert. - Trial court did not abuse its discretion by allowing state trooper who (1) had formal training in investigating accidents, (2) had investigated between 2,000 and 2,500 accidents, and (3) had investigated defendant's accident, to testify as an expert witness in accident investigation and reconstruction. State v. Holland, 150 N.C. App. 457, 566 S.E.2d 90 (2002), cert. denied, 356 N.C. 685, 578 S.E.2d 316 (2003).

State Bureau of Investigation special agent was properly qualified as an expert witness where the agent possessed sufficient knowledge, experience, and training in the field of bloodstain pattern interpretation and was in a better position to have an opinion about such evidence than was the jury. State v. Morgan, 359 N.C. 131, 604 S.E.2d 886 (2004).

Admission of expert testimony by state investigative agents was proper, because the toolmark identification process used was sufficiently reliable and the agents explained how toolmark identification worked and how they conducted their investigation, showing that the agents were better qualified than the jury. State v. Britt, 217 N.C. App. 309, 718 S.E.2d 725 (2011).

Electrical Engineering and Fire Cause and Origin Investigation Expert - Witness was properly permitted to testify as an expert in the fields of electrical engineering and fire cause and origin investigation given the witness's extensive educational background in electrical engineering and physics and the witness's 23 years of experience in the field. Red Hill Hosiery Mill, Inc. v. Magnetek, Inc., 159 N.C. App. 135, 582 S.E.2d 632 (2003).

Qualification as Expert Upheld. - Decision to admit investigator's testimony concerning glass fragments found at the scene of the crime and in defendant's boot was upheld where the investigator had an extensive background in trace evidence, received a bachelor's degree in chemistry and biology, received internal training at two police departments, received external training at the FBI Academy at Quantico and Brunswick College, and had performed hundreds of tests for glass analysis during his career. State v. McVay, 167 N.C. App. 588, 606 S.E.2d 145 (2004).

Trial court did not abuse its discretion by qualifying a witness as an expert in the area of forensic firearms testing for ejection because the witness was a certified forensic firearms examiner with extensive training in the operation of firearms and the specialized forensic firearms knowledge and understanding of the witness as to the mechanics of firearms enabled the witness to reliably conduct an experiment and be in a better position than the jury to understand the ejection patterns of shell casings from the firearm at issue in the case. State v. Turner, - N.C. App. - , - S.E.2d - (Oct. 6, 2020), review denied, 376 N.C. 901, 854 S.E.2d 797, 2021 N.C. LEXIS 234 (2021).

Nurse Engaged in Clinical Nursing. - In a medical malpractice case, a patient had forecast sufficient evidence that a nurse was qualified to testify under G.S. 8C-1, N.C. R. Evid. 702(b)(2). The nurse's deposition testimony that she worked in the clinical practice of nursing part of the time and that she served as a legal consultant part of the time did not necessarily contradict her affidavit that she devoted the majority of her time to clinical nursing; furthermore, defendants had not contradicted her statements that a registered nurse could be a "floor nurse" and that there was no "floor nursing" specialty. Diggs v. Novant Health, Inc., 177 N.C. App. 290, 628 S.E.2d 851 (2006), review denied, stay denied, 361 N.C. 426, 648 S.E.2d 209 (2007).

III. EXPERT OPINION NOT ADMISSIBLE.

.

Failure to Offer Showing as to Qualifications. - The trial court properly refused to admit testimony by officer about the trajectory of a bullet fired from defendant's pistol without some showing that the witness was qualified to testify, either as a lay witness or as an expert. State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388 (2000), cert denied, 353 N.C. 396, 547 S.E.2d 427 (2001).

An expert in accident reconstruction may in some situations be able to testify as to the circumstances of an accident from examination of the evidence; however, a police was not entitled to testify to such as the officer was never identified as an expert in accident reconstruction. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124 (2003), cert. denied, 357 N.C. 169, 581 S.E.2d 447 (2003).

Defendant's expert was properly excluded under G.S. 8C-1, Rule 702 as there was no indication that the expert possessed any particular expertise on hard drives or the erasure of files. State v. Anderson, 194 N.C. App. 292, 669 S.E.2d 793 (2008), review denied, 363 N.C. 130, 675 S.E.2d 659 (2009).

Expert Testimony Excluded Since Basis Was Speculation. - Where doctor's conclusions regarding defendant's mental condition on day of murder were purely speculation and conjecture and he indicated no comprehension of legal significance of specific intent, the doctor's proffered testimony was properly excluded since his testimony would not have assisted trier of fact to understand evidence or to determine fact in issue. State v. Clark, 324 N.C. 146, 377 S.E.2d 54 (1989).

Expert's Failure to Make Independent Diagnosis. - In medical malpractice case, trial court did not err by refusing to allow expert testimony from a physician who did not make his own independent diagnosis or conduct independent testing to determine the cause of pain experienced after an injection. Miller v. Forsyth Mem'l Hosp., Inc., 173 N.C. App. 385, 618 S.E.2d 838 (2005).

Expert No Better Qualified Than Jury. - Where doctor was asked to tell members of jury about abrasion over the urethra of victim, doctor's statement that sore area conceivably happened in intercourse that was performed at knife-point or under duress violated this rule; this expert was not any better qualified than jury to have opinion on subject whether intercourse was performed at knife-point or under duress. State v. Marshall, 92 N.C. App. 398, 374 S.E.2d 874 (1988), cert. denied, 328 N.C. 273, 400 S.E.2d 459 (1991).

In negligence action where van collided with garbage truck, trial court did not abuse its discretion in excluding meteorologist's testimony regarding visibility conditions in 1985 and 1987; the effect of the sun's glare on drivers is an effect to which any driver heading into the direction of the sun can attest and expert's credentials as a meteorologist made him no more qualified than any other driver to offer an opinion. Smith v. Pass, 95 N.C. App. 243, 382 S.E.2d 781 (1989).

The trial court properly disallowed the plaintiff from using an economist as his expert witness to show the value of his loss of his own services; the jury was capable of rendering a decision on the value of a person's services to himself because such is a matter of common knowledge. Warren v. GMC, 142 N.C. App. 316, 542 S.E.2d 317 (2001).

Trial court did not err in refusing to admit the testimony of doctor regarding the effect of long-term maximum-custody lockup on defendant's behavior and his ability to distinguish between appropriate and inappropriate fears, where the expert was in no better position than the jury to determine that, as the result of long-term imprisonment, certain legal standards had not been met, namely, that defendant did not premeditate and deliberate and that defendant was responding to a threat he genuinely perceived, and where such evidence would tend to confuse rather than help. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001).

Proffered Testimony Would Invade Province of Jury. - Trial court did not abuse its discretion by excluding the testimony of defendant's expert, as testimony on inconsistencies in the victim's version of events was within the province of the jury. State v. Martin, 222 N.C. App. 213, 729 S.E.2d 717 (2012), cert. dismissed, 371 N.C. 485, 818 S.E.2d 288 (2018).

Bolstering Children's Testimonies with Evidence Based Solely on Their Own Disclosures. - The trial court's admittance of expert testimony that was not based on a specialized knowledge or expertise and did not assist the jury in understanding or determining a fact in issue was prejudicial and entitled the defendant to a new trial; without any physical evidence of sexual abuse, and based solely on disclosures made by the victims, the expert witnesses' testimonies were inadmissible under this rule. State v. Grover, 142 N.C. App. 411, 543 S.E.2d 179 (2001), aff'd, 354 N.C. 354, 553 S.E.2d 679 (2001).

Children's Symptoms of Post-Traumatic Stress Disorder. - Trial court erred in admitting an expert's testimony regarding the children's symptoms of post-traumatic stress disorder as no instruction was given that the testimony was to be considered for corroborative purposes, so it had to be assumed that the testimony was admitted to prove that the children had been sexually assaulted; however, the error was not plain error in light of the overwhelming evidence of defendant's guilt. State v. Brigman, 178 N.C. App. 78, 632 S.E.2d 498 (2006), appeal dismissed, cert. denied, 636 S.E.2d 813 (N.C. 2006).

Chiropractor. - In personal injury action arising out of an automobile accident, chiropractor's testimony as to plaintiff's strain or sprain of a muscle was properly excluded, because such injury and treatment are beyond the field of chiropractic as defined by statute. Ellis v. Rouse, 86 N.C. App. 367, 357 S.E.2d 699 (1987).

Insurance Adjuster. - Where a home was flooded and the homeowner asserted breach of contract and unfair and deceptive trade practices against an insurer and an adjusting company, the testimony of the homeowner's expert was properly excluded because (1) the homeowner's attorney did not offer any case that directly stood for the proposition that insurance adjusters could testify as experts, and (2) the expert only offered legal conclusions. Burrell v. Sparkkles Reconstruction Co., 189 N.C. App. 104, 657 S.E.2d 712 (2008).

Memory Variables Affecting Identification. - For case in which exclusion of expert testimony of a professor of psychology whom defendant offered to provide expert evidence on memory variables affecting eyewitness identification, but who had not interviewed the victim, was upheld, see State v. Knox, 78 N.C. App. 493, 337 S.E.2d 154 (1985).

Paternity of Victim's Child. - In a prosecution for first-degree rape of a female under the age of 13, with expert's testimony concerning the paternity index and evidence of defendant's access before it, jury was in as good a position as expert to determine whether defendant "probably" was father of victim's child. Therefore, expert's testimony that defendant "probably" was father of victim's child was of no assistance to the trier of fact and should have been excluded on that basis. State v. Jackson, 320 N.C. 452, 358 S.E.2d 679 (1987).

Who Was Father in Paternity Action. - Genetics and paternity testing experts should not have been allowed to express their opinions that defendant was the children's father, because allowing an expert to express an opinion as to who is the father tramples upon the jury's domain. Brooks v. Hayes, 113 N.C. App. 168, 438 S.E.2d 420 (1993).

Expert Is Not Needed to Explain Anatomical Dolls. - There is no need to have an expert evaluate the use of anatomical dolls or explain it to a jury; there is nothing technically complex about it. In fact, it is precisely because the use of the dolls can be readily understood by everyone involved, especially the child, that they are so often employed in the investigation of child abuse. State v. Fletcher, 322 N.C. 415, 368 S.E.2d 633 (1988).

Opinion of Abuse by Defendant. - While doctor's opinion that children were sexually abused was clearly admissible under prior decisions, his opinion that the children were sexually abused by defendant was not. Nonetheless, admission of the evidence was not reversible error. State v. Figured, 116 N.C. App. 1, 446 S.E.2d 838 (1994), cert. denied, 339 N.C. 617, 454 S.E.2d 261 (1995).

Where an expert, who was qualified as an expert in the field of pediatrics, testified that the victim's history of repeated vaginal penetration was consistent with his findings made during his examination of the victim's vaginal opening, that testimony was not impermissible opinion testimony regarding the victim's credibility because the expert's previous testimony established the existence of physical evidence supporting a diagnosis of sexual abuse. State v. Streater, - N.C. App. - , 673 S.E.2d 365 (2009).

Credibility. - In a prosecution for taking indecent liberties with a child, testimony of two witnesses for the State, a pediatrician and a child psychologist, that in their opinion the child had testified truthfully, did not meet the requirements for expert testimony, as it concerned the credibility of a witness, a field in which jurors are supreme and require no assistance, rather than some fact involving scientific, technical or other specialized knowledge, and as character evidence the testimony violated the provisions of G.S. 8C-1, Rules 405(a) and 608. State v. Holloway, 82 N.C. App. 586, 347 S.E.2d 72 (1986).

Where a doctor admitted that abrasions found on an alleged sexual assault victim were neither diagnostic nor specific to sexual abuse, this was insufficient physical evidence to support the doctor's testimony of her diagnosis and opinion that the victim was probably sexually abused; since (1) there was not overwhelming evidence of defendant's guilt, (2) the only direct evidence was the victim's testimony corroborated by other witnesses, and (3) other evidence showed that the results of a rape kit were negative, the impermissible expert medical opinion evidence had a probable impact on the jury's result because it amounted to an improper opinion on the victim's credibility, and the admission of the expert opinion was plain error. State v. Couser, 163 N.C. App. 727, 594 S.E.2d 420 (2004).

Admission of a doctor's testimony that it was probable that the child was a victim of sexual abuse was erroneous because there was no physical indication of sexual activity and the doctor's opinion was based on an examination of the child, the child's medical history, and the existence of a sexually transmitted disease; the improperly admitted opinion on the child's credibility prejudiced defendant in the eyes of the jury. State v. Ewell, 168 N.C. App. 98, 606 S.E.2d 914 (2005), review denied, 362 N.C. 240, 660 S.E.2d 488 (2008).

It was plain error for a medical expert to bolster the credibility of the victim in violation of G.S. 8C-1, N.C. R. Evid. 702(a), so defendant did not have to preserve the claim for review pursuant to N.C.R. App. P. 10(b)(1); however, the error did not prejudice defendant as the State presented sufficient evidence from other sources to establish the victim's credibility. State v. Blizzard, 169 N.C. App. 285, 610 S.E.2d 245 (2005).

Trial court erred in admitting expert testimony that, inter alia, "these children suffered sexual abuse by (defendant)," as the opinion did not relate to a diagnosis derived from the expert's examination of the prosecuting witnesses in the course of treatment, making it improper opinion testimony concerning the children's credibility; however, the error was not plain error in light of the overwhelming evidence of defendant's guilt. State v. Brigman, 178 N.C. App. 78, 632 S.E.2d 498 (2006), appeal dismissed, cert. denied, 636 S.E.2d 813 (N.C. 2006).

As an expert's testimony that his findings were consistent with the history that he received from the victim of repeated anal penetration was an impermissible opinion regarding the victim's credibility, and the victim's testimony was the only direct evidence implicating defendant on the charge of first-degree sexual offense, the expert's testimony amounted to an improper opinion on the victim's credibility and it had a probable impact on the jury's result. State v. Streater, - N.C. App. - , 673 S.E.2d 365 (2009).

Defendant was entitled to a new trial on the charge of first-degree sexual offense because the trial court erred when it admitted a doctor's expert opinion that sexual abuse had in fact occurred when the doctor's testimony amounted to an improper opinion on the victim's credibility, and it had a probable impact on the jury's result; the victim's testimony was the only direct evidence implicating defendant on the charge of first-degree sexual offense, and while the doctor could give such testimony with regard to vaginal rape, where he found significant findings of physical evidence to support the charge history, he could not testify that it was defendant who repeatedly abused the victim where no such physical evidence existed. State v. Streater, 197 N.C. App. 632, 678 S.E.2d 367 (2009), review dismissed, as moot, 363 N.C. 661, 687 S.E.2d 294 (2009).

Because an expert's testimony that she was not concerned that the child was "giving a fictitious story" was tantamount to her opinion that the child was not lying about the sexual abuse; such testimony was inadmissible and the error was prejudicial as it was likely to influence the jury were the child witness's credibility was at issue. State v. Ryan, 223 N.C. App. 325, 734 S.E.2d 598 (2012).

Expert's opinions on damages in a breach of contract action were unreliable because the expert did not attempt to discern what portion of the decrease in a client's credit-card-related costs was due to the client's customers switching from credit card payments to automated clearing house batch payments. The expert simply assumed that each dollar saved was to be attributed to a customer switching. Vizant Techs., LLC v. YRC Worldwide, Inc., 373 N.C. 549, 838 S.E.2d 616 (2020).

Tendency to Fabricate. - In prosecution for second degree rape and sexual offense, the trial court erred in permitting the prosecutor to pose a question to an expert in clinical psychology regarding whether the 13-year-old victim had a mental condition which would cause her to fabricate a story about the sexual assault. State v. Heath, 316 N.C. 337, 341 S.E.2d 565 (1986).

Helpfulness. - Expert affidavits were properly excluded under G.S. 8C-1-702 and G.S. 8C-1-704 where four statements were not helpful to the trier of fact, but merely described the obvious physical features of a map; the fifth statement, that there was no dedicated easement, reached a conclusion and decided an issue reserved for the trial court. Cape Fear Pub. Util. Auth. v. Costa, 205 N.C. App. 589, 697 S.E.2d 338 (2010).

Trial court did not abuse its discretion by excluding the expert opinion testimony of a forensic psychologist about the fight or flight response as it was relevant to the defense to the charge of voluntary manslaughter because the psychologist's testimony did not provide insight beyond the conclusions that jurors could readily draw from their ordinary experience. State v. Thomas, 259 N.C. App. 198, 814 S.E.2d 835 (2018), review denied, 371 N.C. 475, 818 S.E.2d 288, 2018 N.C. LEXIS 830 (2018).

Trial court did not abuse its discretion by disallowing defendant's expert from testifying about the time and disguise concepts as they relate to identifications because they were common sense conclusions that would have been of little if any benefit to the jury. The procedure the trial court followed showed that it conducted its discriminatory balancing test under G.S. 8C-1, N.C. R. Evid. 403 and its ruling was the result of a reasoned decision. State v. Vann, 261 N.C. App. 724, 821 S.E.2d 282 (2018).

Trial court did not abuse its discretion by refusing to admit the testimony of defendant's expert because he State's theory of physical helplessness did not rest on the rape victim's lack of memory, and therefore the expert's testimony concerning alcohol and its effect on memory would not have helped the jury determine a fact in issue in the case. State v. Lopez, - N.C. App. - , 826 S.E.2d 498 (2019).

Contradictory Testimony. - Where psychologist who examined and administered several tests to defendant concluded his testimony on voir dire by admitting that his opinion as to defendant's capacity to form the specific intent to kill would have been different had he been aware of defendant's confession to the police before making his assessment, it was clear that he doubted his own opinion; this expert opinion testimony, at best, was contradictory and equivocal and could not have been helpful to the trier of fact in making the determination of whether defendant specifically intended to kill the victim. State v. Jackson, 340 N.C. 301, 457 S.E.2d 862 (1995).

Specialists Disqualified from Testifying against General Practitioner. - All three of the plaintiff's witnesses were disqualified from testifying against the defendant, a general practitioner, pursuant to this rule, because they were specialists as that term is used in the statute. One was board certified in oncology; another, in emergency medicine and family practice; and the third held himself out as a specialist in emergency medicine. Consequently, the defendant's motion for a directed verdict was properly granted. Formyduval v. Bunn, 138 N.C. App. 381, 530 S.E.2d 96 (2000).

It was not error to exclude the testimony of a clinical psychologist as to the reactions of sexually abused children, when there was no evidence of the reaction of the child to the incident in the case at issue and the psychologist's testimony would not have been helpful to the jury in reaching a decision. State v. Fletcher, 322 N.C. 415, 368 S.E.2d 633 (1988).

Medical Doctor on Child Abuse. - The opinion testimony of a doctor that the victim/child had been abused was inadmissible where: the doctor's "diagnosis" of the child's sexual abuse was based solely on a psychiatrist's interview - itself inadmissible - with the child; the child's body showed no signs of abuse - no scars, no enlarged vaginal opening, no missing or torn hymen, etc. - and the tests for sexually transmitted disease all came back negative; and the doctor's testimony most likely resulted in a different result than would have been reached otherwise. State v. Bates, 140 N.C. App. 743, 538 S.E.2d 597 (2000).

Trial court erred by permitting a doctor to testify as to his opinion that defendant's stepdaughter had been sexually abused where the doctor's opinion was not supported by an adequate foundation, and its admission was prejudicial error. State v. Dixon, 150 N.C. App. 46, 563 S.E.2d 594 (2002), aff'd, 356 N.C. 428, 571 S.E.2d 584 (2002).

Even though the State failed to lay an adequate foundation for the admission of a pediatrician's statement of opinion under G.S. 8C-1, Rule 702, and the trial court's admission of the challenged portion of the testimony was error, it did not constitute plain error based upon other overwhelming evidence against defendant. State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002).

The failure to admit testimony challenging the undercover procedures used by an undercover agent in obtaining drugs from the defendant did not constitute an abuse of discretion, under this section, where the evidence was already sufficient to prove the drug charges under G.S. 90-95(a) and where the record already contained evidence that the agent used the drugs from the buys and the jury, therefore, had the ability, on its own, to assess the agent's credibility. State v. Mackey, 137 N.C. App. 734, 530 S.E.2d 306, aff'd, 352 N.C. 650, 535 S.E.2d 555 (2000).

Opinion on Actual Speed Based on Physical Evidence. - With respect to the actual speed of a vehicle, the opinion of a lay or expert witness will not be admitted where he did not observe the accident, but bases his opinion on the physical evidence at the scene. Hicks v. Reavis, 78 N.C. App. 315, 337 S.E.2d 121 (1985), cert. denied, 316 N.C. 553, 344 S.E.2d 7 (1986).

One who did not see a vehicle in motion will not be permitted to give an opinion as to its speed. Coley v. Garris, 87 N.C. App. 493, 361 S.E.2d 427 (1987).

Expert witness was not permitted to testify regarding the speed of the vehicles involved in an accident at the time of impact where the witness did not personally observe the vehicles at the time of the accident. Loy v. Martin, 156 N.C. App. 622, 577 S.E.2d 407 (2003), cert. denied, 357 N.C. 251, 582 S.E.2d 274 (2003).

Because defendant's crime occurred before December 1, 2006, N.C. R. Evid. 702(i) did not apply, and Shaw rule barred expert opinion as to the speed of defendant's vehicle. State v. Hazelwood, 187 N.C. App. 94, 652 S.E.2d 63 (2007), cert. denied, 363 N.C. 133, 673 S.E.2d 867 (2009), cert. denied, 558 U.S. 1013, 130 S. Ct. 553, 175 L. Ed. 2d 385 (2009).

Testimony of a driver's expert witness about a second driver's speed was inadmissible because the expert did not offer testimony about the results of tests on a similar vehicle; the expert's testimony was specifically focused on the second driver's speed, not general principles. Blackwell v. Hatley, 202 N.C. App. 208, 688 S.E.2d 742 (2010).

Barefoot impression evidence, that is, evidence based on research into the uniqueness of bare feet found inside shoes at crime scenes, was not sufficiently scientifically reliable at the time of trial, but its admission, given the entire record, was harmless. State v. Berry, 143 N.C. App. 187, 546 S.E.2d 145 (2001), review denied, 353 N.C. 729, 551 S.E.2d 439 (2001).

Position of Body Before Shooting. - Trial court did not err in excluding the testimony of a witness as to how a body was positioned before it was shot because the trial court was not satisfied with the witness's expertise to testify in this area and did not believe that the witness's testimony would be helpful. State v. Taylor, 354 N.C. 28, 550 S.E.2d 141 (2001), cert. denied, 535 U.S. 934, 122 S. Ct. 1312, 152 L. Ed. 2d 221 (2002).

Practices And Procedures Used by Narcotics Officer. - The court rightfully refused the testimony of defendant's expert, a private detective and retired police officer of 30 years, where the jury was perfectly capable of judging the improper methods and procedures used by the undercover narcotics officer without the assistance of the expert; the testimony was irrelevant, had insufficient probative value on the facts to be proved, and violated the rule prohibiting expert testimony as to witness credibility, G.S. 8C-1, Rules 405(a) and 608, as read together. State v. Mackey, 352 N.C. 650, 535 S.E.2d 555 (2000).

Visual Identification Procedure for Controlled Substances Inadequate. - Trial court erred by admitting testimony identifying certain drugs as controlled substances based on a visual identification process. Visual identification procedure utilized did not provide adequate indices of reliability sufficient to support the admission of expert testimony; in light of the importance that testimony identifying particular items as controlled substances necessarily had, the trial court's error prejudiced defendant's chances for a more favorable outcome at trial. State v. Ward, 199 N.C. App. 1, 681 S.E.2d 354 (2009), aff'd 2010 N.C. LEXIS 424 (2010).

Controlled substances defined in terms of their chemical composition can only be identified through the use of a chemical analysis rather than through the use of lay testimony based on visual inspection. State v. Ward, 199 N.C. App. 1, 681 S.E.2d 354 (2009), aff'd 2010 N.C. LEXIS 424 (2010).

Court abused its discretion by permitting the State's expert witness to identify certain pills when the expert's methodology consisted solely of a visual inspection process; the testifying expert's visual identification of the purported controlled substances was not sufficiently reliable under G.S. 8C-1, N.C. R. Evid. 702. State v. Ward, 364 N.C. 133, 694 S.E.2d 738 (2010).

Trial court erred in admitting testimony by a police officer, pursuant to G.S. 8C-1, N.C. R. Evid. 702, regarding the identification of cocaine, because the officer identified the cocaine based on visual inspection alone and identification of cocaine required a scientifically valid chemical analysis. State v. Jones, 216 N.C. App. 519, 718 S.E.2d 415 (2011), review denied, stay denied, 366 N.C. 229, 726 S.E.2d 856, 2012 N.C. LEXIS 498 (N.C. 2012), review dismissed, as moot, 726 S.E.2d 855, 2012 N.C. LEXIS 528 (2012).

Forensic Biologist's Testimony Improperly Admitted. - Trial court erred by admitting a forensic biologist's testimony concerning the minor contributor's alleles during the defendant's statutory rape trial because the testimony was neither based on sufficient facts or data nor was the testimony the product of reliable principles and methods as the State repeatedly asked the biologist to break with the state lab's policy and established scientific procedures and then to testify to the alleles she could see in the minor contributor's graph. The biologist also repeatedly stated that the testimony she was required to give was not scientifically accurate as the State's request was not something done by the state crime lab, the FBI, any lab in the country, or most labs in the world. State v. Phillips, - N.C. App. - , 836 S.E.2d 866 (2019).

Method of Proof. - Trial court erred in admitting expert testimony by a police officer, pursuant to G.S. 8C-1, N.C. R. Evid. 702, regarding the reliability of machine-generated results of a certain test for cocaine and marijuana, because the machine was a new technology, the officer did not testify as to whether the test bad been recognized by experts in the field of chemical analysis as a reliable method of testing, the officer did not compare the test to other testing methods currently used to identify controlled substances, and the officer had no professional background in the field of chemical analysis of controlled substances; the results were also inadmissible. State v. Jones, 216 N.C. App. 519, 718 S.E.2d 415 (2011), review denied, stay denied, 366 N.C. 229, 726 S.E.2d 856, 2012 N.C. LEXIS 498 (N.C. 2012), review dismissed, as moot, 726 S.E.2d 855, 2012 N.C. LEXIS 528 (2012).

Trial court erred in admitting expert testimony by a forensic chemist, pursuant to G.S. 8C-1, N.C. R. Evid. 702, regarding the reliability of machine-generated results of a certain test for cocaine and marijuana, even though the chemist's professional background and comparison testing provided some indicia of reliability because the machine was a new technology that had not been recognized as an accepted method of analysis or identification of controlled substances in North Carolina or any jurisdiction in the United States, was not licensed or certified by any agency in North Carolina, and not recognized as a reliable method of testing by experts; the results were also inadmissible. State v. Jones, 216 N.C. App. 519, 718 S.E.2d 415 (2011), review denied, stay denied, 366 N.C. 229, 726 S.E.2d 856, 2012 N.C. LEXIS 498 (N.C. 2012), review dismissed, as moot, 726 S.E.2d 855, 2012 N.C. LEXIS 528 (2012).

Likely to Confuse Jury. - Expert testimony was properly excluded where it would have directed the jury's attention away from defendant's actual conduct and confused it with evidence unrelated to the legality of the arrest or the force the officers used in attempting to apprehend defendant. State v. Harden, 344 N.C. 542, 476 S.E.2d 658 (1996).

Trial court did not err in not permitting a psychologist to testify at trial as an expert witness as to eyewitness identifications since the court properly appraised the probative and prejudicial value of the evidence under G.S. 8C-1, Rule 403 and found that any probative value of the proffered testimony was outweighed by the risk of confusing the jury. State v. Cole, 147 N.C. App. 637, 556 S.E.2d 666 (2001), appeal dismissed, cert. denied, 356 N.C. 169, 568 S.E.2d 619 (2002), cert. denied, 537 U.S. 1203, 123 S. Ct. 1275, 154 L. Ed. 2d 1045 (2003).

Trial court properly excluded mental health expert's testimony as to the likelihood of defendant's release from the hospital if the jury found defendant not guilty by reason of insanity after finding that the expert's testimony could confuse the issues of the case with the possible consequences, and the expert's testimony would not assist the jury in regard to any matter in issue or fact. State v. Hall, 187 N.C. App. 308, 653 S.E.2d 200 (2007), review denied, appeal dismissed, 362 N.C. 366, 663 S.E.2d 431 (2008).

When a mother alleged a father's abandonment of a child deprived the father of a share of the child's intestate estate, it was no error to grant the father's motion in limine to bar expert testimony on child-raising costs because such testimony was likely to confuse the jury, given the existence of child support orders. Shearin v. Reid, 258 N.C. App. 42, 812 S.E.2d 381 (2018).

Prejudicial, Unhelpful Testimony Excluded. - In case involving wife who helped her husband rape juvenile, trial court properly excluded testimony of both director of a non-profit domestic violence corporation and defense psychologist because it was prejudicial and did little to appreciably help the jury. State v. Owen, 133 N.C. App. 543, 516 S.E.2d 159, cert. denied, 351 N.C. 117, 540 S.E.2d 743 (1999).

Daubert Test - In action against helmet manufacturer to recover for injuries sustained in a motorcycle accident, expert testimony regarding causation was properly excluded under the Daubert test and where the record was replete with competent evidence supporting the challenged findings of the trial court. Howerton v. Arai Helmet, Ltd., 158 N.C. App. 316, 581 S.E.2d 816 (2003), cert. granted, 357 N.C. 459, 585 S.E.2d 757 (2003).

Trial court did not err in admitting a forensic scientist's testimony where she explained in detail the systematic procedure she employed to identify the substance recovered from defendant's home, that procedure had been adopted by the state lab specifically to analyze and identify marijuana, and, thus, her testimony was clearly the product of reliable principles and methods sufficient to satisfy the second prong of G.S. 8C-1, Rule 702(a). State v. Abrams, 248 N.C. App. 639, 789 S.E.2d 863 (2016).

Trial court erred in admitting the retrograde extrapolation testimony of the State's expert witness where, as the State conceded, the officer's observations of speeding, chewing gum, glassy eyes, a moderate odor of alcohol, bathroom use, and refusal to perform a series of field sobriety tests did not amount to evidence of appreciable physical or mental impairment. State v. Hayes, 256 N.C. App. 559, 808 S.E.2d 446 (2017).

It was error to admit landowners' expert's valuation testimony in a condemnation proceeding because the testimony was not based on a reliable valuation method. Town of Nags Head v. Richardson, 260 N.C. App. 325, 817 S.E.2d 874 (2018), aff'd, 372 N.C. 349, 828 S.E.2d 154, 2019 N.C. LEXIS 523 (2019).

Trial court erred by admitting the State's expert testimony regarding the untested stains on the underside of one defendant's boxer shorts and the bottom of the other defendant's pajama pants because the testimony did not satisfy this rule's reliability test or the expert's own admitted standards for reliability, as the State had failed to submit the stains for even the most basic testing for the presence of blood and the untested stains were the only stains that allowed the expert to specifically conclude that the victim's head was near or on the floor at the time of impact. State v. Corbett, - N.C. App. - , 839 S.E.2d 361 (2020), cert. dismissed, as moot, mot. denied, 845 S.E.2d 793, 2020 N.C. LEXIS 742 (N.C. 2020); aff'd, 855 S.E.2d 228, 2021 N.C. LEXIS 176 (N.C. 2021).

Surgeon Not Familiar With Local Standard of Care. - Trial court properly excluded expert testimony offered by a patient to support a malpractice claim because the patient's expert practiced orthopedic surgery in Virginia and was not familiar with the standard of care imposed on orthopedists who practiced in North Carolina. Smith v. Whitmer, 159 N.C. App. 192, 582 S.E.2d 669 (2003).

Patient did not comply with G.S. 1A-1-9(j) since expert patient identified had orthopedic surgery specialty, and not physical medicine and rehabilitation specialty that the doctor had; even if the expert was familiar with the standard of care, that familiarity did not satisfy G.S. 8C-1-702(b)(2)a. Smith v. Serro, 185 N.C. App. 524, 648 S.E.2d 566 (2007).

Excluding Expert's Standard of Care Testimony Harmless. - Exclusion of a patient's expert's standard of care testimony in a medical malpractice case was harmless because the expert and other experts gave other testimony on the issue. Ingram v. Henderson Cty. Hosp. Corp., 259 N.C. App. 266, 815 S.E.2d 719 (2018).

The trial court did not err in excluding an expert's testimony because (1) the notice of the expert witness was indeed late, (2) a property owner was notified by the Department of Transportation the day of jury selection, and (3) the expert's voir dire testimony revealed that his proffered method of proof was not sufficiently reliable. DOT v. Blevins, 194 N.C. App. 637, 670 S.E.2d 621 (2009).

Defendant was not prejudiced by the refusal to allow defendant to obviate defendant's intent through testimony under the guise of an expert under G.S. 8C-1-702(a) and G.S. 8C-1-104(a) as: (1) defendant's intent to kill was irrelevant to a consideration of felony murder under G.S. 14-17; and (2) the state's evidence set forth defendant's intent to commit the felony, attempted robbery with a dangerous weapon, during which the killing occurred. State v. Oakes, 209 N.C. App. 18, 703 S.E.2d 476, review denied and dismissed 365 N.C. 197, 709 S.E.2d 918, 2011 N.C. LEXIS 541 (2011).

Trial court did not abuse its discretion by excluding the expert testimony offered by defendant regarding the doctrine of use of force because the expert was not able to cite a single specific study to support his assertions and he admitted he knew nothing about the relevant rate of error. Because the trial court's exclusion of the expert's testimony was within the bounds of the rules of evidence, defendant's right to present a defense under U.S. Const. amend. VI and N.C. Const. Art. I, § 23 was not violated. State v. McGrady, 232 N.C. App. 95, 753 S.E.2d 361 (2014).

Trial court did not abuse its discretion when it excluded the report of a wife's expert and his opinion testimony based upon inaccurate data because the expert admitted that the report contained an inaccurate opinion of the value of the husband's business. Miller v. Miller, 243 N.C. App. 526, 778 S.E.2d 451 (2015).

Trial court did not abuse its discretion in excluding the testimony of defendant's expert because there was evidence to support its decision, and it properly acted as a gatekeeper in determining the admissibility of testimony; the trial court heard arguments from both parties regarding the subject matter of the proffered testimony, conducted voir dire, and considered the testimony defendant wished to elicit from the expert and the parties' balancing arguments. State v. Walston, 369 N.C. 547, 798 S.E.2d 741 (2017).

Trial court did not abuse its discretion by excluding the proffered testimony of a physician because his testimony constituted expert opinion testimony, as his testimony was tantamount to a diagnosis which required the application of specialized knowledge to his observations of defendant, and defendant failed to disclose his testimony pursuant to the reciprocal discovery order. State v. Broyhill, 254 N.C. App. 478, 803 S.E.2d 832 (2017), review denied, 2018 N.C. LEXIS 241 (2018).

Plain Error in Admitting Testimony Not Shown. - While the trial court erred in admitting a social worker's testimony that she diagnosed the victim with sexual abuse, the error did not amount to plain error where the social worker properly testified that the victim exhibited behavior that was consistent with children who had been sexually abused. State v. Treadway, 208 N.C. App. 286, 702 S.E.2d 335 (2010), review denied 365 N.C. 195, 710 S.E.2d 35, 2011 N.C. LEXIS 499 (N.C. 2011).

Trial court did not plainly err by allowing the medical examiner to testify as to his opinion that the victim's death was a homicide because the results of the gunshot residue test were inconsistent with the theory that the victim committed suicide, the victim's children testified that defendant exited the victim's room after they heard the gunshot, defendant made no effort to tend to the victim and left the residence before the arrival of law enforcement officers or emergency medical personnel, and any prejudicial effect was mitigated during cross-examination by defense counsel. State v. Daughtridge, 248 N.C. App. 707, 789 S.E.2d 667 (2016), cert. denied, 795 S.E.2d 370, 2017 N.C. LEXIS 59 (2017); cert. denied, 795 S.E.2d 363, 2017 N.C. LEXIS 63 (2017); review denied, 2017 N.C. LEXIS 59 (2017); review denied 2017 N.C. LEXIS 63 (2017).

Even though the trial court erred by failing to require the expert to testify as to the methodology of her criminal analysis, the error did not amount to plain error because she testified that she performed a chemical analysis and that the result was hydrocodone, which did not amount to baseless speculation. State v. Piland, 263 N.C. App. 323, 822 S.E.2d 876 (2018).

Trial court erred by admitting the testimony of a latent fingerprint examiner that defendant's fingerprints matched the fingerprints left at a crime scene because the examiner failed to demonstrate that the examiner applied accepted principles and methods reliably. However, the admission of the testimony was not plain error because the testimony and in-court identification of defendant by an eyewitness, along with photographs of defendant and surveillance video footage showing defendant robbing a store, provided sufficient evidence of guilt. State v. Koiyan, - N.C. App. - , 841 S.E.2d 351 (2020).

No Plain Error. - Although a police officer's testimony appeared to have violated subsection(a1) on the issue of defendant's specific alcohol concentration level as it related to the results of the Horizontal Gaze Nystagmus Test defendant performed, the error did not have a probable impact on the jury's finding that defendant was guilty of Driving While Impaired or Driving After Consuming Being Less Than 21; defendant admitted to drinking alcohol and consuming impairing substances prior to his one-vehicle crash. State v. Turbyfill, 243 N.C. App. 183, 776 S.E.2d 249 (2015), review denied 780 S.E.2d 560, 2015 N.C. LEXIS 1218 (2015).

Harmless Error. - Even if the trial court abused its discretion by improperly limiting the scope of the testimony of defendant's expert witness, defendant failed to show that he was prejudiced because the jurors were expressly given the opportunity to consider the possibility that the victim's identification of defendant was the result of confabulation. The expert defined the concept of induced confabulation for the jury and in his closing argument defendant made clear the defense's theory that the manner in which the victim was questioned by officers caused her to create false memories of the attack. State v. Steen, - N.C. App. - , 826 S.E.2d 478 (2018).

Even assuming that the trial court abused its discretion in admitting expert testimony indicating that Hydrocodone could have been in defendant's blood test and been hidden by other results, this assumed abuse of discretion was not prejudicial because there was evidence that defendant admitted to a police officer that defendant had taken Hydrocodone. State v. Teesateskie, - N.C. App. - , - S.E.2d - (Aug. 3, 2021).

IV. EXPERT OPINION ADMISSIBLE.

.

Daubert Test. - Trial court did not abuse its discretion in ruling a field technician as an expert because it reviewed the five non-exclusive Daubert factors suggested for use by trial courts in assessing the reliability of scientific testimony; it was not necessary for the trial court to determine that all factors existed in order to adequately assess the testimony's reliability because it was sufficient that the record supported the trial court's assessment of the factors. State v. Turbyfill, 243 N.C. App. 183, 776 S.E.2d 249 (2015), review denied 780 S.E.2d 560, 2015 N.C. LEXIS 1218 (2015).

Appraiser. - Fact that there was evidence of no market whatsoever for the property, that no one wanted to buy a house in the outer loop corridor once the 1992 map was recorded, was a proper consideration in determining the after-taking fair market value, and it was not an abuse of discretion for the trial court to allow the owners' appraiser to testify concerning the fair market value of their property after the taking because that expert opinion was based on evidence that there was no market whatsoever for the property. Chappell v. N.C. DOT, 374 N.C. 273, 841 S.E.2d 513 (2020).

Physician. - In prosecution for rape and taking indecent liberties with a minor, testimony of a stipulated expert physician and surgeon specializing in family medicine that a child's delay in reporting an incident of child sexual abuse was normal, based on his knowledge, skill, experience, training and education as a physician, was not error where the physician's testimony was used to corroborate the victim's credibility after the defendant's cross-examination attacked her credibility. State v. Bowman, 84 N.C. App. 238, 352 S.E.2d 437 (1987).

While the existence of other possible causes of the plaintiff's ruptured disk might have reduced the weight accorded to the physician's opinion, such other possibilities did not alone render inadmissible the physician's opinion that an automobile accident caused her injury. Cherry v. Harrell, 84 N.C. App. 598, 353 S.E.2d 433, cert. denied, 320 N.C. 167, 358 S.E.2d 49 (1987).

Where the testimony of a duly licensed physician, board certified in family medicine with extensive experience in pediatrics, precisely explained the nature of a child's burns, how such burns are medically evaluated, and how they are treated, and he further testified that the number, location, and severity of the burns was inconsistent with a medical etiology of accidental causation, such testimony was clearly helpful to the court as a fact finder and was properly admitted. In re Hayden, 96 N.C. App. 77, 384 S.E.2d 558 (1989).

There was no error in admitting opinion of two doctors in an assault prosecution where one of the doctors treated the victim's wounds for at least 40 minutes and examined her over the course of several hours on the night she was attacked and the other doctor had been the victim's personal physician for four or five years and examined her the morning after the attack and continued to treat her for two and one-half months afterward. State v. Shubert, 102 N.C. App. 419, 402 S.E.2d 642 (1991).

Where doctor was allowed to testify about defendant's mental state at the time of the murders and gave his opinion that defendant did not form the specific intent to kill, but was not allowed to give his opinion that the defendant "snapped", defendant received a fair trial, free of prejudicial error. State v. Burgess, 345 N.C. 372, 480 S.E.2d 638 (1997).

Expert witness was properly allowed to give his opinion as to defendant's state of mind based on the fact that the victim was found lying prone on the floor; as a psychiatrist, the witness was trained to recognize links between behavior and a person's state of mind, therefore he had specialized knowledge to assist the trier of fact to understand the evidence or to determine a fact in issue, G.S. 8C-1, Rule 702(a), and his testimony was not improperly allowed. State v. Campbell, 359 N.C. 644, 617 S.E.2d 1 (2005).

Doctor was properly qualified as an expert witness in medical malpractice action involving shoulder dystocia in the delivery of a baby where the record showed that the witness and the doctor defending the action belonged to the American College of Obstetrics and Gynecology, the witness testified that he was a perinatologist and that all perinatologists were first obstetrician gynecologists, that perinatology, like obstetrics, included the performance in management of shoulder dystocia, and that even though he was considered a perinatologist, he continued to practice as an obstetrician gynecologist; accordingly, the witness was of the same or similar specialty as the doctor who delivered the baby such that he met the criteria for testifying as medical expert witness. Leatherwood v. Ehlinger, 151 N.C. App. 15, 564 S.E.2d 883 (2002), cert. denied, 357 N.C. 164, 580 S.E.2d 368 (2003).

The treating doctor's opinion regarding sexual assault was based on expertise in treating sexually abused patients, the victim's emotional state and physical appearance in the emergency room, and from what the victim had told the doctor during the course of treatment. State v. O'Hanlan, 153 N.C. App. 546, 570 S.E.2d 751 (2002), cert. denied, 358 N.C. 158, 593 S.E.2d 397 (2004).

Expert medical witnesses were properly allowed to testify within their areas of expertise; G.S. 8C-1, N.C. R. Evid. 702(a)(1) permitted the admission of expert medical testimony to assist the trier of fact to understand the evidence or to determine a fact in issue, and the determination of the admissibility of expert testimony was within the sound discretion of the trial judge and would not be disturbed on appeal absent an abuse of discretion, which there was not. Floyd v. McGill, 156 N.C. App. 29, 575 S.E.2d 789 (2003), cert. denied, 357 N.C. 163, 580 S.E.2d 364 (2003).

When a physician testified, in a prosecution involving a sexual assault on a child, that her examination of the child was consistent with her interview of the child, this testimony was properly admitted because the physician did not testify that the allegations against the child's attacker were accurate. In re Butts, 157 N.C. App. 609, 582 S.E.2d 279 (2003), review improvidently allowed, appeal dismissed sub nom. In re T.R.B., 358 N.C. 370, 595 S.E.2d 146 (2004).

In a wrongful death action based on a medical specialist's medical malpractice, the trial court erred in failing to allow the specialist to cross-examine the medical expert for the decedent's estate as to whether the other treating doctor, a former codefendant, acted in accordance with the standard of care, because evidence of the former co-defendant's standard of care was relevant to show whether the specialist's conduct was the proximate cause of the injury, as G.S. 90-21.12 permits a physician, otherwise qualified under G.S. 8C-1, Rule 702, to testify regarding the applicable standard of care in a medical malpractice case. However, any error was harmless because there was other expert testimony admitted for both parties that contained the same substance, and it could not be said that a different outcome would have resulted. Boykin v. Kim, 174 N.C. App. 278, 620 S.E.2d 707 (2005).

Trial court did not err in admitting the testimony of the employee's physicians as expert witnesses, as they were qualified by experience, training, and education with specialized scientific knowledge regarding the development of mesothelioma. Williams v. CSX Transp., Inc., 176 N.C. App. 330, 626 S.E.2d 716 (2006).

Doctor's opinion testimony to a medical certainty that a nurse's accident at work probably aggravated her preexisting lymphedema was admissible because: (1) based on the doctor's experience in treating lymphedema, the doctor's expert opinion testimony was sufficiently reliable; and (2) the opinion testimony was not based solely on the notion of post hoc ergo propter hoc. Legette v. Scotland Mem'l Hosp., 181 N.C. App. 437, 640 S.E.2d 744 (2007), cert. denied, appeal dismissed, 362 N.C. 177, 658 S.E.2d 273 (2008).

Radiologist was without objection qualified under G.S. 8C-1, N.C. R. Evid. 702(a) as an expert in the field of medicine specializing in radiology, and was competent to offer the radiologist's expert opinion that a driver's trauma was definitely very serious intracranial trauma with serious brain injury and serious orbital injury with all the bone damage that was suffered; under G.S. 8C-1, N.C. R. Evid. 704, the radiologist's expert opinion testimony was not rendered inadmissible on the basis that it embraced an ultimate issue to be determined by the jury - whether the injuries sustained by the driver were serious. State v. Liggons, 194 N.C. App. 734, 670 S.E.2d 333 (2009).

Trial court did not err in excluding expert testimony by a doctor who acknowledged in the doctor's deposition that the doctor had never performed the procedures at issue in the medical malpractice action. Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 677 S.E.2d 465 (2009).

All three of the State's medical expert witnesses testified that their review of the pertinent medical records and other available information indicated that a victim's external bruises, retinal bleeding, and intracranial bleeding and swelling were consistent with previously observed cases involving intentionally inflicted injuries and were inconsistent with previously observed cases involving accidentally inflicted injuries; the testimony was properly admitted. State v. Perry, 229 N.C. App. 304, 750 S.E.2d 521 (2013), review denied, 749 S.E.2d 852, 2013 N.C. LEXIS 1193 (2013).

As plaintiff's expert's testimony presented sufficient evidence of pain and suffering, the trial court did not err in denying defendant's motion for a directed verdict on pain and suffering damages; this expert opinion, based on an analysis of decedent's symptoms and medical records, was not based on pure conjecture but provided evidence of decedent's pain and suffering to a reasonable level of certainty for the jury to consider. Estate of Savino v. Charlotte-Mecklenburg Hosp. Auth., - N.C. - , - S.E.2d - (Sept. 25, 2020).

Appellate court erred in apparently requiring plaintiff's expert to present direct evidence of the patient's chest pain; competent expert opinion testimony that more likely than not the patient would have experienced pain before his death satisfied that standard. Estate of Savino v. Charlotte-Mecklenburg Hosp. Auth., - N.C. - , - S.E.2d - (Sept. 25, 2020).

Physician's Assistant. - In a medical malpractice action, the exclusion of expert testimony regarding a physician's assistant's standard of care was error under G.S. 8C-1, N.C. R. Evid. 702(d), as the expert was the physician's assistant's supervising physician, and he was equally qualified to give an expert opinion regarding both his own standard of care and that of the physician's assistant; moreover, such exclusion was prejudicial error in the circumstances. Katy v. Capriola, 226 N.C. App. 470, 742 S.E.2d 247 (2013).

Pathologist. - Trial court properly admitted the pathologists' limited opinion testimony regarding the amount of blood discovered in defendant's home because it was based on sufficient facts or data, was the product of reliable principles and methods, and those principles and methods were reliably applied and did not definitely state that it did cause her death but only that it was sufficient to do so. State v. Parks, - N.C. App. - , 828 S.E.2d 719 (2019), review denied, 374 N.C. 265, 839 S.E.2d 851, 2020 N.C. LEXIS 327 (N.C. 2020).

Forensic Pathologist. - Court did not err by allowing a forensic pathologist to testify that the many bruises he found on the body of a deceased child were not consistent with normal childhood activity. State v. West, 103 N.C. App. 1, 404 S.E.2d 191 (1991).

Expert in pathology was permitted to testify as a victim's cause of death. State v. Johnson, 343 N.C. 489, 471 S.E.2d 409 (1996).

Although the state medical examiner who testified for the State in defendant's murder trial admitted uncertainty as to whether two of the victims had been shot twice, the medical examiner's testimony that the two victims at issue might have been shot twice based on the nature of their injuries was permissible opinion testimony under G.S. 8C-1, N.C. R. Evid. 702(a), 703 because the medical examiner was more qualified than the jury to formulate an opinion regarding the number of gunshot wounds suffered by the victims, and the testimony was based on the medical examiner's autopsies of the victims and the medical examiner's observations as an expert in forensic pathology; the fact that there was uncertainty about the number of gunshot wounds went to the weight of the evidence, rather than its admissibility. State v. Lippard, 152 N.C. App. 564, 568 S.E.2d 657 (2002).

Trial court did not plainly err by allowing a pathologist to opine that the victim's death was due to dog bites where his opinion was based on his autopsy of the victim's body, including his observation of the bite marks on the body as well as from his experience. State v. Ford, 245 N.C. App. 510, 782 S.E.2d 98 (2016).

Forensic Chemist. - Proper foundation was established at the time the challenged expert provided her opinion because her testimony demonstrated that she was a qualified expert, with over 20 years experience in the field of drug identification, and that her opinion was the product of reliable principles and methods which she reliably applied to the facts of the case. State v. Gray, 259 N.C. App. 351, 815 S.E.2d 736 (2018).

Endrocrinologist. - Applying his expertise, the doctor testified that defendant was not in a state of automatism when he shot his wife because he did not suffer from amnesia, a key characteristic of the condition, and the trial court acted well within its sound discretion in admitting this expert testimony. State v. Coleman, 254 N.C. App. 497, 803 S.E.2d 820 (2017).

Expert on Computer Forensics. - Sergeant's testimony explaining why, despite the victim's testifying that she and defendant routinely communicated through instant messaging and their MySpace web page and that defendant took digital photographs of her vaginal area during sex, no evidence of those communications was recovered from defendant's computer, camera, or storage devices was admissible, as the sergeant's training and experience put him in a better position to explain why such evidence was not found. State v. Jennings, 209 N.C. App. 329, 704 S.E.2d 556 (2011), review denied 365 N.C. 197, 710 S.E.2d 35, 2011 N.C. LEXIS 491 (N.C. 2011).

Chemical Analysis Procedures. - Trial court did not err in giving the jury an instruction on how it should consider expert witness testimony as to the testimony of a special agent; contrary to defendant's contention, the agent testified as an expert at trial when she testified as to the typical procedures followed in performing a chemical analysis of a substance submitted to the State Bureau of Investigation, and she interpreted the lab report for the results of the chemical analysis in question, offering her opinions. State v. McLean, 205 N.C. App. 247, 695 S.E.2d 813 (2010).

Trial court did not abuse its discretion by admitting the agent's testimony under this rule where he gave a detailed explanation of the procedure he employed to identify the pills seized from defendant which was adopted by the State Crime Lab, and he testified that the pills that were not chemically analyzed were carefully visually inspected and compared to an online pharmaceutical database. State v. Hunt, 249 N.C. App. 428, 790 S.E.2d 874 (2016), review denied, 795 S.E.2d 206, 2016 N.C. LEXIS 1006 (2016).

Opinion on Helpfulness of Autopsy Photographs. - Expert witness was properly permitted to testify that in the expert's opinion each of the autopsy photographs admitted into evidence depicted aspects of the victim's wounds, and each would be helpful to illustrate the victim's wounds to the jury, since such opinions were within the doctor's area of expertise and were relevant and appropriate to show the number and severity of the wounds. State v. Taylor, 178 N.C. App. 395, 632 S.E.2d 218 (2006).

Assistant Medical Examiner. - In a prosecution for murder, the witness' position as Assistant Medical Examiner and his testimony regarding the number of other cases he had seen indicated sufficient expertise such that the trial court did not err in admitting his opinion of the cause of death. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506 (1985), cert. denied, 315 N.C. 593, 341 S.E.2d 33 (1986).

Demonstration by Medical Examiner. - It was not error for the court to permit medical examiner to demonstrate with the use of the murder weapon, a .357 magnum, that he, a man approximately the size of the victim, could not shoot himself in the head with the gun from the necessary distance. State v. Benjamin, 83 N.C. App. 318, 349 S.E.2d 878 (1986).

In a prosecution for the rape of a mentally retarded victim, the trial court did not abuse its discretion in allowing a psychologist to answer a hypothetical question regarding how the victim would likely have reacted to a sexual advance. State v. Washington, 131 N.C. App. 156, 506 S.E.2d 283 (1998), cert. denied, 352 N.C. 362, 544 S.E.2d 562 (2000).

Chiropractor. - In personal injury action arising out of an automobile accident, the trial court erred in excluding chiropractor's testimony concerning plaintiff's nerve strain or sprain, because such injury and treatment are within the field of chiropractic as defined by statute. Ellis v. Rouse, 86 N.C. App. 367, 357 S.E.2d 699 (1987).

Serologist. - Under the standard set forth in State v. Wade, 296 N.C. 454, 251 S.E.2d 407 (1979), the tests forming the basis of serologist's testimony were sufficiently reliable to support the admission of her expert opinion based upon those tests. State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169 (1985).

Foundations for the testimony of expert witnesses who testified regarding spermatozoa, hair and DNA found on female minor's bed, clothes and body were sufficient. State v. Bowers, 135 N.C. App. 682, 522 S.E.2d 332 (1999).

S.B.I. Lab Technician. - Trial court in a murder trial did not commit reversible error by permitting a State Bureau of Investigation laboratory technician to testify as to how a level of gunshot residue could have gotten on the victim's hands, and as to how the failure of the defendant's gunshot residue test to provide conclusive results could have been caused by the passage of 31/2 hours since the time of the shooting and by activity on the part of the defendant. State v. Benjamin, 83 N.C. App. 318, 349 S.E.2d 878 (1986).

S.B.I. agent was properly allowed to give her expert opinion as to why the seizure of defendant's police frequency book was important, testifying that finding a police frequency book and a radio scanner could indicate those acting illegally might have a "jump start" if they knew which police frequencies to monitor; that testimony was within the witness's expertise and was likely to assist the jury in inferring why such evidence was considered important and why it was seized during a search of defendant's residence for a methamphetamine laboratory. State v. Alderson, 173 N.C. App. 344, 618 S.E.2d 844 (2005).

Ultrasound Technologist. - In case relating to indecent liberties with a child, where witness testified as to her qualifications as an ultrasound technologist, which included an undergraduate degree, completion of a medical science training program which specialized in ultrasound training, and six years of experience in the field, and her testimony assisted the jury in evaluating two facts in issue, namely, (a) whether intercourse occurred, and (b) the time at which the alleged offense was committed, court did not err in allowing the witness to testify as expert. State v. Fenn, 94 N.C. App. 127, 379 S.E.2d 715, cert. denied, 325 N.C. 548, 385 S.E.2d 504 (1989).

Nurse. - There was no abuse of discretion in the admission of expert testimony regarding nursing and the proper standard of care in a nursing home; both witnesses were amply qualified by training, experience, and knowledge to assist the jury in understanding the evidence with respect to nursing procedures and the applicable standard of care required of the elder care corporation, and the testimony did not have the potential to confuse or mislead the jury so as to outweigh its probative value. Estate of Hendrickson v. Genesis Health Venture, Inc., 151 N.C. App. 139, 565 S.E.2d 254, cert. denied, 356 N.C. 299, 570 S.E.2d 503 (2002).

Engineer. - Professional engineer's testimony as to the structure and appearance of a stairway on which plaintiff was injured was based on direct personal knowledge; therefore, this testimony was admissible so long as it was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice. Newton v. New Hanover County Bd. of Educ., 342 N.C. 554, 467 S.E.2d 58 (1996).

Expert on Blast Analysis. - There was no abuse of discretion by an administrative law judge in admitting the testimony of an applicant's expert witness, G.S. 8C-1, N.C. R. Evid. 702(a), because the witness, who prepared a blast evaluation for the applicant, was qualified in the study of ground vibration and its effect on structures, and the fact the witness was neither a licensed engineer nor a licensed geologist did not render his expert testimony either "illegal" or inadmissible; the applicant, who held a mining permit, was allowed to add 37 acres to its previously permitted acreage and, within the proposed permit boundary, to increase the area disturbed by its mining operations by 22.1 acres. Stark v. N.C. Dep't of Env't & Natural Res., 224 N.C. App. 491, 736 S.E.2d 553 (2012), review denied and cert. dismissed, 366 N.C. 589, 743 S.E.2d 193, 2013 N.C. LEXIS 547 (2013).

Self-Defense. - Pathologist who performed the autopsy on murder victim was clearly in a position to assist the jury in understanding the nature of the deceased's wound and in determining whether defendant, in fact, acted in self-defense when he shot the deceased, and therefore, he was properly allowed to testify to these matters in the form of an opinion, even though self-defense was an ultimate issue in the case. State v. Saunders, 317 N.C. 308, 345 S.E.2d 212 (1986).

Testimony Based upon Diagnosis Made One Month After Accident. - In negligence action where plaintiff's van collided with defendant's garbage truck, trial court did not err in admitting medical testimony of doctor despite the fact fracture of plaintiff's thoracic vertebrae was diagnosed by doctor approximately one month after the accident; a medical expert is competent to testify as to the cause of suffering alleged by plaintiff and in this case, the doctor, qualified as an expert in the field of orthopedic surgery, testified that in his opinion, based on his evaluation of plaintiff's medical condition, X-rays, bone scan and plaintiff's medical history, the thoracic fracture, originally undiagnosed by doctors immediately after the accident, was caused by the collision in question. Smith v. Pass, 95 N.C. App. 243, 382 S.E.2d 781 (1989).

Expert So Qualified May Testify Regarding Causation. - In medical malpractice case resulting from bilateral hernia operation in which the doctor mistakenly cut plaintiff's penis, the trial court did not violate this section when it allowed plaintiff's expert witness to testify regarding causation. Andrews v. Carr, 135 N.C. App. 463, 521 S.E.2d 269 (1999).

"Psychological autopsy" on decedent, involving interviewing family members and reviewing records to determine the probable cause of death or the decedent's state of mind at the time of his death, was competent and properly admitted for the purpose of determining the mental state of the deceased at the time of his suicide in a workers' compensation proceeding wherein plaintiff alleged that decedent's suicide was caused by a dysthymic disorder (depression) caused by his employment as a police officer. Harvey v. Raleigh Police Dep't, 85 N.C. App. 540, 355 S.E.2d 147, cert. denied, 320 N.C. 631, 360 S.E.2d 86 (1987).

Testimony of Expert in Psychology. - In an action for statutory rape, statutory sex offense, and indecent liberties with a minor, the trial court did not abuse its discretion in admitting an expert opinion that the victim suffered from post-traumatic stress disorder when a licensed clinical social worker was tendered as an expert in social work and routinely made mental health diagnoses of sexual assault victims. State v. Gamez, 228 N.C. App. 329, 745 S.E.2d 876 (2013), review denied 367 N.C. 256, 749 S.E.2d 848, 2013 N.C. LEXIS 1174 (2013).

Psychologist's testimony that child victim responded to test questions in an "honest fashion . . . admitting that she was in a fair amount of emotional distress" did not constitute an expert opinion as to her character or credibility, but was merely a statement of opinion by a trained professional, based upon personal knowledge and professional expertise, that the test results were reliable because the victim seemed to respond to the questions in an honest fashion. State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987).

Testimony Regarding the Competency of Witnesses to Testify. - The testimony of a clinical social worker and licensed psychological associate/counselor was properly admitted as relevant to the issue of the competency of three children to testify. In re Faircloth, 137 N.C. App. 311, 527 S.E.2d 679 (2000).

Test Based on Phadebas Methodology. - The expert witness's testimony established the reliability of the "Phadebas methodology," and therefore was admissible in the defendant's trial for sexual offenses against a 12-year-old girl, where the methodology indicated the presence of saliva on the vaginal test swabs taken from the victim's sexual assault kit, and the testimony was offered by the State to support the victim's testimony that the defendant had put his mouth on her vagina. State v. Dennis, 129 N.C. App. 686, 500 S.E.2d 765 (1998).

Origin of Injuries. - In trial for sexual offense in the first degree, the trial judge did not err in permitting State's rebuttal witness, Chief Medical Examiner for the State, to testify that in his opinion scratch marks on child's back were not consistent with self-mutilation and in allowing pediatrician to offer her opinion that the injuries were neither accidental nor self-inflicted. State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987).

Expert Opinion on Credibility. - Although Rules 405 and 608, when read together, prohibit an expert witness from commenting on the credibility of another witness, this rule allows expert testimony where the expert's testimony goes to the reliability of a diagnosis and not to the credibility of a rape victim. State v. Marine, 135 N.C. App. 279, 520 S.E.2d 65 (1999).

Credibility of Children Who Report Abuse. - In a prosecution for rape and sexual offense committed against a mentally defective female, the trial court did not err in allowing a pediatrician to testify on the credibility of children in general who report sexual abuse. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, cert. denied, 320 N.C. 174, 358 S.E.2d 64 (1987).

Trial court improperly excluded defendant's expert's testimony based upon the erroneous belief that her testimony was inadmissible as a matter of law because it was not required that she personally examine the child victims in order to testify during voir dire concerning false memories and repressed memories. State v. Walston, 244 N.C. App. 299, 780 S.E.2d 846 (2015).

Expert opinion regarding the general reliability of children's statements may be admissible so long as the requirements of G.S. 8C-1, N.C. R. Evid. 403 and 702 are met. As with any proposed expert opinion, the trial court shall use its discretion, guided by this rule and Rule 403, to determine whether the testimony should be allowed in light of the facts before it. State v. Walston, 244 N.C. App. 299, 780 S.E.2d 846 (2015).

Expert in Child Physical Abuse Case. - In murder trial alleging death by water intoxication, witness, qualified as an expert in pediatric critical care medicine, could relate the sensations that a six-year-old boy would feel after drinking a large quantity of water, which, under normal conditions, would have signaled him to stop drinking. State v. Crawford, 329 N.C. 466, 406 S.E.2d 579 (1991).

Where physicians testified they had experience with the medical conditions known as Battered-Child Syndrome and Shaken-Baby Syndrome, gave detailed explanations of the general nature of these conditions and how they are medically evaluated, and offered opinions as to whether the injuries were consistent with intentionally, as opposed to accidentally, inflicted injuries, the trial court did not abuse its discretion in allowing the testimony since it was within each physician's area of expertise, was helpful to the factfinder and did not embrace a legal term of art or conclusion of law. State v. McAbee, 120 N.C. App. 674, 463 S.E.2d 281 (1995).

Testimony from expert in pediatrics and child abuse regarding battered child syndrome was properly admitted. State v. Elliott, 344 N.C. 242, 475 S.E.2d 202 (1996), cert. denied, 520 U.S. 1106, 117 S. Ct. 1111, 137 L. Ed. 2d 312 (1997).

Expert medical testimony was admissible in a capital murder prosecution, where the testimony of four physicians concerning the severity of the injuries inflicted on the defendant's infant son was relevant and admissible as evidence of the aggravating circumstance that the murder was especially heinous, atrocious, or cruel in that the evidence attempted to quantify and qualify the infant's injuries for the jury. State v. Atkins, 349 N.C. 62, 505 S.E.2d 97 (1998), cert. denied, 526 U.S. 1147, 119 S. Ct. 2025, 143 L. Ed. 2d 1036 (1999).

In a prosecution for the murder of a child, it was proper, under G.S. 8C-1-702(a), for properly qualified experts to offer the opinion that the victim's death was not caused by an accidental injury, as: (1) both based their opinions on their years of experience as pathologists, during which they performed and consulted on numerous autopsies; and (2) the experts offered the basis of their opinions. State v. Murphy, 172 N.C. App. 734, 616 S.E.2d 567 (2005).

Trial court did not abuse its discretion in allowing an expert's testimony that the absence of the victim's hymen was suspicious where she cautioned that her findings were not conclusive for vaginal penetration and sexual abuse and readily conceded on cross-examination that conclusive results wee not possible without a baseline examination conducted before the alleged abuse, and thus, the testimony did not improperly bolster the victim's credibility. State v. Dye, 254 N.C. App. 161, 802 S.E.2d 737 (2017).

Expert in Child Sexual Abuse Case. - An opinion as "to the age at which the children began to understand dates," by an expert in clinical social work particularly in the area of child sexual abuse, was within the realm of expertise of the witness and was of assistance to the jury; therefore, the trial court did not err by allowing the testimony. State v. Weaver, 117 N.C. App. 434, 451 S.E.2d 15 (1994).

Court properly allowed the opinion testimony of expert/doctor where the record indicated that the doctor based her opinions on her own exam of the victim, extensive personal experience examining child sexual abuse victims, knowledge of child sexual abuse studies, and a colleague's notes from an interview with the victim. State v. Crumbley, 135 N.C. App. 59, 519 S.E.2d 94 (1999).

The testimony of a licensed psychological associate was admissible, assuming it was tendered in her capacity as a child sex abuse expert, where her testimony was her opinion based on her specialized expert knowledge concerning what the child had demonstrated by manipulation of anatomically correct dolls, and it was helpful to the jury on the issue of whether the defendant had committed fellatio or anal intercourse on the child. State v. Waddell, 130 N.C. App. 488, 504 S.E.2d 84 (1998), aff'd in part and modified in part, 351 N.C. 413, 527 S.E.2d 644 (2000).

Expert opinion by a psychologist that the victim was sexually abused was admissible pursuant to this section where the expert who specialized in children and adolescents based her testimony on diagnosis made while treating the child on 45 occasions and not just on a repetition of the child's statements. State v. Youngs, 141 N.C. App. 220, 540 S.E.2d 794 (2000).

Trial court properly permitted clinical social worker to express expert testimony in case of man accused of sexually abusing a boy since the social worker was properly qualified as an expert in the area of child sex abuse evaluations and interviewing, a proper foundation was laid, and the testimony was clearly instructive and helpful to the jury in understanding the evidence. State v. Carpenter, 147 N.C. App. 386, 556 S.E.2d 316 (2001), cert. denied, 355 N.C. 222, 560 S.E.2d 365 (2002), cert. denied, 536 U.S. 967, 122 S. Ct. 2680, 153 L. Ed. 2d 851 (2002).

Trial court did not err in permitting counselor who had talked with child sexual abuse victim to testify as an expert witness since the counselor's testimony that the child's behavior was consistent with a child who had been sexually abused was of the nature that would assist the jury in their ultimate determination of whether defendant sexually abused the child. State v. Isenberg, 148 N.C. App. 29, 557 S.E.2d 568 (2001), cert. denied, 355 N.C. 288, 561 S.E.2d 268 (2002).

Opinion of a witness, qualified as an expert in pediatrics and the identification of child abuse based on thousands of examinations of abused children, linking an injury on the victim's face to contemporaneous sexual abuse, was properly admitted. State v. Santiago, 148 N.C. App. 62, 557 S.E.2d 601 (2001), cert. denied, 355 N.C. 291, 561 S.E.2d 499 (2002).

At defendant's trial on charges of first degree statutory rape of a female child under 13 years old, statutory sexual offense of a female child under 13 years old, and taking indecent liberties with a child, trial court properly allowed expert testimony by pediatrician that the victim was sexually abused because the pediatrician's testimony was based on her own examination of the victim, and medical history she obtained from a child protective services investigator and the victim's mother. State v. Brothers, 151 N.C. App. 71, 564 S.E.2d 603 (2002).

Admission of expert testimony by the psychologist for a sexual abuse victim was not plain error as based solely on the victim's statements where (1) the therapist was highly experienced in the field of child abuse; (2) conducted weekly hour-long sessions with the victim over approximately 10 months; (3) observed the child during therapy sessions; (4) noted the child's symptoms and manifestations during those sessions; and (5) was most likely aware of the child's account of the abuse to others. State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643 (2002).

Pediatrician's testimony that a minor child had been sexually abused had sufficient foundation where the pediatrician had performed a medical examination on the child and taken a medical history. State v. Shepherd, 156 N.C. App. 69, 575 S.E.2d 776 (2003).

Opinion testimony of two expert witnesses was admissible because the trial court did not treat their testimony that a female child was highly likely to have been a victim of child sexual abuse as an endorsement of the female child's credibility in a child abuse and neglect case; further, even assuming the expert testimony was an impermissible endorsement of the female child's credibility, the father had not shown that the trial court had considered the testimony to bolster the female child's credibility. In re Mashburn, 162 N.C. App. 386, 591 S.E.2d 584 (2004), appeal dismissed, - N.C. - , 603 S.E.2d 884 (2004).

Testimony of the state's forensic pediatrician was admissible to rebut defense testimony as to the criteria used to determine if child abuse occurred, including what would be considered a normal caretaker behavior in such situations. State v. Faulkner, 180 N.C. App. 499, 638 S.E.2d 18 (2006).

Trial court did not err in admitting a doctor's expert testimony that his physical findings were consistent with the victim's history because once the trial court accepted the doctor as an expert, controversy over his opinion went to the weight of his testimony, not its admissibility; the doctor testified that the victim's history of repeated vaginal penetration was consistent with his findings made during his examination of the victim's vaginal opening, and that testimony was not impermissible opinion testimony regarding the victim's credibility because the doctor's previous testimony established the existence of physical evidence supporting a diagnosis of sexual intercourse. State v. Streater, 197 N.C. App. 632, 678 S.E.2d 367 (2009), review dismissed, as moot, 363 N.C. 661, 687 S.E.2d 294 (2009).

Inmate was not entitled to relief under G.S. 15A-1415(b)(7) because there had been no significant change in law regarding expert opinion evidence since defendant's convictions; cases simply applied the existing law on expert opinion evidence, which was that before expert testimony may have been admitted under G.S. 8C-1-702, an adequate foundation had to be laid, and for expert testimony presenting a definitive diagnosis of sexual abuse, an adequate foundation required supporting physical evidence of the abuse. State v. Chandler, 364 N.C. 313, 697 S.E.2d 327 (Aug. 27, 2010).

Trial court did not commit plain error by admitting an expert's testimony that the child victim's delay in reporting anal penetration was a characteristic consistent with the general behavior of children who had been sexually abused in that manner because it did not amount to an opinion on the victim's credibility. State v. Purcell, 242 N.C. App. 222, 774 S.E.2d 392 (2015).

In a case in which defendant was convicted of sexual offenses with a person 13, 14 or 15 years old, the testimony of the State's expert witness on delayed disclosures of sexual abuse by children was reliable and admissible because the expert testified that her testimony on delayed disclosures was grounded in her 200 hours of training, 11 years of forensic interviewing experience, conducting over 1,200 forensic interviews with 90% of those focusing on sex abuse allegations, and reviewing over 20 articles on delayed disclosures; and defendant failed to demonstrate that his arguments attacking the principles and methods of the expert's testimony were pertinent in assessing the reliability of the expert's testimony on delayed disclosures. State v. Shore, 255 N.C. App. 420, 804 S.E.2d 606 (2017).

Trial court did not abuse its discretion by allowing an expert to testify that it was not uncommon for children to delay the disclosure of sexual abuse and to provide possible reasons because it was reliable, as the expert testified that her testimony was grounded in her training, 11 years of forensic interview experience, and reviewing over 20 articles on delayed disclosures, and defendant failed to show that his arguments attacking the principles and methods of the expert's testimony were pertinent in assessing the reliability of her testimony. State v. Shore, 258 N.C. App. 660, 814 S.E.2d 464 (2018).

Exhibition of Characteristics Consistent with Abuse. - Opinion of expert witness that mentally retarded adult exhibited behavioral characteristics consistent with sexual abuse was within the scope of permissible expert testimony, where it was based upon his experience in treating sexually abused mentally retarded persons, his familiarity with research and literature in that field, and his personal examination of the victim. State v. Teeter, 85 N.C. App. 624, 355 S.E.2d 804, appeal dismissed and cert. denied, 320 N.C. 175, 358 S.E.2d 66, 358 S.E.2d 67 (1987).

In trial for sexual offense in the first degree, it was not improper to allow both psychologist and pediatrician to testify concerning the symptoms and characteristics of sexually abused children and to state the opinion that the symptoms exhibited by the victim were consistent with sexual or physical abuse. State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987).

In a prosecution in which defendant was convicted of taking indecent liberties with a minor, the testimony of social worker and pediatrician as to a child's continued cooperation with a person whom the child has accused of sexual abuse was specialized knowledge, helpful to the jury and well within the fields of expertise of the two witnesses, and as defendant had "opened the door" for this evidence by cross-examining child victim about going to barn alone with defendant after she admitted she was afraid of defendant and did not like to be alone with him, it was also admissible expert testimony that corroborated the testimony of the state's prosecuting witness. State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651 (1988).

In prosecution in which defendant was convicted of taking indecent liberties with a minor, admission of testimony of psychologist who examined child at the request of DSS as to her anxiousness and anger during his examination of her and his professional expert opinion as to the relationship between her anxiousness and anger and the events which she described during the examination was not error. State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651 (1988).

Testimony of pediatrician that the physical trauma revealed by her examination of a child was consistent with the abuse which the child alleged had been inflicted upon her, did not comment on the truthfulness of the victim or the guilt or innocence of the defendant, and was properly admitted to assist the jury in understanding the results of the physical examination and their relevancy to the case being tried. State v. Aguallo, 322 N.C. 818, 370 S.E.2d 676 (1988).

Allowing experts to testify as to the symptoms and characteristics of sexually abused children and to state their opinions that the symptoms exhibited by the victim were consistent with sexual or physical abuse is proper. State v. Love, 100 N.C. App. 226, 395 S.E.2d 429 (1990), cert. denied, appeal dismissed, 328 N.C. 95, 402 S.E.2d 423 (1991).

A doctor's testimony that "mothers of abused children usually do not believe the child, and that it was a good sign for the victim to have told her grandmother that defendant abused her," was proper under this rule, since a lay jury could be expected to be unfamiliar with the parental responses to allegations of abuse and the responses of abused children to those to whom they look for help. State v. Speller, 102 N.C. App. 697, 404 S.E.2d 15, cert. denied, 329 N.C. 503, 407 S.E.2d 548 (1991).

Where physician's testimony was not that the victim was believable or that the defendant was guilty or innocent, but related to her expert knowledge of abused children in general and her personal examination of the victim, the testimony was admissible. State v. Speller, 102 N.C. App. 697, 404 S.E.2d 15, cert. denied, 329 N.C. 503, 407 S.E.2d 548 (1991).

Court did not err in allowing a physician to testify in a trial for child abuse that a child would not drink enough water to result in the amount which the deceased child absorbed "voluntarily." The physician testified on cross-examination that "voluntarily" to him meant as the result of the thirst mechanism; and he testified at great length about the thirst mechanism, and the body's tendency to adjust water level to maintain the proper concentration of substances such as sodium. This evidence was well within the doctor's area of expertise and helpful to the jury. State v. West, 103 N.C. App. 1, 404 S.E.2d 191 (1991).

Witness's testimony regarding a "whooping" incident was properly admitted as the State's evidence tended to show that the victim began "wetting the bed" around the time of the alleged sexual abuse and the witness's testimony about the "whooping" incident therefore tended to establish defendant's intent to conceal the alleged sexual abuse. State v. Streater, - N.C. App. - , 673 S.E.2d 365 (2009).

Conversion Reaction in Rape Victims. - Expert testimony regarding post-traumatic stress disorder and conversion reaction in rape victims could be helpful to the jury in understanding the nature and causes of these disorders, as well as the post-assault behavior patterns of the victim. State v. Hall, 330 N.C. 808, 412 S.E.2d 883 (1992).

Expert Testimony on Post-Traumatic Stress Disorder. - For case upholding admission of psychologist's testimony on post-traumatic stress disorder suffered by victim, see State v. Strickland, 96 N.C. App. 642, 387 S.E.2d 62 (1990).

If believed, expert testimony regarding post-traumatic stress disorder could be helpful to the jury in understanding the behavioral patterns of sexual assault victims. This court and courts of other jurisdictions have recognized the reliability of post traumatic stress disorder testimony in sexual assault cases. State v. Huang, 99 N.C. App. 658, 394 S.E.2d 279 (1990), vacated in part, 107 N.C. App. 710, 421 S.E.2d 812 (1992).

Because a recent amendment to the expert testimony evidentiary rule did not apply, the trial court did not abuse its discretion in admitting the expert opinion that the victim suffered from post-traumatic stress disorder when a licensed clinical social worker was tendered as an expert in social work and routinely made mental health diagnoses of sexual assault victims. State v. Gamez, - N.C. App. - , 743 S.E.2d 700 (July 2, 2013).

Expert's testimony that stress from an incident may or may not have triggered plaintiff's outbreak of shingles was admissible and considered with other evidence, as expert testimony was not inadmissible for failure to state that the testimony was based upon a reasonable medical probability; although baseless speculation could never "assist" the jury, under G.S. 8C-1, N.C. R. Evid. 702, as long as the testimony was helpful to the jury and based sufficiently on information reasonably relied upon, under G.S. 8C-1, N.C. R. Evid. 703, the testimony was admissible. Johnson v. Piggly Wiggly of Pinetops, Inc., 156 N.C. App. 42, 575 S.E.2d 797 (2003), cert. denied, 357 N.C. 251, 582 S.E.2d 271 (2003).

Testimony on Repressed Memory. - Expert testimony on repressed memory was properly admitted, as it was relevant and it was generally accepted in the relevant scientific community. State v. King, 366 N.C. 68, 733 S.E.2d 535 (2012).

Testimony on Meaning of Slang Terms. - Detective was properly permitted to testify regarding the definition of certain slang terminology used by defendant and defendant's brother in a taped phone conversation because the testimony was necessary to effectuate an understanding of the conversation; the judge's statement that the judge believed that the detective had "training and skills that will aid the jury in interpreting this stuff," and the fact that the judge allowed the detective to offer opinion testimony demonstrated that the judge concluded that the detective was qualified to offer expert opinions on the meaning of slang terms. State v. Brockett, 185 N.C. App. 18, 647 S.E.2d 628 (2007).

Accident Reconstruction Expert. - Under the version of G.S. 8C-1-702 that was in effect prior to the adoption of 2006 N.C. Sess. Laws 253, § 33, a driver's reconstruction expert was properly allowed to testify as to the distance it would take a car similar to that driven by an owner's daughter to stop at various speeds as: (1) the expert never opined as to the speed that the daughter was traveling; (2) the expert used the expert's scientific expertise to perform an experiment that demonstrated stopping distances at various speeds; and (3) it was left up to the jury to determine the daughter's stopping distance. Hoffman v. Oakley, 184 N.C. App. 677, 647 S.E.2d 117 (2007).

Trial court did not err by admitting the testimony of the truck owner's accident reconstructionist under this section where the estate of the motorcycle's passenger failed to show that his testimony was unreliable, as the estate did not suggest the technique the reconstructionist used to arrive at the 800 foot measurement was the product of unscientific methodology and it was reasonable for the trial court to conclude that the reconstructionist accounted for passenger's husband's reaction time when reaching his opinion that the husband could have avoided the accident by proper braking. Pope v. Bridge Broom, Inc., 240 N.C. App. 365, 770 S.E.2d 702 (2015).

Minor's Future Employment Opportunities. - The court properly allowed expert testimony pursuant to this section as to whether plaintiff, a minor injured in an automobile accident, would attend college and the effect of scarring on her future employability where the experts all testified based on their own personal evaluations of the minor, a review of her additional medical records, and their expertise and training. Fox-Kirk v. Hannon, 142 N.C. App. 267, 542 S.E.2d 346 (2001), review denied, 353 N.C. 725, 551 S.E.2d 437 (2001), review dismissed, 353 N.C. 725, 551 S.E.2d 437 (2001).

Testimony on Chronic Alcohol Abuse. - Expert testimony that, as a result of his chronic alcohol abuse, the defendant suffered from organic impairment of brain functioning and from a loss of brain tissue which impaired his ability to think, plan, or reflect could assist the jury in determining a fact at issue - whether the defendant had premeditated and deliberated; therefore, this expert opinion testimony was not rendered inadmissible on the basis that it embraced the issues of premeditation and deliberation and specific intent to kill, which are ultimate issues to be determined by the jury. State v. Daniel, 333 N.C. 756, 429 S.E.2d 724 (1993).

Testimony of Expert Satisfied Helpfulness Test. - In a custody action, trial court did not err in admitting over objection the testimony of psychologist who stated that defendant was better able to meet the needs of the child and who stated her recommendations as to visitation; the testimony of psychologist was within her respective area of expertise and satisfied the helpfulness test for expert opinions under this rule, and the witness was unquestionably in a better position than the trial court to have an opinion on the subject about which she testified. Hamilton v. Hamilton, 93 N.C. App. 639, 379 S.E.2d 93 (1989).

Where a defendant made a general objection to a police officer's testimony and not a specific objection to the officer's qualification as an expert, the admissibility of the officer's testimony was not preserved for review, and because the testimony was in the form of an opinion based on the officer's expertise and was likely to assist the jury, the testimony was not patently inadmissible and prejudicial. State v. White, 154 N.C. App. 598, 572 S.E.2d 825 (2002).

Although the three experts who testified for plaintiffs were not qualified in neurosurgery, but in neurology and emergency medicine, their testimony that an earlier diagnosis would have led to a better outcome for the patient, who was ultimately diagnosed with a herniated disk accompanied by significant compression of the spinal cord, was competent because it was helpful for the jury in determining the proximate cause element of plaintiffs' negligence action. Weaver v. Sheppa, 186 N.C. App. 412, 651 S.E.2d 395 (2007), aff'd, 362 N.C. 341, 661 S.E.2d 733 (2008).

Trial court properly admitted the testimony of a driver's expert because the testimony comprehensively assisted the jury in understanding the evidence and determining a fact in issue; the testimony was provided in response to a general question, and it did not address the intent or motivation of a collision repair shop. Ridley v. Wendel, 251 N.C. App. 452, 795 S.E.2d 807 (2016).

Administratrix's expert testimony was sufficiently reliable to be considered competent evidence on causation where neither the doctor of dental medicine nor the doctor who performed the decedent's autopsy had speculated or conjectured on the cause of death, and the fact that the causation evidence was presented in two steps did not affect the analysis. Webb v. Wake Forest Univ. Baptist Med. Ctr., 232 N.C. App. 502, 756 S.E.2d 741 (2014).

Bloodstain pattern interpretation is an appropriate area for expert testimony. State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995).

Bloodstain pattern interpretation is a specialized crime scene technique wherein a specially trained individual studies the blood and the types of stains at the scene of the crime, and then, based upon his knowledge of similar bloodstain characteristics and reproductions of the crime scene, he forms an opinion about what actually occurred at the crime scene. Experts rely upon specific categories of bloodstains which are defined by the way in which they are made. State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995).

Admission of testimony by SBI agent regarding blood spatters, location of wound, and the location of body was properly admitted. State v. East, 345 N.C. 535, 481 S.E.2d 652 (1997), cert. denied, 522 U.S. 918, 118 S. Ct. 306, 139 L. Ed. 2d 236 (1997).

Ballistics Expert. - Defendant's conviction of first degree murder was affirmed, as the trial court properly admitted an expert's ballistic testimony pursuant to G.S. 8C-1, Rule 702, and defendant's claims concerning violation of the Daubert standard were irrelevant as North Carolina did not recognize the Daubert standard. State v. Anderson, 175 N.C. App. 444, 624 S.E.2d 393 (2006), cert. denied, - N.C. - , 632 S.E.2d 492 (2006).

Trial court did not plainly err by admitting an expert's testimony that cartridge casings found at the crime scene came from the firearm recovered from the field adjacent to the defendant's property because the expert testified that the expert was formally educated and trained in firearms examination, the expert tested and analyzed the firearm, bullets, and cartridge casings in keeping with the procedures learned during the expert's specialized training, and the data and conclusion were described in a written report and peer-reviewed by a colleague. State v. Griffin, - N.C. App. - , 834 S.E.2d 435 (2019), review denied, 373 N.C. 592, 838 S.E.2d 192, 2020 N.C. LEXIS 189 (N.C. 2020).

Building Code Standards. - Whether or not building met the standards of the Building Code, though not determinative of the issue of negligence, had some probative value as to whether or not defendant failed to keep his store in a reasonably safe condition, and expert testimony on this issue could properly be introduced in a negligence action against store owner. Thomas v. Dixson, 88 N.C. App. 337, 363 S.E.2d 209 (1988).

Expert on Cause of Fires. - In a civil action wherein plaintiff sought to recover proceeds of a fire insurance policy issued to plaintiffs by defendant, the trial court did not err in allowing a professor who had a doctorate in chemical engineering and had taught thermodynamics and heat transfer (the underlying sciences of fire and its propagation), had since 1946 done consulting work for various companies and individuals in forensics in connection with fires and explosions, had been called upon to do investigations with the purpose of giving an opinion as to the cause and origin of fires, and had been previously qualified as an expert to testify within these areas in the courts of this state to testify as an expert on the cause and origin of the fire. Wiles v. North Carolina Farm Bureau Mut. Ins. Co., 85 N.C. App. 162, 354 S.E.2d 248, cert. denied, 320 N.C. 517, 358 S.E.2d 533 (1987).

In a case where defendant was convicted of first degree arson, trial court did not err in admitting the opinion testimony of the State's expert witness that the fire was intentionally set; record showed the State's expert witness was a captain in the fire department who had served for nine years as a fire inspector and had received special training in fire investigation; furthermore, his testimony explained, in clear terms, the accepted method for eliminating accidental causes of fires and such testimony was clearly instructive to the jury. State v. English, 95 N.C. App. 611, 383 S.E.2d 436 (1989).

Expert in the field of incendiary fires had sufficient knowledge to form an opinion that the fire was intentionally set. State v. Hales, 344 N.C. 419, 474 S.E.2d 328 (1996).

Fire investigator, who had training and 40 years of experience with firefighting and who was an arson investigation instructor, was properly permitted as an expert witness to give his opinion that the fire to the defendant's house trailer was intentionally set by the use of an accelerant, and that it was impossible that the fire was accidentally set by a grease fire as the defendant claimed. State v. Lassiter, 160 N.C. App. 443, 586 S.E.2d 488 (2003), cert. denied, 357 N.C. 660, 590 S.E.2d 853 (2003).

Trial court did not abuse its discretion in defendant's trial for arson and insurance fraud by admitting the testimony of a fire investigation expert who was hired by the insurance company because the investigator described the facts and data the investigator collected in conducting the investigation, the principles and methods the investigator applied in accordance with the investigator's training and the guidelines for the profession, and the way the investigator reached the conclusion that an incendiary cause could not be excluded. State v. Lance, - N.C. App. - , - S.E.2d - (June 1, 2021).

Deputy fire marshal was properly allowed to express an opinion on the cause of a fire, under G.S. 702(a), as his experience, the nature of his job, and his personal investigation of the fire scene showed he was better qualified than the jury to form an opinion on the cause of the fire. State v. Sexton, 153 N.C. App. 641, 571 S.E.2d 41 (2002), cert. granted, 356 N.C. 622, 575 S.E.2d 756 (2002).

Expert on Firearms Could Testify as to Wounds Inflicted. - Trial court properly permitted an expert witness in the field of firearm analysis and identification to testify from autopsy photographs of the victim that the wounds inflicted on the victim were consistent with the type of ammunition for which spent cartridges were found at the murder scene. State v. Holmes, 355 N.C. 719, 565 S.E.2d 154 (2002), cert. denied, 537 U.S. 1010, 123 S. Ct. 478, 154 L. Ed. 2d 412 (2002).

Opinion Based upon Preliminary Testing. - Though not a positive opinion that substance in cellophane package contained cocaine, analyst's opinion that the substance "could" contain cocaine was properly admissible in trial for trafficking, where the opinion was based upon a preliminary color test with a positive result. State v. White, 104 N.C. App. 165, 408 S.E.2d 871 (1991).

Police Officer's Testimony As Expert Witness. - Trial court did not abuse its discretion in defendant's trial for driving while under the influence of an impairing substance by admitting the expert testimony of a police officer, who performed a drug recognition evaluation of defendant, that defendant was under the influence of a central nervous system depressant at the time of a vehicular accident. State v. Fincher, 259 N.C. App. 159, 814 S.E.2d 606 (2018).

Officer Allowed to Testify as to How Marijuana Is Generally Packaged. - The trial court did not err in allowing officer to testify as to how marijuana was generally packaged since the officer was experienced in drug packaging and his opinion that the marijuana was packaged for private use did not invade the jury's province to pass upon the credibility of the witness or determination of guilt. State v. Chisholm, 90 N.C. App. 526, 369 S.E.2d 375 (1988).

Police Testimony Regarding Criminal Activity - Narcotics detective's testimony concerning a "special focus" on hotels for drug interdiction purposes was admissible in defendants' cocaine trafficking and possession trial because the nature of the detective's job and experience made the detective better qualified than the jury to opine that area hotels and motels had been utilized in the distribution of narcotics. State v. Diaz, 155 N.C. App. 307, 575 S.E.2d 523 (2002), cert. denied, 357 N.C. 464, 586 S.E.2d 271 (2003), cert. denied, 357 N.C. 659, 590 S.E.2d 396 (2003).

Law Enforcement Officer's Visual Identification Procedure for Marijuana Admissible. - Trial court did not err in admitting testimony by a police officer, pursuant to G.S. 8C-1, N.C. R. Evid. 702, regarding the identification of marijuana, because the officer was permitted to testify as to the contraband seized as marijuana based on visual inspection alone. State v. Jones, 216 N.C. App. 519, 718 S.E.2d 415 (2011), review denied, stay denied, 366 N.C. 229, 726 S.E.2d 856, 2012 N.C. LEXIS 498 (N.C. 2012), review dismissed, as moot, 726 S.E.2d 855, 2012 N.C. LEXIS 528 (2012).

Testimony Based on Blood-Alcohol Analyzer. - Court did not abuse its discretion in admitting Blood-Alcohol Analyzer as a reliable scientific method of proof under subsection (a) of this rule, nor should it have been excluded under G.S. 8C-1, Rule 403, since the probative value of its results were not substantially outweighed by the danger of unfair prejudice or jury confusion, and since both parties had opportunity to either attack or support its reliability. State v. Cardwell, 133 N.C. App. 496, 516 S.E.2d 388 (1999).

Trooper Testimony on Sobriety Test. - Defendant did not argue that the trooper was not properly trained and qualified to testify regarding horizontal gaze nystagmus (HGN) testing, he had successfully completed training in HGN, and it was unnecessary for the State to make a formal tender of the trooper as an expert on HGN testing, and the trial court committed no error in allowing the testimony. State v. Sauls, 255 N.C. App. 684, 807 S.E.2d 155 (2017).

In a driving while impaired case, because the trooper testified to his successful completion of Horizontal Gaze Nystagmus (HGN) Test training with the state highway patrol, and the State tendered him as an expert, the trial court did not err in qualifying him as an expert, or in admitting his testimony regarding HGN testing. State v. Wiles, - N.C. App. - , 841 S.E.2d 321 (2020).

Extrapolation of Blood Alcohol Concentration. - In prosecution in which the jury found defendant guilty of DWI and driving on the wrong side, testimony of expert witness that the average person displays a certain rate of decline in blood alcohol concentration (BAC) in the hours after the last consumption of alcohol, and that based on that average rate of decline defendant's BAC, which was .09 some two and one-half hours after the accident, would have been approximately 0.13 at the time of the accident, was not improper. State v. Catoe, 78 N.C. App. 167, 336 S.E.2d 691 (1985), cert. denied, 316 N.C. 380, 344 S.E.2d 1 (1986).

Admission of expert testimony by a research scientist and training specialist in forensic testing concerning average alcohol elimination rates was upheld, because it could have aided a finder of fact in determining whether defendant's breath alcohol level exceeded the statutory limit for driving while impaired purposes and was relevant. State v. Teate, 180 N.C. App. 601, 638 S.E.2d 29 (2006).

In a case where defendant was convicted of driving while impaired, the trial court abused its discretion by admitting the challenged expert testimony on retrograde extrapolation because the State's expert witness conceded that she had no factual information from which she could assume that defendant was in a post-absorptive state, and her testimony did not satisfy the Daubert "fit" test as the expert's otherwise reliable analysis was not properly tied to the facts of the case; however, the error was harmless as the evidence was sufficient to show that, even without the challenged expert testimony, there was no reasonable possibility that the jury would have reached a different result. State v. Babich, 252 N.C. App. 165, 797 S.E.2d 359 (2017).

Admitting a sergeant's testimony was not error where she compared the signs and symptoms of impairment described in a form to corroborate drug categories identified in the blood report, and her testimony as to the standardized field sobriety tests was essentially the same as a trooper's testimony. State v. Neal, - N.C. App. - , 833 S.E.2d 367 (2019).

Expert on Mitochondrial DNA Analysis. - Trial court properly admitted expert testimony concerning mitochondrial DNA analysis (mtDNA) evidence, despite defendant's assertion that mtDNA testing was not scientifically reliable and that its reasoning and methodology were not properly applied to the facts of the case. State v. Underwood, 134 N.C. App. 533, 518 S.E.2d 231 (1999), cert. dismissed, 352 N.C. 669, 535 S.E.2d 33 (2000).

Special agent with the North Carolina State Bureau of Investigation, assigned to the forensic crime lab, could testify that (1) he conducted DNA analysis in using blood samples from defendant and blood samples and vaginal material from the victim and, (2) assuming a single semen donor, the DNA banding pattern was consistent with a mixture of the victim's and defendant's DNA profile. State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808 (2003).

Expert on Handwriting. - Trial court erred in refusing to permit a handwriting expert to render an expert opinion as to the validity of a signature on a contract, on the basis that handwriting analysis was not based in science and was not scientifically proven, as expert testimony may be deemed to be reliable notwithstanding the fact that it is not based in science. Taylor v. Abernethy, 149 N.C. App. 263, 560 S.E.2d 233 (2002), cert. denied, 356 N.C. 695, 579 S.E.2d 102 (2003).

Expert Held in Better Position Than Jury to Interpret Evidence. - Where three witnesses testified that defendant crossed the center line and struck the Fiesta in the southbound lane, defendant and another witness testified that the accident occurred when the Fiesta slid into the northbound lane, and physical evidence was presented regarding damage to the vehicles, rotation and resting places of the vehicles, gouge marks in the pavement, and distribution of debris, the expert was in a better position than the jury to interpret this evidence and to draw conclusions from it based upon scientific principles. State v. Purdie, 93 N.C. App. 269, 377 S.E.2d 789 (1989).

While admittedly unfamiliar with the specific subject area of sale of law practices in the area, CPA's training and experience gave him knowledge sufficient to render him better qualified than the trier of fact to value an interest in a law practice; therefore, where the trier of fact made the determination that the witness' testimony would be helpful, no error or abuse of discretion was found. McLean v. McLean, 323 N.C. 543, 374 S.E.2d 376 (1988).

Trial court did not err in allowing testimony by doctor that sexual abuse of child was very likely because the doctor was in a better position than the jury to understand the significance of her medical findings. State v. Dick, 126 N.C. App. 312, 485 S.E.2d 88 (1997), cert. denied, 346 N.C. 551, 488 S.E.2d 813 (1997).

Forensic Toxicologist. - Admission of testimony of a forensic toxicologist on the physiological effects of cocaine was not plain error because the evidence was not essential to the outcome where defendant's conviction was supported by evidence of faulty driving, erratic behavior, and blood tests showing that defendant had consumed cocaine and alcohol. State v. Norton, 213 N.C. App. 75, 712 S.E.2d 387 (2011).

Child Custody Expert. - Child custody expert's testimony was admissible because the testimony was (1) limited to the qualified expert's experience, and (2) relevant and not more prejudicial than probative. Smith v. Smith, 247 N.C. App. 135, 786 S.E.2d 12 (2016).

Trial court did not abuse its discretion in a child custody matter by denying one parent's motion to exclude the expert testimony and report of the parties' consented-to and court-appointed forensic custody evaluator, because the forensic custody evaluator spent approximately a year conducting the custody evaluation and testified on the conclusions and analysis contained in the report. Sneed v. Sneed, 261 N.C. App. 448, 820 S.E.2d 536 (2018).

Licensed Real Estate Broker. - Trial court erroneously invoked subsection (f) to exclude a licensed real estate broker's expert testimony because the broker did not prepare his expert report under the authority of Article 6 of Chapter 93A, but relied on the authority that N.C. R. Evid. 702 purportedly gave him instead; thus, the broker's preparation of the expert report did not violate the second sentence of subsection (f). N.C. DOT v. Mission Battleground Park, DST, 370 N.C. 477, 810 S.E.2d 217 (2018).

Expert's Response to Question Illustrated Testimony. - Expert's response to a question describing the demonstration he witnessed merely assisted in illustrating his preceding testimony, and rather, the illustration enabled the jury to better understand his testimony and to realize completely its cogency and force; thus, defendant's claim that the expert's opinion was not based on reliable methods lacked merit. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708 (2018), review denied, 824 S.E.2d 415, 2019 N.C. LEXIS 272 (2019).

Testimony Properly Admitted. - Trial court did not err in admitting an expert's experiment to test the amount of current that would need to be leaked in order for the safety plug to disable the current going to the device; the expert made it clear that the current continued to go through the hair dryer circuit only in an ideal bathtub situation, plus he was also cross-examined, and the court rejected defendant's claim that the expert's testimony that the current preferred to go through the hair dryer circuit was not based on reliable methods as required. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708 (2018), review denied, 824 S.E.2d 415, 2019 N.C. LEXIS 272 (2019).

Trial judge did not commit plain error when referring to the victim as the "victim" during its charge to the jury or by failing to intervene ex mero motu and prevent the State's expert from testifying that a lack of physical evidence was "consistent with someone reporting a sexual abuse" because, while it might have been the best practice for the trial court to use the phrase "alleged victim" or "prosecuting witness" instead of "victim," defendant did not request such a change, the trial court properly placed the burden of proof on the State, and it was not reasonably probable that the jury found the victim's testimony more credible simply because the expert stated that a lack of physical evidence was consistent with sexual abuse. State v. Davis, - N.C. App. - , 828 S.E.2d 570 (2019), review denied, 372 N.C. 709, 830 S.E.2d 839, 2019 N.C. LEXIS 741 (2019).


Rule 703. Bases of opinion testimony by experts.

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 703.

Under the rule, facts or data upon which an expert bases an opinion may be derived from three possible sources. The first is the personal observation of the witness. The second source is presentation at trial by a hypothetical question or by having the expert attend the trial and hear the testimony establishing the facts. The third source consists of presentation of data to the expert outside of court. See Comment, Expert Medical Testimony: Differences Between the North Carolina Rules and the Federal Rules of Evidence 12 W.F.L.R. 833, 837 (1976).

In State v. Wade, 296 N.C. 454 (1978), the Court stated that a "physician, as an expert witness, may give his opinion, including a diagnosis, based either on personal knowledge or observation or on information supplied him by others, including the patient, if such information is inherently reliable even though it is not independently admissible into evidence." Although the rule requires that the facts or data "be of a type reasonably relied upon by experts in the particular field" rather than that they be "inherently reliable," the thrust of State v. Wade is consistent with the rule. See W. Blakey, Examination of Expert Witnesses in North Carolina, 61 N.C.L.Rev. 1, 20-32 (1982).

The rule provides that the facts or data need not be admissible in evidence if of a type reasonably relied upon by experts in the particular field. In State v. Wade the Court stated that: "If his opinion is admissible the expert may testify to the information he relied on in forming it for the purpose of showing the basis of the opinion." Thus an expert may testify as to the facts upon which his opinion is based, even though the facts would not be admissible as substantive evidence.

Legal Periodicals. - For article on the syllogistic structure of scientific testimony, see 67 N.C.L. Rev. 1 (1988).

For a practice-oriented discussion of impeachment of hearsay declarants by trial judges and attorneys, with observations on the extension of Rule 806 to Rule 703, see 13 Campbell L. Rev. 157 (1991).

For survey, "State v. Daniels: Chief Justice Exum's Quantum Theory of Expert Psychiatric Testimony," see 73 N.C.L. Rev. 2326 (1995).

For article, "Issues Once Moot: The Other Evidentiary Objections to the Admission of Exculpatory Polygraph Examinations," see 32 Wake Forest L. Rev. 1045 (1997).

For comment, "Corrosion of the Confrontation Clause in North Carolina: A Comparison of State v. Brewington and State v. Ortiz-Zape with State v. Craven," see 36 N.C. Cent. L. Rev. 295 (2014).

CASE NOTES

Constitutionality. - The admission into evidence of an expert opinion based upon information which is not itself admissible into evidence does not violate the U.S. Const., Amend. VI guarantee of the right of an accused to confront his accusers where the expert is available for cross-examination. State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169 (1985).

Confrontation Rights Violated. - Defendant's Sixth Amendment right to confront the witnesses against him was violated because an analyst did not give her own independent opinion but rather gave "surrogate testimony" reciting testing agents' opinions; the agents' lab reports were documents created solely for an evidentiary purpose and were testimonial, and thus, the statements the analyst introduced constituted testimonial hearsay, triggering the protections of the Confrontation Clause. State v. Craven, 367 N.C. 51, 744 S.E.2d 458 (2013).

Applicability of "Inherently Reliable" Test Prior to Enactment of Rule. - Prior to the enactment of this rule, this court had adopted a policy that allowed experts to give their opinion when the information upon which they relied met an "inherently reliable" test. State v. Allen, 322 N.C. 176, 367 S.E.2d 626 (1988).

"Reasonably Relied Upon" Standard. - Several commentators have suggested that there is little difference in the "inherently reliable" standard adopted by the Supreme Court in State v. Wade, 296 N.C. 454, 251 S.Ed.2d 407 (1979) and the "reasonably relied upon" standard of this rule. State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169 (1985).

The plaintiff's statements made to the physician for the purpose of treatment were adequate to support the physician's opinion as a statement "reasonably relied upon by experts in the particular field" under this rule. Cherry v. Harrell, 84 N.C. App. 598, 353 S.E.2d 433, cert. denied, 320 N.C. 167, 358 S.E.2d 49 (1987).

Even if the admission of statistical data upon which a serologist properly relied pursuant to G.S. 8C-1, N.C. R. Evid. 703 in forming her opinion was error, there was no plain error under N.C. R. App. P. 10(a)(4) where defendant did not show that the jury would have reached a different result; the statistical evidence was the type reasonably relied upon by experts in the field. State v. Harris, 221 N.C. App. 548, 729 S.E.2d 99 (2012).

Information Commonly Used and Accepted. - Where expert relied on statistical information commonly used and accepted in his field, such evidence was allowed by this rule. State v. Demery, 113 N.C. App. 58, 437 S.E.2d 704 (1993).

This rule is not confined in its application to medical and psychiatric expert testimony. State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169 (1985).

Foundation. - Although medical records were admitted (in reliance on Rule 10.3, Twelfth Judicial District Juvenile Case Management Plan) into evidence without proper foundation, as required by G.S. 8C-1, N.C. R. Evid. 703, 803(6), in order to fit within the exceptions to the hearsay rule, G.S. 8C-1, N.C. R. Evid. 801(c), 802, because - pursuant to G.S. 7B-804 - the rules of evidence in civil cases were to apply to child neglect cases, respondents, parents of the children, who were found neglected, had the burden of showing prejudice at the admission of the records; but they could not, given the other extensive direct testimony from medical experts upon which it was presumed the trial court had relied. In re T.M., 187 N.C. App. 694, 654 S.E.2d 502 (2007).

Expert need not testify from personal knowledge, as long as the basis for his or her opinion is available in the record or available upon demand. Thompson v. Lenoir Transf. Co., 72 N.C. App. 348, 324 S.E.2d 619 (1985); Liss of Carolina, Inc. v. South Hills Shopping Center, Inc., 85 N.C. App. 258, 354 S.E.2d 549 (1987).

In a murder prosecution, under this rule a psychiatrist could properly rely on the opinions and evaluations of other doctors when forming the basis for his opinion. State v. McClary, 157 N.C. App. 70, 577 S.E.2d 690, appeal dismissed, cert. denied, 357 N.C. 466, 586 S.E.2d 466 (2003).

Where the expert witness testified that he viewed the racetrack (although not while it was in use), reviewed aerial photos and topographical maps of the area, listened to recordings of the sound generated by the all terrain vehicles, and discussed the racetrack noise with several of the landowners in their nuisance case against their neighbors, the neighbors made no showing and presented no argument suggesting that this information was an inadequate basis under G.S. 8C-1, N.C. R. Evid. 703, for the expert's opinions; without such a showing, the appellate court not hold that the trial court erred in denying the neighbors' motion to strike the expert's testimony. Elliott v. Muehlbach, 173 N.C. App. 709, 620 S.E.2d 266 (2005).

But May Give Opinion Based on Facts Not Otherwise Admissible. - Under this rule, an expert may give his opinion based on facts not otherwise admissible in evidence, provided that the information considered by the expert is of the type reasonably relied upon by experts in the particular field in forming opinions or inferences on the subject. State v. Allen, 322 N.C. 176, 367 S.E.2d 626 (1988).

Expert Could Base His Opinion on Another Doctor's Medical Records. - Trial court did not err by overruling plaintiff's objection to the expert's opinion testimony based on plaintiff's medical records, as such was permitted by the rule, plus plaintiff had full access to the materials from which the expert formed his opinion; even if the trial court erred by permitting the expert to base his opinion testimony entirely on plaintiff's medical records, such error would have been harmless, given another expert's similar testimony to which plaintiff did not object and actually elicited. Keller v. Deerfield Episcopal Ret. Cmty., Inc., - N.C. App. - , 845 S.E.2d 156 (2020), review denied, 851 S.E.2d 372, 2020 N.C. LEXIS 1179 (N.C. 2020).

Otherwise Inadmissible Hearsay Evidence May Be Allowed. - The well-established practice has been to admit evidence otherwise inadmissible as hearsay for the purpose of revealing the basis for expert opinion testimony. State v. Jones, 322 N.C. 406, 368 S.E.2d 844 (1988).

Trial court did not err in admitting into evidence the crime laboratory reports upon which the expert, whether hearsay or not, permissibly based the expert opinion under G.S. 8C-1-703, as disclosure of the basis of the expert's opinion was essential to assessment of credibility and was not hearsay under G.S. 8C-1-801. State v. Lyles, 172 N.C. App. 323, 615 S.E.2d 890, appeal dismissed, 360 N.C. 73, 622 S.E.2d 625 (2005).

The substantive facts needed to support an expert's conclusion cannot be supplied by the opinion itself. Barbecue Inn, Inc. v. Carolina Power & Light Co., 88 N.C. App. 355, 363 S.E.2d 362 (1988).

The fact that an expert's opinion is not based on personal observation of the accident scene affects the weight to be accorded the testimony, not its admissibility. State v. Purdie, 93 N.C. App. 269, 377 S.E.2d 789 (1989).

Unless a party specifically objects to the qualification of the expert, a ruling permitting opinion testimony is tantamount to a finding by the trial court that the witness is qualified to state an opinion. State v. Westall, 116 N.C. App. 534, 449 S.E.2d 24 (1994), cert. denied, 338 N.C. 671, 453 S.E.2d 185 (1994).

Duty of Trial Judge. - Although this rule and G.S. 8C-1, Rule 705 give plaintiff the right to vigorously cross examine defendant's expert regarding the underlying facts upon which he bases his opinion, it is the duty of the trial judge to exercise sound discretion in controlling the nature and scope of the cross-examination in the interest of justice and in confining the testimony within the rules of competency, relevancy and materiality. McClain v. Otis Elevator Co., 106 N.C. App. 45, 415 S.E.2d 78 (1992).

Court's Determination That Factual Basis of Opinion Was Insufficient. - Under this rule, the trial court could not properly exclude expert's testimony based on its own determination that the factual basis of the opinion was insufficient. Barbecue Inn, Inc. v. Carolina Power & Light Co., 88 N.C. App. 355, 363 S.E.2d 362 (1988).

Expert testimony that a particular cause "could have" or "possibly" produced a particular result is admissible. Barbecue Inn, Inc. v. Carolina Power & Light Co., 88 N.C. App. 355, 363 S.E.2d 362 (1988).

Contents of Psychiatric Report. - Admission into evidence of the contents of a report by a psychiatrist who did not testify at trial, when the substance of such report was revealed to the jury during the State's cross-examination of another psychiatrist, was proper, where the report was a part of the hospital records relied on by the psychiatrist who testified. State v. Mize, 315 N.C. 285, 337 S.E.2d 562 (1985).

Out-of-Court Communication as Basis for Opinion. - This rule has been interpreted to permit an expert witness to rely on an out-of-court communication as a basis for an opinion and to relate the content of that communication to the jury. State v. Jones, 322 N.C. 406, 368 S.E.2d 844 (1988).

Testimony Regarding Results of Experiments. - This rule allows experts to rely on the opinions of other experts or upon facts or data not itself admissible as the basis of their own expert opinions. When a witness testifies to results of experiments after giving an opinion which was based on such experiments, such testimony is not hearsay because it is not offered for the truth of the matter, but to show the basis of the opinion. State v. Robinson, 330 N.C. 1, 409 S.E.2d 288 (1991).

Trial court did not err in admitting the testimony of an expert regarding the findings of another expert about what the nontestifying expert learned and reported in regard to ballistics tests performed on the weapon allegedly used to shoot the two victims in defendant's case; the expert's testimony was not offered for the truth of the matter asserted, but was offered top show the basis of his opinion, that he was relying on the nontestifying expert's report. State v. Bethea, 173 N.C. App. 43, 617 S.E.2d 687 (2005).

Testimony Regarding Experiment Properly Excluded. - Trial court properly sustained the State's objection to testimony by expert witness regarding an identification experiment where expert had not given an opinion specific enough to support admission of testimony regarding the experiment in question. State v. Robinson, 330 N.C. 1, 409 S.E.2d 288 (1991).

An opinion based upon reviews of evaluations of doctors who had interviewed defendant and personal discussions with doctors in whose care defendant had been placed were just as reliable as an opinion based on a hypothetical question. State v. Daniels, 337 N.C. 243, 446 S.E.2d 298 (1994), cert. denied, 513 U.S. 1135, 115 S. Ct. 953, 130 L. Ed. 2d 895 (1995).

Test Results as Basis for Opinion. - In order to be a proper basis for an expert opinion, test results of the analysis of residues said to indicate cocaine, if otherwise inadmissible, must be of a type reasonably relied upon by experts in the particular field. State v. Gary, 78 N.C. App. 29, 337 S.E.2d 70 (1985).

Deposition summaries used by plaintiff's expert witness, although not admissible as substantive evidence, were admissible under this rule for the limited purpose of demonstrating to the jury facts the expert relied upon when forming his opinion. Wolfe v. Wilmington Shipyard, Inc., 135 N.C. App. 661, 522 S.E.2d 306 (1999).

Architect. - The court erred in excluding an architect's opinion as to the cost of repair, especially in view of the fact that the trial took place before the court and not before a jury, where the facts upon which the architect intended to rely in answering the question were already in evidence through defendants' other technical witness. As such, personal knowledge was not a prerequisite for him to give an opinion. Waynick Constr., Inc. v. York, 70 N.C. App. 287, 319 S.E.2d 304, cert. denied, 312 N.C. 624, 323 S.E.2d 926 (1984).

County Medical Examiner. - In prosecution for rape and first-degree sexual offense involving four- and five-year-old victims, trial court did not err in allowing county child medical examiner to testify to his opinion as to the likelihood that the victims had engaged in sexual intercourse, which opinion was not based on personal examination of the victims but was based on his review of the examining doctor's medical reports and conversations with two other physicians regarding the implications of the presence of protozoa trichomonas in very young girls. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

Flooding. - Where landowners' experts in an inverse condemnation case based on flooding allegedly caused by an unreliable dam used water flow rates from studies that had used different methodologies, their opinions as to flooding were conclusory, and defense experts gave uncontradicted testimony in opposition, the experts' testimony was unreliable and inadmissible. Davis v. City of Mebane, 132 N.C. App. 500, 512 S.E.2d 450 (1999).

Fingerprint Expert. - Where a fingerprint expert testified that his findings were verified by an out-of-court expert, the opinion of the out-of-court expert thus necessarily formed a part of the basis for the opinion to which the witness testified, and it clearly was reasonable for an expert in the field of fingerprint identification to rely upon such a procedure. State v. Jones, 322 N.C. 406, 368 S.E.2d 844 (1988).

Medical testimony did not have to be expressed in terms of reasonable probability or certainty, where the testimony objected to simply stated what doctor did and did not find in examining and treating plaintiff. Polk v. Biles, 92 N.C. App. 86, 373 S.E.2d 570 (1988).

Opinion of Another Physician. - While one physician may not base his opinion solely on the statement of opinion of another physician, when a physician as an expert witness bases an opinion upon reliable information, including a consistent opinion of another physician, the second physician's opinion is admissible. Donavant v. Hudspeth, 318 N.C. 1, 347 S.E.2d 797 (1986) (decided under former G.S. 8-58.14).

Although generally statements by one treating physician to another are inherently reliable, may be used as the basis for an expert opinion, and are admissible in evidence to show the basis for the expert opinion, when the trial judge determines on voir dire that the source of the physician's statement is in fact unreliable, he may exclude the statement as evidence for any purpose. If the opinion of the physician testifying as an expert is based solely on the unreliable statement, the physician should not be allowed to state the opinion. If, on the other hand, the opinion is based upon sufficient additional, reliable facts and data, the trial judge may allow the expert to state his opinion, notwithstanding his statement that he also relied in part upon unreliable information. Donavant v. Hudspeth, 318 N.C. 1, 347 S.E.2d 797 (1986) (decided under former G.S. 8-58.14).

Where undisputed earlier testimony established that a certain individual was part of a medical group charged with evaluating mental health status and that mental health expert relied upon information from that individual in formulating her final diagnosis, this evidence should have been admitted for the purpose of showing the basis for the expert opinion testimony under this rule. State v. Davis, 340 N.C. 1, 455 S.E.2d 627, cert. denied, 516 U.S. 846, 116 S. Ct. 136, 133 L. Ed. 2d 83 (1995).

Police Officer. - Although the trial court should have recognized a police lieutenant as an expert witness before it allowed him to offer his interpretation of evidence that was found at the scene of a double homicide, the record revealed that the court implicitly found that the lieutenant was an expert in crime scene investigation and admitted his testimony under G.S. 8C-1, N.C. R. Evid. 702(a), and the state supreme court refused to reverse defendant's convictions for first-degree murder because the lieutenant was not recognized formally as an expert witness. State v. Jones, 358 N.C. 330, 595 S.E.2d 124 (2004).

Waiver of Right to Challenge Qualifications on Appeal. - Where defendant did not object to the qualifications of the witness, but merely objected to the content of the testimony related to specific knowledge of the pellet gun involved in the case, defendant waived the right to challenge the witness's qualification on appeal. State v. Westall, 116 N.C. App. 534, 449 S.E.2d 24 (1994), cert. denied, 338 N.C. 671, 453 S.E.2d 185 (1994).

Out-of-Court Expert. - A testifying expert can reasonably rely on the opinion of an out-of-court expert and can testify to the content of that opinion. This accords with case law prior to adoption of the Rules of Evidence. State v. Jones, 322 N.C. 406, 368 S.E.2d 844 (1988).

Plaintiff's doctor did not have to qualify as a psychiatrist or psychologist to testify that he saw nothing in his examination and treatment of the plaintiff to indicate that she was malingering. Polk v. Biles, 92 N.C. App. 86, 373 S.E.2d 570 (1988), cert. denied, 324 N.C. 337, 378 S.E.2d 798 (1989).

Physician. - The physician's diagnosis and treatment of the plaintiff's injuries constituted a pre-trial personal perception upon which he was entitled to base his opinion pursuant to this rule. Cherry v. Harrell, 84 N.C. App. 598, 353 S.E.2d 433, cert. denied, 320 N.C. 167, 358 S.E.2d 49 (1987).

In a case in which a patient challenged a trial court's order recommitting him to a third 180-day period of involuntary outpatient treatment, the patient unsuccessfully argued that there was insufficient evidence to support the trial court's findings that his condition would deteriorate and that he could likely become dangerous because, as the patient argued, his treating physician's testimony regarding the patient's history of violence and communication of threats was incompetent evidence because it was based on hearsay. The physician testified as an expert witness, and it was appropriate for him to base an expert opinion on both his personal examination of the patient and other information included in the patient's official medical records, and G.S. 122C-263(d)(1)(c) required the physician to rely on the patient's psychiatric history. In re Webber, 201 N.C. App. 212, 689 S.E.2d 468 (2009), cert. denied, 2010 N.C. LEXIS 504 (2010).

Admission of Medical Records Experts Relied Upon. - Medical records and North Carolina Department of Social Services records of the decedent and the decedent's child were admissible in a wrongful death and medical malpractice action because experts for both parties relied on the records to form their own opinions of the case, particularly with regard to the issues of proximate cause and damages. Clarke v. Mikhail, 243 N.C. App. 677, 779 S.E.2d 150 (2015).

Serologist. - Under the standard set forth in State v. Wade, 296 N.C. 454, 251 S.Ed.2d 407 (1979), the tests forming the basis of the serologist's testimony were sufficiently reliable to support the admission of her expert opinion based upon those tests. State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169 (1985).

Admission of certain opinion testimony by a serologist was not error where the serologist's testimony that his opinion was based on statistics from the State Bureau of Investigation studies conducted between 1979 and 1983 and from scientific journals, both of which are relied on by other experts in his field, laid sufficient foundation to support admission of his expert opinion. State v. Payne, 328 N.C. 377, 402 S.E.2d 582 (1991).

DNA Analysis. - This rule permits an expert to give an opinion based on evidence not otherwise admissible at trial, provided the evidence is of the type reasonably relied upon by other experts in the field; forensic serologist based his opinion on the results of DNA analysis which is admissible in North Carolina. State v. Daughtry, 340 N.C. 488, 459 S.E.2d 747 (1995), cert. denied, 516 U.S. 1079, 116 S. Ct. 789, 133 L. Ed. 2d 739 (1996).

Genetics Expert. - Trial court did not err by allowing special agent who was qualified as an expert in molecular genetics to testify that person who analyzed SBI database determined 500 samples to be a representative sample upon which the North Carolina population frequency database was developed, where the special agent was obviously familiar with the analysis of the SBI database and the results. State v. Hill, 116 N.C. App. 573, 449 S.E.2d 573, cert. denied, 338 N.C. 670, 453 S.E.2d 183 (1994).

Social Worker. - As an expert witness, a social worker is entitled, pursuant to this rule, to rely upon information received from a children's home official as a basis for her opinion. In re Wheeler, 87 N.C. App. 189, 360 S.E.2d 458 (1987).

Behavioral Characteristics Consistent with Abuse. - Opinion of expert witness that mentally retarded adult exhibited behavioral characteristics consistent with sexual abuse was within the scope of permissible expert testimony, where it was based upon his experience in treating sexually abused mentally retarded persons, his familiarity with research and literature in that field, and his personal examination of the victim. State v. Teeter, 85 N.C. App. 624, 355 S.E.2d 804, appeal dismissed and cert. denied, 320 N.C. 175, 358 S.E.2d 67 (1987).

Trial court did not abuse its discretion by allowing an expert witness who was called by the State during defendant's trial on charges of attempted first-degree rape and taking indecent liberties with a minor to testify about common characteristics and behaviors observed in children who experienced sexual abuse, even though the witness did not interview the victim or talk to her parents. State v. McCall, 162 N.C. App. 64, 589 S.E.2d 896 (2004).

Post-Traumatic Stress Disorder. - For case upholding admission of psychologist's testimony on post-traumatic stress disorder suffered by victim, see State v. Strickland, 96 N.C. App. 642, 387 S.E.2d 62 (1990).

Psychologist's Report. - Psychologist's report was admissible in a sentencing hearing after it was used to cross-examine another witness, where the report included comments from unidentified informants on various aspects of co-defendant's character and upbringing, including the relationship he had with his parents, his prior experience with police, his demeanor, and the influence his brother defendant had over him, all statements used routinely by psychologists to form an opinion. These statements were introduced, not for the truth of the matter asserted, but as nonhearsay evidence to support the psychologist's conclusions. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 1380, 149 L. Ed. 2d 305 (2001), cert. dismissed, without prejudice, 805 S.E.2d 698, 2017 N.C. LEXIS 900 (2017), cert. granted, 370 N.C. 587, 809 S.E.2d 594, 2018 N.C. LEXIS 93 (2018), cert. dismissed, as moot, 847 S.E.2d 415, 2020 N.C. LEXIS 891 (N.C. 2020).

Admission of Expert Testimony Upheld. - Where plaintiff's expert witness testified regarding his opinion about what the projected net income of plaintiff's store would have been if it had remained in business, and at defendant's request, the witness disclosed the underlying information upon which he based his opinion, which information included records kept for accounting purposes by the expert witness and data supplied to him by plaintiff's management employees, the court did not err in allowing the witness to give his opinion to the loss of profits suffered by plaintiff as a result of defendant's breach of the lease contract. Liss of Carolina, Inc. v. South Hills Shopping Center, Inc., 85 N.C. App. 258, 354 S.E.2d 549 (1987).

Use of the word "guess" regarding his opinion did not render pathologist's testimony inadmissible. State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Police captain's testimony indicating that a store had sold sexually explicit materials for several years prior to the time of indictment for dissemination of obscenity tended to show that the corporate defendant and the individual defendants, both of whom began working for the store before the indictment, were aware that the store was selling sexually explicit materials at the time of the alleged conspiracy. Consequently, the trial court properly allowed the testimony. State v. Cinema Blue of Charlotte, Inc., 98 N.C. App. 628, 392 S.E.2d 136, appeal dismissed, cert. denied, 327 N.C. 142, 394 S.E.2d 181 (1990), cert. denied, 498 U.S. 1083, 111 S. Ct. 953, 112 L. Ed. 2d 1042 (1991).

Trial court in a murder case did not err in allowing an expert to testify as to the presence and location of defendant's DNA on the victim's clothing; although the expert did not personally take the clothing samples, the expert had reviewed the investigator's report and had viewed the clothing. State v. Fair, 354 N.C. 131, 552 S.E.2d 568 (2001).

Doctor's expert testimony with respect to the cause of the plaintiffs' daughter's injury, based on his training as an obstetrician gynecologist and his extensive experience with shoulder dystocia emergencies and brachial plexus injuries, was that birth simulated studies using manikin and cadaver models supported his conclusion that, if during delivery an obstetrician applies a downward level of traction involving excessive pressure, an injury to the C8-T1 area of the baby's brachial plexus could result; this testimony clearly demonstrated doctor's opinion that the daughter's injury was causally linked to the delivering physician's care, was based on more than mere speculation, and was sufficiently reliable to be submitted to the jury. Leatherwood v. Ehlinger, 151 N.C. App. 15, 564 S.E.2d 883 (2002), cert. denied, 357 N.C. 164, 580 S.E.2d 368 (2003).

Although the state medical examiner who testified for the State in defendant's murder trial admitted uncertainty as to whether two of the victims had been shot twice, the medical examiner's testimony that the two victims at issue might have been shot twice based on the nature of their injuries was permissible opinion testimony under G.S. 8C-1, N.C. R. Evid. 702(a), 703 because the medical examiner was more qualified than the jury to formulate an opinion regarding the number of gunshot wounds suffered by the victims, and the testimony was based on the medical examiner's autopsies of the victims and the medical examiner's observations as an expert in forensic pathology; the fact that there was uncertainty about the number of gunshot wounds went to the weight of the evidence, rather than its admissibility. State v. Lippard, 152 N.C. App. 564, 568 S.E.2d 657 (2002).

Expert's testimony that stress from an incident may or may not have triggered plaintiff's outbreak of shingles was admissible and considered with other evidence, as expert testimony was not inadmissible for failure to state that the testimony was based upon a reasonable medical probability; although baseless speculation could never "assist" the jury, under G.S. 8C-1, N.C. R. Evid. 702, as long as the testimony was helpful to the jury and based sufficiently on information reasonably relied upon, under G.S. 8C-1, N.C. R. Evid. 703, the testimony was admissible. Johnson v. Piggly Wiggly of Pinetops, Inc., 156 N.C. App. 42, 575 S.E.2d 797 (2003), cert. denied, 357 N.C. 251, 582 S.E.2d 271 (2003).

Witness was rightfully accepted as an expert in breath alcohol testing for a certain type of breathalyzer and in blood alcohol physiology, pharmacology, and related research as, beyond his formal education, the witness had training that came from reading peer-reviewed papers, the instruction he received at a university, and his own experience in dosing individuals with alcohol; witness was better informed than the jury regarding the subject of alcohol and its relation to human physiology and pharmacology. State v. Green, 209 N.C. App. 669, 707 S.E.2d 715 (2011).

Admission of testimony regarding the path of a bullet was not error, as the fact that the expert relied on a photograph did not suffice to render the opinion inadmissible. State v. McDowell, 215 N.C. App. 184, 715 S.E.2d 602 (2011), dismissed and review denied 365 N.C. 572, 724 S.E.2d 918, 2012 N.C. LEXIS 329 (N.C. 2012).

In a cocaine possession case, the trial court did not err in allowing an expert in forensic science to state her opinion. In accordance with G.S. 8C-1, N.C. R. Evid. 703, the expert gave her opinion that was based upon facts or data of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. State v. Ortiz-Zape, 367 N.C. 1, 743 S.E.2d 156 (2013), cert. denied 134 S. Ct. 2660, 2014 U.S. LEXIS 3730, 189 L. Ed. 2d 208 (U.S. 2014).

Trial court did not err in overruling a minor's objections to an expert witness's opinion that the minor was in need of continued inpatient treatment because there was evidence that the expert relied on her own assessments of the minor, as well as evidence such as patient history and group clinical discussion, reasonably relied upon by similar experts. In re A.N.B., 232 N.C. App. 407, 754 S.E.2d 442 (2014).

Trial court did not err by admitting evidence of the identification and weight of the controlled substances from a substitute analyst because she did her own independent analysis of machine-generated data, and therefore her testimony did not violate defendant's confrontation rights. State v. Pless, 263 N.C. App. 341, 822 S.E.2d 725 (2018).

Erroneous Admission Of Testimony Harmless. - Erroneous admission of a substitute analyst's testimony was harmless as to defendant's convictions for conspiracy because the analyst's testimony was not necessary for the State to prove beyond a reasonable doubt that defendant conspired to sell or deliver cocaine. State v. Craven, 367 N.C. 51, 744 S.E.2d 458 (2013).

Applied in State v. Jackson, 320 N.C. 452, 358 S.E.2d 679 (1987); McNeill v. Durham County ABC Bd., 87 N.C. App. 50, 359 S.E.2d 500 (1987); Haponski v. Constructor's Inc., 87 N.C. App. 95, 360 S.E.2d 109 (1987); State v. Helms, 93 N.C. App. 394, 378 S.E.2d 237 (1989); Hamilton v. Hamilton, 93 N.C. App. 639, 379 S.E.2d 93 (1989); State v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991); Woodlief v. North Carolina State Bd. of Dental Exmrs., 104 N.C. App. 52, 407 S.E.2d 596 (1991); State v. Richardson, 112 N.C. App. 58, 434 S.E.2d 657 (1993); State v. Galloway, 145 N.C. App. 555, 551 S.E.2d 525 (2001), appeal dismissed, 356 N.C. 307, 570 S.E.2d 885 (2002); Floyd v. McGill, 156 N.C. App. 29, 575 S.E.2d 789 (2003), cert. denied, 357 N.C. 163, 580 S.E.2d 364 (2003); Adams v. Metals USA, 168 N.C. App. 469, 608 S.E.2d 357 (2005), aff'd, - N.C. - , 619 S.E.2d 495 (N.C. 2005); State v. Harris, 243 N.C. App. 728, 778 S.E.2d 875 (2015).

Cited in State v. Hammond, 112 N.C. App. 454, 435 S.E.2d 798 (1993); State v. Futrell, 112 N.C. App. 651, 436 S.E.2d 884 (1993); State v. Black, 111 N.C. App. 284, 432 S.E.2d 710 (1993); Jones ex rel. Jones v. Hughes, 110 N.C. App. 262, 429 S.E.2d 399 (1993); State v. Gay, 334 N.C. 467, 434 S.E.2d 840 (1993); State v. Laws, 345 N.C. 585, 481 S.E.2d 641 (1997); Tate v. Hayes, - N.C. App. - , 489 S.E.2d 418 (1997); State v. Youngs, 141 N.C. App. 220, 540 S.E.2d 794 (2000); Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C. App. 449, 553 S.E.2d 431 (2001); Day v. Brant, 218 N.C. App. 1, 721 S.E.2d 238, review denied, 366 N.C.219, 726 S.E.2d 179, 2012 N.C. LEXIS 429 (N.C. 2012); State v. Barnes, 226 N.C. App. 318, 741 S.E.2d 457 (2013), review denied, 747 S.E.2d 549, 2013 N.C. LEXIS 848 (2013); Lund v. Lund, 244 N.C. App. 279, 779 S.E.2d 175 (2015); In re K.G.W., 250 N.C. App. 62, 791 S.E.2d 540 (2016).


Rule 704. Opinion on ultimate issue.

Testimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 704.

The rule would abrogate the doctrine that excludes evidence in the form of an opinion if it purports to resolve the "ultimate issue" to be decided by the trier of fact.

In State v. Wilkerson, 295 N.C. 559 (1978), the Court held that admissibility of expert opinion depends not on whether it would invade the jury's province, but rather on "whether the witness . . . is in a better position to have an opinion . . . than is the trier of fact." Professor Brandis states that: "It is hoped that a comparable reexamination of the rule as applied to lay testimony will be forthcoming. The rule has been condemned by thoughtful commentators, and judicial expressions of doubt are not wanting." Brandis on North Carolina Evidence § 126, at 480-81 (1982) (footnotes omitted).

The Advisory Committee's Note states:

"The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurance against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, 'Did T have capacity to make a will?' would be excluded, while the question, 'Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?' would be allowed. McCormick § 12."

Legal Periodicals. - For note, "State v. Stafford: Rape Trauma Syndrome and the Admissibility of Statements Made by Rape Victims," see 64 N.C.L. Rev. 1364 (1986).

CASE NOTES

There are two overriding reasons for excluding testimony which suggests whether legal conclusions should be drawn or whether legal standards are satisfied; the first is that such testimony invades not the province of the jury but the province of the court to determine the applicable law and to instruct the jury as to that law, and the second reason is that an expert is in no better position to conclude whether a legal standard has been satisfied or a legal conclusion should be drawn than is a jury which has been properly instructed on the standard or conclusion. HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C. 578, 403 S.E.2d 483 (1991).

This rule allows testimony on ultimate issues. Welborn v. Roberts, 83 N.C. App. 340, 349 S.E.2d 886 (1986).

Medical experts' opinions pursuant to this rule on ultimate issue in workers' compensation case that they could not say to a reasonable degree of medical certainty or probability that the employee's work-related leg injury caused the later onset of deep vein thrombosis failed to establish that the leg injury caused the deep vein thrombosis, thus, there was insufficient evidence to support the workers' compensation award for deep vein thrombosis. Holley v. ACTS, Inc., 357 N.C. 228, 581 S.E.2d 750 (2003).

Trial court properly admitted, under G.S. 8C-1, Rule 701, G.S. 8C-1, Rule 704, lay opinion testimony of various law enforcement officers that defendant "tried to kill" one of the responding officers because their testimony amounted to nothing more than shorthand statements of fact based on their knowledge and observations and did not implicate defendant's guilt, mental state, or intent. The officers' testimony was based on their perceptions after witnessing defendant shoot the officer, and was not objectionable merely because it embraced an ultimate issue to be decided by the trier of fact. State v. McVay, 174 N.C. App. 335, 620 S.E.2d 883 (2005).

Abrogates Doctrine Excluding Such Testimony. - This rule abrogates the doctrine that opinion testimony should be excluded for the reason that it goes to the ultimate issue which should be decided by the trier of fact. Green Hi-Win Farm, Inc. v. Neal, 83 N.C. App. 201, 349 S.E.2d 614 (1986), cert. denied, 319 N.C. 104, 353 S.E.2d 109 (1987).

Admission Must Be Helpful to Jury. - Section 8C-1, Rule 704 does allow admission of lay opinion evidence on ultimate issues, but to qualify for admission, the opinion must be helpful to the jury. Mobley v. Hill, 80 N.C. App. 79, 341 S.E.2d 46 (1986).

Expert opinion testimony is not rendered inadmissible on the basis that it embraces ultimate issues to be determined by the jury. State v. Boyd, 343 N.C. 699, 473 S.E.2d 327 (1996), cert. denied, 519 U.S. 1096, 117 S. Ct. 778, 136 L. Ed. 2d 722 (1997).

Radiologist was without objection qualified under G.S. 8C-1, N.C. R. Evid. 702(a) as an expert in the field of medicine specializing in radiology, and was competent to offer the radiologist's expert opinion that a driver's trauma was definitely very serious intracranial trauma with serious brain injury and serious orbital injury with all the bone damage that was suffered; under G.S. 8C-1, N.C. R. Evid. 704, the radiologist's expert opinion testimony was not rendered inadmissible on the basis that it embraced an ultimate issue to be determined by the jury - whether the injuries sustained by the driver were serious. State v. Liggons, 194 N.C. App. 734, 670 S.E.2d 333 (2009).

Expert testimony on the credibility of a witness is not admissible. State v. Huang, 99 N.C. App. 658, 394 S.E.2d 279 (1990), vacated in part, 107 N.C. App. 710, 421 S.E.2d 812 (1992).

Expert Is Not Precluded from Testifying as to Mental Capacity. - This rule plainly provides that an expert witness is not precluded from testifying as to whether a defendant had the capacity to make and carry out plans, or was under the influence of mental or emotional disturbance, merely because such testimony relates to an ultimate issue to be decided by the trier of fact. State v. Shank, 367 N.C. 639, 367 S.E.2d 639 (1988), overruling State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983), and State v. Anderson, 303 N.C. 185, 278 S.E.2d 238 (1981), insofar as they are inconsistent.

Issue Reserved for Trial Court. - Expert affidavits were properly excluded under G.S. 8C-1-702 and G.S. 8C-1-704 where four statements were not helpful to the trier of fact, but merely described the obvious physical features of a map; the fifth statement, that there was no dedicated easement, reached a conclusion and decided an issue reserved for the trial court. Cape Fear Pub. Util. Auth. v. Costa, 205 N.C. App. 589, 697 S.E.2d 338 (2010).

But Court May Exclude Testimony Embracing a Conclusion Expert Is Not Qualified to Make. - It is not error for a trial court to refuse to admit expert testimony embracing a legal conclusion that the expert is not qualified to make. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988).

The trial court in a murder case did not err in refusing to admit testimony whereby defendant sought to have the experts tell the jury that certain legal standards had not been met. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988).

Capacity to Premeditate. - Since first-degree murder requires premeditation and deliberation, opinion testimony tending to show that a defendant did not have the capacity to premeditate or deliberate is testimony that embraces an ultimate issue to be decided by the trier of fact. Under this rule, such testimony is not thereby rendered inadmissible. State v. Shank, 367 N.C. 639, 367 S.E.2d 639 (1988).

Because testimony tending to show that defendant did not have the capacity to premeditate or deliberate was relevant in determining the presence or absence of an element of the offense of murder with which he was charged, and this rule allows opinion testimony even though it relates to an ultimate issue, the trial court committed prejudicial error in not allowing the testimony. State v. Shank, 367 N.C. 639, 367 S.E.2d 639 (1988).

Where defendant in first degree murder case called expert who testified that defendant neither knew right from wrong nor was capable of forming specific intent to commit murder, and State called expert to rebut this testimony, trial court erred by admitting State's expert rebuttal evidence. State asked expert "Have you an opinion . . . whether or not [defendant] was capable of premeditating murder . . .," and expert replied "He was." This testimony was an impermissible opinion concerning whether a legal standard had been met, and, under the circumstances of the case, was not harmless. State v. Rose, 327 N.C. 599, 398 S.E.2d 314 (1990).

Expert testimony that, as a result of his chronic alcohol abuse, the defendant suffered from organic impairment of brain functioning and from a loss of brain tissue which impaired his ability to think, plan, or reflect could assist the jury in determining a fact at issue - whether the defendant had premeditated and deliberated; such expert opinion testimony was not rendered inadmissible on the basis that it embraced the issues of premeditation and deliberation and specific intent to kill, which are ultimate issued to be determined by the jury. State v. Daniel, 333 N.C. 756, 429 S.E.2d 724 (1993).

Opinion on Ultimate Issues in Defending Against Summary Judgment. - Non-expert opinion on ultimate issues may not be relied on to defend against summary judgment. Whether expert opinion on ultimate issues so presented may be relied on is not clear. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240 (1984).

A medical expert's testimony is not limited to conditions he has personally observed. The correct limitation is that facts must be "within his knowledge." State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

Expert Could Base His Opinion on Another Doctor's Medical Records. - Trial court did not err by overruling plaintiff's objection to the expert's opinion testimony based on plaintiff's medical records, as such was permitted by the rule, plus plaintiff had full access to the materials from which the expert formed his opinion; even if the trial court erred by permitting the expert to base his opinion testimony entirely on plaintiff's medical records, such error would have been harmless, given another expert's similar testimony to which plaintiff did not object and actually elicited. Keller v. Deerfield Episcopal Ret. Cmty., Inc., - N.C. App. - , 845 S.E.2d 156 (2020), review denied, 851 S.E.2d 372, 2020 N.C. LEXIS 1179 (N.C. 2020).

Legal Conclusions. - The rule that an expert may not testify that a particular legal conclusion or standard has or has not been met remains unchanged by the new Evidence Code, at least where the standard is a legal term of art which carries a specific legal meaning not readily apparent to the witness. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985); Murrow v. Daniels, 85 N.C. App. 401, 355 S.E.2d 204 (1987), rev'd on other grounds, 321 N.C. 494, 364 S.E.2d 392 (1988).

An expert may generally not testify that a certain legal standard has or has not been met. Pelzer v. UPS, Inc., 126 N.C. App. 305, 484 S.E.2d 849 (1997), cert. denied, 346 N.C. 549, 488 S.E.2d 808 (1997).

The trial court correctly excluded portions of an expert witness's affidavit in which he opined that police officers in pursuit of a driver whom they suspected of being intoxicated and who, while fleeing, collided with and killed plaintiff's decedent acted "in a grossly negligent manner and showed a reckless disregard for the safety of others" in "violation of the City of Durham's pursuit policy." Norris v. Zambito, 135 N.C. App. 288, 520 S.E.2d 113 (1999).

Constructive Possession in Drug Case. - Officer's testimony was not improper on the issue of constructive possession of drugs; the officer never testified that defendant was in constructive possession, but to the underlying facts of defendant's location in proximity to the drugs. State v. Hart, 179 N.C. App. 30, 633 S.E.2d 102 (2006), affirmed in part, reversed in part on other grounds, and remanded, 361 N.C. 309, 644 S.E.2d 201 (2007).

Testimony of Attorney as to Legal Conclusions. - The trial court erred by allowing plaintiffs' expert witness, an attorney, to testify as to legal conclusions where the expert's testimony improperly invaded the trial court's province to determine the legal effect of a purchase money note and the guaranty executed in conjunction therewith, as well as the meaning of certain language in these documents. Smith v. Childs, 112 N.C. App. 672, 437 S.E.2d 500 (1993).

Wound Consistent with Intent to Cause Death. - Forensic expert's testimony that one of victim's "gunshot wounds to the head was consistent with an intent to cause death" was admissible. State v. Teague, 134 N.C. App. 702, 518 S.E.2d 573 (1999).

Defendant's Capacity to Rape. - "Rape" is a legal term of art and accordingly witness' opinion testimony concerning whether defendant was "capable of rape" was properly excluded. State v. Najewicz, 112 N.C. App. 280, 436 S.E.2d 132 (1993), cert. denied, 335 N.C. 362, 441 S.E.2d 130 (1994).

"Gross negligence" clearly has legal significance and that characterization by expert witness should not have been permitted. Murrow v. Daniels, 85 N.C. App. 401, 355 S.E.2d 204, rev'd on other grounds, 321 N.C. 494, 364 S.E.2d 392 (1988).

Death as "Homicide" - Where expert used the word "homicide" to explain the factual groundwork of the expert's function as a medical examiner and did not use the word as a legal term of art and where the expert explained how the expert determined that the victim's death was a homicide instead of death by natural causes, suicide, or accident, the expert's testimony conveyed a proper opinion for an expert in forensic pathology, and the trial court properly allowed it. State v. Parker, 354 N.C. 268, 553 S.E.2d 885 (2001), cert. denied, 535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162 (2002).

Trial court did not err by admitting expert testimony because the expert witnesses did not use the word "homicide" as a legal term of art, but to explain that the manner of death was homicide as opposed to accidental means. State v. Trogdon, 216 N.C. App. 15, 715 S.E.2d 635 (2011), review denied, 719 S.E.2d 35, 2011 N.C. LEXIS 1016 (2011).

Trial court did not err by allowing pathologists to testify that the victim's cause of death was "homicide" because their ultimate opinion was proper supported by sufficient evidence; the pathologists used the words "homicide by undetermined means" and "homicidal violence" within the context of their function as medical examiners, and their ultimate opinion was supported by sufficient evidence. State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636 (2015).

Assuming that the trial court erred by allowing pathologists to testify that the victim's cause of death was "homicide," the error was non-prejudicial because it was highly unlikely that absent the error, the jury probably would have reached a different result; at trial, defendant did not appear to challenge that the victim had been killed, and the trial court provided a limiting instruction to the jury about their consideration of expert testimony. State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636 (2015).

This rule does not eliminate the helpfulness requirement set forth in G.S. 8C-1, Rule 702. Although an expert's opinion testimony is not objectionable merely because it embraces an ultimate issue, it must be of assistance to the trier of fact in order to be admissible. State v. Jackson, 320 N.C. 452, 358 S.E.2d 679 (1987).

Testimony that rape victim suffered from post-traumatic stress disorder is allowed to assist the jury in determining if the rape actually occurred, which expands the use of the testimony is allowed beyond purpose of rebutting defendant's contention that the prosecuting witness consented to intercourse. State v. Huang, 99 N.C. App. 658, 394 S.E.2d 279 (1990), vacated in part, 107 N.C. App. 710, 421 S.E.2d 812 (1992).

Paternity of Victim's Child. - In a prosecution for first-degree rape of a female under the age of 13, with expert's testimony concerning paternity index and evidence of defendant's access before it, jury was in as good a position as expert to determine whether defendant "probably" was father of victim's child. Therefore, expert's testimony that defendant "probably" was father of victim's child was of no assistance to the trier of fact and should have been excluded on that basis. State v. Jackson, 320 N.C. 452, 358 S.E.2d 679 (1987).

"Intentional Injury" in Child Abuse Case. - In a homicide prosecution against the mother of a deceased child, the court did not err by allowing physician to testify that a child's condition and death were the result of an intentional injury where the child ingested seven to nine quarts of water over a two to three hour period. State v. West, 103 N.C. App. 1, 404 S.E.2d 191 (1991).

In a prosecution for the murder of a child, it was proper, under G.S. 8C-1-704, for properly qualified experts to offer opinions on the ultimate issue that the victim's death was not caused by an accidental injury, as: (1) both based their opinions on their years of experience as pathologists, during which they performed and consulted on numerous autopsies; and (2) the experts offered the basis of their opinions. State v. Murphy, 172 N.C. App. 734, 616 S.E.2d 567 (2005).

Existence of Partnership. - In case in which insurance company sought to prove that defendant was liable as a partner for premiums incurred by her ex-husband's business, the trial court did not commit prejudicial error in allowing non-expert witnesses to express their opinions regarding the existence of a partnership. G.R. Little Agency, Inc. v. Jennings, 88 N.C. App. 107, 362 S.E.2d 807 (1987).

Existence or Breach of Fiduciary Relationship. - An expert witness may give an opinion that under the circumstances one party has reposed special confidence in another party, or that one party should act in good faith toward another party, or that one party must act with due regard to the interests of another party. However, the witness may not opine that a fiduciary relationship exists or has been breached. HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C. 578, 403 S.E.2d 483 (1991).

An expert witness should not have been permitted to give his opinion that there was a fiduciary relationship between plaintiff and defendants, that the defendants breached their fiduciary duty, and that a member of defendant's board abused his discretion. HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C. 578, 403 S.E.2d 483 (1991).

Child Abuse. - Expert's opinion as to whether a child had been abused was admissible where the opinion testimony was based upon the witness's overall examination of the victim and expert knowledge concerning the abuse of children, and not solely on the victim's statements. State v. Stancil, 146 N.C. App. 234, 552 S.E.2d 212 (2001), cert. dismissed, 705 S.E.2d 343, 2010 N.C. LEXIS 946 (2010), review dismissed, 705 S.E.2d 393 (2011).

Admission of Expert Testimony Upheld. - In prosecution for rape and first-degree sexual offense involving four and five year old victims, trial court did not err in allowing county child medical examiner to testify to his opinion as to the likelihood that the victims had engaged in sexual intercourse, which opinion was not based on personal examination of the victims but was based on his review of the examining doctor's medical reports and conversations with two other physicians regarding the implications of the presence of protozoa trichomonas in very young girls. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

Examining physician's failure, in giving his opinion that a penis caused the trauma he observed during his examination of child victim, to qualify his response did not render this testimony as to an ultimate issue improper. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

Fact that the opinion testimony of fireman as an expert as to the presence of a flammable liquid embraced an ultimate issue to be decided by the trier of fact did not make it objectionable. State v. Riddick, 315 N.C. 749, 340 S.E.2d 55 (1986).

Trial court did not err in allowing the State's pathologist to testify that, in his opinion, the injuries suffered by the victim "were a proximate cause of her death" some 11 days later. State v. Ledford, 315 N.C. 599, 340 S.E.2d 309 (1986) (decided under former G.S. 8-58.12 and G.S. 8-58.13).

Pathologist who performed the autopsy on murder victim was clearly in a position to assist the jury in understanding the nature of the deceased's wound and in determining whether defendant, in fact, acted in self-defense when he shot the deceased; therefore, he was properly allowed to testify to these matters in the form of an opinion, even though self-defense was an ultimate issue in the case. State v. Saunders, 317 N.C. 308, 345 S.E.2d 212 (1986).

Testimony of lay persons and experts, in an action brought to settle a boundary dispute, that the boundary to the property was as they had described it was not objectionable merely because it related to an ultimate issue in the case. Welborn v. Roberts, 83 N.C. App. 340, 349 S.E.2d 886 (1986).

The physician's testimony in a personal injury suit involving an automobile accident was not inadmissible for failure to state it was based on "reasonable medical probability." Cherry v. Harrell, 84 N.C. App. 598, 353 S.E.2d 433, cert. denied, 320 N.C. 167, 358 S.E.2d 49 (1987).

In trial for sexual offense in the first degree, it was not improper to allow both psychologist and pediatrician to testify concerning the symptoms and characteristics of sexually abused children and to state the opinion that the symptoms exhibited by the victim were consistent with sexual or physical abuse. State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987).

Where doctor gave opinion that defendant did not have specific intent to kill victim, trial court incorrectly ruled that doctor's testimony was inadmissible because it invaded the province of the jury since judge's concern that proffered testimony invaded the province of the jury had been vitiated by statute. State v. Clark, 324 N.C. 146, 377 S.E.2d 54 (1989).

Where three witnesses testified that defendant crossed the center line and struck the victim's automobile in the southbound lane, defendant and another witness testified that the accident occurred when the victim's automobile slid into the northbound lane, and physical evidence was presented regarding damage to the vehicles, rotation and resting places of the vehicles, gouge marks in the pavement, and distribution of debris, the expert was in a better position than the jury to interpret this evidence and to draw conclusions from it based upon scientific principles. State v. Purdie, 93 N.C. App. 269, 377 S.E.2d 789 (1989).

If believed, expert testimony regarding post traumatic stress disorder could be helpful to the jury in understanding the behavioral patterns of sexual assault victims. This court and courts of other jurisdictions have recognized the reliability of post traumatic stress disorder testimony in sexual assault cases. State v. Huang, 99 N.C. App. 658, 394 S.E.2d 279 (1990), vacated in part, 107 N.C. App. 710, 421 S.E.2d 812 (1992).

In an action wherein plaintiff sought a decree quieting title in a certain tract and determining that she had an unrestricted easement from the state road to that tract, the trial court erred in allowing an expert witness, an attorney, to give his opinion that, as a matter of law, plaintiff was entitled to an easement by implication. Williams v. Sapp, 83 N.C. App. 116, 349 S.E.2d 304 (1986).

In a personal injury case in which there was an allegation of excessive speed, where the court charged on excessive speed as an act of negligence, it was prejudicial error to admit the testimony of the highway patrolman as to his opinion of the speed of defendant's vehicle. Fowler v. Graves, 83 N.C. App. 403, 350 S.E.2d 155 (1986).

Where, in the course of her testimony, a physician repeated the victim's statements that the defendant had sexually abused her, defendant's objection that the doctor's testimony was improper (because it was to the effect that defendant was the perpetrator) was without merit. The testimony was derived from information obtained by the doctor in the course of the victim's treatment and evaluation and was admissible. Furthermore, the victim testified at trial and identified defendant as the perpetrator. Therefore, the doctor's testimony corroborated her testimony and was properly admitted on that ground. State v. Speller, 102 N.C. App. 697, 404 S.E.2d 15, cert. denied, 329 N.C. 503, 407 S.E.2d 548 (1991).

Where surveyor was an expert in land survey and his testimony may have helped the jury understand conclusions which could be drawn from the survey maps, his testimony was properly admitted. Beam v. Kerlee, 120 N.C. App. 203, 461 S.E.2d 911 (1995).

Doctor's use of the term "homicidal assault" was not a legal term of art, nor correlated to a criminal offense and the testimony related a proper opinion for an expert in the field of forensic pathology; thus, the trial court did not err in allowing the testimony. State v. Flippen, 344 N.C. 689, 477 S.E.2d 158 (1996).

In a sexual assault case regarding a minor child, neither a pediatrician's recommendation that the child have no further contact with defendant nor her statement that the legal system relied on medical opinions constituted an opinion as to guilt. State v. Shepherd, 156 N.C. App. 69, 575 S.E.2d 776 (2003).

Trial court did not plainly err by allowing a pathologist to opine that the victim's death was due to dog bites where his opinion was based on his autopsy of the victim's body, including his observation of the bite marks on the body as well as from his experience. State v. Ford, 245 N.C. App. 510, 782 S.E.2d 98 (2016).

Trial court properly admitted the testimony of a driver's expert because the testimony comprehensively assisted the jury in understanding the evidence and determining a fact in issue; the testimony was provided in response to a general question, and it did not address the intent or motivation of a collision repair shop. Ridley v. Wendel, 251 N.C. App. 452, 795 S.E.2d 807 (2016).

Admission of Opinion Evidence as to Defendant's Guilt Was Error. - Although G.S. 8C-1, N.C. R. Evid. 704 provides that testimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact, a trial court erred in allowing police officers to offer their opinions on whether defendant who was charged with cocaine trafficking was guilty. State v. Carrillo, 164 N.C. App. 204, 595 S.E.2d 219 (2004).

Testimony of Lay Witness. - The state's objection to the questions posed by defense counsel on the ground that the questions went to an ultimate issue to be decided by the jury was not a proper basis for excluding the expected testimony by a police officer concerning whether he believed the defendant's comments concerning the murder of the mother of his child. State v. Owen, 130 N.C. App. 505, 503 S.E.2d 426 (1998), cert. denied, 349 N.C. 372, 525 S.E.2d 188 (1998).

Applied in Livermon v. Bridgett, 77 N.C. App. 533, 335 S.E.2d 753 (1985); Zagaroli v. Pollock, 94 N.C. App. 46, 379 S.E.2d 653 (1989); State v. Richardson, 112 N.C. App. 58, 434 S.E.2d 657 (1993); State v. Fisher, 336 N.C. 684, 445 S.E.2d 866 (1994); State v. Elkins, 210 N.C. App. 110, 707 S.E.2d 744 (2011).

Cited in In re Wheeler, 87 N.C. App. 189, 360 S.E.2d 458 (1987); Klassette ex rel. Klassette v. Mecklenburg County Area Mental Health, Mental Retardation & Substance Abuse Auth., 88 N.C. App. 495, 364 S.E.2d 179 (1988); State v. Rose, 323 N.C. 455, 373 S.E.2d 426 (1988); State v. Marshall, 92 N.C. App. 398, 374 S.E.2d 874 (1988); State v. Silvers, 323 N.C. 646, 374 S.E.2d 858 (1989); Hamilton v. Hamilton, 93 N.C. App. 639, 379 S.E.2d 93 (1989); State v. Crawford, 329 N.C. 466, 406 S.E.2d 579 (1991); State v. Madric, 328 N.C. 223, 400 S.E.2d 31 (1991); State v. Moore, 107 N.C. App. 388, 420 S.E.2d 691 (1992); State v. Jennings, 333 N.C. 579, 430 S.E.2d 188 (1993); State v. Youngs, 141 N.C. App. 220, 540 S.E.2d 794 (2000); Taylor v. Abernethy, 149 N.C. App. 263, 560 S.E.2d 233 (2002), cert. denied, 356 N.C. 695, 579 S.E.2d 102 (2003); State v. O'Hanlan, 153 N.C. App. 546, 570 S.E.2d 751 (2002), cert. denied, 358 N.C. 158, 593 S.E.2d 397 (2004); State v. Lane, 365 N.C. 7, 707 S.E.2d 210 (2011).


Rule 705. Disclosure of facts or data underlying expert opinion.

The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless an adverse party requests otherwise, in which event the expert will be required to disclose such underlying facts or data on direct examination or voir dire before stating the opinion. The expert may in any event be required to disclose the underlying facts or data on cross-examination. There shall be no requirement that expert testimony be in response to a hypothetical question.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule differs from Fed. R. Evid. 705 in two respects.

Fed. R. Evid. 705 leaves it to the court, rather than opposing counsel, to determine whether to require prior disclosure of the underlying facts. Rule 705 is consistent with G.S. 8-58.14, which should be repealed after the rule is adopted.

The second difference is that the last sentence of this rule does not appear in the Fed. R. Evid. 705. This sentence is identical to G.S. 8-58.12 which should be repealed after this rule is adopted. Although hypothetical questions are no longer required, neither the rule nor G.S. 8-58.12 prohibits their voluntary use.

Prior to 1982, when the facts upon which an opinion was based were within the expert's own knowledge, the court had discretion to permit the expert to give his opinion first and leave the facts to be brought out by cross-examination. Brandis on North Carolina Evidence § 136 (1982). Facts not within the personal knowledge of the expert had to be incorporated into a hypothetical question and thus disclosed prior to the opinion. Id. The 1981 legislation eliminated the requirement of the hypothetical question and allowed the expert to give his opinion without prior disclosure of the underlying facts unless an adverse party requests otherwise. G.S. 8-58.14 [now repealed]. Upon the request of an adverse party, the judge must require the expert to disclose the underlying facts on direct examination or voir dire before stating the opinion. This rule continues that requirement.

The second sentence of Rule 705 gives the opposing side the right to require disclosure of the underlying facts or data on cross-examination. The cross-examiner is under no compulsion to bring out any facts or data except those unfavorable to the opinion. N.C. Civ. Pro. Rule 26(b)(4) provides for substantial discovery of the facts underlying the opinion prior to trial.

Under Rule 611, the court exercises control over the mode and order of interrogating witnesses and presenting evidence. The court may allow the opposing party to cross-examine concerning the factual basis of the opinion immediately after the opinion is given rather than at a later point in the trial.

Except where an adverse party requests it, this rule eliminates the requirement that the basis of an expert opinion must be stated. However, the requirement that there must be a basis for the expert opinion would not be abolished. See W. Blakey, Examination of Expert Witnesses in North Carolina, 61 N.C.L.Rev. 1, 9 (1982).

CASE NOTES

This rule is not the equivalent of a request for production of documents, which vehicle is available prior to trial. Fallis v. Watauga Med. Ctr., Inc., 132 N.C. App. 43, 510 S.E.2d 199, cert. denied, 350 N.C. 308, 534 S.E.2d 589 (1999).

Expert need not testify from personal knowledge, as long as the basis for his or her opinion is available in the record or available upon demand. Thompson v. Lenoir Transf. Co., 72 N.C. App. 348, 324 S.E.2d 619 (1985); Liss of Carolina, Inc. v. South Hills Shopping Center, Inc., 85 N.C. App. 258, 354 S.E.2d 549 (1987).

Whether an expert's opinion is elicited by hypothetical or direct questioning, the opinion need not be based solely on the expert's personal knowledge. Haponski v. Constructor's Inc., 87 N.C. App. 95, 360 S.E.2d 109 (1987).

A medical expert's testimony is not limited to conditions he has personally observed. The correct limitation is that facts must be "within his knowledge." State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

Legal Conclusions. - The rule that an expert may not testify that such a particular legal conclusion or standard has or has not been met remains unchanged by the new Evidence Code, at least where the standard is a legal term of art which carries a specific legal meaning not readily apparent to the witness. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

The probative value of defendant's convictions in 1986 were substantially outweighed by the danger of unfair prejudice when those convictions were introduced by the state solely to demonstrate the basis of the experts' opinions. State v. Coffey, 336 N.C. 412, 444 S.E.2d 431 (1994).

Although this rule allows a party to elicit evidence of the underlying facts of a witness' opinion, it does not restrict a party from asking otherwise proper questions. Therefore, where the district attorney asked the witness in this case whether it would affect his opinion that the defendant would adjust well to prison if he had heard the defendant had attempted to escape from prison in Virginia, it was well within the scope of proper cross-examination. State v. Reeves, 337 N.C. 700, 448 S.E.2d 802 (1994), cert. denied, 514 U.S. 1114, 115 S. Ct. 1971, 131 L. Ed. 2d 860 (1995).

Requirement of Hypothetical Question Eliminated. - This rule eliminates the requirement that an expert's opinion testimony be in response to a hypothetical question. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

But Hypothetical Questions Are Still Permitted. - Although under the new Evidence Code hypothetical questions are not required, they are still permitted. Ballenger v. ITT Grinnell Indus. Piping, Inc., 80 N.C. App. 393, 342 S.E.2d 582 (1986); Haponski v. Constructor's, Inc., 87 N.C. App. 95, 360 S.E.2d 109 (1987).

Counsel may form hypothetical question on any theory which can be deduced from the evidence and select as a predicate therefor such facts as the evidence reasonably tends to prove, leaving adversaries to protect themselves on cross-examination. Ballenger v. ITT Grinnell Indus. Piping, Inc., 80 N.C. App. 393, 342 S.E.2d 582 (1986); Haponski v. Constructor's, Inc., 87 N.C. App. 95, 360 S.E.2d 109 (1987), rev'd in part, aff'd in part on rehearing, 83 N.C. App. 55, 348 S.E.2d 814, modified and aff'd, 320 N.C. 155, 357 S.E.2d 683 (1987).

Omission of a material fact from a hypothetical question does not necessarily render the question objectionable or the answer incompetent. Ballenger v. ITT Grinnell Indus. Piping, Inc., 80 N.C. App. 393, 342 S.E.2d 582 (1986).

It is left to the cross-examiner to bring out facts that have been omitted from the hypothetical question and thereby determine if their inclusion would cause the expert to modify or reject his or her earlier opinion. Ballenger v. ITT Grinnell Indus. Piping, Inc., 80 N.C. App. 393, 342 S.E.2d 582 (1986).

Duty of Trial Court. - Although G.S. 8C-1, Rule 703 and this rule give plaintiff the right to vigorously cross examine defendant's expert regarding the underlying facts upon which he bases his opinion, it is the duty of the trial judge to exercise sound discretion in controlling the nature and scope of the cross-examination in the interest of justice and in confining the testimony within the rules of competency, relevancy and materiality. McClain v. Otis Elevator Co., 106 N.C. App. 45, 415 S.E.2d 78 (1992).

Contents of Psychiatric Report. - Admission into evidence of the contents of a report by a psychiatrist who did not testify at trial, when the substance of such report was revealed to the jury during the State's cross-examination of another psychiatrist, was proper, where the report was a part of the hospital records relied on by the psychiatrist who testified. State v. Mize, 315 N.C. 285, 337 S.E.2d 562 (1985).

Where a doctor testified on direct examination that he had obtained records from nine sources as part of his forensic psychological evaluation of defendant, it was proper for the prosecutor during cross examination to question the doctor regarding those records because they were used to formulate his opinion that defendant was suffering from bipolar disorder. State v. Lyons, 343 N.C. 1, 468 S.E.2d 204 (1996), cert. denied, 519 U.S. 894, 117 S. Ct. 237, 136 L. Ed. 2d 167 (1996).

Contents of Psychologist's Report. - Defendant was not prejudiced by the State's cross-examination of one expert using another expert psychologist's report during the sentencing phase of his murder trial, where other evidence was much more incriminating and the report actually supported his mitigating circumstances that he grew up in an unstable environment and that he had previous negative experiences with the police. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 1380, 149 L. Ed. 2d 305 (2001), cert. dismissed, without prejudice, 805 S.E.2d 698, 2017 N.C. LEXIS 900 (2017), cert. granted, 370 N.C. 587, 809 S.E.2d 594, 2018 N.C. LEXIS 93 (2018), cert. dismissed, as moot, 847 S.E.2d 415, 2020 N.C. LEXIS 891 (N.C. 2020).

In a death penalty case, while the North Carolina Rules of Evidence did not apply to the sentencing proceeding, G.S. 8C-1, N.C. R. Evid. 705 guided the supreme court's determination that the use of a psychologist's raw data in cross-examining him was not improper, as an expert could be required to disclose the underlying facts on which his opinion was based on cross-examination, under that Rule. State v. Miller, 357 N.C. 583, 588 S.E.2d 857 (2003), cert. denied, - U.S. - , 124 S. Ct. 2914, 159 L. Ed. 2d 819 (2004).

Performance of Test by Another. - Nothing else appearing, the fact that expert witness did not perform mass spectography herself did not require exclusion of the evidence. State v. Gary, 78 N.C. App. 29, 337 S.E.2d 70 (1985).

Request for Basis for Testimony. - A party who fails to request the specific basis for expert testimony at trial under this rule should have difficulty sustaining a hearsay objection on appeal. State v. Gary, 78 N.C. App. 29, 337 S.E.2d 70 (1985).

When testifying, the expert need not identify the basis of the opinion testimony beforehand, absent a specific request. State v. Gary, 78 N.C. App. 70, 337 S.E.2d 70 (1985); State v. Fletcher, 92 N.C. App. 50, 373 S.E.2d 681 (1988).

While baseless speculation can never "assist" the jury under G.S. 8C-1, Rule 702 and is therefore inadmissible, an expert need not reveal the basis of his or her opinion absent a specific request by opposing counsel under this rule. Cherry v. Harrell, 84 N.C. 598, 353 S.E.2d 433, cert. denied, 320 N.C. 167, 358 S.E.2d 49 (1987).

Only if an adverse party requests disclosure must the trial court require the expert to disclose the underlying facts of his opinion. State v. Baldwin, 330 N.C. 446, 412 S.E.2d 31 (1992).

This rule did not require a defense expert in a medical malpractice trial to provide the raw data on which he based his opinion, where the plaintiff failed to seek the data through pre-trial discovery measures or subpoenas, and the plaintiff's counsel was afforded ample opportunity to cross-examine the expert regarding the basis of his opinions. Fallis v. Watauga Med. Ctr., Inc., 132 N.C. App. 43, 510 S.E.2d 199, cert. denied, 350 N.C. 308, 534 S.E.2d 589 (1999).

Expert was not required to state the basis for the expert's opinion where defense counsel did not request the underlying basis for the opinion. Crocker v. Roethling, 363 N.C. 140, 675 S.E.2d 625 (2009).

Opinion of Another Physician. - While one physician may not base his opinion solely on the statement of opinion of another physician, when a physician as an expert witness bases an opinion upon reliable information, including a consistent opinion of another physician, the second physician's opinion is admissible. Donavant v. Hudspeth, 318 N.C. 1, 347 S.E.2d 797 (1986) (decided under former G.S. 8-58.14).

Although generally statements by one treating physician to another are inherently reliable, may be used as the basis for an expert opinion, and are admissible in evidence to show the basis for the expert opinion, when the trial judge determines on voir dire that the source of the physician's statement is in fact unreliable, he may exclude the statement as evidence for any purpose. If the opinion of the physician testifying as an expert is based solely on the unreliable statement, the physician should not be allowed to state the opinion. If, on the other hand, the opinion is based upon sufficient additional, reliable facts and data, the trial judge may allow the expert to state his opinion notwithstanding his statement that he also relied in part upon unreliable information. Donavant v. Hudspeth, 318 N.C. 1, 347 S.E.2d 797 (1986) (decided under former G.S. 8-58.14).

Work of Other Expert. - Trial court did not err by allowing the State to cross-examine defense's expert witness on the work of a second expert. State v. White, 343 N.C. 378, 471 S.E.2d 593 (1996).

Court Not Obligated to Find Psychiatrist's Opinion Dispositive. - Merely because only one psychiatrist testified at hearing did not mean that the court was obligated to find his opinion dispositive, particularly when some of the underlying data he consulted and partially agreed with had reached a contrary conclusion. State v. Allen, 322 N.C. 176, 367 S.E.2d 626 (1988).

Admission of Expert Testimony Upheld. - In prosecution for rape and first-degree sexual offense involving four and five year old victims, trial court did not err in allowing county child medical examiner to testify to his opinion as to the likelihood that the victims had engaged in sexual intercourse, which opinion was not based on personal examination of the victims but was based on his review of the examining doctor's medical reports and conversations with two other physicians regarding the implications of the presence of protozoa trichomonas in very young girls. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

Examining physician's failure, in giving his opinion that a male penis caused the trauma he observed during his examination of child victim, to qualify his response did not render this testimony as to an ultimate issue improper. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

Where plaintiff's expert witness testified regarding his opinion about what the projected net income of plaintiff's store would have been if it had remained in business, and at defendant's request, the witness disclosed the underlying information upon which he based his opinion, which information included records kept for accounting purposes by the expert witness and data supplied to him by plaintiff's management employees, the court did not err in allowing the witness to given his opinions to the loss of profits suffered by plaintiff as a result of defendant's breach of the lease contract. Liss of Carolina, Inc. v. South Hills Shopping Center, Inc., 85 N.C. App. 258, 354 S.E.2d 549 (1987).

Cross-Examination Upheld - The defendant on trial for nine murders was not prejudiced by the cross-examination of expert witnesses concerning two additional murders he had committed. State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S. 1018, 121 S. Ct. 581, 148 L. Ed. 2d 498 (2000).

Testimony Properly Excluded. - Fact that expert "found adult material" at several locations in the county did not provide a sufficient basis to support admission of his expert testimony concerning whether the average adult in the community would find the materials which defendant was accused of selling to be patently offensive. His study was simply too unfocused and unspecific to provide him with a sufficient basis to give an expert opinion as to whether the average adult applying contemporary community standards would find the magazines at issue to be patently offensive. Thus, the trial court properly exercised its discretion by excluding his expert opinion testimony concerning whether the magazines in question in this case were patently offensive to the average adult, applying contemporary community standards, on the ground that he was no better qualified than the jury to address the question and could not assist the jury. State v. Anderson, 322 N.C. 22, 366 S.E.2d 459, cert. denied, 488 U.S. 975, 109 S. Ct. 513, 102 L. Ed. 2d 548 (1988).

Trial court did not abuse its discretion by excluding defendant's statements to psychologist regarding his state of mind at the time of offense. State v. Ballard, 127 N.C. App. 316, 489 S.E.2d 454 (1997), rev'd on other grounds, 349 N.C. 286, 507 S.E.2d 38 (1998).

Because the State did not choose to explore the basis for defendant's expert's opinion at trial, the trial court was not obligated to allow the expert to testify as to certain conversations that he had with defendant that formed the basis for his opinion. State v. Edwards, 174 N.C. App. 490, 621 S.E.2d 333 (2005).

Testimony As to Final Conclusion. - Trial court properly allowed the expert to testify as to his final conclusion even though it may have touched on an ultimate issue in the case. Taylor v. Abernethy, 174 N.C. App. 93, 620 S.E.2d 242 (2005), appeal dismissed, 360 N.C. 367, 630 S.E.2d 454 (2006).

Denial of defendant's motion for pre-trial voir dire of State's expert witnesses was not prejudicial, where defendant had opportunity to obtain evidence on direct and cross-examination. State v. Pretty, 134 N.C. App. 379, 517 S.E.2d 677, cert. denied, appeal dismissed, 351 N.C. 117, 540 S.E.2d 745 (1999).

Failure to Object to Expert Witness. - Court rejected the defendant pharmacy's argument that G.S. 90-21.12 does not encompass a nationwide standard of care for pharmacists and that the plaintiff's witness's testimony concerning the standard of care applicable to the defendant pharmacist was erroneously based upon a nationwide standard, as not properly before it where defendant failed to move to strike the standard of care testimony by the witness which it challenged on appeal, while presenting on cross-examination essentially the same testimony to which it had objected, and where it failed to object to the tender of the witness as an expert in pharmacy or to request a voir dire hearing pursuant to this rule to explore the bases for his opinion. Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 535 S.E.2d 55 (2000).

Timing of Voir Dire. - Because the Department of Transportation was permitted an opportunity to voir dire an expert prior to cross-examining him regarding the underlying facts or data supporting his opinion as to the market value of a property on the date of the taking, the trial court did not err in denying the DOT's request to voir dire the witness until after the witness had submitted his testimony on direct. DOT v. Blevins, 194 N.C. App. 637, 670 S.E.2d 621 (2009).

Applied in Hamilton v. Hamilton, 93 N.C. App. 639, 379 S.E.2d 93 (1989); State v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991); Workman v. Workman, 106 N.C. App. 562, 418 S.E.2d 269 (1992); State v. Bates, 140 N.C. App. 743, 538 S.E.2d 597 (2000); Johnson v. Piggly Wiggly of Pinetops, Inc., 156 N.C. App. 42, 575 S.E.2d 797 (2003), cert. denied, 357 N.C. 251, 582 S.E.2d 271 (2003).

Cited in State v. Johnson, 105 N.C. App. 390, 413 S.E.2d 562; In re Environmental Mgt. Comm'n, 80 N.C. App. 1, 341 S.E.2d 588 (1986); State v. Bright, 320 N.C. 491, 358 S.E.2d 498 (1987); Klassette ex rel. Klassette v. Mecklenburg County Area Mental Health, Mental Retardation & Substance Abuse Auth., 88 N.C. App. 495, 364 S.E.2d 179 (1988); State v. Brown, 101 N.C. App. 71, 398 S.E.2d 905 (1990); State v. Robinson, 330 N.C. 1, 409 S.E.2d 288 (1991), cert. denied, 332 N.C. 348, 421 S.E.2d 158 (1992); State v. Bronson, 333 N.C. 67, 423 S.E.2d 772 (1992); State v. Black, 111 N.C. App. 284, 432 S.E.2d 710 (1993); State v. Simpson, 341 N.C. 316, 462 S.E.2d 191 (1995), cert. denied, 516 U.S. 1161, 116 S. Ct. 1048, 134 L. Ed. 2d 194 (1996); State v. Workman, 344 N.C. 482, 476 S.E.2d 301 (1996); State v. Holston, 134 N.C. App. 599, 518 S.E.2d 216 (1999); McCarver v. Lee, 221 F.3d 583 (4th Cir. 2000), cert. denied, 531 U.S. 1089, 121 S. Ct. 809, 148 L. Ed. 2d 694 (2001); Coffman v. Roberson, 153 N.C. App. 618, 571 S.E.2d 255 (2002), cert. denied, 356 N.C. 668, 577 S.E.2d 111 (2003).


Rule 706. Court appointed experts.

  1. Appointment. - The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint witnesses of its own selection. An expert witness shall not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party. He shall be subject to cross-examination by each party, including a party calling him as a witness.
  2. Compensation. - Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation for the taking of property. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.
  3. Disclosure of appointment. - In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.
  4. Parties' experts of own selection. - Nothing in this rule limits the parties in calling expert witnesses of their own selection.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 706 except that "for the taking of property" has been inserted in subdivision (b) in lieu of "under the Fifth Amendment".

A trial judge has the discretion to call an expert witness. State v. Horne, 171 N.C. 787 (1916). This rule provides the procedure for calling such a witness.

Subdivision (b) provides the method of compensating experts called by the court but does not require an additional appropriation.

CASE NOTES

Valuation of Professional Practice. - In order to make a distribution of marital property, a court should make specific findings regarding the value of a spouse's professional practice and the existence and value of its goodwill, and should clearly indicate the evidence on which its valuations are based, preferably noting the valuation method or methods on which it relied. The court may appoint an additional expert witness under this rule, if needed. On appeal, if it appears that the trial court reasonably approximated the net value of the practice and its goodwill, if any, based on competent evidence and on a sound valuation method or methods, the valuation will not be disturbed. Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266 (1985).

In an equitable distribution action, the trial court has the authority under this rule to appoint an expert witness to appraise the goodwill and other value of plaintiff's practice. Dorton v. Dorton, 77 N.C. App. 667, 336 S.E.2d 415 (1985).

Apportionment of Cost Associated With Court-Ordered Evaluation. - Trial court did not err in making the father responsible for 40% of the cost associated with the court-ordered child centered evaluation, noting that the father delayed the evaluation by failing to attend appointments, coming unprepared, and refusing to provide documents in a timely manner. Smith v. Barbour, 195 N.C. App. 244, 671 S.E.2d 578 (2009), review denied, 363 N.C. 375, 678 S.E.2d 670 (2009).

Expert Not Court-Appointed. - Although the expert's work was relied upon by the trial court in its alimony order, and although the husband provided no expert of his own, there did not appear to be a basis upon which the expert could have been considered a court-appointed expert; thus, the trial court erred in awarding expert fees as costs, except inasmuch as those fees encompassed fees for testimony only. Slaughter v. Slaughter, 254 N.C. App. 430, 803 S.E.2d 419 (2017), review dismissed, as moot, 806 S.E.2d 41, 2017 N.C. LEXIS 906 (N.C. 2017).

Failure to Question Source or Justification for Fees at Trial. - Party to equitable distribution action waived his right to contend that the trial court failed to make findings concerning (1) how much time appraiser spent in appraising the property; (2) appraiser skills; (3) appraiser's hourly rate for appraisals; (4) the reasonableness of his hourly rate in comparison with other appraisers; and (5) what appraiser did where attorney failed to question appraiser in any way with respect to source or justification for his appraisal fee. Swilling v. Swilling, 329 N.C. 219, 404 S.E.2d 837 (1991).

Fees Permitted. - While ordinarily the costs of an expert may only be awarded for testimony given, the costs of a court-appointed expert are not subject to such limitation. Slaughter v. Slaughter, 254 N.C. App. 430, 803 S.E.2d 419 (2017), review dismissed, as moot, 806 S.E.2d 41, 2017 N.C. LEXIS 906 (N.C. 2017).

Fee Upheld. - Where the referee and the parties signed a consent order appointing an expert witness to appraise the business interest-owned by either or both of the parties and submitted a bill for services in the amount of $32,912, the trial court entered an order finding that the total fee requested was appropriate for the time involved and the types of evaluations which were completed. Sharp v. Sharp, 116 N.C. App. 513, 449 S.E.2d 39, cert. denied, 338 N.C. 669, 453 S.E.2d 181 (1994).

Trial court did not err under G.S. 8C-1, N.C. R. Evid. 706 by requiring an employer, which engaged in litigation with a former employee, to pay the balance of the invoice of an expert which performed the court-ordered services of analyzing computer hard drives in the litigation because there was competent evidence, in the form of other computer experts, that the invoice was reasonable. Point Intrepid, LLC v. Farley, 215 N.C. App. 82, 714 S.E.2d 797 (2011).

Report Not Conclusive - Where a trial court appointed an "expert" instead of a "referee" as contemplated by the parties' settlement agreement, the expert's report was not conclusive, and the trial court erred in granting summary judgment based on the report. Porter v. Am. Credit Counselors Corp., 154 N.C. App. 292, 573 S.E.2d 176 (2002), appeal dismissed, 357 N.C. 165, 579 S.E.2d 883 (2003).

Cited in Godley v. Godley, 110 N.C. App. 99, 429 S.E.2d 382 (1993); Grasty v. Grasty, 125 N.C. App. 736, 482 S.E.2d 752 (1997); Offerman v. Offerman, 137 N.C. App. 289, 527 S.E.2d 684 (2000).


ARTICLE 8. Hearsay.

Rule

Rule 801. Definitions and exception for admissions of a party-opponent.

The following definitions apply under this Article:

  1. Statement. - A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion.
  2. Declarant. - A "declarant" is a person who makes a statement.
  3. Hearsay. - "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
  4. Exception for Admissions by a Party-Opponent. - A statement is admissible as an exception to the hearsay rule if it is offered against a party and it is (A) his own statement, in either his individual or a representative capacity, or (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship or (E) a statement by a coconspirator of such party during the course and in furtherance of the conspiracy.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 801, except for subdivision (d) which is discussed below.

Subdivision (a) defines "statement" for purposes of the hearsay rule. The Advisory Committee's Note states:

"The definition of 'statement' assumes importance because the term is used in the definition of hearsay in subdivision (c). The effect of the definition of 'statement' is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.

It can scarcely be doubted that an assertion made in words is intended by the declarant to be an assertion. Hence verbal assertions readily fall into the category of 'statement'. Whether nonverbal conduct should be regarded as a statement for purposes of defining hearsay requires further consideration. Some nonverbal conduct, such as the act of pointing to identify a suspect in a lineup, is clearly the equivalent of words, assertive in nature, and to be regarded as a statement. Other nonverbal conduct, however, may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred. This sequence is, arguably, in effect an assertion of the existence of the condition and hence properly includable within the hearsay concept. * * * Admittedly evidence of this character is untested with respect to the perception, memory, and narration (or their equivalents) of the actor, but the Advisory Committee is of the view that these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. No class of evidence is free of the possibility of fabrication, but the likelihood is less with nonverbal than with assertive verbal conduct. The situations giving rise to the nonverbal conduct are such as virtually to eliminate questions of sincerity. Motivation, the nature of the conduct, and the presence or absence of reliance will bear heavily upon the weight to be given the evidence. * * * Similar considerations govern nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted, also excluded from the definition of hearsay by the language of subdivision (c)."

Subdivision (a) differs from current North Carolina law by excluding from the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. Some North Carolina cases have barred evidence of conduct even though the conduct was nonassertive. In other cases, comparable evidence has been admitted, either as nonhearsay or without noticing its possible hearsay nature. Brandis on North Carolina Evidence § 142 (1982).

With respect to subdivision (a), the Advisory Committee's Note also states:

"When evidence of conduct is offered on the theory that it is not a statement, and hence not hearsay, a preliminary determination will be required to determine whether an assertion is intended. The rule is so worded as to place the burden upon the party claiming that the intention existed; ambiguous and doubtful cases will be resolved against him and in favor of admissibility. The determination involves no greater difficulty than many other preliminary questions of fact."

Subdivision (b), which defines declarant as a person who makes a statement, is consistent with North Carolina practice.

Subdivision (c) defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted. The Advisory Committee's Note states:

"The definition follows along familiar lines in including only statements offered to prove the truth of the matter asserted. McCormick § 225; 5 Wigmore § 1361, 6 id. § 1766. If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay. * * * The effect is to exclude from hearsay the entire category of 'verbal acts' and 'verbal parts of an act,' in which the statement itself affects the legal rights of the parties or is a circumstance bearing on conduct affecting their rights.

The definition of hearsay must, of course, be read with reference to the definition of statement set forth in subdivision (a).

Testimony given by a witness in the course of court proceedings is excluded since there is compliance with all the ideal conditions for testifying."

This definition of hearsay is consistent with the definitions used by North Carolina courts. See Brandis on North Carolina Evidence § 138 (1982). With respect to the definition of hearsay excluding "verbal acts" from the hearsay ban, see Brandis, § 141.

Subdivision (d)(1) of Fed. R. Evid. 801 departs markedly from the common law in North Carolina by excluding from the hearsay ban several statements that come within the common law definition of hearsay. Accordingly, the language of Fed. R. Evid. 801(d), which provides that in certain circumstances prior inconsistent statements, prior consistent statements, and out-of-court identifications are not hearsay, was deleted. See Brandis on North Carolina Evidence § 46 (prior inconsistent statements), §§ 51 and 52 (prior consistent statements); State v. Neville, 175 N.C. 751 (1918) (identification).

Subdivision (d)(2) of Fed. R. Evid. 801 excludes certain admissions of a party-opponent from the hearsay ban by stating that such statements are not hearsay. Subdivision (d) of Rule 801 achieves the same result in a manner consistent with current North Carolina practice by providing that such a statement may be admitted as an exception to the hearsay rule.

Subdivision (d) specifies five categories of statements for which the responsibility of a party is considered sufficient to justify reception in evidence against the party.

With respect to category (A), a party's own statement is the classic example of an admission.

Category (A) is in accord with North Carolina practice. See Brandis on North Carolina Evidence §§ 167, 176 (1982).

With respect to category (B), the Advisory Committee's Note states:

"Under established principles an admission may be made by adopting or acquiescing in the statement of another. While knowledge of contents would ordinarily be essential, this is not inevitably so: 'X is a reliable person and knows what he is talking about.' See McCormick § 246, p. 527, n. 15. Adoption or acquiescence may be manifested in any appropriate manner. When silence is relied upon, the theory is that the person would, under the circumstances, protest the statement made in his presence, if untrue. The decision in each case calls for an evaluation in terms of probable human behavior. In civil cases, the results have generally been satisfactory. In criminal cases, however, troublesome questions have been raised by decisions holding that failure to deny is an admission: the inference is a fairly weak one, to begin with; silence may be motivated by advice of counsel or realization that 'anything you say may be used against you'; unusual opportunity is afforded to manufacture evidence; and encroachment upon the privilege against self-incrimination seems inescapably to be involved. However, recent decisions of the Supreme Court relating to custodial interrogation and the right to counsel appear to resolve these difficulties. Hence the rule contains no special provisions concerning failure to deny in criminal cases."

Admission of a statement of which a party has adopted is in accord with North Carolina practice. See Brandis on North Carolina Evidence § 179 (1982).

With respect to category (C), the Advisory Committee's Note states:

"No authority is required for the general proposition that a statement authorized by a party to be made should have the status of an admission by the party. However, the question arises whether only statements to third persons should be so regarded, to the exclusion of statements by the agent to the principal. The rule is phrased broadly so as to encompass both. While it may be argued that the agent authorized to make statement to his principal does not speak for him, Morgan, Basic Problems of Evidence 273 (1962), communication to an outsider has not generally been thought to be an essential characteristic of an admission. Thus a party's books or records are usable against him, without regard to any intent to disclose to third persons. 5 Wigmore § 1557. See also McCormick § 78, pp. 159-161."

North Carolina courts currently admit statements when an agent is, in fact, authorized to speak for the principal. Brandis on North Carolina Evidence § 169, at 15 (1982). However, it is unclear whether such statements are admissible when the statement was made only to the principal. Id. at 17. The rule would clarify North Carolina law by encompassing statements by an agent to the principal or to a third party.

With respect to category (D), the Advisory Committee's Note states:

"The tradition has been to test the admissibility of statement by agents, as admissions, by applying the usual test of agency. Was the admission made by the agent acting in the scope of his employment? Since few principals employ agents for the purpose of making damaging statements, the usual result was exclusive of the statement. Dissatisfaction with this loss of valuable and helpful evidence has been increasing. A substantial trend favors admitting statements related to a matter within the scope of the agency or employment."

In Hubbard v. R.R., 203 N.C. 675 (1932), the Court states:

"What an agent or employee says relative to an act presently being done by him within the scope of his agency or employment is admissible . . . against the principal or employer, but what he says afterwards, and merely narrative of a past occurrence, though his agency or employment may continue as to other matters, or generally, is only hearsay and is not competent as against the principal or employer."

The North Carolina rule has been the subject of several dissenting opinions and has been criticized by Professor Brandis. See Branch v. Dempsey, 265 N.C. 733 (1965) (Sharp, J., dissenting); Pearce v. Telephone Co., 299 N.C. 64 (1980) (Copeland, Carlton and Exum, J.J., dissenting); Brandis on North Carolina Evidence § 169 (1982). Rule 801(d)(D) would change North Carolina practice and make admissible any statements related to a matter within the scope of the agency or employment. The only additional requirement is that the statement be made during the existence of the relationship.

With respect to category (E), the Advisory Committee's Note states:

"The limitation upon the admissibility of statement of co-conspirators to those made 'during the course and in furtherance of the conspiracy' is in the accepted pattern. While the broadened view of agency taken in item (iv) might suggest wider admissibility of statements of co-conspirators, the agency theory of conspiracy is at best a fiction and ought not to serve as a basis for admissibility beyond that already established. * * * The rule is consistent with the position of the Supreme Court in denying admissibility to statements made after the objectives of the conspiracy have either failed or been achieved. Krulewitch v. United States, 336 U.S. 440, 69 S. Ct. 716, 93 L. Ed. 790 (1949); Wong Sun v. United States, 371 U.S. 471, 490, 83 S. Ct. 407, 9 L. Ed. 2d. 441 (1963)." Rule 801(d)(E) is in accord with North Carolina practice. See Brandis on North Carolina Evidence § 173 (1982).

Legal Periodicals. - For note, "State v. Smith: Facilitating the Admissibility of Hearsay Statements in Child Sexual Abuse Cases," see 64 N.C.L. Rev. 1352 (1986).

For note, "State v. Stafford: Rape Trauma Syndrome and the Admissibility of Statements Made by Rape Victims," see 64 N.C.L. Rev. 1364 (1986).

For article, "Guilt by Intuition: The Insufficiency of Prior Inconsistent Statements To Convict," see 65 N.C.L. Rev. 1 (1986).

For article, "Not So 'Firmly Rooted': Exceptions to the Confrontation Clause," see 66 N.C.L. Rev. 1 (1987).

For note, "Admission of the Unthinkable: Hearsay Exceptions and Statements Made by Sexually Abused Children - State v. Smith," see 9 Campbell L. Rev. 437 (1987).

For note on the admissibility of a criminal defendant's hypnotically refreshed testimony, see 10 Campbell L. Rev. 311 (1988).

For article, "Issues Once Moot: The Other Evidentiary Objections to the Admission of Exculpatory Polygraph Examinations," see 32 Wake Forest L. Rev. 1045 (1997).

For note, "State v. Alston: North Carolina Continues to Broaden its Mind to Admissibility of a Victim's Out-of-Court Statements Under the Rule 803(3) Hearsay Exception in Criminal Cases," see 32 Wake Forest L. Rev. 1327 (1997).

For recent development, "The Defense Calls ... the Accuser? State v. Brigman and How the North Carolina Court of Appeals Misconstrued Crawford's Application to Available Witnesses," see 84 N.C. L. Rev. 2082 (2006).

For article, "Free Speech and the Law of Evidence," see 68 Duke L.J. 640 (2019).

CASE NOTES

Hearsay Defined. - An assertion of one other than the presently testifying witness is hearsay and inadmissible if offered for the truth of the matter asserted; if offered for any other purpose, the assertion is admissible. Livermon v. Bridgett, 77 N.C. App. 533, 335 S.E.2d 753 (1985), cert. denied, 315 N.C. 391, 338 S.E.2d 880 (1986).

Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. If a statement is offered for any other purpose, it is admissible. Hall v. Coplon, 85 N.C. App. 505, 355 S.E.2d 195 (1987).

Testimony of a witness was hearsay under N.C. R. Evid. 801(c) because it consisted of statements, other than ones made by the declarant while testifying at trial offered in evidence to prove the truth of the matter asserted. However, the testimony was admissible under an exception to the hearsay rule. State v. Petrick, 186 N.C. App. 597, 652 S.E.2d 688 (2007), appeal dismissed, review denied, 362 N.C. 242, 660 S.E.2d 540 (2008).

The erroneous admission of hearsay is not always so prejudicial as to require a new trial. The defendant must still show that there was a reasonable possibility that a different result would have been reached at trial if the error had not been committed. State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986); State v. Locklear, 322 N.C. 349, 368 S.E.2d 377 (1988).

An act, such as a gesture, can be a statement for purposes of applying rules concerning hearsay. State v. Satterfield, 316 N.C. 55, 340 S.E.2d 52 (1986).

A robbery report containing statements regarding the seizure, at a bus station, of defendant's luggage, which police suspected contained marijuana, was relevant evidence; the statements made to the investigating officer were vital to the identification of defendants as the suspects in the armed robbery and admissible for non-hearsay purposes. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 1380, 149 L. Ed. 2d 305 (2001), cert. dismissed, without prejudice, 805 S.E.2d 698, 2017 N.C. LEXIS 900 (2017), cert. granted, 370 N.C. 587, 809 S.E.2d 594, 2018 N.C. LEXIS 93 (2018), cert. dismissed, as moot, 847 S.E.2d 415, 2020 N.C. LEXIS 891 (N.C. 2020).

Medical Records. - Although medical records were admitted (in reliance on Rule 10.3, Twelfth Judicial District Juvenile Case Management Plan) into evidence without proper foundation, as required by G.S. 8C-1, N.C. R. Evid. 703, 803(6), in order to fit within the exceptions to the hearsay rule, G.S. 8C-1, N.C. R. Evid. 801(c), 802, because - pursuant to G.S. 7B-804 - the rules of evidence in civil cases were to apply to child neglect cases, respondents, parents of the children, who were found neglected, had the burden of showing prejudice at the admission of the records; but they could not, given the other extensive direct testimony from medical experts upon which it was presumed the trial court had relied. In re T.M., 187 N.C. App. 694, 654 S.E.2d 502 (2007).

Composite Picture of Perpetrator Not a Statement. - A composite picture of a perpetrator prepared by police pursuant to the directions of a witness to a crime does not constitute a statement. Such a composite picture is the functional equivalent of a photograph in that it merely reflects the perpetrator's likeness, albeit as recorded by the witness' eyes rather than the witness' camera. No assertion or statement is involved. Therefore, a composite picture is not hearsay as defined by subsection (c) of this rule and Rule 802, and does not apply to bar the admission of a composite picture into evidence. State v. Patterson, 332 N.C. 409, 420 S.E.2d 98 (1992).

Agency. - The admission of an un-redacted report, after a redacted report had already been offered in court, and comments made thereon by defendant's manager was proper and not violative of the rules prohibiting hearsay or opinion testimony where the manager of the defendant store was defendant's agent at the time he entered his comments on the incident report and the entry concerned a matter within the scope of his agency. Kilgo v. Wal-Mart Stores, Inc., 138 N.C. App. 644, 531 S.E.2d 883 (2000).

North Carolina Industrial Commission did not err when it allowed a professional football player's agent to testify regarding statements made by the team's scouting director, its position coach, and the assistant special teams coach because those individuals had authority to discuss the team's needs and a player's performance as their opinion would be considered in determining the team's final roster. Renfro v. Richardson Sports, Ltd. Partners, 172 N.C. App. 176, 616 S.E.2d 317 (2005), cert. denied, 360 N.C. 535, 633 S.E.2d 821 (2006), cert. dismissed, 360 N.C. 535, 633 S.E.2d 821 (2006).

Adoption of Another's Statement as One's Own. - A person may expressly adopt another's statement as his own, or an adoptive admission may be implied from other conduct of a party which manifests circumstantially the party's assent to the truth of a statement made by another person. FCX, Inc. v. Caudill, 85 N.C. App. 272, 354 S.E.2d 767 (1987).

Adoptive admissions fall generally into two categories - those implied from the affirmative act of a party, and those implied from silence or a failure to respond in circumstances that call for a response. FCX, Inc. v. Caudill, 85 N.C. App. 272, 354 S.E.2d 767 (1987).

Defendant's affirmative, though silent, conduct indicating that declarant, who was indicted for the same crime, "had better hush" or "had better shut up," could reasonably be found by a jury to manifest the defendant's adoption or belief in the truth of the declarant's statements, thereby making them admissible under this rule. State v. Hunt, 325 N.C. 187, 381 S.E.2d 453 (1989).

Statements made by others on the videotape, e.g., "this is [defendant]'s big old gun" were inadmissible against him to prove possession of a firearm by a convicted felon because they were not adoptive admissions; the circumstances under which the videotaped third person statements were made were not circumstances where a denial by the defendant would naturally be expected. State v. Sibley, 140 N.C. App. 584, 537 S.E.2d 835 (2000).

Trial court's giving a jury instruction on implied admission was not in error as the defendant's lack of denials to certain accusations by another person and the statement by the defendant to that person that the defendant was too smart to get caught contained both express and implied admissions by the defendant State v. Marecek, 152 N.C. App. 479, 568 S.E.2d 237 (2002).

Mere possession of a written statement does not manifest an adoption of its contents. FCX, Inc. v. Caudill, 85 N.C. App. 272, 354 S.E.2d 767 (1987).

Request for testing or other information does not automatically establish an adoption of statements contained within the response. FCX, Inc. v. Caudill, 85 N.C. App. 272, 354 S.E.2d 767 (1987).

Statements Admissible to Explain Subsequent Conduct. - Statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made. State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990), cert. denied, 421 S.E.2d 360 (1992).

Testimony in regard to threat against witness by defendant was not introduced for the truth of the statement, but explained why she did not report the offense in a more timely manner, and it was not hearsay. State v. Lamb, 342 N.C. 151, 463 S.E.2d 189 (1995).

Testimony that a witness' mother called to tell him that a man was at her house and that he went to her house was admissible for the limited purposes of showing what the witness did after the telephone conference with his mother, why he went to her house, and to corroborate another witness' testimony. State v. Call, 349 N.C. 382, 508 S.E.2d 496 (1998).

Testimony by defendant's former cellmate about cellmate's conversations with his attorney about a note the cellmate signed while sharing the cell with defendant was admissible for the limited purpose of explaining that the cellmate signed the note under coercive circumstances, which was why he testified for the State rather than the defendant. State v. Thomas, 350 N.C. 315, 514 S.E.2d 486 (1999), cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388 (1999).

The statements by witness outlining her daughter's problems with defendant and her request that someone meet her at the bus stop were introduced to explain why the mother asked the victim to meet her at the bus stop that afternoon and not for the truth of the matter asserted; their admission was, therefore, not in violation of this section. State v. Lesane, 137 N.C. App. 234, 528 S.E.2d 37 (2000).

Admission of a detective's conversation with an inmate implicating defendant in two murders to explain the detective's subsequent conduct was inadmissible when it went beyond what was necessary to explain that conduct, and was relied on as substantive evidence of defendant's alleged crime. State v. Canady, 355 N.C. 242, 559 S.E.2d 762 (2002).

Testimony from surveillance team members about information one surveillance officer gave them about defendant's activities was properly admitted and was not hearsay; the trial court admonished the jury that the testimony was not being offered to establish the truth of the matters asserted, and the record showed that the evidence was admitted solely for the purpose of explaining each of the surveillance team members' actions when they arrived at the scene where defendant had been selling marijuana. State v. Young, 166 N.C. App. 401, 602 S.E.2d 374 (2004), cert. denied, 359 N.C. 326, 611 S.E.2d 851 (2005).

In a drug case, a trial court did not err by allowing an officer to testify about a conversation with another person that led to defendant's arrest under G.S. 8C-1, N.C. R. Evid. 801(c) because (1) defendant opened the door during cross-examination and (2) the testimony was offered to explain subsequent conduct of the officers. State v. Cardenas, 169 N.C. App. 404, 610 S.E.2d 240 (2005).

Trial court did not err in finding that police detective was the custodian or other qualified witness of pawn shop records for purposes of admissibility of his testimony regarding his review of those records, nor did it err in admitting the detective's testimony regarding said records, as his testimony regarding his review and his resulting actions was admissible to show the basis for those actions, explained his conduct, and was not hearsay. State v. Goblet, 173 N.C. App. 112, 618 S.E.2d 257 (2005), overruled in part by State v. Tanner, 2010 N.C. LEXIS 423 (2010).

Testimony regarding an officer's interaction with a detective and a third individual was non-hearsay since it was not admitted to prove the truth of the matter asserted, but rather to show how the officer formed a reasonable suspicion that defendant was involved in the robbery at issue, which in turn justified including defendant's photo in a lineup shown to the robbery victim. State v. Alexander, 177 N.C. App. 281, 628 S.E.2d 434 (2006), cert. denied, appeal dismissed, 361 N.C. 358, 644 S.E.2d 357 (2007).

Trial court did not commit plain error in admitting hearsay testimony because the victim's prior statements to the victim's step-grandmother were admitted to establish why investigative action was taken, not to prove the alleged conduct, and the testimony corroborated the victim's trial testimony. State v. Treadway, 208 N.C. App. 286, 702 S.E.2d 335 (2010), review denied 365 N.C. 195, 710 S.E.2d 35, 2011 N.C. LEXIS 499 (N.C. 2011).

In a robbery prosecution, a statement by a witness who stated that a hospital employee indicated that they did see defendant on video was not offered to prove the truth of the matter asserted, but was instead offered to explain the witness's subsequent actions in obtaining a search warrant to procure the hospital surveillance video as evidence. State v. Elkins, 210 N.C. App. 110, 707 S.E.2d 744 (2011).

Admission of captain's statement to a sergeant was properly, because the statement was used to explain the sergeant's subsequent conduct. State v. Stanley, 213 N.C. App. 545, 713 S.E.2d 196 (2011).

trial court did not err in admitting a confidential informant's statements through the testimony of an investigator regarding defendant's prior sale and manufacture of cocaine because the nonhearsay statements were not offered to prove the truth of the matter asserted but to explain how and why the investigation of defendant began; the statements were allowed, and admission of the statements did not violate defendant's Sixth Amendment rights under the Confrontation Clause. State v. Steele, 260 N.C. App. 315, 817 S.E.2d 487 (2018), review denied, 371 N.C. 788, 821 S.E.2d 183, 2018 N.C. LEXIS 1111 (2018).

Out-of-Court Statements to Impeach Party. - Trial court did not err in allowing the State to introduce out-of-court statements to impeach codefendant where the statements were not admitted for substantive purposes and would have been otherwise admissible because of the prior inconsistent statement exception to the hearsay rule. State v. Martinez, 149 N.C. App. 553, 561 S.E.2d 528 (2002).

Statements to Corroborate Child's Testimony. - Out-of-court statements offered for the sole purpose of corroborating six-year-old victim's testimony were not hearsay. State v. Gilbert, 96 N.C. App. 363, 385 S.E.2d 815 (1989).

Testimony by police juvenile investigator as to prior consistent statements made to him after a murder by a child who witnessed the murder was admissible since the officer's testimony corroborated the testimony of the child at trial. State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001).

Trial court did not err by allowing the victim's step-grandmother to testify to prior statements the victim had made to her because they were not inadmissible hearsay, as the victim's prior statements substantially conformed with her testimony at trial, save for the addition of other forms of abuse. The statements were sufficiently similar to the victim's testimony for the trial court to allow the jury to decide their corroborative value for itself. State v. Graham, - N.C. App. - , 841 S.E.2d 754 (2020), denied, in part, 845 S.E.2d 789, 2020 N.C. LEXIS 710 (N.C. 2020).

Corroboration by Videotape. - Videotape was properly offered and accepted by the court as corroboration of the victim's testimony as the victim's statements were not offered to prove that defendant sexually assaulted the victim, but rather to show that the victim had made a similar, consistent statement to a counselor. State v. Baymon, 336 N.C. 748, 446 S.E.2d 1 (1994).

The date "1/10/97" appearing on the lower lefthand corner of a videotape depicting the defendant handling various weapons was inadmissible hearsay to prove that defendant was in possession of a weapon after the date of his prior felony conviction where the declarant was unknown since there was no testimony as to the identity of the operator of the camera and where the statement, that this video was filmed on 1/10/98, was offered for its truth, e.g., that defendant was in possession of a weapon on that date. State v. Sibley, 140 N.C. App. 584, 537 S.E.2d 835 (2000).

Test on Admissions by Silence. - Regarding admissions by silence, whether the statement is oral or written, the critical inquiry is whether a reasonable person would have denied it under the circumstances. FCX, Inc. v. Caudill, 85 N.C. App. 272, 354 S.E.2d 767 (1987).

Jury's Province to Draw Inferences from Silence. - A response which is not the equivalent of a denial may indicate acquiescence and be considered by the jury for what it is worth; where the evidence leaves the matter in doubt, it is the jury's province to determine whether the remarks were heard and understood, and to draw inferences from the person's silence. State v. Thompson, 332 N.C. 204, 420 S.E.2d 395 (1992).

Statements of a party to an action, spoken or written, have long been admissible against that party as an admission if relevant to the issues and not subject to some specific exclusionary statute or rule. This is still the case under the Rules of Evidence. Karp v. UNC, 78 N.C. App. 214, 336 S.E.2d 640 (1985).

The exception, in subdivision (d)(A) of this rule is available only for statements made by parties to the lawsuit. State v. Shoemaker, 80 N.C. App. 95, 341 S.E.2d 603, cert. denied, 317 N.C. 340, 346 S.E.2d 145 (1986).

Out-of-Court Statements Forming Reputation of A Particular Place. - The trial court properly restricted defense counsel from referring to the premises where the defendant's alleged crimes took place as a "crack house," since such evidence was hearsay. State v. Allred, 131 N.C. App. 11, 505 S.E.2d 153 (1998).

Admission by Party Opponent. - Where plaintiff slipped and fell in a grocery store, statements made by the store manager were admissible as an exception to the hearsay rule for admissions by a party opponent. Kremer v. Food Lion, Inc., 102 N.C. App. 291, 401 S.E.2d 837 (1991).

Defendant's confession that she killed her stepchild by smothering him by placing a plastic bag over his head was an admission by a party opponent and therefore admissible as substantive evidence of her guilt and to refute her defense of accident. State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995).

In murder prosecution, where defendant was allowed to go to a local funeral home to view her husband accompanied by a sheriff's deputy and a jail matron and both testified that defendant was "pretty hysterical and crying" and that while she stood over the victim's body, she stated twice: "Honey, why did you make me do it?," this statement was an admission which fell squarely within this rule. State v. Lambert, 341 N.C. 36, 460 S.E.2d 123 (1995).

The murder defendant's statement that he would have to "cap someone" if his employer did not stop garnishing his wages was admissible as an admission or statement of a party opponent. State v. White, 131 N.C. App. 734, 509 S.E.2d 462 (1998).

Trial court properly permitted testimony as to statements defendant made to fellow inmates while in jail that he had killed two women. State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808 (2003).

Sexual abuse victim's testimony that her abuser told her no one would believe her report of the abuse was admissible, under G.S. 8C-1, N.C. R. Evid. 801(d)(A), as an admission by a party-opponent, and was not hearsay, under G.S. 8C-1, N.C. R. Evid. 801(c). State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643 (2002).

Under subdivision (d)(A) of this rule, the trial court did not error in admitting an officer's testimony that, at the hospital following the defendant's vehicle accident during a high-speed chase, the officer overheard the defendant tell the medical personnel that he had been drinking and driving as the statement was incriminating and constituted an admission by the defendant. State v. Smith, 157 N.C. App. 493, 581 S.E.2d 448 (2003).

Railroad was not entitled to military contractor immunity in a personal injury action filed by a brakeman who suffered a neck injury while sitting in a chair that did not meet the specification in the military contract, because telephone conversations between a railroad official and an agency official, while admissible pursuant to G.S. 8C-1, N.C. R. Evid. 803, did not establish that the government assented to the use of the substandard chairs, and because the trial court erroneously prohibited the brakeman's expert from testifying about a conversation with a government official concerning the chairs, since the denial of approval by the official could have been allowed as an admission of a party opponent, G.S. 8C-1, N.C. R. Evid. 801(d). Stilwell v. Gen. Ry. Servs., 167 N.C. App. 291, 605 S.E.2d 500 (2004), cert. denied, 359 N.C. 326, 611 S.E.2d 852 (2005).

Defendant's statement that he would "be guilty" was admissible under G.S. 8C-1-801(d)(A) because it was defendant's own statement offered against his own interest. State v. Laney, 178 N.C. App. 337, 631 S.E.2d 522 (2006).

Defendant's right to testify was not impermissibly chilled where defendant made various incriminating statements at a pretrial hearing because the statements were admissions that could have been used against defendant for impeachment purposes if he had chosen to testify at trial. State v. Haymond, 203 N.C. App. 151, 691 S.E.2d 108 (2010).

Investigator's testimony that defendant admitted during his interview that he had sexual contact with the victim, anal and oral sex, on approximately four occasions was admissible as substantive evidence under the exception to hearsay for admission by a party opponent. State v. Sweat, 366 N.C. 79, 727 S.E.2d 691 (2012).

In defendant's trial on several sexual assault charges involving defendant's mentally challenged daughter, wherein defendant denied on cross-examination that she had told anyone her daughter began masturbating at an early age, that she had given her daughter a vibrator, or that she had taught her daughter how to masturbate, the trial court properly admitted a social worker's rebuttal testimony, pursuant to G.S. 8C-1, N.C. R. Evid. 801(d), because the social worker testified that defendant had told her the daughter had started masturbating at age seven or eight and that defendant had said she gave the daughter a vibrator to use in the privacy of her room; defendant's statements to the social worker constituted admissions that were admissible as substantive evidence. State v. Black, 223 N.C. App. 137, 735 S.E.2d 195 (2012).

In an adjudication, disposition, and permanency planning order concluding that the son was an abused juvenile, because the mother was a party to the action that was brought to determine whether the children had been abused or neglected, and her statements were reasonably considered as admissions by her that the children were subjected to conduct in her presence which could be found to be abusive and neglectful, the mother's statements were properly admitted under the party opponent exception to the hearsay rule. In re J.M. & J., 255 N.C. App. 483, 804 S.E.2d 830 (2017), appeal dismissed, 808 S.E.2d 442, 2018 N.C. LEXIS 9 (N.C. 2018).

Defendant's Jailhouse Telephone Conversations Admissible. - Taped telephone statements made by defendant while he was incarcerated, in which he attempted to coordinate an alibi and threaten or coerce the victim, were admissible as admissions by a party opponent under G.S. 8C-1, Rule 801(d), an exception to the hearsay rule. While they were prejudicial as indicating defendant's consciousness of guilt, they were not unduly prejudicial under G.S. 8C-1, Rule 403. State v. Rainey, 198 N.C. App. 427, 680 S.E.2d 760 (2009).

Defendant's comments concerning statements he made to a coworker, to the extent they were hearsay, fell within the exception to the hearsay rule for admissions by a party opponent. State v. Collins, 335 N.C. 729, 440 S.E.2d 559 (1994).

An adverse witness, even the complaining witness in a criminal trial, is not a party to the action. State v. Shoemaker, 80 N.C. App. 95, 341 S.E.2d 603, cert. denied, 317 N.C. 340, 346 S.E.2d 145 (1986).

State of Mind Exception. - Statements made by the victim shortly before the victim's death that defendant was "very, very jealous," that "she was thinking about breaking up with him," and that "she was tired of his junk" were admissible, under the state of mind exception to the hearsay rule. State v. Jones, 337 N.C. 198, 446 S.E.2d 32 (1994).

Uncommunicated threats made by decedents against defendant were hearsay but were admissible as state of mind expressions of decedents. State v. Ransome, 342 N.C. 847, 467 S.E.2d 404 (1996).

When a terminated state law enforcement agent alleged discrimination on the basis of political affiliation, the testimony by a former deputy secretary of the North Carolina Department of Public Safety (DPS) that a state senator told the deputy secretary that the agent's reassignment shouldn't have occurred and that they were going to fix it and that the incoming Secretary of the DPS had agreed that the reassignment shouldn't have happened was admissible in an administrative hearing to show the declarants' existing mental states and motives. N.C. Dep't of Pub. Safety v. Ledford, 247 N.C. App. 266, 786 S.E.2d 50 (2016).

Defendant's statements amount to party admissions and are therefore admissible under subdivision (d)(A) of this rule. State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988).

That an admission of defendant was contained within a hearsay statement by another individual which was admissible as a prior inconsistent statement did not affect its admissibility because both statements were admissible. State v. Larrimore, 340 N.C. 119, 456 S.E.2d 789 (1995).

Officers' testimony about the notes he took during an interview with defendant were not hearsay and were properly admitted into evidence; nor were they hearsay within hearsay. State v. Chapman, 359 N.C. 328, 611 S.E.2d 794 (2005).

Property Valuations as Admission of County. - Evidence of real property valuations made by the county for ad valorem tax purposes is admissible against the county in an eminent domain proceeding as an admission of a party opponent. Craven County v. Hall, 87 N.C. App. 256, 360 S.E.2d 479 (1987), cert. denied, 321 N.C. 471, 364 S.E.2d 479 (1988).

Admissions of Party's Attorney. - In North Carolina admissions of attorneys are binding upon their clients, and are generally conclusive. Karp v. UNC, 78 N.C. App. 214, 336 S.E.2d 640 (1985).

Statements by defendant's attorney contained in an affidavit of the plaintiff's attorney were admissible against defendant under subsection (d) of this rule, since they concerned a matter within the scope of the context and scope of the attorney-client representation. Wilson Realty & Constr., Inc. v. Asheboro-Randolph Bd. of Realtors, Inc., 134 N.C. App. 468, 518 S.E.2d 28 (1999).

Defendant's answers to interrogatories, duly signed by defendant's attorney, were admissions of a party opponent, and as such should have been admitted into evidence. Karp v. UNC, 78 N.C. App. 214, 336 S.E.2d 640 (1985).

When Acts and Declarations of Coconspirators Are Admissible. - The acts and declarations of conspirators are admissible against other members of the conspiracy, provided that the state establishes a prima facie case of the conspiracy independently of the declarations sought to be admitted. State v. Nichols, 375 N.C. 303, 365 S.E.2d 561 (1988); State v. Fink, 92 N.C. App. 523, 375 S.E.2d 303 (1989); State v. Willis, 332 N.C. 151, 420 S.E.2d 158 (1992).

The hearsay statement by defendant's co-conspirator was admissible as an exception to the hearsay rule because it was made during the course and in furtherance of the conspiracy. State v. Williams, 345 N.C. 137, 478 S.E.2d 782 (1996).

State's Burden When Offering Statements of Alleged Co-conspirator. - When attempting to rely on the coconspirator exception to the hearsay rule, the State's burden is to produce evidence independent of the statements themselves sufficient to permit the jury to find the existence of an unlawful agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means. State v. Cotton, 102 N.C. App. 93, 401 S.E.2d 376, cert. denied, 329 N.C. 501, 407 S.E.2d 543 (1991).

Statements made in reassurance that the transaction which is the subject of a conspiracy will indeed occur are made in furtherance of the conspiracy, and are admissible under subdivision (d)(E) of this rule. State v. Phillips, 88 N.C. App. 526, 364 S.E.2d 196 (1988), rev'd on other grounds, 325 N.C. 222, 381 S.E.2d 325 (1989).

Statements of coconspirators made prior to or subsequent to the conspiracy are not admissible under this exception. State v. Gary, 78 N.C. App. 29, 337 S.E.2d 70 (1985).

Admission of statements of alleged coconspirator, as testified to by agent, made after the conspiracy shown by the evidence had long since ended, constituted prejudicial hearsay testimony and required a new trial. State v. Gary, 78 N.C. App. 29, 337 S.E.2d 70 (1985); State v. Collins, 81 N.C. App. 346, 344 S.E.2d 310 (1986).

Because there was no evidence that a conspiracy to rob a convenience store was in existence at the time statements in question were made, the trial court erred in admitting the hearsay statements as a statement by a co-conspirator under G.S. 8C-1, Rule 801(d); however, the error was harmless pursuant to G.S. 15A-1443(b) because the remaining evidence that defendant took part in the robbery was overwhelming. State v. Stephens, 175 N.C. App. 328, 623 S.E.2d 610 (2006).

When Conspiracy Ends. - Ordinarily, a conspiracy ends with the attainment of its criminal objectives, but precisely when this occurs may vary from case to case. When a conspiracy ends for the purposes of subdivision (d)(E) of this rule is a question of fact for the trial court. State v. Gary, 78 N.C. App. 29, 337 S.E.2d 70 (1985).

When a conspiracy ends is a question of fact. State v. Collins, 81 N.C. App. 346, 344 S.E.2d 310 (1986).

Evidence held sufficient to establish prima facie the existence of a conspiracy to traffic in cocaine, so as to allow admission of statements of coconspirators. State v. Collins, 81 N.C. App. 346, 344 S.E.2d 310 (1986).

Admission of Acts or Declarations of Co-conspirator Before Conspiracy Is Established. - While a prima facie case of conspiracy must be made out before the close of the state's evidence, the courts often permit the state to offer the acts or declarations of a co-conspirator before the prima facie case of conspiracy is sufficiently established. State v. Brooks, 83 N.C. App. 179, 349 S.E.2d 630 (1986).

Ideally, the state should make prima facie showing before tendering co-conspirator's declarations; however, in its discretionary control of the presentation of evidence, the court may admit declarations subject to subsequent proof of the conspiracy. State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988); State v. Fink, 92 N.C. App. 523, 375 S.E.2d 303 (1989).

Testimony by defendant's brother that father told him he would not give defendant a trailer unless he straightened up was not hearsay; testimony tended to show that victim intended to disinherit defendant and to show ill will between defendant and victim. State v. Greene, 324 N.C. 1, 376 S.E.2d 430 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

While a prima facie showing of the existence of a conspiracy must be established independently of the statements sought to be admitted, the trial court may use such statements in establishing the times when the conspiracy was entered and terminated. State v. Mahaley, 332 N.C. 583, 423 S.E.2d 58 (1992), cert. denied, 513 U.S. 1089, 115 S. Ct. 749, 130 L. Ed. 2d 649 (1995).

Defendant was not entitled to have his co-conspirators' incriminating statements sanitized pursuant to G.S. 15A-927(c)(1) where the statements were admissible against him under subdivision (d)(E) of this rule whether he was tried separately or jointly. State v. Fink, 92 N.C. App. 523, 375 S.E.2d 303 (1989).

Co-conspirator's Statement Properly Admitted. - Statement made by co-conspirator to reassure undercover agent that drug trafficking transaction which was the subject of conspiracy would indeed occur, despite defendant's prolonged absence after she received advance payment, was admissible under this rule, even though defendant absconded with the money involved in the transaction and the crime of trafficking was never completed. State v. Lipford, 81 N.C. App. 464, 344 S.E.2d 307 (1986).

Where, based on defendant's admissions, a jury could find that defendant conspired with co-conspirator to commit armed robbery, the trial court did not err in admitting co-conspirator's hearsay statements against defendant. State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988).

Evidence was sufficient, independent of out-of-court statements made by co-conspirators, to establish a prima facie case of conspiracy; therefore, the out-of-court statements were properly admitted in evidence. State v. Fink, 92 N.C. App. 523, 375 S.E.2d 303 (1989).

Evidence that an undercover officer arrived at cocaine seller's residence to make a purchase of cocaine and was told to come back in 30 minutes, and of defendant giving seller cocaine without any payment in return, and that the same cocaine was then sold to the undercover officer upon his return to the residence, was a prima facie showing of conspiracy sufficient to admit statements made by the seller under the co-conspirator exception to the hearsay rule. State v. Turner, 98 N.C. App. 442, 391 S.E.2d 524 (1990).

Out-of-court statements made by a conspirator in a prosecution for conspiracy to sell and deliver marijuana were not inadmissible hearsay where the actions of the defendant and co-conspirator observed by undercover officers were sufficient evidence to establish prima facie conspiracy. State v. Morris, 102 N.C. App. 541, 402 S.E.2d 845 (1991).

Where there was substantial evidence that the defendant had entered a conspiracy to kill her husband and that a co-conspirator's statements to another co-conspirator were in furtherance of and during the conspiracy, the trial court did not err by admitting testimony of the co-conspirator to whom the statements were made regarding those statements. State v. Mahaley, 332 N.C. 583, 423 S.E.2d 58 (1992), cert. denied, 513 U.S. 1089, 115 S. Ct. 749, 130 L. Ed. 2d 649 (1995).

Statement by defendant regarding a murder that he had committed fit within the hearsay exception in Rule 804(b)(3) and within the exception for statements of a co-conspirator in subdivision (d)(E). State v. Barnes, 345 N.C. 184, 481 S.E.2d 44 (1997), cert. denied, 522 U.S. 876, 118 S. Ct. 196, 139 L. Ed. 2d 134 (1997), cert. denied, 523 U.S. 1024, 118 S. Ct. 1309, 140 L. Ed. 2d 473 (1998), cert. denied, 362 N.C. 239, 660 S.E.2d 53 (2008).

Alleged hearsay was not admitted for its truth but admitted for impeachment; co-defendant's prior statements were admissible to attack the co-defendant's credibility and the jury was properly instructed that the statements were to be considered as impeaching evidence. State v. Featherson, 145 N.C. App. 134, 548 S.E.2d 828 (2001).

Statements made by defendant's brother were properly admitted under G.S. 8C-1, Rule 801(d)(E), as the statements of a co-conspirator because (1) the brother accompanied defendant to defendant's ex-girlfriend's home after she told defendant she did not want him to come there and after defendant threatened the victim; (2) after defendant barged into the girlfriend's home, the brother also entered the home; (3) the brother was present when defendant made his way to the girlfriend's bedroom, knocked open the bedroom door, saw the victim and went to the kitchen where he retrieved a steak knife; (4) the brother drove the car as he and defendant left the girlfriend's home after defendant threatened the victim; (5) the brother drove defendant back to the girlfriend's home a short time later, when defendant displayed a baseball bat and made threatening statements about the victim; (6) when defendant left the girlfriend's home a second time, the brother continued to drive, with defendant as his passenger; (7) when defendant and the brother talked with the victim's friend, defendant expressed his plans to get even with the victim and showed the friend the gun defendant was carrying. State v. Valentine, 357 N.C. 512, 591 S.E.2d 846 (2003).

Because of the limiting instruction that the trial court gave to the jury, co-defendant's confession could only be used against co-defendant and not against defendant; therefore defendant's contention that the prosecutor improperly used the statements of the co-defendant to corroborate a witness and thereby bolster the case against defendant was without merit. State v. Tirado, 358 N.C. 551, 599 S.E.2d 515 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285 (2005).

Trial court did not err by admitting into evidence the cocaine dealer's statement "them are my boys, deal with them" under the co-conspirator exception to the rule against hearsay because the State satisfied its burden of establishing a prima facie case of conspiracy between dealer and the men, including defendant, as the statement was made in furtherance of the objective to transfer to the detective an unlawful substance. State v. Chevallier, 824 N.C. App. 440, 824 S.E.2d 440 (2019).

Statement by Accessory. - Statement of defendant, convicted of being an accessory before the fact to murder committed by his girlfriend, to the effect that she was the one who brought up the discussions about killing the victims, constituted hearsay under subsection (a); however, this statement was admissible under subsection (d) as a party admission. State v. Johnson, 340 N.C. 32, 455 S.E.2d 644 (1995).

Claim Estimates By Insurer Properly Excluded as Evidence. - In personal injury action against plaintiff's UIM insurer, admitting claim estimates prepared by the insurer as admissions of a party opponent would unduly prejudice the defense and circumvent the policy of having the jury focus on the facts and not the existence of liability insurance. Braddy v. Nationwide Mut. Liab. Ins. Co., 122 N.C. App. 402, 470 S.E.2d 820 (1996).

Prosecutor's Outline of Defendant's Expected Testimony in Another Case Was Inadmissible Hearsay. - When considering defendant's motion for post-conviction DNA testing, a prosecutor's outline of defendant's expected testimony in a co-defendant's case was inadmissible hearsay because (1) the outline was an out-of-court statement offered for the truth of the matter asserted, which was that defendant was an aider and abettor, (2) defendant did not stipulate or otherwise admit any of the information contained in the outline, so the outline was not admissible as an admission of a party opponent, and (3) the prosecutor's unverified response to defendant's motion and the attached outline amounted to nothing more than an unsworn statement of counsel. State v. Foster, 222 N.C. App. 199, 729 S.E.2d 116 (2012).

Evidence Properly Considered. - Trial court could be presumed to have disregarded the incompetent evidence because the trial court made no findings pertaining to hearsay evidence in support of its adjudication of neglect and dismissed the sexual abuse allegation, and the trial court was authorized to consider the hearsay evidence and other evidence to show propensity in its dispositional order. In re A.L.T., 241 N.C. App. 443, 774 S.E.2d 316 (2015).

Evidence Not Hearsay. - Testimony of plaintiff's father as to what his dead mother's gift intentions were with regard to money given to plaintiff and her husband to purchase a house was not hearsay, although it may have been objectionable on other grounds. Hunt v. Hunt, 85 N.C. App. 484, 355 S.E.2d 519 (1987).

Defendant's name and address, written or printed on an envelope or its contents, was neither a written assertion nor conduct which was intended as an assertion, and therefore was not hearsay evidence. Moreover, while the sender's conduct in addressing and mailing the envelope undoubtedly implied that the sender believed that the addressee lived at that address, because no assertion was intended, the evidence was not hearsay and was admissible. State v. Peek, 89 N.C. App. 123, 365 S.E.2d 320 (1988).

Where testimony was not offered to prove that a woman insured victim's life so that she could have him killed, but to prove why the witness contacted the defendants to have the victim killed, the witness' testimony was not hearsay and was properly admitted. State v. Hunt, 323 N.C. 407, 373 S.E.2d 400 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Murder victim's statement to her son that she did not want defendant to come to her house because he had failed to provide child support was not hearsay, because it was not offered to prove the truth of the matter asserted but to show victim's frustration and impatience with defendant. State v. Faucette, 326 N.C. 676, 392 S.E.2d 71 (1990).

A witness' statement that his wife heard a rape victim say "Are you going to shoot me, too?" was relevant for the limited purpose of explaining why the witness called the sheriff a second time after he heard a commotion outside his house, and the statement was not inadmissible hearsay. State v. Roper, 328 N.C. 337, 402 S.E.2d 600, cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991).

Statement by murder defendant made in a letter to a witness while defendant was in jail was properly admitted even though the letter itself was not available for examination. State v. Eason, 328 N.C. 409, 402 S.E.2d 809 (1991).

Statements which were offered not to prove the truth of any matter asserted therein, but rather to explain the subsequent conduct of the defendant and his accomplices in shooting detective and the context in which the murder occurred were not hearsay and were admissible. State v. Morston, 336 N.C. 381, 445 S.E.2d 1 (1994).

When evidence of a statement by someone other than the testifying witness is offered for a purpose other than to prove the truth of the matter asserted, the evidence is not hearsay. State v. Reid, 335 N.C. 647, 440 S.E.2d 776 (1994).

Testimony of a defendant's former co-employee was admissible where the defendant shot and killed his former supervisor and others after being fired, and the testimony concerning what was said at the defendant's termination conference a few days before the shooting was relevant to show motive. State v. Davis, 349 N.C. 1, 506 S.E.2d 455 (1998), cert. denied, 526 U.S. 1161, 119 S. Ct. 2053, 144 L. Ed. 2d 219 (1999).

Statements to a detective by the mother of a child sexually assaulted and murdered by her lover were admissible as prior consistent statements that corroborated and added weight to her trial testimony, where she said that her husband was afraid that her lover would harm the child, that she thought the defendant had harmed the child, that the defendant was angry because he believed the autopsy report was wrong, and that she and her lover tried to get their stories straight. State v. Lee, 348 N.C. 474, 501 S.E.2d 334 (1998).

Witnesses' testimony that they told the victim prior to his murder that he could get a divorce and witness' testimony that the wife/defendant's desire for their daughter to get a job had caused strain in the marriage was not hearsay, since the statements were actually made by the persons testifying and were not offered to prove whether victim could get a divorce. State v. Brown, 350 N.C. 193, 513 S.E.2d 57 (1999).

Testimony regarding whether the defendant had told her brother that the victim/her ex-husband actually forced her to have sex in order to visit her children was not offered to prove the truth of the matter asserted but was instead, introduced in an attempt to illustrate his state of mind regarding the victim and tended to show motive, and was, therefore, admissible under this section. State v. Merrill, 138 N.C. App. 215, 530 S.E.2d 608 (2000).

Statement by co-conspirator to SBI agent indicating that defendant had told someone "all about it" was offered to support the witness's testimony at trial, not to prove the truth of the matter asserted and, therefore, not inadmissible hearsay. State v. Gell, 351 N.C. 192, 524 S.E.2d 332 (2000), cert. denied, 531 U.S. 878, 121 S. Ct. 163, 148 L. Ed. 2d 110 (2000).

The jailer's and deputy sheriff's testimony that inmate said "hurry" or "leave" to defendant as she was departing did not constitute inadmissible hearsay because it was offered to prove that the directive was made, not to prove the truth of any matters asserted. State v. Mitchell, 135 N.C. App. 617, 522 S.E.2d 94 (1999).

Remarks made by defendant, accused of murdering her grandmother in a nursing home, to the police were admissible under this section as an admission of a party opponent. State v. Smith, 135 N.C. App. 649, 522 S.E.2d 321 (1999).

Witness testimony regarding statements made by murder victim regarding the presence of drugs and money in the hotel room where she was staying with a drug dealer were admissible to show what the hearer did based on the victim's statements. State v. McCord, 140 N.C. App. 634, 538 S.E.2d 633 (2000), review denied, 353 N.C. 392 (2001).

Inmate's statement to defendant who murdered another inmate about "that guy" being in the shower was offered to explain the subsequent conduct of defendant in walking toward the shower area and, therefore, was not hearsay; likewise, another inmate's testimony about $ 17.00 that victim owed to defendant did not constitute hearsay, but was relevant to establish a possible motive for the murder. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001).

Testimony of insurance agent as to what victim asked him was admissible, as it was offered merely to establish that victim's husband had submitted her insurance application to him without her knowledge, not for the truth of the matters asserted. State v. Kimble, 140 N.C. App. 153, 535 S.E.2d 882 (2000).

The trial court committed no error under this rule in allowing the jury to hear a small portion of an answering machine message, where the speaker's wife had testified earlier that she was not aware of any conversation between her husband and the plaintiff mother of a boy injured on defendant's amusement ride. Breedlove v. Aerotrim, U.S.A., Inc., 142 N.C. App. 447, 543 S.E.2d 213 (2001).

Minor child's medical history, which included statements to a pediatrician as to how the child had been sexually abused by defendant, was not hearsay because the statements were not offered for the truth of the matter asserted but to illustrate the type of information collected by the pediatrician in order to diagnose the child. State v. Shepherd, 156 N.C. App. 69, 575 S.E.2d 776 (2003).

Statements made by defendant's brother to friends of defendant's victim that (1) where defendant and the brother were from, anyone who pulled a knife or a gun on someone got "smoked," (2) that the brother was "through" but the friends would have to talk to defendant, and (3) that defendant and the brother should just assault the victim with a baseball bat, rather than kill him, were properly admissible because they were not hearsay as they were not admitted to prove the truth of the matter asserted. State v. Valentine, 357 N.C. 512, 591 S.E.2d 846 (2003).

Co-defendant's statements to the officer that defendant, who was expecting a large legal settlement, would pay a large sum for the officer to "forget" the drug offense, to which defendant replied in the affirmative, was not inadmissible hearsay, because the statements were "operative facts," or "verbal acts" excluded from the hearsay rule, and alternatively, the statements were adoptive admissions. State v. Weaver, 160 N.C. App. 61, 584 S.E.2d 345 (2003).

Audiotape of a conversation defendant had with his wife and stepson, which the wife's relatives found 10 months after the wife and stepson were killed, was properly authenticated, and the state supreme court held that the trial court did not err when it admitted the tape for the limited purpose of showing defendant's malice, intent, and ill will towards the victims. State v. Jones, 358 N.C. 330, 595 S.E.2d 124 (2004).

Trial court did not err in admitting into evidence the crime laboratory reports upon which the expert, whether hearsay or not, permissibly based the expert opinion under G.S. 8C-1-703, as disclosure of the basis of the expert's opinion was essential to assessment of credibility and was not hearsay under G.S. 8C-1-801. State v. Lyles, 172 N.C. App. 323, 615 S.E.2d 890, appeal dismissed, 360 N.C. 73, 622 S.E.2d 625 (2005).

With regard to a defendant's conviction for first-degree felony murder as to the death of his ex-girlfriend, the trial court did not err by admitting the testimony of a man who had been watching a movie with the victim at her home just prior to her death, which detailed why the man ran from the scene instead of confronting the defendant who broke into the victim's home, because the testimony was offered not for the truth of the matter asserted but for purposes of explaining why the man chose to run, to seek out the police, and not confront defendant single-handedly, which was admissible non-hearsay. State v. Byers, 175 N.C. App. 280, 623 S.E.2d 357 (2006), cert. denied, - N.C. - , 631 S.E.2d 135 (2006).

Trial court did not err in admitting into evidence two letters from decedent to the brother, as well as the envelopes which contained those letters; the letters and envelopes were not hearsay because they were not offered for the truth of the matter, but were offered to provide a sample of decedent's handwriting so that the jury could compare it to the signature on a contract at issue, and the letters were properly authenticated by a witness familiar with decedent's handwriting. Taylor v. Abernethy, 174 N.C. App. 93, 620 S.E.2d 242 (2005), appeal dismissed, 360 N.C. 367, 630 S.E.2d 454 (2006).

Football player was properly permitted to testify as to why he was released from another team where he offered personal knowledge as to why he was released and he stated that he could not "perform as needed on the field;" the statement did not meet the definition of hearsay because it occurred while the football player was testifying at a hearing. Swift v. Richardson Sports, Ltd., 173 N.C. App. 134, 620 S.E.2d 533 (2005).

North Carolina Industrial Commission did not err under G.S. 8C-1, Rule 801(c) by allowing a former professional football player to testify about the reason for his termination from another professional team after his first professional team released the player because the player offered personal knowledge about why he was released and his testimony was not hearsay. Swift v. Richardson Sports, Inc., - N.C. App. - , - S.E.2d - (Apr. 5, 2005).

Social worker's testimony in a termination of parental rights action regarding statements purported made by the father's drug counselor was not inadmissible hearsay but testimony as to terms of the father's case plan and the father's knowledge of those terms. In re S.N., 180 N.C. App. 169, 636 S.E.2d 316 (2006).

Testimony regarding an informant's statements to a detective was not inadmissible hearsay because the testimony was not offered for its truth, but was offered to explain how the investigation unfolded, why defendants were under surveillance, and why the deputy followed defendants to the motel. State v. Wiggins, 185 N.C. App. 376, 648 S.E.2d 865 (2007).

Detective's statements as to other businesses that had reported break-ins was not inadmissible hearsay as: (1) defendant's objection was overruled only as to what the detective did, and the evidence offered was both relevant, in that it explained the chain of events in the police investigation, and was not hearsay as it precluded the further admission of statements regarding the reported break-ins; (2) the statements were offered to explain the chain of events and were not offered for the truth of the matter asserted; and (3) the probative value of the statements was not substantially outweighed by their prejudicial effect as the detective's testimony did not directly accuse defendant of other crimes, and was not offered to prove defendant's conformity with character to commit wrongs, but was offered to explain the sequence of events. State v. Patterson, 185 N.C. App. 67, 648 S.E.2d 250 (2007), review denied, 362 N.C. 242, 660 S.E.2d 538 (2008).

Defendant's statement to an officer that a passenger told him to stop the car during a police chase was not offered for its truth, and thus was properly admitted in defendant's second-degree murder trial because it was not hearsay evidence under N.C. R. Evid. 801(c), and was introduced to demonstrate malice. State v. Hazelwood, 187 N.C. App. 94, 652 S.E.2d 63 (2007), cert. denied, 363 N.C. 133, 673 S.E.2d 867 (2009), cert. denied, 558 U.S. 1013, 130 S. Ct. 553, 175 L. Ed. 2d 385 (2009).

Statements made in reference to testimony given during trial did not constitute hearsay. State v. Parker, 187 N.C. App. 131, 653 S.E.2d 6 (2007).

There was no error in the admission of a witness's prior consistent statement, as it was not hearsay under G.S. 8C-1, N.C. R. Evid. 801(c) where it was not offered for substantive purposes but instead, it was used by the State for corroborative purposes; moreover, the trial court properly gave a limiting instruction to the jury regarding use of the statement under G.S. 8C-1, N.C. R. Evid. 105. State v. Damenon Ropmele Early, 194 N.C. App. 594, 670 S.E.2d 594 (2009).

Officers' testimony recounting their interviews with three witnesses was not hearsay because it was offered as corroboration evidence and not substantive evidence. State v. Garcell, 363 N.C. 10, 678 S.E.2d 618 (2009).

Trial court did not err by admitting into evidence a DVD recording of defendant's police interview without redacting those questions posed to him by the detectives, which contained statements attributed to non-testifying third parties. The questions containing alleged statements of non-testifying individuals were admissible so that the jury could understand the circumstances in which defendant was caught in a lie, changed his story, and made significant admissions of fact, not to prove the truth of the matter asserted; thus, the questions were not hearsay under G.S. 8C-1, N.C. R. Evid. 801(c), and the protection afforded by the Confrontation Clause against testimonial statements was not at issue. State v. Miller, 197 N.C. App. 78, 676 S.E.2d 546 (2009), review denied, 363 N.C. 586, 683 S.E.2d 216 (2009).

In a conviction of taking indecent liberties with a child and first-degree rape, testimony from a licensed clinical social worker about defendant "grooming" the victim prior to the alleged abuse was not erroneously admitted as hearsay under G.S. 8C-1, N.C. R. Evid. 801(c), because it was non-hearsay since it was a prior consistent statement providing additional information that strengthened the victim's testimony that she was abused. State v. Horton, 200 N.C. App. 74, 682 S.E.2d 754 (2009).

In a criminal case in which a police chemist was allowed to testify and the analysis about which she testified was performed by someone else, defendant unsuccessfully argued that the testimony amounted to impermissible hearsay since the analysis that formed the basis of her opinion was performed by another person. Since the evidence offered as the basis of the chemist's was not being offered for the truth of the matter asserted, the testimony did not constitute hearsay even though it was based, in part, on reports generated by another expert. State v. Hough, 202 N.C. App. 674, 690 S.E.2d 285 (2010), aff'd, 743 S.E.2d 174, 2013 N.C. LEXIS 659 (2013).

In a case in which defendant appealed his conviction for possession with intent to sell and deliver cocaine and the sale of cocaine, he unsuccessfully argued that he had to receive a new trial because the trial court erred in admitting hearsay evidence regarding defendant being a drug dealer. The first part of the deputy's challenged testimony was offered to explain the officer's presence at a specific location rather than to prove that defendant was a known drug dealer, and the statements regarding what he wrote on the after-action report only explained why he wrote down what he did and could not be read to assert that defendant was a known drug dealer. State v. Batchelor, 202 N.C. App. 733, 690 S.E.2d 53 (2010).

Admission of a witness's written statement was not improperly hearsay, but was properly admitted in corroboration of the witness's trial testimony. State v. Johnson, 209 N.C. App. 682, 706 S.E.2d 790 (2011).

Detectives' references to statements by unidentified third parties were not hearsay, because they were not admitted for the purpose of conferring the truth of what was contained in the statements, but to provide context for defendant's answers and explain interviewing techniques. State v. Castaneda, 215 N.C. App. 144, 715 S.E.2d 290 (2011).

Detective's statements were not hearsay because the detective did not testify about what a witness actually told federal agents. State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636 (2015).

Officer's testimony was not offered to prove the truth of the matter asserted but merely for corroborative purposes, and thus any hearsay argument was inapplicable. State v. Moultry, 246 N.C. App. 702, 784 S.E.2d 572 (2016).

Challenged testimony was not offered to prove the truth of the matter asserted; rather, it was offered to explain why the witness was afraid to testify, and it was not inadmissible hearsay. State v. McLean, 251 N.C. App. 850, 796 S.E.2d 804 (2017).

Testimony about information collected from non-testifying witnesses was not inadmissible hearsay, but was admissible because it was introduced to establish a background and reasons for a detective's investigation. State v. Rogers, 251 N.C. App. 869, 796 S.E.2d 91 (2017).

Trial court did not err in allowing a probation officer to testify that tracking data verified an ankle monitor had been assigned to the defendant because the testimony established a sufficient foundation of trustworthiness for the evidence to be admissible as a business record; the officer demonstrated the officer's familiarity with the electronic monitoring system and testified that the information transmitted through the technology was stored in a software database the probation office used to conduct business. State v. Waycaster, 260 N.C. App. 684, 818 S.E.2d 189 (2018), aff'd, in part, 846 S.E.2d 688, 2020 N.C. LEXIS 689 (N.C. 2020).

Officer's testimony was not hearsay because it contained no statements from others and certainly none that were used the proof of the matter asserted, the identify of the unnamed conspirator, and thus, there was no plain error in its admission. State v. Chavez, - N.C. App. - , 842 S.E.2d 128 (2020).

Defendant's out-of-court statements were not hearsay; the sergeant testified that defendant was not in custody or under arrest at the time of the conversation, and after being advised that she could leave at any time, defendant willingly spoke to him. The statements were relevant and admissible. State v. Abbitt, - N.C. App. - , - S.E.2d - (Aug. 3, 2021).

Evidence Held Admissible. - In prosecution for kidnapping and robbery, it was not error for detective to testify to the actions of defendant's wife in turning over ring and bracelet taken from victim, on grounds that those actions constituted nonverbal statements, excludable as hearsay, where the testimony was only offered to show that detective obtained the jewelry from defendant's wife at defendant's apartment, and was not offered to prove the matter asserted by the wife's nonverbal conduct, i.e., that the items in her possession were the ones identified in the warrant as stolen from the victim. State v. Parker, 81 N.C. App. 443, 344 S.E.2d 330 (1986).

In a case involving negligence of defendant leading to theft of jewelry samples from car trunk, police investigative report was properly received for the limited purpose of showing that a report of the theft was made under this rule, and was also admissible as substantive evidence, as a present sense impression under G.S. 8C-1, Rule 803(1) and under the excited utterance exception in G.S. 8C-1, Rule 803(2). Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc., 82 N.C. App. 21, 345 S.E.2d 453 (1986).

Where affidavit and warrant were not introduced in order to prove the truth of the matters stated therein, but rather, to show that defendant had information, correct or incorrect, that victim was informing on him and his brother, it was not error for the trial judge to admit this evidence. State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988).

Where husband and wife stated in affidavit that they told insurer's agent that husband had been convicted of driving under the influence and was being treated for high blood pressure, statements were admissible since they were not offered to prove the truth of the matters contained in the statements but were offered to prove simply that defendant's agent had notice of these matters. Ward v. Durham Life Ins. Co., 325 N.C. 202, 381 S.E.2d 698 (1989).

Court did not abuse its discretion by allowing social workers to testify as to statements made to them by respondent's wife whereby she indicated respondent did not properly care for the children, excessively disciplined them, abused illegal drugs and alcohol in their presence, and was violent in his behavior, as respondent's wife was a party to the action which was brought to determine whether her child was abused and neglected, and her statements to the social workers about her husband's conduct could only be reasonably considered as admissions by her that their child was subjected to conduct in her presence which could be found to be abusive and neglectful. In re Hayden, 96 N.C. App. 77, 384 S.E.2d 558 (1989).

Testimony to the effect that nobody in defendant's presence had said anything to him about anybody having been shot did not fall within the definition of hearsay contained in this rule. This testimony was adduced for the purpose of showing that defendant was not told that anyone had been shot, and its truth depended only on the credibility of the testifying witness; it was relevant to show defendant's firsthand knowledge of the fact that an officer had been shot and thus was admissible to impeach defendant's credibility. State v. Leroux, 326 N.C. 368, 390 S.E.2d 314 (1990), cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155 (1990).

Statements of one person to another are not hearsay if the statement is made to explain the subsequent conduct of the person to whom the statement was made. State v. Reid, 335 N.C. 647, 440 S.E.2d 776 (1994).

Defendant's statements to victim concerning his crimes against another victim, if relevant, were admissible pursuant to subsection (d) and were relevant because they tended to show that the murder was especially heinous, atrocious, or cruel and tended to show the murder was part of a course of conduct. State v. Lee, 335 N.C. 244, 439 S.E.2d 547 (1994), cert. denied, 513 U.S. 891, 115 S. Ct. 239, 130 L. Ed. 2d 162 (1994).

Written instrument prepared by an investigator was properly admitted during cross-examination at trial where defendant had acknowledged that statements prior to a certain time were admissible, and the written statement only referred to those statements. State v. Randolph, 224 N.C. App. 521, 735 S.E.2d 845 (2012).

A police officer's testimony was admissible for corroborative, nonhearsay purposes, where the officer testified as to the statement the friend of the murder defendant gave to police officers, and the testimony was corroborative of the friend's own testimony and was explained to the jury as such. State v. Call, 349 N.C. 382, 508 S.E.2d 496 (1998).

Trial court did not commit reversible error by allowing the State to question a defense witness as to defendant's prior conviction for forcible robbery because evidence of defendant's prior conviction was admissible to attack defendant's credibility as a hearsay declarant; the defense witness's testimony assisted in establishing an alibi for defendant and was hearsay because it was offered for the truth of the matter asserted. State v. McConico, 153 N.C. App. 723, 570 S.E.2d 776 (2002), cert. denied, 357 N.C. 168, 581 S.E.2d 440 (2003).

Where a witness testified as to the events leading up to an surrounding the murders and an attempted murder, the trial court properly admitted portions of a 911-call to corroborate the witness's testimony. State v. Walters, 357 N.C. 68, 588 S.E.2d 344 (2003), cert. denied, 540 U.S. 971, 124 S. Ct. 442, 157 L. Ed. 2d 320 (2003).

Defendant's statements concerning his age were properly admitted under the admissions by a party-opponent exception to the hearsay rule. State v. Clark, 161 N.C. App. 316, 588 S.E.2d 66 (2003).

Trial court did not err in admitting two police officers to testify that they went to a residence to talk with defendant after arresting a person with crack cocaine in her hand who had just left the residence and who told them that she had just been visiting defendant, her cousin, at the residence; the evidence was not offered to prove that she had been visiting her cousin, which would be evidence offered for the truth of the matter asserted or hearsay, but was offered to explain the actions of the two police officers in going to the residence and talking to defendant, which resulted in defendant's arrest. State v. Moore, 162 N.C. App. 268, 592 S.E.2d 562 (2004).

No limiting instruction was required relating to defendant's statements to officers which established his motive for a robbery during which a store owner was killed, as defendant's statements were properly admitted as admissions of a party opponent. State v. al-Bayyinah, 359 N.C. 741, 616 S.E.2d 500 (2005), cert. denied, 547 U.S. 1076, 126 S. Ct. 1784, 164 L. Ed. 2d 528 (2006), cert. denied, 700 S.E.2d 925, 2010 N.C. LEXIS 588 (2010), cert. denied 2010 N.C. LEXIS 588 (N.C. 2010).

In defendant's murder trial, defendant was not required to make an offer of proof regarding testimony that her victim had told her former employee that he was going to "shoot up his house" that was excluded when the trial court granted the state's motion to strike the testimony. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703 (2006).

Officer's testimony about juvenile defendant's statements was properly admitted under G.S. 7B-2407 and G.S. 8C-1, N.C. R. Evid. 801(d); the officer interviewed defendant with his mother present, defendant was not in custody, and the juvenile rights warning was read to defendant and his mother, who both signed a statement indicating they understood the rights. In re J.J.D.L., 189 N.C. App. 777, 659 S.E.2d 757 (2008).

Witness's testimony established that receiving the call surprised the victim, who became visibly upset during the call and immediately afterwards related to the witness that defendant had made the call and had threatened to kill the victim; the victim believed defendant wrongfully accused him of stealing cocaine and was disturbed enough to telephone a friend and ask for transportation. The victim's statements represented a spontaneous reaction to an event that was sufficiently startling to suspend his reflective thoughts; accordingly, the witness's testimony laid a sufficient foundation for admission of the victim's statements as excited utterances. State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009), cert. denied 130 S. Ct. 2104, 2010 U.S. LEXIS 3379, 176 L. Ed. 2d 734 (U.S. 2010).

Trial court did not err in permitting a medical examiner to testify, describe a victim's autopsy and its findings, and give an opinion as to the cause of death, as the medical examiner testified to participating in the autopsy examination and signed the autopsy report; it was evident from the medical examiner's testimony that the medical examiner was testifying as to the medical examiner's own observations and providing information rationally based on the medical examiner's own perceptions. State v. Blue, 207 N.C. App. 267, 699 S.E.2d 661 (2010).

In defendant's trial for sexual exploitation of a minor, trial court did not commit prejudicial error in admitting contested hearsay statements of a child and the child's babysitter regarding a scratch on the child's leg, as the testimony merely corroborated a fact which the jury could deduce from other evidence; consequently, assuming arguendo that it was error to admit the statement, defendant could not demonstrate that a different result would have been reached absent the error. State v. Ligon, 206 N.C. App. 458, 697 S.E.2d 481 (2010).

Defendant's statement that he touched 5 to 10 other boys was an admission under G.S. 8C-1, N.C. R. Evid. 801(d)(A) and 404(b) to show his identity as the perpetrator and his intent as the facts were similar to the charges of touching two young boys here; defendant connected the acts as a continuous pattern by stating that he had a problem with touching young boys, and had had this problem since he was young, and the evidence was properly allowed under G.S. 8C-1, N.C. R. Evid. 403. State v. Graham, 223 N.C. App. 150, 733 S.E.2d 100 (2012).

Admissions by a party-opponent hearsay exception encompasses more than mere admissions of guilt; defendant authorized his attorneys to convey the information of the minor victim's whereabouts to law enforcement, and the trial court did not err in admitting the evidence as statements by a person authorized by defendant to make a statement concerning the subject. State v. McNeill, 371 N.C. 198, 813 S.E.2d 797 (2018).

Evidence Held Inadmissible. - Where defendant's father, in response to a police inquiry, showed the police a drawer where a knife was supposedly kept, his conduct was a "statement" within the meaning of subsection (a) of this rule, and as the State offered the evidence to prove the existence of a knife and its use by the defendant as testified to by victim, the testimony was hearsay and inadmissible under G.S. 8C-1, Rule 802. State v. Satterfield, 316 N.C. 55, 340 S.E.2d 52 (1986).

The testimony of two housing authority employees to the effect that defendant's supervisor had told them that deceased had been harassing defendant earlier on the day of the murder was hearsay and inadmissible. State v. Meeks, 320 N.C. 615, 360 S.E.2d 79 (1987).

Defendant's contention that the trial court erred in not allowing him to testify that witness in the car during the killing of a State Trooper said "You don't remember killing a State Trooper?" was without merit as defendant's testimony was hearsay and not within any of the exceptions to the rule prohibiting hearsay. See State v. McQueen, 324 N.C. 118, 377 S.E.2d 38 (1989).

Where a letter's anonymous author stated that defendant was not responsible for victim's death, but that her death had been the result of a "contract" being placed on her life because she had not paid declarant a $5.00 debt, the letter, as offered by defendant, contained inadmissible hearsay as it was offered by a person other than the declarant to prove the truth of the matter asserted - to wit, that it was not defendant but another who killed victim. State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated and remanded for further reconsideration at, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Witness's testimony concerning statement made to her that another person had been threatened by defendant was hearsay and was improperly admitted so that defendant was entitled to a new trial. State v. Allen, 127 N.C. App. 182, 488 S.E.2d 294 (1997).

A witness' affidavit was properly excluded as substantive evidence, where the witness testified at trial that she was not present at the time of the shooting, while her affidavit purportedly included the statement that she was present, but the affidavit was hearsay that fell within no established exception to the hearsay rule and was not inherently trustworthy. State v. Cozart, 131 N.C. App. 199, 505 S.E.2d 906 (1998), review denied, 350 N.C. 311 (1999), appeal dismissed, cert. denied, 651 S.E.2d 225 (N.C. 2007).

When an officer testified that defendant admitted that he and his wife used marijuana about every other day, that statement was hearsay as to defendant's wife, under G.S. 8C-1, N.C. R. Evid. 801(c), and could not be used as the basis for the trial court's finding that she was an unlawful user of controlled substances; thus, the trial court's order directing the destruction of her firearms, under G.S. 15-11.1(b1), based on this finding, was an abuse of discretion, because the wife was given no opportunity to contest the statement, nor was she represented by counsel at the time the testimony containing it was received. State v. Oaks, 163 N.C. App. 719, 594 S.E.2d 788 (2004).

Trial court erred in granting summary judgment to an employer because the statements in the affidavits made by three affiants to establish an employee's on-call pay rate, and in the exhibits submitted in support of their affidavits, were hearsay under G.S. 8C-1, N.C. R. Evid. 801(c) and were inadmissible under G.S. 1A-1, N.C. R. Civ. P. 56(e) to prove the employee's on-call pay rate because only the employer's management team had knowledge of the employee's on call pay rate. However, there was no evidence that the affiants were members of the employer's management team or were otherwise involved in the establishment of the on-call pay rate for the employer; therefore, any knowledge the affiants had of the on-call pay rate was only through a statement made by another, namely the employer's management team. Gilreath v. N.C. HHS, 177 N.C. App. 499, 629 S.E.2d 293 (2006).

Trial court properly sustained the State's hearsay objection to testimony elicited by defense counsel regarding a third-party statement to a police detective because while defendant argued the statement was only being used to establish a historical fact, defendant also argued that the statement would support his alibi defense, in which case, defendant would be offering the statement to prove the truth of the matter asserted. State v. Hairston, 190 N.C. App. 620, 661 S.E.2d 39 (2008), review denied, 363 N.C. 133, 676 S.E.2d 47 (2009).

Trial court properly granted summary judgment in favor of defendants because the documents upon which plaintiff based her challenges to the trial court's order constituted unauthenticated hearsay and were properly ignored by the trial court; documents, which appeared to be printouts of Internet website pages, amounted to out-of-court statements that plaintiff sought to introduce in reliance upon the truth of their contents. Rankin v. Food Lion, 210 N.C. App. 213, 706 S.E.2d 310 (2011).

New trial was warranted in a murder case because a trial court erred by allowing the introduction of a 911 report, which included an anonymous citizen's phone call that defendant should have been treated as a robbery suspect, because this amounted to hearsay under G.S. 8C-1, N.C. R. Evid. 801(c); defendant did not open the door to the admission of the substance of improper hearsay statements. The State could have elicited at trial that there was an anonymous call that rebutted an initial be on the lookout, but it was prejudicial for the State to elicit the substance of the call. State v. Sharpless, 221 N.C. App. 132, 725 S.E.2d 894 (2012).

Trial court's entry of a domestic violence protective order under G.S. 50B-3(b) in favor of a wife was error where the trial court relied on inadmissible hearsay testimony from her under G.S. 8C-1, N.C. R. Evid. 801(c) and 802 that she had a diagnosis of a cervical strain; there was no showing that such testimony was within any of the exceptions under G.S. 8C-1, N.C. R. Evid. 803. Little v. Little, 226 N.C. App. 499, 739 S.E.2d 876 (2013).

Trial court did not abuse its discretion in denying defendant the opportunity to question an investigator about other suspects in the murder because he sought to offer the investigator's testimony about a third party's statements for their truth. State v. Cousin, 233 N.C. App. 523, 757 S.E.2d 332 (2014).

Trial court did not err by admitting the statements of two deceased victims to a police major, in violation of the Confrontation Clause, because their statements to the health care personnel who treated them at the time of the assaults were admissible under the exception to the hearsay rule for statements given for purposes of medical diagnosis or treatment; the statements to the police were properly admitted to corroborate their statements to the medical personnel who treated them shortly after each victim was sexually assaulted; and their statements to health care personnel, in combination with the DNA evidence, provided sufficient evidentiary support for all of the charges that were submitted to the jury. State v. Thompson, 250 N.C. App. 158, 792 S.E.2d 177 (2016), cert. denied, 795 S.E.2d 366, 2017 N.C. LEXIS 74 (2017); review denied, 2017 N.C. LEXIS 74 (2017).

Evidence Not Prejudicially Admitted. - Defendant's conviction of murder was affirmed where, inter alia, the trial court did not err in allowing the admission of testimony over defendant's objection, where even if the admission of the testimony was an error, the error was not prejudicial. State v. Holliman, 155 N.C. App. 120, 573 S.E.2d 682 (2002).

Evidence Not Prejudicially Excluded. - A statement made by the defendant to the arresting officer prior to the arrest was erroneously, but not prejudicially, excluded. State v. Chavis, 141 N.C. App. 553, 540 S.E.2d 404 (2000).

Admission of Non-Hearsay Raised No Confrontation Clause Concerns. - Admission of nonhearsay raises no Confrontation Clause concerns; testimony regarding an officer's interaction with a detective and a third individual was non-hearsay, and raised no Confrontation Clause concerns, since it was not admitted to prove the truth of the matter asserted, but rather to show how the officer formed a reasonable suspicion that defendant was involved in the robbery at issue, which in turn justified including defendant's photo in a lineup shown to the robbery victim. State v. Alexander, 177 N.C. App. 281, 628 S.E.2d 434 (2006), cert. denied, appeal dismissed, 361 N.C. 358, 644 S.E.2d 357 (2007).

Applied in State v. Stafford, 77 N.C. App. 19, 334 S.E.2d 799 (1985); Pearce v. American Defender Life Ins. Co., 316 N.C. 461, 343 S.E.2d 174 (1986); Black Horse Run Property Owners Ass'n v. Kaleel, 88 N.C. App. 83, 362 S.E.2d 619 (1987); State v. Knox, 95 N.C. App. 699, 383 S.E.2d 698 (1989); State v. Jones, 97 N.C. App. 189, 388 S.E.2d 213 (1990); State v. Joyce, 97 N.C. App. 464, 389 S.E.2d 136 (1990); State v. Lynch, 327 N.C. 210, 393 S.E.2d 811 (1990); State v. Payne, 327 N.C. 194, 394 S.E.2d 158 (1990); Boone Lumber, Inc. v. Sigmon, 103 N.C. App. 798, 407 S.E.2d 291 (1991); State v. Tucker, 331 N.C. 12, 414 S.E.2d 548 (1992); State v. Holder, 331 N.C. 462, 418 S.E.2d 197 (1992); State v. Williams, 333 N.C. 719, 430 S.E.2d 888 (1993); State v. Marlow, 334 N.C. 273, 432 S.E.2d 275 (1993); State v. Withers, 111 N.C. App. 340, 432 S.E.2d 692 (1993); Melton v. Hodges, 114 N.C. App. 795, 443 S.E.2d 83 (1994); State v. Corbett, 339 N.C. 313, 451 S.E.2d 252 (1994); State v. Bowie, 340 N.C. 199, 456 S.E.2d 771 (1995), cert. denied, 516 U.S. 994, 116 S. Ct. 529, 133 L.E.2d 435 (1995); State v. Richardson, 341 N.C. 658, 462 S.E.2d 492 (1995); State v. Cunningham, 344 N.C. 341, 474 S.E.2d 772 (1996); State v. Cox, 344 N.C. 184, 472 S.E.2d 760 (1996); State v. Coffey, 345 N.C. 389, 480 S.E.2d 664 (1997); State v. Bonnett, 348 N.C. 417, 502 S.E.2d 563 (1998), cert. denied, 525 U.S. 1124, 119 S. Ct. 909, 142 L. Ed. 2d 907 (1999); State v. Davis, 130 N.C. App. 675, 505 S.E.2d 138 (1998); State v. Moore, 131 N.C. App. 65, 505 S.E.2d 172 (1998); State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663 (2000); State v. Hutchinson, 139 N.C. App. 132, 532 S.E.2d 569 (2000); State v. Walker, 139 N.C. App. 512, 533 S.E.2d 858 (2000); State v. Castor, 150 N.C. App. 17, 562 S.E.2d 574 (2002), cert. denied, 357 N.C. 508, 587 S.E.2d 885 (2003); State v. Evans, 149 N.C. App. 767, 562 S.E.2d 102 (2002); State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808 (2003); State v. Marecek, 152 N.C. App. 479, 568 S.E.2d 237 (2002); State v. Prevatte, 356 N.C. 178, 570 S.E.2d 440 (2002); State v. Reed, 153 N.C. App. 462, 570 S.E.2d 116 (2002), appeal dismissed, 356 N.C. 622, 575 S.E.2d 521 (2002); In re Foreclosure of Real Prop. Under Deed of Trust from Brown, 156 N.C. App. 477, 577 S.E.2d 398 (2003); Maglione v. Aegis Family Health Ctrs., 168 N.C. App. 49, 607 S.E.2d 286 (2005); State v. Lawson, 173 N.C. App. 270, 619 S.E.2d 410 (2005); In re H.M., 182 N.C. App. 308, 641 S.E.2d 715 (2007); Burress v. Burress, 195 N.C. App. 447, 672 S.E.2d 732 (2009); State v. Williams, 201 N.C. App. 161, 689 S.E.2d 412 (2009); State v. Phillips, 365 N.C. 103, 711 S.E.2d 122 (2011), cert. denied, 132 S. Ct. 1541, 2012 U.S. LEXIS 1493, 182 L. Ed. 2d 176 (U.S. 2012).

Cited in State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985); State v. Stafford, 317 N.C. 568, 346 S.E.2d 463 (1986); State v. Bailey, 80 N.C. App. 678, 343 S.E.2d 434 (1986); State v. Wingard, 317 N.C. 590, 346 S.E.2d 638 (1986); State v. Riddle, 316 N.C. 152, 340 S.E.2d 75 (1986); State v. Kuplen, 316 N.C. 387, 343 S.E.2d 793 (1986); State v. Brown, 81 N.C. App. 622, 344 S.E.2d 817 (1986); State v. Davis, 317 N.C. 315, 345 S.E.2d 176 (1986); Donavant v. Hudspeth, 318 N.C. 1, 347 S.E.2d 797 (1986); State v. Aguallo, 318 N.C. 590, 350 S.E.2d 76 (1986); State v. Williams, 83 N.C. App. 527, 350 S.E.2d 914 (1986); Johnson v. Hunnicutt, 86 N.C. App. 405, 358 S.E.2d 74 (1987); State v. Baker, 320 N.C. 104, 357 S.E.2d 340 (1987); State v. Kerley, 87 N.C. App. 240, 360 S.E.2d 464 (1987); State v. Bullock, 320 N.C. 780, 360 S.E.2d 689 (1987); State v. Holden, 321 N.C. 125, 362 S.E.2d 513 (1987); State v. Jones, 322 N.C. 406, 368 S.E.2d 844 (1988); State v. Hunt, 324 N.C. 343, 378 S.E.2d 754 (1989); State v. Harrell, 96 N.C. App. 426, 386 S.E.2d 103 (1989); State v. Woodruff, 99 N.C. App. 107, 392 S.E.2d 434 (1990); State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337 (1990); North Carolina State Bar v. Mulligan, 101 N.C. App. 524, 400 S.E.2d 123 (1991); State v. Robinson, 330 N.C. 1, 409 S.E.2d 288 (1991); State v. Joyce, 104 N.C. App. 558, 410 S.E.2d 516 (1991); State v. Jolly, 332 N.C. 351, 420 S.E.2d 661 (1992); State v. Petersilie, 334 N.C. 169, 432 S.E.2d 832 (1993); Southern Ry. v. Biscoe Supply Co., 114 N.C. App. 474, 442 S.E.2d 127 (1994); State v. McLemore, 343 N.C. 240, 470 S.E.2d 2 (1996); State v. Miller, 344 N.C. 658, 477 S.E.2d 915 (1996); Roberts v. Madison County Realtors Ass'n, 121 N.C. App. 233, 465 S.E.2d 328 (1996); State v. Jones, 342 N.C. 523, 467 S.E.2d 12 (1996); State v. Workman, 344 N.C. 482, 476 S.E.2d 301 (1996); State v. East, 345 N.C. 535, 481 S.E.2d 652 (1997), cert. denied, 522 U.S. 918, 118 S. Ct. 306, 139 L. Ed. 2d 236 (1997); State v. Dickens, 346 N.C. 26, 484 S.E.2d 553 (1997); State v. Tyler, 346 N.C. 187, 485 S.E.2d 599 (1997), cert. denied, 522 U.S. 1001, 118 S. Ct. 571, 139 L. Ed. 2d 411 (1998); State v. Bishop, 346 N.C. 365, 488 S.E.2d 769 (1997); Reis v. Hoots, 131 N.C. App. 721, 509 S.E.2d 198 (1998); State v. Riley, 128 N.C. App. 265, 495 S.E.2d 181 (1998); State v. Jackson, 348 N.C. 644, 503 S.E.2d 101 (1998); State v. Hayes, 130 N.C. App. 154, 502 S.E.2d 853 (1998), aff'd, 350 N.C. 79, 511 S.E.2d 302 (1999); State v. Rivera, 350 N.C. 285, 514 S.E.2d 720 (1999); State v. Earhart, 134 N.C. App. 130, 516 S.E.2d 883 (1999), appeal dismissed, 351 N.C. 112, 540 S.E.2d 372 (1999); State v. Locklear, 136 N.C. App. 716, 525 S.E.2d 813 (2000); State v. Jones, 137 N.C. App. 221, 527 S.E.2d 700 (2000); State v. Aldridge, 139 N.C. App. 706, 534 S.E.2d 629 (2000), cert. denied, 353 N.C. 269, 546 S.E.2d 114 (2000); State v. McNeill, 140 N.C. App. 450, 537 S.E.2d 518 (2000); State v. Harris, 136
N.C. App. 611, 525 S.E.2d 208 (2000); State v. Guice, 141 N.C. App. 177, 541 S.E.2d 474 (2000), cert. dismissed, 353 N.C. 731, 551 S.E.2d 112 (2001); State v. Wardrett, 145 N.C. App. 409, 551 S.E.2d 214 (2001); State v. Martinez, 149 N.C. App. 553, 561 S.E.2d 528 (2002); State v. McCail, 150 N.C. App. 643, 565 S.E.2d 96 (2002); State v. Frierson, 153 N.C. App. 242, 569 S.E.2d 687 (2002); State v. Reed, 153 N.C. App. 462, 570 S.E.2d 116 (2002), appeal dismissed, 356 N.C. 622, 575 S.E.2d 521 (2002); State v. Lowe, 154 N.C. App. 607, 572 S.E.2d 850 (2002); State v. Ramirez, 156 N.C. App. 249, 576 S.E.2d 714 (2003), cert. denied, 357 N.C. 255, 583 S.E.2d 286 (2003), cert. denied, 540 U.S. 991, 124 S. Ct. 487, 157 L. Ed. 2d 388 (2003); State v. Finney, 157 N.C. App. 267, 581 S.E.2d 764 (2003), cert. granted, 357 N.C. 453, 586 S.E.2d 273 (2003); State v. Meadows, 158 N.C. App. 390, 581 S.E.2d 472 (2003), cert. denied, 357 N.C. 467, 586 S.E.2d 774 (2003); State v. Carrigan, 161 N.C. App. 256, 589 S.E.2d 134 (2003); State v. Alston, 161 N.C. App. 367, 588 S.E.2d 530 (2003), aff'd, 359 N.C. 61, 602 S.E.2d 674 (2004); State v. Allen, 162 N.C. App. 587, 592 S.E.2d 31 (2004); State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004); State v. Morgan, 359 N.C. 131, 604 S.E.2d 886 (2004); State v. Alvarez, 168 N.C. App. 487, 608 S.E.2d 371 (2005); In re M.J.G., 168 N.C. App. 638, 608 S.E.2d 813 (2005); In re M.G.T.-B., 177 N.C. App. 771, 629 S.E.2d 916 (2006); State v. Sloan, 180 N.C. App. 527, 638 S.E.2d 36 (2006), cert. denied, appeal dismissed, 2007 N.C. LEXIS 223 (Mar. 8, 2007). State v. Theer, 181 N.C. App. 349, 639 S.E.2d 655 (2007), cert. denied, - U.S. - , 128 S. Ct. 2473, 171 L. Ed. 2d 769 (2008); In re J.S., 182 N.C. App. 79, 641 S.E.2d 395 (2007); Pers. Earth Movers, Inc. v. Thomas, 182 N.C. App. 329, 641 S.E.2d 751 (2007); State v. Bass, 190 N.C. App. 339, 660 S.E.2d 123 (2008), appeal dismissed, cert. denied, 362 N.C. 683, 670 S.E.2d 566 (2008); State v. Little, 191 N.C. App. 655, 664 S.E.2d 432 (2008), review denied, 362 N.C. 685, 671 S.E.2d 326 (2008); In re S.D.J., 192 N.C. App. 478, 665 S.E.2d 818 (2008); In re DRH, 194 N.C. App. 166, 668 S.E.2d 919 (2008); State v. Hodges, 195 N.C. App. 390, 672 S.E.2d 724 (2009); In re J.V., 198 N.C. App. 108, 679 S.E.2d 843 (2009); Seagraves v. Seagraves, 206 N.C. App. 333, 698 S.E.2d 155 (2010); State v. Waring, 364 N.C. 443, 701 S.E.2d 615 (2010); First Mt. Vernon Indus. Loan Ass'n v. ProDev XXII, LLC, 209 N.C. App. 126, 703 S.E.2d 836 (2011); Ward v. Kantar Operations, 209 N.C. App. 448, 705 S.E.2d 413 (2011); State v. Banks, 210 N.C. App. 30, 706 S.E.2d 807 (2011); State v. Sargeant, 365 N.C. 58, 707 S.E.2d 192 (2011); N.C. DOT v. Cromartie, 214 N.C. App. 307, 716 S.E.2d 361 (2011), review denied and dismissed, 735 S.E.2d 177, 2012 N.C. LEXIS 1051 (2012); State v. Rollins, 226 N.C. App. 129, 738 S.E.2d 440 (2013); Joines v. Moffitt, 226 N.C. App. 61, 739 S.E.2d 177 (2013); State v. Coleman, 227 N.C. App. 354,
742 S.E.2d 346 (2013), review denied 752 S.E.2d 466, 367 N.C. 271, 2013 N.C. LEXIS 1395 (2013); State v. Jackson, 229 N.C. App. 644, 748 S.E.2d 50 (2013); State v. Monroe, 230 N.C. App. 70, 748 S.E.2d 179 (2013), review denied 367 N.C. 1418, 752 S.E.2d 477, 2013 N.C. LEXIS 1418 (2013); In re D.C., 236 N.C. App. 287, 763 S.E.2d 314 (2014); State v. Royster, 237 N.C. App. 64, 763 S.E.2d 577 (2014); State v. Gardner, 237 N.C. App. 496, 769 S.E.2d 196 (2014); In re M.A.E., - N.C. App. - , - S.E.2d - (July 21, 2015); Atl. Coast Props. v. Saunders, 243 N.C. App. 211, 777 S.E.2d 292 (2015); State v. Hicks, 243 N.C. App. 628, 777 S.E.2d 341 (2015); In re T.N.G., 244 N.C. App. 398, 781 S.E.2d 93 (2015); In re C.R.B., 245 N.C. App. 65, 781 S.E.2d 846 (2016); State v. Cook, 246 N.C. App. 266, 782 S.E.2d 569 (2016), review denied, 792 S.E.2d 778, 2016 N.C. LEXIS 682 (2016); State v. McLaughlin, 246 N.C. App. 306, 786 S.E.2d 269 (2016); DOT v. Adams Outdoor Adver. of Charlotte Ltd. P'ship, 247 N.C. App. 39, 785 S.E.2d 151 (2016), aff'd in part and rev'd in part, 370 N.C. 101, 804 S.E.2d 486, 2017 N.C. LEXIS 687 (2017); In re R.P., 252 N.C. App. 301, 798 S.E.2d 428 (2017); State v. Harris, 253 N.C. App. 322, 800 S.E.2d 676 (2017), review denied, 803 S.E.2d 388, 2017 N.C. LEXIS 607 (N.C. 2017); State v. Wilson, 260 N.C. App. 698, 818 S.E.2d 160 (2018), review denied, 821 S.E.2d 173, 2018 N.C. LEXIS 1079 (2018); State v. Roberts, - N.C. App. - , 836 S.E.2d 287 (2019), review denied, 374 N.C. 269, 839 S.E.2d 350, 2020 N.C. LEXIS 293 (N.C. 2020).


Rule 802. Hearsay rule.

Hearsay is not admissible except as provided by statute or by these rules.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 802 except that the phrase "by statute or by these rules" is used in lieu of the phrase "by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress."

Rule 802 provides for the standard exclusion of hearsay evidence; hearsay is simply inadmissible unless an exception is applicable. This is in accord with North Carolina practice. Unless an exception to the hearsay rule is provided in these rules, the courts are not free to create new hearsay exceptions by adjudication. Rules 803(24) and 804(b)(5) allow for the admission of evidence in particular cases, but not for more general policy formulation.

Legal Periodicals. - For note, "State v. Smith: Facilitating the Admissibility of Hearsay Statements in Child Sexual Abuse Cases," see 64 N.C.L. Rev. 1352 (1986).

For note, "State v. Stafford: Rape Trauma Syndrome and the Admissibility of Statements Made by Rape Victims," see 64 N.C.L. Rev. 1364 (1986).

For note, "Admission of the Unthinkable: Hearsay Exceptions and Statements Made by Sexually Abused Children - State v. Smith," see 9 Campbell L. Rev. 437 (1987).

For article, "Confrontation and Hearsay: New Wine in An Old Bottle," 16 Campbell L. Rev. 1 (1994).

For article, "Issues Once Moot: The Other Evidentiary Objections to the Admission of Exculpatory Polygraph Examinations," see 32 Wake Forest L. Rev. 1045 (1997).

For note, "State v. Alston: North Carolina Continues to Broaden its Mind to Admissibility of a Victim's Out-of-Court Statements Under the Rule 803(3) Hearsay Exception in Criminal Cases," see 32 Wake Forest L. Rev. 1327 (1997).

For note, "Not-So-Secrets? The State of the Attorney-Client Privilege in North Carolina in the Wake of In re Investigation of Death of Eric Miller and Crawford v. Washington," see 83 N.C. L. Rev. 1591 (2005).

For recent development, "The Defense Calls ... the Accuser? State v. Brigman and How the North Carolina Court of Appeals Misconstrued Crawford's Application to Available Witnesses," see 84 N.C. L. Rev. 2082 (2006).

CASE NOTES

Hearsay Defined. - An assertion of one other than the presently testifying witness is hearsay and inadmissible if offered for the truth of the matter asserted; if offered for any other purpose, the assertion is admissible. Livermon v. Bridgett, 77 N.C. App. 533, 335 S.E.2d 753 (1985), cert. denied, 315 N.C. 391, 338 S.E.2d 880 (1986).

Exception to Hearsay Rule May Violate Constitutional Guarantees of the Right of Confrontation. - Even if an out-of-court statement properly falls within an exception to the hearsay rule, it nonetheless must be excluded at a criminal trial if it infringes upon the defendant's constitutional right to confrontation. State v. Rogers, 109 N.C. App. 491, 428 S.E.2d 220, cert. denied, 334 N.C. 625, 435 S.E.2d 348 (1993), 511 U.S. 1008, 114 S. Ct. 1378, 128 L. Ed. 2d 54, rehearing denied, 511 U.S. 1102, 114 S. Ct. 1875 (1994).

Where Relevant Hearsay Is Admissible. - Hearsay evidence, even if relevant, is inadmissible unless it is covered by statutory exception, or unless its exclusion deprives a defendant of a trial in accord with fundamental standards of due process. State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

When defense counsel, on cross-examination, asked a prosecution witness specific questions about a report the witness had written about a domestic violence incident defendant was involved in, and the witness's failure to record certain data, the trial court properly allowed the prosecution to re-direct the witness about the contents of the report, even though those contents were hearsay, because defendant's cross-examination "opened the door" to such testimony. State v. Mason, 159 N.C. App. 691, 583 S.E.2d 410 (2003).

When defense counsel, on cross-examination, asked a prosecution witness why the police did not follow up on any other leads, the trial court properly allowed the prosecution, in an effort to rehabilitate the witness, to testify that other suspects were not pursued because two people identified defendant as being at the crime scene at the time of the shooting, even though the testimony related hearsay, because defendant's cross-examination "opened the door" to such testimony. State v. Mason, 159 N.C. App. 691, 583 S.E.2d 410 (2003).

Trustworthiness of Evidence Falling Within Statutory Exception. - A showing that a hearsay statement is inherently trustworthy is established when the evidence falls within a statutory hearsay exception. State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139 (1988).

The "except as otherwise provided . . . by statute" exception under both this rule and Rule 1002 clearly covers written statements under G.S. 20-279.21(b)(3). Crowder v. North Carolina Farm Bureau Mut. Ins. Co., 79 N.C. App. 551, 340 S.E.2d 127, cert. denied, 316 N.C. 731, 345 S.E.2d 387 (1986).

Hearsay Statements Not Rendered Competent Because They Corroborate Other Evidence. - Where hearsay statements were actually introduced as exhibits, where statements were before the jury as substantive evidence, and where all earlier apparent efforts to restrict their use to impeachment of witness or corroboration of the officer's testimony were mooted by their substantive use, statements should not have been used; since if testimony is not competent as substantive evidence, it is not rendered competent because it tends to corroborate some other witness. State v. Hunt, 324 N.C. 343, 378 S.E.2d 754 (1989).

Composite Picture of Perpetrator Not a Statement. - A composite picture of a perpetrator prepared by police pursuant to the directions of a witness to a crime does not constitute a statement. Such a composite picture is the functional equivalent of a photograph in that it merely reflects the perpetrator's likeness, albeit as recorded by the witness' eyes rather than the witness' camera. No assertion or statement is involved. Therefore, a composite picture is not hearsay as defined by this rule and Rule 801(c), and does not apply to bar the admission of a composite picture into evidence. State v. Patterson, 332 N.C. 409, 420 S.E.2d 98 (1992).

In a criminal prosecution, evidence of the reputation of a place or neighborhood is ordinarily inadmissible hearsay. State v. Harper, 96 N.C. App. 36, 384 S.E.2d 297 (1989).

Trial court's admission of victim's testimony from a domestic violence protective order hearing did not violate his right to confront the witness against him, nor did it violate G.S. 8C-1, Rules 403, 404(b), and 803(3), where the hearsay statements constituted, and were admissible as, statements of declarant's then-existing mental, emotional, or physical condition and where their probative value outweighed their prejudicial effect. State v. Thibodeaux, 352 N.C. 570, 532 S.E.2d 797 (2000), cert denied, 531 U.S. 1155, 121 S. Ct. 1106, 148 L. Ed. 2d 976 (2001).

Invited Error. - With regard to witness testimony about defendant's alleged molestation of another girl, defendant elicited that testimony on cross-examination of the State's witnesses, and made no motion to strike the testimony; thus, any error was invited error and defendant could not be prejudiced as a matter of law. State v. Randolph, 224 N.C. App. 521, 735 S.E.2d 845 (2012).

Trial court did not err in allowing a probation officer to testify that tracking data verified an ankle monitor had been assigned to the defendant because the testimony established a sufficient foundation of trustworthiness for the evidence to be admissible as a business record; the officer demonstrated the officer's familiarity with the electronic monitoring system and testified that the information transmitted through the technology was stored in a software database the probation office used to conduct business. State v. Waycaster, 260 N.C. App. 684, 818 S.E.2d 189 (2018), aff'd, in part, 846 S.E.2d 688, 2020 N.C. LEXIS 689 (N.C. 2020).

Evidence Held Admissible. - Where a witness from the Department of Social Services testified that following an investigation into the alleged sexual abuse of a child the department "unsubstantiated" the charges, the testimony had characteristics of hearsay under this rule; however, its admission was not prejudicial since both plaintiff and defendant presented a considerable amount of conflicting evidence regarding the alleged sexual abuse. Williams v. Williams, 91 N.C. App. 469, 372 S.E.2d 310 (1988).

In a murder trial, where a letter and testimony of the victim's grandmother were offered for the purpose of showing that defendant's motive for killing the victim was because she wished to discontinue their relationship, and cross-examination of defendant was designed to show defendant knew the contents of the letter prior to the homicide, the statements were relevant for the purposes for which they were admitted and their admission into evidence did not violate this rule. State v. Quick, 323 N.C. 675, 375 S.E.2d 156 (1989).

Court did not abuse its discretion by allowing social workers to testify as to statements made to them by respondent's wife whereby she indicated respondent did not properly care for the children, excessively disciplined them, abused illegal drugs and alcohol in their presence, and was violent in his behavior, as respondent's wife was a party to the action which was brought to determine whether her child was abused and neglected and her statements to the social workers about her husband's conduct could only be reasonably considered as admissions by her that their child was subjected to conduct in her presence which could be found to be abusive and neglectful. In re Hayden, 96 N.C. App. 77, 384 S.E.2d 558 (1989).

The father's statement, relayed by the witness, explained why the deputies did not subsequently look for defendant at the father's house and was not offered to prove the truth of the matter asserted, but rather to explain the officers' actions, and was, therefore, not hearsay. State v. Westall, 116 N.C. App. 534, 449 S.E.2d 24 (1994), cert. denied, 338 N.C. 671, 453 S.E.2d 185 (1994).

The substance of witness's conversation with another detective was not inadmissible hearsay, because it was admitted for the purpose of explaining witness's subsequent conduct and not for the truth of the matter asserted. State v. Earhart, 134 N.C. App. 130, 516 S.E.2d 883 (1999), appeal dismissed, 351 N.C. 112, 540 S.E.2d 372 (1999).

Trial court did not violate this section by allowing prosecutor to cross-examine defendant about testimony provided by a witness for the State earlier in the trial; the prosecutor's reference to the testimony was not hearsay because he referred to it, not to prove the truth of the matter asserted, but to challenge defendant's credibility. State v. Walker, 139 N.C. App. 512, 533 S.E.2d 858 (2000).

Necessity for expeditious procedure in foreclosure actions substantially outweighed any concerns about the efficacy of allowing a loan servicer's employee, who lived out of state, to testify by affidavit, and the trial court properly admitted her affidavit into evidence. In re Foreclosure of Real Prop. Under Deed of Trust from Brown, 156 N.C. App. 477, 577 S.E.2d 398 (2003).

Trial court did not err in admitting two police officers to testify that they went to a residence to talk with defendant after arresting a person with crack cocaine in her hand who had just left the residence and who told them that she had just been visiting defendant, her cousin, at the residence; the evidence was not offered to prove that she had been visiting her cousin, which would be evidence offered for the truth of the matter asserted or hearsay, but was offered to explain the actions of the two police officers in going to the residence and talking to defendant, which resulted in defendant's arrest. State v. Moore, 162 N.C. App. 268, 592 S.E.2d 562 (2004).

Trial court, with the exception of a child abuse investigator's testimony regarding the father's threat against the female child, did not err in admitting testimony from the child abuse investigator, another abuse investigator, a pediatrician, and a mental health professional regarding out-of-court statements made by the minor children to them in an abuse and neglect proceeding. In re Mashburn, 162 N.C. App. 386, 591 S.E.2d 584 (2004), appeal dismissed, - N.C. - , 603 S.E.2d 884 (2004).

Trial court did not err in finding that police detective was the custodian or other qualified witness of pawn shop records for purposes of admissibility of his testimony regarding his review of those records, nor did it err in admitting the detective's testimony regarding said records, as his testimony regarding his review and his resulting actions was admissible to show the basis for those actions, explained his conduct, and was not hearsay. State v. Goblet, 173 N.C. App. 112, 618 S.E.2d 257 (2005), overruled in part by State v. Tanner, 2010 N.C. LEXIS 423 (2010).

Admission of a detective's testimony about information given to another detective by a confidential informant did not violate defendant's Sixth Amendment rights because the statement was not testimonial, but was offered to explain the presence at a restaurant of the officers; a second detective's testimony was also not plain error as it was offered to explain detective's presence outside of defendant's apartment, rather than for the truth of the matter asserted and the testimony did not violate N.C. R. Evid. 802 because the statements were admissible to explain the presence of the detectives, rather than to prove that defendant sought to sell cocaine. State v. Leyva, 181 N.C. App. 491, 640 S.E.2d 394 (2007), cert. denied, appeal dismissed, 361 N.C. 573, 651 S.E.2d 370 (2007), review dismissed, - N.C. - , 673 S.E.2d 872 (2009).

Hearsay testimony by a witness concerning statements made by the victim was not excluded by the hearsay rule under N.C. R. Evid. 803(1) because the victim's statements were her present sense impression of a choking incident. Furthermore, there was no rigid rule about how long was too long to be immediately thereafter. State v. Petrick, 186 N.C. App. 597, 652 S.E.2d 688 (2007), appeal dismissed, review denied, 362 N.C. 242, 660 S.E.2d 540 (2008).

Although medical records were admitted (in reliance on Rule 10.3, Twelfth Judicial District Juvenile Case Management Plan) into evidence without proper foundation, as required by G.S. 8C-1, N.C. R. Evid. 703, 803(6), in order to fit within the exceptions to the hearsay rule, G.S. 8C-1, N.C. R. Evid. 801(c), 802, because - pursuant to G.S. 7B-804 - the rules of evidence in civil cases were to apply to child neglect cases, respondents, parents of the children, who were found neglected, had the burden of showing prejudice at the admission of the records; but they could not, given the other extensive direct testimony from medical experts upon which it was presumed the trial court had relied. In re T.M., 187 N.C. App. 694, 654 S.E.2d 502 (2007).

Officer's testimony about juvenile defendant's statements was properly admitted under G.S. 7B-2407 and G.S. 8C-1, N.C. R. Evid. 801(d); the officer interviewed defendant with his mother present, defendant was not in custody, and the juvenile rights warning was read to defendant and his mother, who both signed a statement indicating they understood the rights. In re J.J.D.L., 189 N.C. App. 777, 659 S.E.2d 757 (2008).

Trial court did not commit plain error in admitting hearsay testimony because the victim's prior statements to the victim's step-grandmother were admitted to establish why investigative action was taken, not to prove the alleged conduct, and the testimony corroborated the victim's trial testimony. State v. Treadway, 208 N.C. App. 286, 702 S.E.2d 335 (2010), review denied 365 N.C. 195, 710 S.E.2d 35, 2011 N.C. LEXIS 499 (N.C. 2011).

It was error to exclude a caveator's affidavits because information contained in the excluded affidavits outlined a decedent's deteriorating health and memory based upon the times the affiants spent with the decedent in the two months prior to the decedent's death and asserted a propounder did not allow the caveator to see the caveator's father on one occasion. In re Estate of Phillips, 251 N.C. App. 99, 795 S.E.2d 273 (2016).

trial court did not err in admitting a confidential informant's statements through the testimony of an investigator regarding defendant's prior sale and manufacture of cocaine because the nonhearsay statements were not offered to prove the truth of the matter asserted but to explain how and why the investigation of defendant began; the statements were allowed, and admission of the statements did not violate defendant's Sixth Amendment rights under the Confrontation Clause. State v. Steele, 260 N.C. App. 315, 817 S.E.2d 487 (2018), review denied, 371 N.C. 788, 821 S.E.2d 183, 2018 N.C. LEXIS 1111 (2018).

Trial court did not commit plain error by admitting testimony of the victim's daughter because her daughter's testimony regarding her own perception of what was missing from the victim's home when the daughter arrived shortly after the rape and robbery was not hearsay, the victim's statement that she was "okay" was not offered to prove the truth of the matter asserted, and the daughter's testimony that she could tell by the victim's face that her heart was just crying was not hearsay because it was not testimony of an out-of-court statement. State v. Elder, - N.C. App. - , - S.E.2d - (July 20, 2021).

Evidence Held Inadmissible. - Testimony of victim's neighbor to the effect that victim had told him that her son (the defendant) had hurt her and that she was afraid of him was hearsay and was not covered by any of the hearsay exceptions provided by G.S. 8C-1, Rules 803 or 804, and thus the trial court erred in admitting this statement. State v. Hollingsworth, 78 N.C. App. 578, 337 S.E.2d 674 (1985).

Where defendant's father, in response to a police inquiry, showed the police a drawer where a knife was supposedly kept, his conduct was a "statement" within the meaning of G.S. 8C-1, Rule 801(a), and as the State offered the evidence to prove the existence of a knife and its use by defendant as testified to by victim, the testimony was hearsay and inadmissible under this rule. State v. Satterfield, 316 N.C. 55, 340 S.E.2d 52 (1986).

Defendant's contention that the trial court erred in not allowing him to testify that witness in the car during the killing of a State Trooper said "You don't remember killing a State Trooper?" was without merit as defendant's testimony was hearsay and not within any of the exceptions to the rule prohibiting hearsay. See State v. McQueen, 323 N.C. 675, 377 S.E.2d 38 (1989).

Where there was no express or implied statement of fact that a "sexual act" occurred, the testimony of witnesses concerning victim's prior statements to the contrary was inadmissible for any purpose. State v. Murphy, 100 N.C. App. 33, 394 S.E.2d 300 (1990).

Witness's testimony concerning statement made to her that another person had been threatened by defendant was hearsay and was improperly admitted so that defendant was entitled to a new trial. State v. Allen, 127 N.C. App. 182, 488 S.E.2d 294 (1997).

A witness' affidavit was properly excluded as substantive evidence, where the witness testified at trial that she was not present at the time of the shooting as the affidavit was hearsay that fell within no established exception to the hearsay rule and was not inherently trustworthy. State v. Cozart, 131 N.C. App. 199, 505 S.E.2d 906 (1998), review denied, 350 N.C. 311 (1999), appeal dismissed, cert. denied, 651 S.E.2d 225 (N.C. 2007).

Where the former wife sought to show that her ex-husband harassed her by interfering with her mail, evidence that the postmaster told the wife that the former husband went into the post office each day as the postmaster left for lunch was inadmissible hearsay, as the wife offered no basis for admission under an exception and there was no indication that the postmaster was unavailable. Reis v. Hoots, 131 N.C. App. 721, 509 S.E.2d 198 (1998).

Witness testimony with regard to statements made by respondent mother's aunt, who did not testify, concerning her treatment of her child constituted inadmissible hearsay under this rule and, on remand, should not be considered by the trial court. In re Dula, 143 N.C. App. 16, 544 S.E.2d 591 (2001), aff'd, 354 N.C. 356, 554 S.E.2d 336 (2001).

Because two witnesses' attempted testimony would have constituted an inappropriate use of the corroboration rule since their testimony did not relate to prior statements of a doctor, but rather to those of defendant, the witnesses' statements were appropriately excluded, and defendant's assignment of error was overruled as to those witnesses. State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004).

Trial court's entry of a domestic violence protective order under G.S. 50B-3(b) in favor of a wife was error where the trial court relied on inadmissible hearsay testimony from her under G.S. 8C-1, N.C. R. Evid. 801(c) and 802 that she had a diagnosis of a cervical strain; there was no showing that such testimony was within any of the exceptions under G.S. 8C-1, N.C. R. Evid. 803. Little v. Little, 226 N.C. App. 499, 739 S.E.2d 876 (2013).

Applied in State v. Singleton, 85 N.C. App. 123, 354 S.E.2d 259 (1987); State v. Wilson, 338 N.C. 244, 449 S.E.2d 391 (1994); State v. Evans, 149 N.C. App. 767, 562 S.E.2d 102 (2002); State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808 (2003); State v. Alvarez, 168 N.C. App. 487, 608 S.E.2d 371 (2005); State v. Cardenas, 169 N.C. App. 404, 610 S.E.2d 240 (2005); State v. Phillips, 365 N.C. 103, 711 S.E.2d 122 (2011), cert. denied, 132 S. Ct. 1541, 2012 U.S. LEXIS 1493, 182 L. Ed. 2d 176 (U.S. 2012).

Cited in State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985); State v. Gregory, 78 N.C. App. 565, 338 S.E.2d 110 (1985); State v. Stafford, 317 N.C. 568, 346 S.E.2d 463 (1986); Gallimore v. Daniels Constr. Co., 78 N.C. App. 747, 338 S.E.2d 317 (1986); State v. Head, 79 N.C. App. 1, 338 S.E.2d 908 (1986); State v. Hillard, 81 N.C. App. 104, 344 S.E.2d 54 (1986); State v. Davis, 317 N.C. 315, 345 S.E.2d 176 (1986); State v. Wingard, 317 N.C. 590, 346 S.E.2d 638 (1986); State v. Aguallo, 318 N.C. 590, 350 S.E.2d 76 (1986); Hunt v. Hunt, 85 N.C. App. 484, 355 S.E.2d 519 (1987); State v. Baker, 320 N.C. 104, 357 S.E.2d 340 (1987); State v. Meeks, 320 N.C. 615, 360 S.E.2d 79 (1987); State v. Kerley, 87 N.C. App. 240, 360 S.E.2d 464 (1987); State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987); State v. Quick, 323 N.C. 675, 375 S.E.2d 156 (1989); Ward v. Durham Life Ins. Co., 325 N.C. 202, 381 S.E.2d 698 (1989); State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337 (1990); North Carolina State Bar v. Mulligan, 101 N.C. App. 524, 400 S.E.2d 123 (1991); State v. Patterson, 103 N.C. App. 195, 405 S.E.2d 200 (1991); State v. Petersilie, 334 N.C. 169, 432 S.E.2d 832 (1993); State v. Jones, 342 N.C. 523, 467 S.E.2d 12 (1996); State v. Ransome, 342 N.C. 847, 467 S.E.2d 404 (1996); Johnson v. Southern Indus. Constructors, Inc., 126 N.C. App. 103, 484 S.E.2d 574 (1997); State v. Pickens, 346 N.C. 628, 488 S.E.2d 162 (1997); State v. Riley, 128 N.C. App. 265, 495 S.E.2d 181 (1998); State v. Hines, 131 N.C. App. 457, 508 S.E.2d 310 (1998); State v. Jones, 137 N.C. App. 221, 527 S.E.2d 700 (2000); State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663 (2000); State v. Aldridge, 139 N.C. App. 706, 534 S.E.2d 629 (2000), cert. denied, 353 N.C. 269, 546 S.E.2d 114 (2000); State v. McNeill, 140 N.C. App. 450, 537 S.E.2d 518 (2000); State v. Guice, 141 N.C. App. 177, 541 S.E.2d 474 (2000), cert. dismissed, 353 N.C. 731, 551 S.E.2d 112 (2001); State v. McCail, 150 N.C. App. 643, 565 S.E.2d 96 (2002); State v. Murray, 154 N.C. App. 631, 572 S.E.2d 845 (2002), cert. denied, 357 N.C. 467, 586 S.E.2d 778 (2003); State v. Love, 156 N.C. App. 309, 576 S.E.2d 709 (2003); State v. Ramirez, 156 N.C. App. 249, 576 S.E.2d 714 (2003), cert. denied, 357 N.C. 255, 583 S.E.2d 286 (2003), cert. denied, 540 U.S. 991, 124 S. Ct. 487, 157 L. Ed. 2d 388 (2003); State v. Meadows, 158 N.C. App. 390, 581 S.E.2d 472 (2003), cert. denied, 357 N.C. 467, 586 S.E.2d 774 (2003); State v. Owen, 159 N.C. App. 204, 582 S.E.2d 689 (2003); State v. Carrigan, 161 N.C. App. 256, 589 S.E.2d 134 (2003); State v. Allen, 162 N.C. App. 587, 592 S.E.2d 31 (2004); State v. Morgan, 359 N.C. 131, 604 S.E.2d 886 (2004); State v. Boyd, 177 N.C. App. 165, 628 S.E.2d 796 (2006); State v. Sloan, 180 N.C. App. 527, 638 S.E.2d 36 (2006), cert. denied, appeal dismissed, 2007 N.C. LEXIS 223 (Mar. 8, 2007). State v. Theer, 181 N.C. App. 349, 639 S.E.2d 655 (2007), cert. denied, - U.S. - , 128 S. Ct. 2473, 171 L. Ed. 2d 769 (2008);
State v. Bass, 190 N.C. App. 339, 660 S.E.2d 123 (2008), appeal dismissed, cert. denied, 362 N.C. 683, 670 S.E.2d 566 (2008); State v. Little, 191 N.C. App. 655, 664 S.E.2d 432 (2008), review denied, 362 N.C. 685, 671 S.E.2d 326 (2008); In re S.D.J., 192 N.C. App. 478, 665 S.E.2d 818 (2008); State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009), cert. denied 130 S. Ct. 2104, 2010 U.S. LEXIS 3379, 176 L. Ed. 2d 734 (U.S. 2010); Bauman v. Woodlake Partners, LLC, 199 N.C. App. 441, 681 S.E.2d 819 (2009); State v. Batchelor, 202 N.C. App. 733, 690 S.E.2d 53 (2010); State v. Ligon, 206 N.C. App. 458, 697 S.E.2d 481 (2010); Ward v. Kantar Operations, 209 N.C. App. 448, 705 S.E.2d 413 (2011); State v. Banks, 210 N.C. App. 30, 706 S.E.2d 807 (2011); State v. Johnson, 209 N.C. App. 682, 706 S.E.2d 790 (2011); State v. Sargeant, 365 N.C. 58, 707 S.E.2d 192 (2011); N.C. DOT v. Cromartie, 214 N.C. App. 307, 716 S.E.2d 361 (2011), review denied and dismissed, 735 S.E.2d 177, 2012 N.C. LEXIS 1051 (2012); State v. Rollins, 226 N.C. App. 129, 738 S.E.2d 440 (2013); State v. Jackson, 229 N.C. App. 644, 748 S.E.2d 50 (2013); State v. Royster, 237 N.C. App. 64, 763 S.E.2d 577 (2014); State v. Gardner, 237 N.C. App. 496, 769 S.E.2d 196 (2014); In re M.A.E., - N.C. App. - , - S.E.2d - (July 21, 2015); State v. Hicks, 243 N.C. App. 628, 777 S.E.2d 341 (2015); In re C.R.B., 245 N.C. App. 65, 781 S.E.2d 846 (2016); State v. Cook, 246 N.C. App. 266, 782 S.E.2d 569 (2016), review denied, 792 S.E.2d 778, 2016 N.C. LEXIS 682 (2016); State v. Rogers, 251 N.C. App. 869, 796 S.E.2d 91 (2017); State v. Harris, 253 N.C. App. 322, 800 S.E.2d 676 (2017), review denied, 803 S.E.2d 388, 2017 N.C. LEXIS 607 (N.C. 2017); State v. Roberts, - N.C. App. - , 836 S.E.2d 287 (2019), review denied, 374 N.C. 269, 839 S.E.2d 350, 2020 N.C. LEXIS 293 (N.C. 2020).


Rule 803. Hearsay exceptions; availability of declarant immaterial.

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

  1. Present Sense Impression. - A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
  2. Excited Utterance. - A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
  3. Then Existing Mental, Emotional, or Physical Condition. - A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
  4. Statements for Purposes of Medical Diagnosis or Treatment. - Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
  5. Recorded Recollection. - A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
  6. Records of Regularly Conducted Activity. - A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if (i) kept in the course of a regularly conducted business activity and (ii) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit or by document under seal under Rule 902 of the Rules of Evidence made by the custodian or witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. Authentication of evidence by affidavit shall be confined to the records of nonparties, and the proponent of that evidence shall give advance notice to all other parties of intent to offer the evidence with authentication by affidavit. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
  7. Absence of Entry in Records Kept in Accordance with the Provisions of Paragraph (6). - Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
  8. Public Records and Reports. - Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law-enforcement personnel, or (C) in civil actions and proceedings and against the State in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
  9. Records of Vital Statistics. - Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.
  10. Absence of Public Record or Entry. - To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
  11. Records of Religious Organizations. - Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.
  12. Marriage, Baptismal, and Similar Certificates. - Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.
  13. Family Records. - Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
  14. Records of Documents Affecting an Interest in Property. - The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.
  15. Statements in Documents Affecting an Interest in Property. - A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
  16. Statements in Ancient Documents. - Statements in a document in existence 20 years or more the authenticity of which is established.
  17. Market Reports, Commercial Publications. - Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
  18. Learned Treatises. - To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
  19. Reputation Concerning Personal or Family History. - Reputation among members of his family by blood, adoption, or marriage, or among his associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of his personal or family history.
  20. Reputation Concerning Boundaries or General History. - Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.
  21. Reputation as to Character. - Reputation of a person's character among his associates or in the community.
  22. (Reserved).
  23. Judgment as to Personal, Family or General History, or Boundaries. - Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.
  24. Other Exceptions. - A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it gives written notice stating his intention to offer the statement and the particulars of it, including the name and address of the declarant, to the adverse party sufficiently in advance of offering the statement to provide the adverse party with a fair opportunity to prepare to meet the statement.

History

(1983, c. 701, s. 1; 2015-247, s. 11(a).)

COMMENTARY

This rule is identical to Fed. R. Evid. 803, except as noted below. The Advisory Committee's Note states:

"The exceptions are phrased in terms of nonapplication of the hearsay rule, rather than in positive terms of admissibility, in order to repel any implication that other possible grounds for exclusion are eliminated from consideration.

The present rule proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available. The theory finds vast support in the many exceptions to the hearsay rule developed by the common law in which unavailability of the declarant is not a relevant factor. The present rule is a synthesis of them, with revisions where modern developments and conditions are believed to make that course appropriate.

In a hearsay situation, the declarant is, of course, a witness, and neither this Rule nor Rule 804 dispenses with the requirement of firsthand knowledge. It may appear from his statement or be inferable from circumstances. See Rule 602."

As the Advisory Committee's Note indicates, the exceptions are phrased in terms of nonapplication of the hearsay rule. Evidence that is otherwise inadmissible may be stricken from a writing.

Exception (1) concerns present sense impressions and Exception (2) concerns excited utterances. The Advisory Committee's Note states:

"In considerable measure these two examples overlap, though based on somewhat different theories. The most significant practical difference will lie in the time lapse allowable between event and statement.

The underlying theory of Exception (1) is that substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepresentation. Moreover, if the witness is the declarant, he may be examined on the statement. If the witness is not the declarant, he may be examined as to the circumstances as an aid in evaluating the statement. (Citation omitted.)

The theory of Exception (2) is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. 6 Wigmore § 1747, p. 135. Spontaneity is the key factor in each instance, though arrived at by somewhat different routes. Both are needed in order to avoid needless niggling.

* * * * *

With respect to the time element, Exception (1) recognizes that in many, if not most, instances precise contemporaneity is not possible, and hence a slight lapse is allowable. Under Exception (2) the standard of measurement is the duration of the state of excitement. 'How long can excitement prevail? Obviously there are no pat answers and the character of the transaction or event will largely determine the significance of the time factor.' "

North Carolina courts have recognized a hearsay exception for spontaneous utterances that is substantially the same as Exception (2). See Brandis on North Carolina Evidence § 164 (1982). Exception (2) would clarify discordant rulings in this area, particularly as to the element of time. Id. at 650. Exception (1) would be a new exception to the hearsay rule in North Carolina. Id. at 653.

Exception (3) concerns statements of the declarant's then existing mental, emotional or physical condition. The Advisory Committee's Note states:

"The exclusion of 'statements of memory or belief to prove the fact remembered or believed' is necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind."

Exception (3) is similar to the corresponding North Carolina exception to the hearsay rule. See Brandis on North Carolina Evidence § 161 (1982). However, the North Carolina exception differs from Exception (3) in that in North Carolina declarations that are made in a criminal case after the commission of the crime are generally not included within the exception for fear that admissibility would permit the defendant to create evidence for himself. Id. at 636.

In North Carolina, when the issue is one of undue influence or fraud with respect to the execution of a will, the declarations of a testator are admitted only as corroborative evidence and are not alone sufficient to establish the previous conduct of another person by means of which the alleged fraud was perpetrated or the undue influence exerted. Brandis on North Carolina Evidence § 163, at 647-48. Exception (3) would change this result and permit such declarations to be admitted as substantive proof.

Exception (4) concerns statements made for purposes of medical diagnosis and treatment. The Advisory Committee's Note states:

"Even those few jurisdictions which have shied away from generally admitting statements of present condition have allowed them if made to a physician for purposes of diagnosis and treatment in view of the patient's strong motivation to be truthful.* * * The same guarantee of trustworthiness extends to statements of past conditions and medical history, made for purposes of diagnosis or treatment. It also extends to statements as to causation, reasonably pertinent to the same purposes, in accord with the current trend.* * * Statements as to fault would not ordinarily qualify under this latter language. Thus a patient's statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light. Under the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included.

Under current North Carolina practice, statements of past condition made by a patient to a treating physician or psychiatrist, when relevant to diagnosis or treatment and therefore inherently reliable, are admissible to show the basis for the expert's opinion. Brandis on North Carolina Evidence § 161, at 635 (1982). In some instances, a statement to a nontreating physician is currently admissible. State v. Franks, 300 N.C. 1 (1980). Professor Brandis states that when qualifying as basis for the expert's opinion statements of past condition "should be (though, as yet, they are not) admissible as substantive evidence as an exception to the hearsay rule." Brandis, supra, at 636.

Exception (5) concerns past recollection recorded, which is currently admissible in North Carolina. See Brandis on North Carolina Evidence § 33 (1982).

The phrase "or adopted by a witness" was added by Congress to make it clear that statements adopted by a witness would come within the rule. The language chosen by Congress may be read to suggest that the statement does not qualify for admission unless the witness made the recordation himself or actually adopted the recordation of another. The exception should be construed so as not to require that the recordation of another be actually adopted by the witness. Thus the statement may be one that was made by the witness, one that was adopted by the witness, or one that was made by the witness and recorded by another. This construction would be in accord with North Carolina practice which permits use of the recorded statement if the witness is able to testify that he saw it at a time when the facts were fresh in his memory, and that it actually represented his recollection at the time. See Brandis, supra, at 127.

To prevent a jury from giving too much weight to a written statement that cannot be effectively cross-examined, the last sentence of Exception (5) provides that the memorandum or record may be read into evidence but may not be received as an exhibit unless offered by an adverse party. Current North Carolina practice apparently permits the writing itself, or a reading thereof by the authenticating witness, to be admitted. Brandis, supra, at 126, n. 75.

Exception (6) concerns records of regularly conducted activity. The exception is derived from the traditional business records exception. The exception is limited to business records, but business is defined to include the records of institutions and associations like schools, churches and hospitals. This appears to be a slight expansion of the current North Carolina business records exception. See Brandis, supra, § 155.

The exception is consistent with North Carolina practice in that the person making the record is not required to have personal knowledge of the transactions entered. See Brandis, supra, § 155, at 617. However, it must be shown that the record was actually based (or it was the regular practice of the activity to base the record) upon a person with knowledge acting pursuant to a regularly conducted activity.

The exception specifically includes both diagnoses and opinions, in addition to acts, events and conditions, as proper subjects of admissible entries. See State v. DeGregory, 285 N.C. 122 (1977).

In addition, the Advisory Committee's Note states that:

"Problems of the motivation of the informant have been a source of difficulty and disagreement.

* * * * *

The formulation of specific terms which would assure satisfactory results in all cases is not possible. Consequently the rule proceeds from the base that records made in the course of a regularly conducted activity will be taken as admissible but subject to authority to exclude if 'the sources of information or other circumstances indicate lack of trustworthiness.' "

Apparently, there are no North Carolina cases on this point.

The rule is in accord with North Carolina practice in that it includes computer storage. Brandis, supra, § 155, at 619.

Exception (7) concerns the absence of an entry in the records of regularly conducted activity. As the Advisory Committee's Note states: "Failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence." This is existing North Carolina law. See Brandis on North Carolina Evidence § 155 (1982).

Exception (8) differs from Fed. R. Evid. 803(8) in that the word "State" is used in lieu of the word "government".

Part (A) of the exception is for records, reports, statements or data compilations setting forth the activities of the public office or agency. Part (A) is in accord with North Carolina practice. See Brandis on North Carolina Evidence § 153 (1982).

Part (B) covers matters observed pursuant to duty imposed by law when there is also a duty to report. Part (B) is in general accord with North Carolina practice. Id. In criminal cases, Part (B) does not cover matters observed by police officers and other law enforcement personnel. Note that the right to confrontation may exclude evidence in criminal cases even if the matter is not one observed by law enforcement personnel.

Part (C) covers factual findings resulting from an investigation made pursuant to legal authority. The term "factual findings" is not intended to preclude the introduction of evaluative reports containing conclusions or opinions. Apparently North Carolina courts currently exclude statements in reports that only amount to an expression of opinion. Id. at 609.

The Advisory Committee's Note states:

"Factors which may be of assistance in passing upon the admissibility of evaluative reports include: (1) the timeliness of the investigation . . .; (2) the special skill or experience of the official . . .; (3) whether a hearing was held and the level at which conducted; (4) possible motivation problems suggested by Palmer v. Hoffman, 318 U.S. 109 . . . (1943). Others no doubt could be added.

The formulation of an approach which would give appropriate weight to all possible factors in every situation is an obvious impossibility. Hence the rule, as in Exception (6), assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present. In one respect, however, the rule with respect to evaluative reports under item (c) is very specific: they are admissible only in civil cases and against the government in criminal cases in view of the almost certain collision with confrontation rights which would result from their use against the accused in a criminal case."

The phrase "unless the sources of information or other circumstances indicate lack of trustworthiness" applies to all three parts of the exception.

Public records and reports that are not admissible under Exception (8) are not admissible as business records under Exception (6).

Exception (9) excludes from the hearsay ban records of vital statistics and is similar to G.S. 130-49 [now repealed] and G.S. 130-66 [now repealed].

One purpose of the exception is to admit a death certificate to prove that a death occurred. G.S. 130-66 [now repealed] also provides that a death certificate is prima facie evidence of the cause of death. However, in State v. Watson, 281 N.C. 221 (1972), the Court held that the admission of the "hearsay and conclusory statement" of the cause of death in the victim's death certificate violated the right to confrontation. Exception (9) is not intended to permit the use of statements of the cause of death in a death certificate against a defendant in a criminal case.

Exception (10) concerns the absence of a public record or entry. The Advisory Committee's Note states:

"The principle of proving nonoccurrence of an event by evidence of the absence of a record which would regularly be made of its occurrence, developed in Exception (7) with respect to regularly conducted activities, is here extended to public records of the kind mentioned in Exceptions (8) and (9). 5 Wigmore § 1633(6), p. 519. Some harmless duplication no doubt exists with Exception (7). * * *

The rule includes situations in which absence of a record may itself be the ultimate focal point of inquiry, e.g., People v. Love, 310 Ill. 558, 142 N.E. 204 (1923), certificate of secretary of state admitted to show failure to file documents required by Securities Law, as well as cases where the absence of a record is offered as proof of the nonoccurrence of an event ordinarily recorded."

Exception (10) is similar to G.S. 1A-1, Civ. Pro. Rules 44(b) and 44(c). See also Brandis on North Carolina Evidence § 153, at 610 (1982).

Exception (11) concerns records of religious organizations. The Advisory Committee's Note states:

"Records of activities of religious organizations are currently recognized as admissible at least to the extent of the business records exception to the hearsay rule, 5 Wigmore § 1523, p. 371, and Exception (6) would be applicable. However, both the business record doctrine and Exception (6) require that the person furnishing the information be one in the business or activity. The result is such decisions as Daily v. Grand Lodge, 311 Ill. 184, 142 N.E. 478 (1924), holding a church record admissible to prove fact, date, and place of baptism, but not age of child except that he had at least been born at the time. In view of the unlikelihood that false information would be furnished on occasions of this kind, the rule contains no requirement that the information be in the course of the activity."

Currently in North Carolina records of activities of religious organizations are admissible to the extent of the business records exception to the hearsay rule. See Brandis on North Carolina Evidence § 155 (1982).

Exception (12) concerns marriage, baptismal, and similar certificates. The Advisory Committee's Note states:

"The principle of proof by certification is recognized as to public officials in Exceptions (8) and (10), and with respect to authentication in Rule 902. The present exception is a duplication to the extent that it deals with a certificate by a public official, as in the case of a judge who performs a marriage ceremony. The area covered by the rule is, however, substantially larger and extends the certification procedure to clergymen and the like who perform marriages and other ceremonies or administer sacraments. Thus certificates of such matters as baptism or confirmation, as well as marriage, are included. In principle they are as acceptable evidence as certificates of public officers. See 5 Wigmore § 1645, as to marriage certificates. When the person executing the certificate is not a public official, the self-authenticating character of documents purporting to emanate from public officials, see Rule 902, is lacking and proof is required that the person was authorized and did make the certificate. The time element, however, may safely be taken as supplied by the certificate, once authority and authenticity are established, particularly in view of the presumption that a document was executed on the date it bears."

Under current North Carolina practice, these items are admissible only to the extent they are part of a public record.

Exception (13) concerns family records.

The North Carolina exception for family records is more restrictive in that statements of family history and pedigree are admissible only if the declarant (1) is unavailable; (2) made the statement before the beginning of the controversy; and (3) bore a relationship to the family such that he was likely to have known the truth. Brandis on North Carolina Evidence § 149 (1982).

Exception (14) concerns records of documents affecting an interest in property. The Advisory Committee's Note states:

"The recording of title documents is a purely statutory development. Under any theory of the admissibility of public records, the records would be receivable as evidence of the contents of the recorded document, else the recording process would be reduced to a nullity. When, however, the record is offered for the further purpose of proving execution and delivery, a problem of lack of firsthand knowledge by the recorder, not present as to contents, is presented. This problem is solved, seemingly in all jurisdictions, by qualifying for recording only those documents shown by a specified procedure, either acknowledgement or a form of probate, to have been executed and delivered. 5 Wigmore §§ 1647-1651."

Exception (14) is consistent with North Carolina practice. See G.S. 47-20 through 47-20.4; G.S. 47-14; and G.S. 47-17.

Exception (15) concerns statements in documents affecting an interest in property. The Advisory Committee's Note states:

"Dispositive documents often contain recitals of fact. Thus a deed purporting to have been executed by an attorney in fact may recite the existence of the power of attorney, or a deed may recite that the grantors are all the heirs of the last record owner. Under the rule, these recitals are exempted from the hearsay rule. The circumstances under which dispositive documents are executed and the requirement that the recital be germane to the purpose of the document are believed to be adequate guarantees of trustworthiness, particularly in view of the nonapplicability of the rule if dealings with the property have been inconsistent with the document. The age of the document is of no significance, though in practical application the document will most often be an ancient one."

The extent to which recitals of fact in a deed or other dispositive documents are admissible in North Carolina is not entirely certain. Brandis on North Carolina Evidence § 152 (1982). Adoption to Exception (15) would somewhat expand admissibility and clarify North Carolina law in this area.

Exception (16) concerns statements in ancient documents. The Advisory Committee's Note states:

"Authenticating a document as ancient, essentially in the pattern of the common law, as provided in Rule 901(b)(8), leaves open as a separate question the admissibility of assertive statements contained therein as against a hearsay objection. 7 Wigmore § 2145a. Wigmore further states that the ancient document technique of authentication is universally conceded to apply to all sorts of documents, including letters, records, contracts, maps, and certificates, in addition to title documents, citing numerous decisions. Id. § 2145. Since most of these items are significant evidentially only insofar as they are assertive, their admission in evidence must be as a hearsay exception. But see 5 id § 1573, p. 429, referring to recitals in ancient deeds as a 'limited' hearsay exception. The former position is believed to be the correct one in reason and authority. As pointed out in McCormick § 298, danger of mistake is minimized by authentication requirements, and age affords assurance that the writing antedates the present controversy."

North Carolina courts currently recognize as exceptions to the hearsay rule recitals in deeds more than 30 years old. "The North Carolina cases have involved deeds, but it may be assumed that the rule extends here, as it does elsewhere, to other dispositive instruments such as wills and powers of attorney." Brandis on North Carolina Evidence § 152, at 604 (1982). Exception (16) would expand the North Carolina exception to include statements in many types of documents more than 20 years old.

Exception (17) concerns market reports and commercial publications. The Advisory Committee's Note states:

"Ample authority at common law supported the admission in evidence of items falling in this category. While Wigmore's text is narrowly oriented to lists, etc., prepared for the use of a trade or profession, 6 Wigmore § 1702, authorities are cited which include other kinds of publications, for example, newspaper market reports, telephone directories, and city directories. Id. §§ 1702-1706. The basis of trustworthiness is general reliance by the public or by a particular segment of it, and the motivation of the compiler to foster reliance by being accurate."

North Carolina courts have admitted into evidence a variety of published compilations used or relied on by the public or particular professions. See Brandis on North Carolina Evidence § 165 (1982).

Exception (18) concerns learned treatises. The Advisory Committee's Note states:

"The writers have generally favored the admissibility of learned treatises . . ., but the great weight of authority has been that learned treatises are not admissible as substantive evidence though usable in the cross-examination of experts. The foundation of the minority view is that the hearsay objection must be regarded as unimpressive when directed against treatises since a high standard of accuracy is engendered by various factors: the treatise is written primarily and impartially for professionals, subject to scrutiny and exposure for inaccuracy, with the reputation of the writer at stake. * * * Sound as this position may be with respect to trustworthiness, there is, nevertheless, an additional difficulty in the likelihood that the treatise will be misunderstood and misapplied without expert assistance and supervision. This difficulty is recognized in the cases demonstrating unwillingness to sustain findings relative to disability on the basis of judicially noticed medical texts. * * * The rule avoids the danger of misunderstanding and misapplication by limiting the use of treatises as substantive evidence to situations in which an expert is on the stand and available to explain and assist in the application of the treatise if desired. The limitation upon receiving the publication itself physically in evidence, contained in the last sentence, is designed to further this policy.

* * * * *

The rule does not require that the witness rely upon or recognize the treatise as authoritative, thus avoiding the possibility that the expert may at the outset block cross-examination by refusing to concede reliance or authoritativeness.* * * Moreover, the rule avoids the unreality of admitting evidence for the purpose of impeachment only, with an instruction to the jury not to consider it otherwise."

Exception (18) is substantially the same as G.S. 8-40.1 [now repealed]. Although [former] G.S. 8-40.1 was modeled after Exception (18), there has been some doubt whether the statements, once received, are substantive evidence or are merely for impeachment or corroboration. Brandis on North Carolina Evidence § 136, at 543 (1982). It is intended that Exception (18) authorize admission of such statements as substantive evidence.

The last sentence of [former] G.S. 8-40.1 differs from Exception (18) by providing that the statements may not be received as exhibits "unless agreed to by counsel for the parties." The quoted language was viewed as superfluous since evidence excluded by this rule and other rules may be admitted upon stipulation by counsel for the parties.

Exception (19) concerns matters of personal and family history. The advisory Committee's Note states:

"Marriage is universally conceded to be a proper subject of proof by evidence of reputation in the community. * * * As to such items as legitimacy, relationship, adoption, birth, and death, the decisions are divided. * * * All seem to be susceptible to being the subject of well founded repute. The 'world' in which the reputation may exist may be family, associates, or community. This world has proved capable of expanding with changing times from the single uncomplicated neighborhood, in which all activities take place, to the multiple and unrelated worlds of work, religious affiliation, and social activity, in each of which a reputation may be generated."

Under current North Carolina law only reputation among family members is admissible concerning matters of family history and pedigree, except for marriage which may be proved by both family and community reputation. Brandis on North Carolina Evidence § 149, at 599 (1982). Exception (19) would permit proof by reputation among family and associates, or in the community.

Exception (20) concerns reputation as to land boundaries or general history. The Advisory Committee's Note states:

"The first portion of Exception (20) is based upon the general admissibility of evidence of reputation as to land boundaries and land customs, expanded in this country to include private as well as public boundaries. McCormick § 299, p. 625. The reputation is required to antedate the controversy, though not to be ancient. The second portion is likewise supported by authority, id., and is designed to facilitate proof of events when judicial notice is not available. The historical character of the subject matter dispenses with any need that the reputation antedate the controversy with respect to which it is offered."

Exception (20) is in accord with North Carolina practice. See Brandis on North Carolina Evidence § 150 (1982).

Exception (21) concerns reputation as to character. The Advisory Committee's Note states:

"Exception (21) recognizes the traditional acceptance of reputation evidence as a means of proving human character. McCormick §§ 44, 158. The exception deals only with the hearsay aspect of this kind of evidence. Limitations upon admissibility based on other grounds will be found in Rules 404, relevancy of character evidence generally, and 608, character of witness. The exception is in effect a reiteration, in the context of hearsay, of Rule 405(a)."

Exception (21) is consistent with North Carolina practice.

Exception (22) is reserved for future codification. Fed. R. Evid. 803(22) concerns use of a judgment of previous conviction to prove a fact essential to sustain the judgment. Under current North Carolina practice, the judgment or finding of a court generally cannot be used in another case as evidence of the fact found, except where the principle of res judicata is involved. Brandis on North Carolina Evidence § 143 (1982). By not adopting a hearsay exception for judgments of previous conviction, it is intended that North Carolina practice with respect to previous convictions remain the same.

Exception (23) concerns a judgment as proof of matters of personal, family or general history, or boundaries. The Advisory Committee's Note states:

"A hearsay exception in this area was originally justified on the ground that verdicts were evidence of reputation. As trial by jury graduated from the category of neighborhood inquests, this theory lost its validity. It was never valid as to chancery decrees. Nevertheless the rule persisted, though the judges and writers shifted ground and began saying that the judgment or decree was as good evidence as reputation. * * * The shift appears to be correct, since the process of inquiry, sifting, and scrutiny which is relied upon to render reputation reliable is present in perhaps greater measure in the process of litigation. While this might suggest a broader area of application, the affinity to reputation is strong, and paragraph (23) goes no further, not even including character."

A judgment admitted under this exception is some evidence of the matter essential to the judgment, but is not a binding determination of the matter for purposes of the current proceeding.

Generally, a judgment cannot be used under current North Carolina practice to prove a fact essential to the judgment, except where the principle of res judicata is involved. Brandis on North Carolina Evidence § 143 (1982).

Exception (24) differs from Fed. R. Evid. 803(24) in that the last sentence of the federal rule does not require written notice. Also, Exception (24) requires the notice to be given sufficiently in advance of offering the statement while Fed. R. Evid. 803(24) requires the notice to be given sufficiently in advance of the trial or hearing.

This exception makes admissible a hearsay statement not specifically covered by any of the previous twenty-three exceptions if the statement has equivalent circumstantial guarantees of trustworthiness and the court makes the determinations required by the rule. This exception does not contemplate an unfettered exercise of judicial discretion, but it does provide for treating new and presently unanticipated situations which demonstrate a trustworthiness within the spirit of the specifically stated exceptions.

Writing for the majority in State v. Vestal, 278 N.C. 561, 589 (1971), Justice Lake stated that:

"No branch of the law should be less firmly bound to a past century than the rules of evidence. The purpose of the rules of evidence is to assist the jury to arrive at the truth. Exceptions to the hearsay rule, evolved by the experience and wisdom of our predecessors for that purpose, should not be transformed by us into rigid molds precluding all testimony not capable of being squeezed neatly into one of them."

North Carolina courts have admitted hearsay evidence in many instances on the ground that the evidence was part of the " res gestae ". The res gestae formula has been frequently resorted to in cases that would seem to be more appropriately governed by independent hearsay rules. See Brandis on North Carolina Evidence § 158 (1982). The phrase res gestae "has been accountable for so much confusion that it had best be denied any place whatever in legal terminology." U.S. v. Matot, 146 F.2d 197 (2d. Cir. 1944) (Learned Hand). Although evidence previously governed by the res gestae formula may now fall within the specific hearsay exceptions or the catch-all in Exception 24, the res gestae formula should not be relied on by the courts.

Effect of Amendments. - Session Laws 2015-247, s. 11(a), effective October 1, 2015, in the first sentence of subdivision (6), added the (i) and (ii) designators and made related stylistic changes, and inserted "or by affidavit or by document under seal under Rule 902 of the Rules of Evidence made by the custodian or witness"; and added the next-to-last sentence.

Legal Periodicals. - For note on the future of character impeachment in North Carolina, in light of State v. Jean, 310 N.C. 157, 311 S.E.2d 266 (1984), see 63 N.C.L. Rev. 535 (1985).

For note, "State v. Smith: Facilitating the Admissibility of Hearsay Statements in Child Sexual Abuse Cases," see 64 N.C.L. Rev. 1352 (1986).

For note, "State v. Stafford: Rape Trauma Syndrome and the Admissibility of Statements Made by Rape Victims," see 64 N.C.L. Rev. 1364 (1986).

For article, "Guilt by Intuition: The Insufficiency of Prior Inconsistent Statements To Convict," see 65 N.C.L. Rev. 1 (1986).

For article, "Not So 'Firmly Rooted': Exceptions to the Confrontation Clause," see 66 N.C.L. Rev. 1 (1987).

For note, "Admission of the Unthinkable: Hearsay Exceptions and Statements Made by Sexually Abused Children - State v. Smith," see 9 Campbell L. Rev. 437 (1987).

For article, "Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment," see 67 N.C.L. Rev. 257 (1989).

For note, "Criminal Procedure - Presumed Guilty: The Use of Videotaped and Closed-Circuit Televised Testimony in Child Sex Abuse Prosecutions and the Defendant's Right to Confrontation - Coy v. Iowa," see 11 Campbell L. Rev. 381 (1989).

For note, "Constitutional Admissibility of Hearsay Under the Confrontation Clause: Reliability Requirement for Hearsay Admitted Under a Non-'Firmly Rooted' Exception," see 14 Campbell L. Rev. 347 (1993).

For Survey of Developments in North Carolina Law (1992), see 71 N.C.L. Rev. 1893 (1993).

For article, "Confrontation and Hearsay: New Wine in An Old Bottle," 16 Campbell L. Rev. 1 (1994).

For article, "Issues Once Moot: The Other Evidentiary Objections to the Admission of Exculpatory Polygraph Examinations," see 32 Wake Forest L. Rev. 1045 (1997).

For note, "State v. Alston: North Carolina Continues to Broaden its Mind to Admissibility of a Victim's Out-of-Court Statements Under the Rule 803(3) Hearsay Exception in Criminal Cases," see 32 Wake Forest L. Rev. 1327 (1997).

For article, "Recent Developments: State v. Hinnant: Limiting the Medical Treatment Hearsay Exception in Child Sexual Abuse Cases," see 79 N.C.L. Rev. 1089 (2001).

For note, "Not-So-Secrets? The State of the Attorney-Client Privilege in North Carolina in the Wake of In re Investigation of Death of Eric Miller and Crawford v. Washington," see 83 N.C. L. Rev. 1591 (2005).

For recent development, "The Defense Calls ... the Accuser? State v. Brigman and How the North Carolina Court of Appeals Misconstrued Crawford's Application to Available Witnesses," see 84 N.C. L. Rev. 2082 (2006).

CASE NOTES

I. GENERAL CONSIDERATION.

Constitutional Restrictions on Use of Hearsay. - A prosecutor is prohibited by U.S. Const., Amend. VI and N.C. Const., Art. I, § 23 from introducing any hearsay evidence in a criminal trial unless two requirements are met. The prosecution must show both the necessity for using the hearsay testimony and the inherent trustworthiness of the original declaration. State v. Gregory, 78 N.C. App. 565, 338 S.E.2d 110 (1985), aff'd, 900 F.2d 705 (4th Cir.), cert. denied, 498 U.S. 879, 111 S. Ct. 211, 112 L. Ed. 2d 171 (1990).

This rule is virtually identical to the federal rule. Griffin v. Griffin, 81 N.C. App. 665, 344 S.E.2d 828 (1986).

North Carolina law has long prohibited the use of a previous finding of a court as evidence of the fact found in another tribunal. This practice remains the same under the new evidence code. Reliable Properties, Inc. v. McAllister, 77 N.C. App. 783, 336 S.E.2d 108 (1985), cert. denied, 316 N.C. 379, 342 S.E.2d 897 (1986), holding, however, that under the circumstances, the admission of testimony about the actions of licensing board did not constitute reversible error.

Evidence Must Be Relevant. - While this rule delineates instances in which evidence will not be excluded simply because such evidence is hearsay, it does not annul the requirement of G.S. 8C-1, Rule 402 that the evidence be relevant. York v. Northern Hosp. Dist., 88 N.C. App. 183, 362 S.E.2d 859 (1987).

Notice. - Trial court erred by granting defendant a new trial based on newly discovered evidence because the court could not conclude that the affidavit was probably true as the witness's trial testimony was internally inconsistent and contrary to the affidavit, and the witness's testimony was not unknown or unavailable to defendant at the time of trial, as counsel failed to utilize available procedures to secure the witness's statement or testimony and the witness was actually present at defendant's trial. Defendant also failed to file a proper notice of intent to offer the witness's hearsay testimony. State v. Reid, - N.C. App. - , - S.E.2d - (Oct. 20, 2020).

Corroborating Testimony. - Hospital nurse's testimony as to what a rape victim told her the day after the rape occurred was practically identical to victim's testimony, and was admissible for the nonhearsay purpose of corroborating victim's testimony. State v. Locklear, 320 N.C. 754, 360 S.E.2d 682 (1987).

Although the State did not specify the purpose for which it offered the testimony of the victim's mother about the victim's out-of-court statement, and defendant did not request a limiting instruction, the trial court, in its final instructions to the jury, informed the jury that evidence of any out-of-court statement was to be received for corroborative purposes only. State v. Ford, 136 N.C. App. 634, 525 S.E.2d 218 (2000).

Section 20-139.1(e1), pertaining to use of a chemical analyst's affidavit in general district court, has effectively created a statutory exception to the hearsay rule. Section 20-139.1(e1) reflects a rationale which complies fully with historically recognized legitimate reasons for exceptions to the general rule against hearsay evidence. State v. Smith, 312 N.C. 361, 323 S.E.2d 316 (1984).

Every writing sought to be admitted must be properly authenticated, and must satisfy the requirements of the "best evidence rule," G.S. 8C-1, Rule 1002, or one of its exceptions, set forth in G.S. 8C-1, Rule 1003, et seq. Furthermore, if offered for a hearsay purpose, the writing must fall within one or more of the exceptions to the hearsay rule established by this rule and G.S. 8C-1, Rule 804. FCX, Inc. v. Caudill, 85 N.C. App. 272, 354 S.E.2d 767 (1987).

The mere admission of incompetent hearsay evidence over proper objection does not require reversal. Rather, the party objecting must also show that the incompetent evidence caused some prejudice. Where the court sits as finder of fact, that party must show that the court relied on the incompetent evidence in making its findings. Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363 (1986), overruled on other grounds, Petersen v. Rowe, 337 N.C. 397, 445 S.E.2d 901 (1994).

Even assuming the State presented no evidence to support admission of hearsay statements under either the present sense impression or excited utterance exceptions, and the admission of the hearsay statements was an abuse of discretion, there was no prejudicial error under G.S. 15A-1442(4)(c) as other evidence established that defendant was armed while on a bus. A witness testified that the witness saw an imprint of a gun in defendant's pocket while on the bus. State v. Bass, 190 N.C. App. 339, 660 S.E.2d 123 (2008), appeal dismissed, cert. denied, 362 N.C. 683, 670 S.E.2d 566 (2008).

Defendant waived his right to appellate review of the admissibility of hearsay evidence under section (3) of this Rule, where he only argued erroneous admission under G.S. 8C-1, Rule 804(b)(5). State v. Parker, (N.C. App. Oct. 3, 2000).

Defendant waived the issue as to whether the doctor's testimony that the victim told the doctor that defendant kicked the victim was admissible under G.S. 8C-1, N.C. R. Evid. 803(4); similar evidence was previously admitted without objection. State v. Carter, 153 N.C. App. 756, 570 S.E.2d 772 (2002).

Evidence tending to show state of mind is admissible as long as the declarant's state of mind is a relevant issue and the possible prejudicial effect of the evidence does not outweigh its probative value. Griffin v. Griffin, 81 N.C. App. 665, 344 S.E.2d 828 (1986).

No Hearsay Involved in Use of Dolls in Child's Testimony. - Allowing a child to use anatomical dolls to illustrate her testimony was not tendered pursuant to subdivision (24) of this rule, which allows certain hearsay testimony, because no hearsay was involved in the child's testimony. The use of anatomical dolls is not inherently open to suggestiveness by the examiner, if the witness is "other than an expert." State v. Fletcher, 322 N.C. 415, 368 S.E.2d 633 (1988).

Applied in Morrison v. Stallworth, 73 N.C. App. 196, 326 S.E.2d 387 (1985); State v. Ruiz, 77 N.C. App. 425, 335 S.E.2d 32 (1985); In re Helms, 77 N.C. App. 617, 335 S.E.2d 917 (1985); Pearce v. American Defender Life Ins. Co., 316 N.C. 461, 343 S.E.2d 174 (1986); Whisenhunt v. Zammit, 86 N.C. App. 425, 358 S.E.2d 114 (1987); State v. Bright, 320 N.C. 491, 358 S.E.2d 498 (1987); State v. Ball, 324 N.C. 233, 377 S.E.2d 70 (1989); State v. Purdie, 93 N.C. App. 269, 377 S.E.2d 789 (1989); State v. Knox, 95 N.C. App. 699, 383 S.E.2d 698 (1989); State v. Payne, 327 N.C. 194, 394 S.E.2d 158 (1990); In re Krauss, 102 N.C. App. 112, 401 S.E.2d 123 (1991); State v. Garner, 330 N.C. 273, 410 S.E.2d 861 (1991); State v. Reeder, 105 N.C. App. 343, 413 S.E.2d 580 (1992); State v. Stutts, 105 N.C. App. 557, 414 S.E.2d 61 (1992); In re Gallinato, 106 N.C. App. 376, 416 S.E.2d 601 (1992); State v. Holder, 331 N.C. 462, 418 S.E.2d 197 (1992); State v. Mebane, 106 N.C. App. 516, 418 S.E.2d 245 (1992); State v. Clark, 107 N.C. App. 184, 419 S.E.2d 188 (1992); State v. Jolly, 332 N.C. 351, 420 S.E.2d 661 (1992); State v. Walker, 332 N.C. 520, 422 S.E.2d 716 (1992); State v. Gibson, 333 N.C. 29, 424 S.E.2d 95 (1992); State v. Palmer, 334 N.C. 104, 431 S.E.2d 172 (1993); State v. Shoemaker, 334 N.C. 252, 432 S.E.2d 314 (1993); State v. Richardson, 112 N.C. App. 58, 434 S.E.2d 657 (1993); State v. McHone, 334 N.C. 627, 435 S.E.2d 296 (1993); State v. Hunt, 339 N.C. 622, 457 S.E.2d 276 (1994); State v. Alston, 341 N.C. 198, 461 S.E.2d 687 (1995), cert. denied, 516 U.S. 1148, 116 S. Ct. 1021, 134 L. Ed. 2d 100 (1996); State v. McLemore, 343 N.C. 240, 470 S.E.2d 2 (1996); State v. York, 347 N.C. 79, 489 S.E.2d 380 (1997); State v. Corpening, 129 N.C. App. 60, 497 S.E.2d 303 (1998); State v. Hipps, 348 N.C. 377, 501 S.E.2d 625 (1998), cert. denied, 525 U.S. 1180, 119 S. Ct. 1119, 143 L. Ed. 2d 114 (1999); State v. Cozart, 131 N.C. App. 199, 505 S.E.2d 906 (1998); State v. Marecek, 130 N.C. App. 303, 502 S.E.2d 634 (1998); Reis v. Hoots, 131 N.C. App. 721, 509 S.E.2d 198 (1998); Sitton v. Cole, 135 N.C. App. 625, 521 S.E.2d 739 (1999); In re Clapp, 137 N.C. App. 14, 526 S.E.2d 689 (2000); State v. Galloway, 145 N.C. App. 555, 551 S.E.2d 525 (2001), appeal dismissed, 356 N.C. 307, 570 S.E.2d 885 (2002); In re Rhyne, 154 N.C. App. 477, 571 S.E.2d 879 (2002), cert. denied, 356 N.C. 672, 577 S.E.2d 637 (2003), cert. dismissed, 356 N.C. 672, 577 S.E.2d 637 (2003); State v. Prevatte, 356 N.C. 178, 570 S.E.2d 440 (2002); State v. Cummings, 361 N.C. 438, 648 S.E.2d 788 (2007), cert. denied, 552 U.S. 1319, 128 S. Ct. 1888, 170 L. Ed. 2d. 760 (2008); Kubit v. MAG Mut. Ins. Co., 210 N.C. App. 273, 708 S.E.2d 138 (2011); Taft v. Brinley's Grading Servs., 225 N.C. App. 502, 738 S.E.2d 741 (2013).

Cited in Murray v. Associated Insurers, Inc., 114 N.C. App. 506, 442 S.E.2d 370, cert. denied, 338 N.C. 519, 452 S.E.2d 813 (1994); State v. Lloyd, 321 N.C. 301, 364 S.E.2d 316, vacated and remanded for further consideration, 488 U.S. 807, 109 S. Ct. 38, 102 L. Ed. 2d 18, reinstated, 323 N.C. 622, 374 S.E.2d 277 (1988), vacated and remanded for further consideration, 494 U.S. 1021, 110 S. Ct. 1463, 108 L. Ed. 2d 601 (1990), death sentence vacated, 329 N.C. 662, 407 S.E.2d (1991); State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986); Fowler v. Graves, 83 N.C. App. 403, 350 S.E.2d 155 (1986); State v. Bowman, 84 N.C. App. 238, 352 S.E.2d 437 (1987); State v. Platt, 85 N.C. App. 220, 354 S.E.2d 332 (1987); Phillips & Jordan Inv. Corp. v. Ashblue Co., 86 N.C. App. 186, 357 S.E.2d 1 (1987); State v. Austin, 320 N.C. 276, 357 S.E.2d 641 (1987); State v. Moore, 87 N.C. App. 156, 360 S.E.2d 293 (1987); In re Wheeler, 87 N.C. App. 189, 360 S.E.2d 458 (1987); State v. Diaz, 88 N.C. App. 699, 365 S.E.2d 7 (1988); State v. Agudelo, 89 N.C. App. 640, 366 S.E.2d 921 (1988); State v. McNeill, 90 N.C. App. 257, 368 S.E.2d 206 (1988); In re Parker, 90 N.C. App. 423, 368 S.E.2d 879 (1988); State v. Hunt, 324 N.C. 343, 378 S.E.2d 754 (1989); Braswell v. Braswell, 98 N.C. App. 231, 390 S.E.2d 752 (1990); State v. Noble, 326 N.C. 581, 391 S.E.2d 168 (1990); Gregory v. North Carolina, 900 F.2d 705 (4th Cir. 1990); State v. Sherrill, 99 N.C. App. 540, 393 S.E.2d 352 (1990); State v. Whitted, 99 N.C. App. 502, 393 S.E.2d 590 (1990); State v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991); Ferguson v. Williams, 101 N.C. App. 265, 399 S.E.2d 389 (1991); Lombroia v. Peek, 107 N.C. App. 745, 421 S.E.2d 784 (1992); Smith v. North Carolina Dep't of Natural Resources & Community Dev., 112 N.C. App. 739, 436 S.E.2d 878 (1993); State v. Rogers, 109 N.C. App. 491, 428 S.E.2d 220 (1993); State v. Mixion, 110 N.C. App. 138, 429 S.E.2d 363 (1993); State v. Oxendine, 112 N.C. App. 731, 436 S.E.2d 906 (1993); State v. Oakes, 113 N.C. App. 332, 438 S.E.2d 477 (1994); State v. Roten, 115 N.C. App. 118, 443 S.E.2d 794 (1994); State v. Robertson, 115 N.C. App. 249, 444 S.E.2d 643 (1994); State v. Pope, 122 N.C. App. 89, 468 S.E.2d 552 (1996); State v. Hester, 343 N.C. 266, 470 S.E.2d 25 (1996); State v. Scott, 343 N.C. 313, 471 S.E.2d 605 (1996); State v. Sisk, 123 N.C. App. 361, 473 S.E.2d 348 (1996), aff'd in part and discretionary review improvidently allowed in part, 345 N.C. 749, 483 S.E.2d 440 (1997); State v. Elliott, 344 N.C. 242, 475 S.E.2d 202 (1996), cert. denied, 520 U.S. 1106, 117 S. Ct. 1111, 137 L. Ed. 2d 312 (1997); State v. Crawford, 344 N.C. 65, 472 S.E.2d 920 (1996); State v. Sharpe, 344 N.C. 190, 473 S.E.2d 3 (1996); State v. Woody, 124 N.C. App. 296, 477 S.E.2d 462 (1996); State v. Perkins, 345 N.C. 254, 481 S.E.2d 25 (1997), cert. denied, 522 U.S. 837, 118 S. Ct. 111, 139 L. Ed. 2d 64 (1997); State v. East, 345 N.C. 535, 481 S.E.2d 652 (1997), cert. denied, 522 U.S. 918, 118 S. Ct. 306, 139 L. Ed. 2d 236 (1997);
State v. Jackson, 126 N.C. App. 129, 484 S.E.2d 405 (1997), rev'd on other grounds, 348 N.C. 644, 503 S.E.2d 101 (1998); State v. Macon, 346 N.C. 109, 484 S.E.2d 538 (1997); State v. Jackson, 126 N.C. App. 129, 484 S.E.2d 405 (1997), rev'd on other grounds, 348 N.C. 644, 503 S.E.2d 101 (1998); State v. Woods, 126 N.C. App. 581, 486 S.E.2d 255 (1997); State v. Allen, 127 N.C. App. 182, 488 S.E.2d 294 (1997); State v. Gray, 347 N.C. 143, 491 S.E.2d 538 (1997), cert. denied, 523 U.S. 1031, 118 S. Ct. 1323, 140 L. Ed. 2d 486 (1998); State v. Gary, 348 N.C. 510, 501 S.E.2d 57 (1998); State v. Jackson, 348 N.C. 644, 503 S.E.2d 101 (1998); State v. Small, 131 N.C. App. 488, 508 S.E.2d 799 (1998); State v. Mitchell, 135 N.C. App. 617, 522 S.E.2d 94 (1999); Hylton v. Koontz, 138 N.C. App. 511, 530 S.E.2d 108 (2000); State v. Pugh, 138 N.C. App. 60, 530 S.E.2d 328 (2000); State v. Anthony, 354 N.C. 372, 555 S.E.2d 557 (2001); State v. Allen, 353 N.C. 504, 546 S.E.2d 372 (2001); State v. Haywood, 144 N.C. App. 223, 550 S.E.2d 38 (2001), cert. denied, 354 N.C. 72, 553 S.E.2d 206 (2001); State v. Brothers, 151 N.C. App. 71, 564 S.E.2d 603 (2002); Kroh v. Kroh, 152 N.C. App. 347, 567 S.E.2d 760 (2002), cert. denied, 356 N.C. 673, 577 S.E.2d 120 (2003); State v. Frierson, 153 N.C. App. 242, 569 S.E.2d 687 (2002); State v. Lynn, 157 N.C. App. 217, 578 S.E.2d 628 (2003); State v. Walters, 357 N.C. 68, 588 S.E.2d 344 (2003), cert. denied, 540 U.S. 971, 124 S. Ct. 442, 157 L. Ed. 2d 320 (2003); State v. Sutton, 169 N.C. App. 90, 609 S.E.2d 270 (2005); State v. Scanlon, 176 N.C. App. 410, 626 S.E.2d 770 (2006); In re M.G.T.-B., 177 N.C. App. 771, 629 S.E.2d 916 (2006); State v. Smith, 180 N.C. App. 86, 636 S.E.2d 267 (2006); State v. Theer, 181 N.C. App. 349, 639 S.E.2d 655 (2007), cert. denied, - U.S. - , 128 S. Ct. 2473, 171 L. Ed. 2d 769 (2008); Pers. Earth Movers, Inc. v. Thomas, 182 N.C. App. 329, 641 S.E.2d 751 (2007); State v. Johnson, 203 N.C. App. 718, 693 S.E.2d 145 (2010); Seagraves v. Seagraves, 206 N.C. App. 333, 698 S.E.2d 155 (2010); State v. Banks, 210 N.C. App. 30, 706 S.E.2d 807 (2011); State v. Sargeant, 365 N.C. 58, 707 S.E.2d 192 (2011); State v. Rollins, 226 N.C. App. 129, 738 S.E.2d 440 (2013); Smallwood v. Smallwood, 227 N.C. App. 319, 742 S.E.2d 814 (2013); In re Foreclosure of a Deed of Trust Executed by Lucks, 369 N.C. 222, 794 S.E.2d 501 (2016).

II. PRESENT SENSE IMPRESSION.

The underlying theory of the present sense exception to the hearsay rule is that closeness in time between the event and the declarant's statement reduces the likelihood of deliberate or conscious misrepresentation. State v. Reid, 322 N.C. 309, 367 S.E.2d 672 (1988).

The basis of the present sense impression exception is that closeness in time between the event and the declarant's statement reduces the likelihood of deliberate or conscious misrepresentation. State v. Pickens, 346 N.C. 628, 488 S.E.2d 162 (1997).

In order to constitute a present sense impression, a statement must have been made while the declarant was perceiving the event or condition, or immediately thereafter. State v. Maness, 321 N.C. 454, 364 S.E.2d 349 (1988).

Explanation of Event. - Detective's testimony concerning statement made by captain in identification bureau while destroying rape kit involved "explaining an event," i.e., the destruction of the evidence, and because the event and the statement occurred simultaneously and the statement was in explanation, such testimony was admissible under the present sense exception to the hearsay rule. State v. Reid, 322 N.C. 309, 367 S.E.2d 672 (1988).

Calls to 911 that reported that decedent's tractor trailer appeared to have struck tire debris in the road and had run off the roadway and that the caller's husband checked the driver and that he was breathing were admissible as present sense impression under the hearsay exception set forth in G.S. 8C-1-803(1). Wooten v. Newcon Transp., Inc., 178 N.C. App. 698, 632 S.E.2d 525 (2006), review denied, 361 N.C. 704, 655 S.E.2d 405 (2007).

There is no rigid rule about how long is too long to be considered "immediately thereafter" regarding the present sense impression exception. State v. Clark, 128 N.C. App. 722, 496 S.E.2d 604 (1998).

Murder victim's statements to a relative made the same day as the defendant returned stolen items to the murder victim and threatened the murder victim, but made after a police officer had stayed with the murder victim all afternoon did not qualify as being made immediately after the event and were therefore not admissible under the present sense impression hearsay exception. State v. Smith, 152 N.C. App. 29, 566 S.E.2d 793 (2002).

Nine days later cannot be considered "immediately thereafter" and thus a statement made at that time was not a present sense impression. State v. Maness, 321 N.C. 454, 364 S.E.2d 349 (1988).

Testimony Made Several Hours After Shooting Incident. - Witness's testimony to the State Bureau of Investigation special agent was not admissible under the present sense impression exception to the hearsay rule because the witness's statement to the agent was made several hours after the shooting incident. State v. Little, 191 N.C. App. 655, 664 S.E.2d 432 (2008), review denied, 362 N.C. 685, 671 S.E.2d 326 (2008).

Where eyewitness went to notify police immediately after abduction, the officer was on the scene in 10 minutes, and eyewitness then gave him a statement about the event, under the facts his statement was not too remote to be admissible under subdivision (1) of this rule. State v. Odom, 316 N.C. 306, 341 S.E.2d 332 (1986).

Police Report. - In a case involving negligence of defendant leading to theft of jewelry samples from car trunk, police investigative report was properly received for the limited purpose of showing that a report of the theft was made under G.S. 8C-1, Rule 801, and was also admissible as substantive evidence under this rule as a present sense impression and an excited utterance. Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc., 82 N.C. App. 21, 345 S.E.2d 453 (1986).

Statements by Shooting Victim. - Statements made by the victim immediately after the shooting to which three witnesses were allowed to testify, were excited utterances and not excluded by the hearsay rule. State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, 522 U.S. 900, 118 S. Ct. 248, 139 L. Ed. 2d 177 (1997).

Testimony Held Admissible. - Testimony of mother of murder victim regarding a conversation when victim came over to her mother's house crying and saying that defendant had kicked her out of his house was properly allowed into evidence as a present sense impression by the declarant under subdivision (1) of this rule. State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Where witness saw defendant with a gun in her daughter's yard and attempted to warn her, the daughter's statement to her mother that defendant was looking for the victim was admissible as a present-sense impression. State v. Taylor, 344 N.C. 31, 473 S.E.2d 596 (1996).

Witness's statement regarding defendant's actions, made after the witness drove a half a mile, was admissible as a present sense impression as the time afforded to the witness in that travel was not likely to have afforded the witness an opportunity to deliberately misrepresent defendant's condition. State v. Morgan, 359 N.C. 131, 604 S.E.2d 886 (2004).

Witness's testimony regarding a telephone conversation the witness had with the victim prior to the murder qualified as a present sense impression because the victim was speaking with the witness immediately before defendant and a woman, who was allegedly acting in concert with defendant, approached the victim's house, only about two hours after the woman had talked to the victim for the first time. State v. Williams, 185 N.C. App. 318, 648 S.E.2d 896, review denied, 361 N.C. 704, 653 S.E.2d 878 (2007), appeal dismissed, review denied, 362 N.C. 372, 664 S.E.2d 560 (2008).

Hearsay testimony by a witness concerning statements made by the victim was not excluded by the hearsay rule under N.C. R. Evid. 803(1) because the victim's statements were her present sense impression of a choking incident. Furthermore, there was no rigid rule about how long was too long to be immediately thereafter. State v. Petrick, 186 N.C. App. 597, 652 S.E.2d 688 (2007), appeal dismissed, review denied, 362 N.C. 242, 660 S.E.2d 540 (2008).

Testimony by a victim's parent that the victim told the parent that defendant had shot the victim was properly admitted under G.S. 8C-1-803(1) as a present sense impression because the victim was crying and kept repeating that defendant had shot the victim, and the evidence supported that the victim made the victim's statement 50 minutes after the shooting. State v. Capers, 208 N.C. App. 605, 704 S.E.2d 39 (2010), dismissed 365 N.C. 187, 707 S.E.2d 236, 2011 N.C. LEXIS 227 (2011).

Testimony Held Inadmissible - Trial court erred by admitting the child victim's hearsay statements about defendant's alleged abuse to her grandparents and another witness under the present sense impression exception because the record lacked evidence of exactly when the sexual misconduct occurred. State v. Blankenship, 259 N.C. App. 102, 814 S.E.2d 901 (2018), review denied, writ denied, stay lifted, 372 N.C. 295, 827 S.E.2d 98, 2019 N.C. LEXIS 452 (2019), review denied, 372 N.C. 295, 827 S.E.2d 98, 2019 N.C. LEXIS 454 (2019).

Held Inadmissible, But Harmless. - Although a victim's statement was not properly admissible under the present sense impression exception to the hearsay rule, pursuant to G.S. 8C-1, N.C. R. Evid. 803(1), where it was made approximately seven hours after she was shot by defendant's co-conspirators and after the victim had undergone general anesthesia and surgery, and there were no requisite findings made by the trial court to allow it to be admitted under G.S. 8C-1, N.C.R. Evid. 804(b)(5), the admission was deemed harmless error; it was noted that the same information contained in the victim's written statement had been properly introduced into evidence by other witnesses and through other means. State v. Wiggins, 159 N.C. App. 252, 584 S.E.2d 303 (2003), cert. denied, 541 U.S. 910, 124 S. Ct. 1617, 158 L. Ed. 2d 256 (2004).

III. EXCITED UTTERANCES.

.

Continuation of Former Practice. - Subdivision (2) of this rule, relating to excited utterances, is merely a continuation of the longstanding rule in this State that exclamations of a bystander concerning a startling or unusual event, made spontaneously and without time for reflection or fabrication, are admissible. State v. Simpson, 77 N.C. App. 586, 335 S.E.2d 526 (1985), cert. denied, 315 N.C. 595, 341 S.E.2d 36 (1986).

The "excited utterance" exception of subdivision (2) of this rule is a codification of the common-law exception, spontaneous utterance. State v. Wingard, 317 N.C. 590, 346 S.E.2d 638 (1986).

Statements made while the declarant was under stress caused by a startling event were admissible as an exception to the hearsay rule. State v. Littlejohn, 340 N.C. 750, 459 S.E.2d 629 (1995).

But Not Every Statement Made Under Stress Is Similarly Admissible. - Where defendant was under the stress of a startling event when he made his exculpatory statement, but 25 minutes had elapsed between the fight and the statement, giving him sufficient time to have fabricated a story, admission of the statement as an excited utterance was properly denied. State v. Safrit, 145 N.C. App. 541, 551 S.E.2d 516 (2001).

Statement Admissible as Excited Utterance. - Testimony of a witness as to a statement made by a declarant relating to a startling event and made while the declarant was under the stress of that event is not excludable under the hearsay rule. State v. Sneed, 327 N.C. 266, 393 S.E.2d 531 (1990).

Testimony of witness on voir dire that victim told him that defendant attempted to kill her and that victim wanted to move in with witness provided a plausible reason and factual basis for the victim's fear of defendant, which was relevant to show the nature of the victim's relationship with defendant and the impact of the defendant's behavior on the victim's state of mind prior to the murder. State v. Glenn, 333 N.C. 296, 425 S.E.2d 688 (1993).

Statements made only 20 minutes after the shootings and relating to the startling events at issue were properly admitted pursuant to G.S. 8C-1, N.C. R. Evid. 803(2). State v. Allen, 162 N.C. App. 587, 592 S.E.2d 31 (2004).

Statement made by defendant's girlfriend, "We gots to be more careful," was admissible as an excited utterance exception to the hearsay rule where it as made in reaction to the startling event of arriving home late in the evening, being seized in the front yard, and being led handcuffed into her own residence; an eyewitness testified that she the girlfriend made the statement she was upset and shaking, and immediately after making it, she burst into tears. State v. Boyd, 177 N.C. App. 165, 628 S.E.2d 796 (2006).

In an action in which defendants appealed from a judgment of the Wayne County Court that convicted defendants of first degree murder, the trial court did not err in its admission of a witness's hearsay testimony as to an individual's statement, "You should have shot the expletive in the head" because the testimony was properly admitted under the "excited utterance" exception to the hearsay rule. State v. Sloan, 180 N.C. App. 527, 638 S.E.2d 36 (2006), appeal dismissed, cert. denied, 361 N.C. 367, 644 S.E.2d 560 (2007), aff'd, 361 N.C. 584, 650 S.E.2d 594 (2007).

Statements a decedent made to a witness were admissible as an excited utterance under G.S. 8C-1, N.C. R. Evid. 803(2) because they were made sufficiently close to the event and were made while the decedent was upset and had not had time to reflect; the witness consistently described the decedent as being scared, upset, and excited, and in light of the decedent's statement that defendant pulled a gun on him, it was reasonable that the decedent was still upset when he spoke to the witness. State v. Applewhite, 190 N.C. App. 132, 660 S.E.2d 240 (2008).

Witness's testimony established that receiving the call surprised the victim, who became visibly upset during the call and immediately afterwards related to the witness that defendant had made the call and had threatened to kill the victim; the victim believed defendant wrongfully accused him of stealing cocaine and was disturbed enough to telephone a friend and ask for transportation. The victim's statements represented a spontaneous reaction to an event that was sufficiently startling to suspend his reflective thoughts; accordingly, the witness's testimony laid a sufficient foundation for admission of the victim's statements as excited utterances. State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009), cert. denied 130 S. Ct. 2104, 2010 U.S. LEXIS 3379, 176 L. Ed. 2d 734 (U.S. 2010).

While the testimony of a daycare worker regarding statements by defendant's daughter was hearsay, they were admissible as excited utterances, as they were made by the child six days after her mother was killed and were made while she played with dolls, without prompting or questioning from adults. State v. Young, 233 N.C. App. 207, 756 S.E.2d 768 (2014).

Trial court did not commit prejudicial error by admitting a witness's testimony that the victim identified defendant by defendant's nickname "Red" as the assailant under the excited utterance exception to the hearsay rule because the statement was made when the witness found the victim at the apparent crime scene, injured and bloody following the assault, hunched on the ground requesting help. State v. Lowery, - N.C. App. - , - S.E.2d - (July 6, 2021).

The rationale for the admissibility of an excited utterance is its trustworthiness. State v. Wingard, 317 N.C. 590, 346 S.E.2d 638 (1986).

The reason for allowing the excited utterances exception is that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces spontaneous and sincere utterances. State v. Reid, 335 N.C. 647, 440 S.E.2d 776 (1994).

In order to fall within the hearsay exception of subdivision (2) of this rule, there must be (1) a sufficiently startling experience suspending reflective thought, and (2) a spontaneous reaction, not one resulting from reflection or fabrication. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

For a statement to qualify as an excited utterance, there must be (1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication. State v. Maness, 321 N.C. 454, 364 S.E.2d 349 (1988).

For a statement to be admitted as an excited utterance there must be (1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection of fabrication. State v. Pickens, 346 N.C. 628, 488 S.E.2d 162 (1997).

Showing of Unavailability Not Necessary - Although a defendant's son, who had witnessed his father's assault on his mother, was not shown to be unavailable to testify at trial, a trial court did not err by admitting the son's hearsay evidence as an excited utterance under G.S. 8C-1, N.C. R. Evid. 803(2) without any showing that the son was unavailable and without making the findings required by G.S. 8C-1, N.C. R. Evid. 804(b)(5) for a determination of the applicability of the residual exception to the hearsay rule, G.S. 8C-1, N.C. R. Evid. 803(24). State v. Lowe, 154 N.C. App. 607, 572 S.E.2d 850 (2002).

Statements to Police. - Statement, heard by officer arriving at murder scene, that defendant shot the victim fit squarely within the excited utterance exception to the hearsay rule and was properly admitted. State v. Pickens, 346 N.C. 628, 488 S.E.2d 162 (1997).

The victim's oral statement to a police officer when he first arrived at her neighbor's house and found her in the back yard, regarding being pursued, beaten and terrorized by defendant, was admissible as an excited utterance. State v. Guice, 141 N.C. App. 177, 541 S.E.2d 474 (2000), cert. dismissed, 353 N.C. 731, 551 S.E.2d 112 (2001).

Statement Made in 911 Call. - Child's statements in the 911 call were clearly probative as to whether defendant had shot the victim; the child was in the next room when he heard the shot and the surrounding circumstances established that defendant had been inside when the shooting occurred. State v. Wright, 151 N.C. App. 493, 566 S.E.2d 151 (2002).

Admission of the 911 event report was proper under the business records exception to the hearsay rule. State v. Hewson, 182 N.C. App. 196, 642 S.E.2d 459 (2007), review denied, 361 N.C. 572, 651 S.E.2d 229 (2007).

Statement Made to Police over One Hour After Crime. - Where defendant made exculpatory statement to a police officer over an hour after the crime was discovered, the trial court could properly conclude that he had time to manufacture the statement and did not make it spontaneously. State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

A nine-day interval between the event and the statement precludes the statement from being a spontaneous reaction, not one resulting from reflection or fabrication, so as to be admissible as an excited utterance. State v. Maness, 321 N.C. 454, 364 S.E.2d 349 (1988).

Statements Made by Children. - When considering the spontaneity of statements made by young children, there is more flexibility concerning the length of time between the startling event and the statements because the stress and spontaneity upon which the exception is based are often present for longer periods of time in young children than in adults. State v. Boczkowski, 130 N.C. App. 702, 504 S.E.2d 796 (1998).

Statements Made to a Neighbor. - A statement made by defendant's daughter was admissible as an excited utterance even though made in response to questions from a neighbor, where the statement was made several hours after the nine-year-old girl's mother was found dead, and she told the neighbor that her parents had been fighting and she had heard her mother telling the father to "stop." State v. Boczkowski, 130 N.C. App. 702, 504 S.E.2d 796 (1998).

Child Victim's Statements to Grandmother. - Trial court did not err in ruling that three and a half year old victim's statements to her grandmother regarding rape by her father fit into an exception to the hearsay rule. State v. Gregory, 78 N.C. App. 565, 338 S.E.2d 110 (1985), aff'd, 900 F.2d 705 (4th Cir.), cert. denied, 498 U.S. 879, 111 S. Ct. 211, 112 L. Ed. 2d 171 (1990).

In prosecution for rape of four and five year old victims, grandmother's testimony regarding her conversations with the victims, including the identification of the defendant as the assailant, resulting in their being examined, diagnosed, and treated at hospital, was properly admitted as substantive evidence pursuant to subdivision (4) of this rule, and as an excited utterance under subdivision (2). State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

Statement to her grandmother by a two-and-a-half year old child that her mother was dead was an excited utterance and was admissible as an exception to the hearsay rule. State v. Reeves, 337 N.C. 700, 448 S.E.2d 802 (1994), cert. denied, 514 U.S. 1114, 115 S. Ct. 1971, 131 L. Ed. 2d 860 (1995).

Statement By Murder Victim. - The murder victim's statements to her brother-in-law that the defendant had held a gun to her head and threatened to kill her were admissible in the defendant's murder trial under the excited utterance exception, where the victim called the brother-in-law immediately after the incident, while she was upset and had not had time to reflect. State v. Murillo, 349 N.C. 573, 509 S.E.2d 752 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 103, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5310, 68 U.S.L.W. 3225 (1999).

Statement of Onlooker to Witness Pursuing Thief. - Trial court did not err in allowing witness, in relating her pursuit of thief, to testify that when she lost sight of the man she was pursuing, a nearby woman yelled at her, asked what she was doing, and said that the man had gone into the parking lot, as assuming that the statement was arguably hearsay, it was admissible as a present sense impression or an excited utterance. State v. Markham, 80 N.C. App. 322, 341 S.E.2d 777 (1986).

Statement made by a person standing near the spot where victim was shot, immediately after defendant shot the victim and bent over her with the gun still in his hand, was clearly a statement relating to the startling attack and shooting while the declarant was under the stress of excitement caused by the event; as such, it was an excited utterance within the meaning of subdivision (2) of this rule and was admissible into evidence, notwithstanding its hearsay character. State v. Wingard, 317 N.C. 590, 346 S.E.2d 638 (1986).

Statement by Witness to Shooting. - Testimony by witness that codefendant stated "I didn't believe you would shoot him" fits squarely within the excited utterance exception to the hearsay rule. State v. Braxton, 344 N.C. 702, 477 S.E.2d 172 (1996).

Statements by Defendant. - Where defendant saw his brother fall to the floor, bleeding, after being hit over the head with a chair by shooting victim, the defendants statements regarding victim were admissible as excited utterances. State v. Riley, 128 N.C. App. 265, 495 S.E.2d 181 (1998).

Statement to Aunt an Hour After Event. - The trial court properly excluded aunt's testimony on the grounds that it was inadmissible hearsay where defendant first talked to his aunt on the telephone after the shooting from his grandmother's house to tell her where he was and that he was on his way home and defendant did not mention the shooting on the phone but waited until after he had ridden home, an hour after the shooting, to tell her what had happened. State v. Sidberry, 337 N.C. 779, 448 S.E.2d 798 (1994).

Mother's Accusatory Statements. - In prosecution for manufacturing marijuana, the jury was entitled to consider the defendant's mother's excited utterances in the form of accusatory statements, made when she learned that defendant was being arrested, and his responses thereto. State v. Beaver, 317 N.C. 643, 346 S.E.2d 476 (1986).

Statements by Assault Victim. - Statements by defendant's daughter were properly admitted under the excited utterance exception where she described her father's attack on her to a neighbor, to whom she ran for help, and to a police officer and both testified that she was very upset, out of breath, and that her face was bruised and swollen. State v. Coria, 131 N.C. App. 449, 508 S.E.2d 1 (1998).

Statements by Rape Victim to Officer. - Statement made by victim, an 89-year-old woman who had been raped approximately 10 minutes before, to detective was properly submitted at defendant's trial for rape and burglary, where victim died prior to trial from unrelated causes. State v. Murphy, 321 N.C. 72, 361 S.E.2d 745 (1987).

Statements made by a mentally retarded rape victim, who was visibly shaken, that she had been raped less than 30 minutes earlier were properly determined to be excited utterances. State v. Washington, 131 N.C. App. 156, 506 S.E.2d 283 (1998), cert. denied, 352 N.C. 362, 544 S.E.2d 562 (2000).

Statement made by four-year-old victim to her mother, in the presence of her father, within 10 hours after leaving defendant's custody, without hesitation and without prompting by her parents, was a spontaneous reaction to a startling experience, and the trial court properly admitted father's testimony as to victim's statements under the hearsay exception for excited utterances. State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139 (1988).

Child Victim of Sexual Assault. - Because testimony indicated that statements by a child, allegedly the victim of a sexual assault, were (1) spontaneous and not in response to any questioning on the part of the adult to whom they were made, (2) related to the alleged sexual assault, a "startling event," particularly to a young child, and (3) were made only three days after such assault, the testimony was properly admitted pursuant to subdivision (2) of this rule. State v. Rogers, 109 N.C. App. 491, 428 S.E.2d 220, cert. denied, 334 N.C. 625, 435 S.E.2d 348 (1993), 511 U.S. 1008, 114 S. Ct. 1378, 128 L. Ed. 2d 54, rehearing denied, 511 U.S. 1102, 114 S. Ct. 1875 (1994).

In prosecution on two counts of first degree sexual offense (by anal and genital penetration) and one count of taking indecent liberties with a minor child, five year old victim's conversation with classmates on school playground was of such a nature as to have been properly admitted under the excited utterance exception to the hearsay rule; in the circumstances of this case, the passage of four or five days did not detract from the "spontaneity" of victim's response. State v. Thomas, 119 N.C. App. 708, 460 S.E.2d 349 (1995).

A child sexual abuse victim's statements to her mother and to a police officer were admissible under the excited utterance and existing mental, emotional, and physical condition exceptions to the hearsay rule. State v. Hinnant, 131 N.C. App. 591, 508 S.E.2d 537 (1998).

In a sexual abuse prosecution, testimony that a child immediately told a neighbor and her grandmother that defendant did something to her that made her feel uncomfortable was admissible as an excited utterance, under G.S. 8C-1, N.C. R. Evid. 803(2). State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643 (2002).

Victim's statements to his mother, 10 days after the last incident, were admissible under the excited utterance exception, as he was a minor and the statements were made right after returning home from a trip with defendant. State v. McLaughlin, 246 N.C. App. 306, 786 S.E.2d 269 (2016).

Statement Made During Therapy Session. - Victim's statements were not admissible as an excited utterances under G.S. 8C-1, N.C. R. Evid. 803(2), because there was no description of the victim indicating that the victim was excited, startled, or under the stress of excitement at the relevant time, while engaged in play-therapy sessions. State v. Carter, 216 N.C. App. 453, 718 S.E.2d 687 (2011).

Statement After Escape from Burning House. - The out-of-court statement of an excited victim, made as much as 15 minutes after escaping from a burning house, falls within the excited utterance exception to the hearsay rule. State v. Kerley, 87 N.C. App. 240, 360 S.E.2d 464 (1987), appeal dismissed and cert. denied, 364 S.E.2d 661 (1988).

Statement by Passenger of Car. - Where defendant's car nearly sideswiped driver's car, driver's statement "he has a gun" offered by passenger was a spontaneous reaction that occurred while declarant was under the stress of this startling experience without the opportunity to reflect on what he was seeing or to fabricate his statement before speaking, and was properly admitted as an excited utterance exception to the hearsay rule. State v. Gainey, 343 N.C. 79, 468 S.E.2d 227 (1996).

Statement by Driver of Car - Trial court properly sustained the State's objection to the admission of defendant's statement as an excited utterance pursuant to G.S. 8C-1, N.C. R. Evid. 803(2) where the record was clear that a sufficient amount of time had lapsed between the time defendant crashed a vehicle in a high speed chase and the time defendant made a statement to a police officer that a passenger forced defendant to drive to have provided defendant with an opportunity to fabricate a statement. State v. Riley, 154 N.C. App. 692, 572 S.E.2d 857 (2002).

Police Report. - In a case involving negligence of defendant leading to theft of jewelry samples from car trunk, police investigative report was properly received for the limited purpose of showing that a report of the theft was made under G.S. 8C-1, Rule 801, and was also admissible as substantive evidence under this rule as a present sense impression and an excited utterance. Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc., 82 N.C. App. 21, 345 S.E.2d 453 (1986).

Statements Held Not Excited Utterances. - In prosecution on two counts of first degree sexual offense (by anal and genital penetration) and one count of taking indecent liberties with a minor child the statements of out-of-court declarants, classmates of five year old victim, to their mothers - the second level of hearsay contained in the testimony of the mothers - did not fall within the "excited utterance" exception to the hearsay rule; admission of those statements into evidence as "excited utterances" was improper. State v. Thomas, 119 N.C. App. 708, 460 S.E.2d 349 (1995).

Statement by defendant that he had not shot anyone did not meet the excited utterance exception as girlfriend's questioning comment to defendant that she heard he had shot someone was not a sufficiently startling event, and defendant's response could not be considered spontaneous coming five hours after the event. State v. Jackson, 340 N.C. 301, 457 S.E.2d 862 (1995).

Witness's testimony to the State Bureau of Investigation special agent was not admissible under the excited utterance exception to the hearsay rule because the statements, made several hours after the shooting, were not the product of a spontaneous reaction. State v. Little, 191 N.C. App. 655, 664 S.E.2d 432 (2008), review denied, 362 N.C. 685, 671 S.E.2d 326 (2008).

Trial court erred by admitting the child victim's hearsay statements about defendant's alleged abuse to her grandparents and another witness as excited utterances because the State presented insufficient evidence to establish that the victim was under the stress of a startling event, as it presented no evidence of the victim's stress. State v. Blankenship, 259 N.C. App. 102, 814 S.E.2d 901 (2018), review denied, writ denied, stay lifted, 372 N.C. 295, 827 S.E.2d 98, 2019 N.C. LEXIS 452 (2019), review denied, 372 N.C. 295, 827 S.E.2d 98, 2019 N.C. LEXIS 454 (2019).

IV. MENTAL, EMOTIONAL OR PHYSICAL CONDITION.

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Where Evidence Showing Victim's State of Mind Is Admissible. - Evidence tending to show the state of mind of the victim is admissible as long as the declarant's state of mind is relevant to the case. State v. Meekins, 326 N.C. 689, 392 S.E.2d 346 (1990), cert. denied, 334 N.C. 625, 435 S.E.2d 348 (1993), 511 U.S. 1008, 114 S. Ct. 1378, 128 L. Ed. 2d 54 (1994).

Petitioner's habeas petition was properly denied because North Carolina's determination that G.S. 8C-1, N.C. R. Evid. 803(3) was a Sixth Amendment-compliant, firmly-rooted, state-of-mind hearsay exception, was not contrary to United States Supreme Court precedent. Hayes v. York, 311 F.3d 321 (4th Cir. 2002), cert. denied, 538 U.S. 979, 123 S. Ct. 1803, 155 L. Ed. 2d 669 (2003).

Rape victim's state of mind in hospital trauma room was relevant to the issue of whether sexual intercourse was committed by force and against her will. Her statements that she was afraid of the defendant were therefore admissible. State v. Locklear, 320 N.C. 754, 360 S.E.2d 682 (1987).

Statement of Intent to Engage in Future Act. - Subdivision (3) of this rule allows the admission of a hearsay statement of a then-existing intent to engage in a future act. State v. McElrath, 322 N.C. 1, 366 S.E.2d 442 (1988); State v. Taylor, 332 N.C. 372, 420 S.E.2d 414 (1992).

A cellmate's testimony that he had overheard his cellmate plan to frame defendant for a double murder was admissible to show the cellmate's present intent to commit a future act. State v. Rivera, 350 N.C. 285, 514 S.E.2d 720 (1999).

This rule allows the admission of a hearsay statement of a then-existing intent to engage in a future act; therefore, witness's testimony as to other individual's declaration that he wanted to go rob service station was admissible as evidence of that individual's then-existing intent to engage in a future act. State v. Sneed, 327 N.C. 266, 393 S.E.2d 531 (1990).

Subdivision (3) of this rule does not contain a requirement that the declarant's statement must be closely related in time to the future act intended. A review of the cases interpreting subdivision (3) of this rule does not reveal that any such requirement has been read into the statute. State v. Taylor, 332 N.C. 372, 420 S.E.2d 414 (1992);.

An inmate's statement to another inmate that he was going to approach defendant about straightening out victim's debt was admissible, under this rule, as evidence of his then-existing intent to engage in a future act. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001).

Victim's statement to the victim's sister regarding the victim's intention to meet defendant was admissible under G.S. 8C-1-803(3) because the statement tended to show the victim's plan or intent to engage in a future act. State v. Taylor, 178 N.C. App. 395, 632 S.E.2d 218 (2006).

In defendant's murder trial, defendant was not required to make an offer of proof regarding testimony that her victim had told her former employee that he was going to "shoot up his house" that was excluded when the trial court granted the state's motion to strike the testimony. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703 (2006).

Failure of the trial court to admit or exclude evidence tending to show a declarant's state of mind will not result in the granting of a new trial absent a showing by defendant that a reasonable possibility exists that a different result would have been reached if the error had not been committed. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988).

Testimony Offered to Prove Fact Remembered. - The proffered hearsay statement of a child pertained to a memory of the previous day's events and was offered solely for the purpose of proving such events, thus, it was properly excluded by subdivision (3) of this rule. In re Hayden, 96 N.C. App. 77, 384 S.E.2d 558 (1989).

Statement of Belief to Prove Fact Believed. - Defendant could not introduce into evidence a statement allegedly made by murder victim whereby victim stated to her mother that she was going to get killed if "the people" ever caught up with her, as the statement, if uttered, did not constitute a then existing state of mind, emotion, sensation or physical condition, but was plainly a statement of belief to prove the fact believed. State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990) in light of State v. Simmons, 51 N.C. 21 (1858).

Statements That Merely Recite Facts. - Testimony that victim said he knew the defendant had stabbed someone seventeen times was inadmissible under this section, because the witness did not testify as to an actual statement of emotion by the victim but rather as to her opinion that he acted frightened. State v. Lesane, 137 N.C. App. 234, 528 S.E.2d 37 (2000).

Statement Made Several Days After Incident Not Admissible. - Statements by the victim to his wife and daughter, made sever days after the robbery, did not reflect the victim's then-existing state of mind during the robbery and thus, were not admissible under G.S. 8C-1, N.C. R. Evid. 803(3). State v. Blackstock, 165 N.C. App. 50, 598 S.E.2d 412 (2004), appeal dismissed, cert. denied, 359 N.C. 283, 610 S.E.2d 208 (2005).

Statement of Intent to Disinherit. - Testimony by defendant's brother that victim told him he would not give defendant a trailer unless he straightened up, was admissible under the state of mind exception since victim's state of mind regarding his intention to disinherit defendant was relevant to the issue of defendant's motive. State v. Greene, 324 N.C. 1, 376 S.E.2d 430 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990) in light of, 291 N.C. 253, 230 S.E.2d 390 (1976).

Telephone Message. - The trial court did not commit reversible error in its admission into evidence of a telephone message written by victim's next-door neighbor, to victim's roommate, even though the court admitted the statement under the residual hearsay exception found in subdivision (24) of this rule when the court should have admitted it under subdivision (3) as a statement of intent to engage in a future act. State v. McElrath, 322 N.C. 1, 366 S.E.2d 442 (1988).

Statements in victim's diary were not statements of her state of mind but were merely a recitation of facts which described various events; thus, the diary entry was not admissible under the state-of-mind hearsay exception. State v. Hardy, 339 N.C. 207, 451 S.E.2d 600 (1994).

Statement murder victim made to witnesses was admissible as relevant state of mind testimony tending to explain and refute defendant's claims of self-defense and accident. State v. Crawford, 344 N.C. 65, 472 S.E.2d 920 (1996).

A murder victim's statements were admissible in the husband's murder trial under the state of mind exception, where the victim made statements to witnesses that the defendant had threatened to kill her, that he had threatened to make her the next Nicole Simpson, and that he urinated on the kitchen floor and used the victim's hair to wipe it up, because the statements shed light on the victim's state of mind, her emotions, and her physical condition. State v. Hayes, 130 N.C. App. 154, 502 S.E.2d 853 (1998), aff'd, 350 N.C. 79, 511 S.E.2d 302 (1999).

The murder victim's statements to witnesses about his marital and financial difficulties were admissible under the state of mind exception during his wife's murder prosecution, since the statements were not a mere recitation of facts but rebutted the wife's contention that she and the victim had a loving and compassionate relationship. State v. Brown, 350 N.C. 193, 513 S.E.2d 57 (1999).

Evidence as to the murder victim's hearsay statements about her fear of the defendant was admissible under the state of mind hearsay exception. State v. Childers, 131 N.C. App. 465, 508 S.E.2d 323 (1998).

Victim's prior statements were properly admitted to show her state of mind before she was murdered. State v. Kimble, 140 N.C. App. 153, 535 S.E.2d 882 (2000).

A murder victim's statements, made shortly before his death, in which he expressed fear that the defendant was going to kill him were admissible under the state of mind exception to the hearsay rule to show the status of the victim's relationship to the defendant prior to the killing, that defendant had a motive for the killing, and that the killing was a deliberate premeditated act rather than a spontaneous act done in self-defense; the probative value of such testimony outweighed any potential prejudice to defendant. State v. Castor, 150 N.C. App. 17, 562 S.E.2d 574 (2002), cert. denied, 357 N.C. 508, 587 S.E.2d 885 (2003).

The victim's tearful statements to others that her husband was having an affair, that she might not return alive from their vacation, and don't let him get away with this were admissible to show the victim's state of mind. State v. Marecek, 152 N.C. App. 479, 568 S.E.2d 237 (2002).

Murder victim's hearsay statements to her boyfriend that habeas petitioner inflicted physical injuries upon her were not admissible since when the statements were made, the victim was in a position with respect to her boyfriend in which some people might naturally have wished to minimize their relationship with another suitor (petitioner) or, at least, believe their own interests might be better served by creating an image of the other person and of the relationship different from reality. Walker v. Jackson, 226 F. Supp. 2d 759 (M.D.N.C. 2002).

Testimony fell under the state of mind hearsay exception in G.S.8C-1, N.C. R. Evid. 803(3), where the murder victim stated that she was afraid to go home because of defendant and she was scared because she thought that defendant was going to kill her. State v. Earwood, 155 N.C. App. 698, 574 S.E.2d 707 (2003).

Victim's statements to his friends that he had a confrontation with defendant and was afraid of defendant were properly admitted under G.S. 8C-1, N.C. R. Evid. 803(3), as they showed the victim's then-existing state of mind, and the statements were not mere recitations, devoid of emotion. State v. Valentine, 357 N.C. 512, 591 S.E.2d 846 (2003).

Admission of a hearsay statement from the murder victim at trial was not erroneous since the statement served to support the victim's assertion that it was "spooky" at home alone during the day and tended to show her state of mind at the time of the conversation with her mother. State v. Smith, 357 N.C. 604, 588 S.E.2d 453 (2003), cert. denied, - U.S. - , 124 S. Ct. 2915, 159 L. Ed. 2d 819 (2004).

In a case in which defendant appealed his conviction for first-degree murder, he argued unsuccessfully that the trial court erred in allowing the State to introduce hearsay testimony about his other bad acts. The statements were made by the victim to her mother the day before she was stabbed to death, and the statements clearly indicated difficulties in the relationship prior to the murder; accordingly, the statements were admissible not as a recitation of facts but to show the victim's state of mind. State v. Hernandez, 202 N.C. App. 359, 688 S.E.2d 522 (2010).

Victim's statement that she was scared of defendant was admissible under the state of mind exception to the hearsay rule. State v. Cook, 246 N.C. App. 266, 782 S.E.2d 569 (2016), review denied, 792 S.E.2d 778, 2016 N.C. LEXIS 682 (2016).

Victim's recorded statement bearing directly on his relationship with the defendant at about the time she was alleged to have killed him, which tended to show that he was afraid of the defendant, to disapprove the normal, loving relationship that the defendant contended existed between the two, and to refute any likelihood that he would have slept with the defendant with a loaded and cocked semi-automatic pistol under his pillow, and which corroborated at least one motive for the murder, i.e., the defendant's borrowing money, without the victim's knowledge, which she could not repay, was admissible under subdivision (3) of this rule as evidence tending to show the victim's state of mind, and did not violate defendant's constitutional right of confrontation. State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991).

Statement of State of Mind as to Relationship with Defendant. - Testimony regarding murder victim's statements that victim had refused to allow defendant to move in with him and victim knew defendant did not like that were admissible as evidence of victim's state of mind as to his relationship with the defendant. State v. Patterson, 146 N.C. App. 113, 552 S.E.2d 246 (2001), cert. denied, 354 N.C. 578, 559 S.E.2d 549 (2001).

Testimony about a victim's statements that she was tired of defendant taking her money to buy drugs and that she had asked him to leave, which were made one day before defendant beat and strangled the victim in her home, indicated difficulties in the relationship prior to the murder; thus, the statements were admissible not as a recitation of facts, but to show the victim's state of mind pursuant to G.S. 8C-1, N.C. R. Evid. 803(3). State v. Carroll, 356 N.C. 526, 573 S.E.2d 899 (2002), cert. denied, 539 U.S. 949, 123 S. Ct. 2624, 156 L. Ed. 2d 640 (2003).

Testimony As to Victim's Fear of the Defendant. - The admission of hearsay statements did not violate the defendant's Confrontation Clause rights as set forth in the Sixth and Fourteenth Amendments to the United States Constitution where the testimony was accompanied by descriptions of the victim's emotions or mental state. Statements unaccompanied by such description, such as statements regarding past factual events, were wrongly admitted but no prejudice resulted to the defendant. State v. Lathan, 138 N.C. App. 234, 530 S.E.2d 615 (2000).

Testimony by the victim's friend was admissible to show the victim's state of mind prior to a meeting with defendant and revealed her fear of defendant and of an imminent encounter with him; the probative value of the testimony outweighed any prejudicial effect. State v. Williams, 151 N.C. App. 535, 566 S.E.2d 155 (2002), cert. denied, 356 N.C. 313, 571 S.E.2d 214 (2002).

The trial court's admission of the victim's testimony from a domestic violence protective order hearing did not violate his right to confront the witness against him, nor did it violate G.S. 8C-1, Rules 403, 404(b), or 803(3), where the hearsay statements constituted, and were admissible as, statements of the declarant's then-existing mental, emotional, or physical condition and where their probative value outweighed their prejudicial effect. State v. Thibodeaux, 352 N.C. 570, 532 S.E.2d 797 (2000), cert denied, 531 U.S. 1155, 121 S. Ct. 1106, 148 L. Ed. 2d 976 (2001).

Testimony Held Admissible. - Testimony of witnesses that 10-year-old murder victim said she planned to go fishing with "a nice gray-haired man" indicated a clear intent to do a future act, and were admissible under subdivision (3) of this rule as evidence of victim's mental or emotional condition at the time she made the statements. State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990), cert. denied, 421 S.E.2d 360 (1992).

Conversation between murder victim and her mother wherein victim stated that she had taken out a child support warrant against defendant and had sought advice from an attorney regarding obtaining custody of her children was admissible as a statement of then existing mental or emotional conditions under subdivision (3) of this rule on the date she disappeared. State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Murder victim's statement that she planned to go to see a doctor about a place on her chest where "he" had hit her was a hearsay statement made admissible into evidence by subdivision (3) of this rule, as it went directly to victim's state of mind, emotional status and physical condition on the very date of her disappearance. State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Admission into evidence in murder trial of the scope of a conversation between victim and paralegal three weeks before the murder, to the effect that victim told paralegal about several occasions on which defendant had beaten her in the past and that defendant had threatened to kill her if she tried to take back her children from him, and that paralegal's impression was that victim appeared terrified during the interview was proper under subdivision (3) of this rule as the conversation related directly to victim's existing state of mind and emotional condition. State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Victim's statements to witnesses regarding threats made by defendant on her life and how these threats affected her were admissible under the state-of-mind exception to the hearsay rule. State v. Lynch, 327 N.C. 210, 393 S.E.2d 811 (1990).

Murder victim's statements to her son and sister regarding defendant's threat revealed her then-existing fear of defendant, further explaining why she did not want defendant visiting her home. The prohibition of visits to the home by the defendant was relevant to prove defendant's state of mind, that is, that he knew he was entering the victim's home without consent. State v. Faucette, 326 N.C. 676, 392 S.E.2d 71 (1990).

Testimony concerning murder victim's fear, both shortly after being with defendant and while in the defendant's presence, was relevant, more probative than prejudicial, and therefore admissible. State v. Wynne, 329 N.C. 507, 406 S.E.2d 812 (1991).

Statements made by an alleged victim of a sexual assault during the course of diagnosis by her therapist as a sexually abused child and during her treatment were properly admitted by the trial court under subdivision (4) of this rule. State v. Rogers, 109 N.C. App. 491, 428 S.E.2d 220, cert. denied, 334 N.C. 625, 435 S.E.2d 348 (1993), 511 U.S. 1008, 114 S. Ct. 1378, 128 L. Ed. 2d 54, rehearing denied, 511 U.S. 1102, 114 S. Ct. 1875 (1994).

Defendant's statement to his sister that he was going to meet two guys to buy stolen merchandise was admissible under subsection (3) as a statement of his then-existing intent to engage in a future act. State v. Bryant, 337 N.C. 298, 446 S.E.2d 71 (1994).

Statements made by the victim shortly before the victim's death that defendant was "very, very jealous," that "she was thinking about breaking up with him," and that "she was tired of his junk" were admissible, under the state of mind exception to the hearsay rule. State v. Jones, 337 N.C. 198, 446 S.E.2d 32 (1994).

Statement by a witness testifying as to the events leading up to shooting was properly admitted pursuant to subsection (3), as evidence of the alleged threats made by defendant to explain the victim's then-existing mental and emotional state. State v. Nixon, 117 N.C. App. 141, 450 S.E.2d 562 (1994).

Murder victim's statements that his marriage "wasn't getting along like it should" and that he was leaving were statements indicating his mental condition at the time they were made and were admissible to rebut defendant's earlier testimony characterizing her marital relationship with the victim as "fine" and "excellent." State v. Lambert, 341 N.C. 36, 460 S.E.2d 123 (1995).

Uncommunicated threats made by decedents against defendant were hearsay but were admissible as state of mind expressions of decedents. State v. Ransome, 342 N.C. 847, 467 S.E.2d 404 (1996).

Victim's statements to his sister that he was depressed, lonely, and upset about his finances were statements indicating his mental condition at the time they were made and were not merely a recitation of facts and were admissible under subsection (3) of this Rule. State v. Westbrooks, 345 N.C. 43, 478 S.E.2d 483 (1996).

Victim's statements to his father about his feelings towards his marriage to the defendant expressed the victim's state of mind. State v. Westbrooks, 345 N.C. 43, 478 S.E.2d 483 (1996).

The victim's state of mind regarding his intention not to give defendant the money defendant wanted was relevant to the issue of defendant's motive. State v. Miller, 344 N.C. 658, 477 S.E.2d 915 (1996).

Victim's statements that she was concerned that defendant was stealing money from the sale of her property and that she planned to get an injunction against defendant to collect the money fell within the state of mind exception to the hearsay rule. State v. Bishop, 346 N.C. 365, 488 S.E.2d 769 (1997).

The murder victim's statements that she intended to go away for the summer and separate from her husband reflected her state of mind and therefore were admissible in the husband's murder trial to show a motive for the killing. State v. Murillo, 349 N.C. 573, 509 S.E.2d 752 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 103, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5310, 68 U.S.L.W. 3225 (1999).

Witnesses' testimony regarding victim's/wife's prior statements was admissible to show her state of mind, despite the fact that the statements also contained descriptions of factual events. State v. Wilds, 130 N.C. App. 195, 515 S.E.2d 466 (1999).

Hearsay objections in capital murder case were properly overruled since statements reflected victim's state of mind and were therefore admissible under this rule. State v. Nobles, 350 N.C. 483, 515 S.E.2d 885 (1999).

Statements made by victim approximately six months prior to murder, to the effect that she and defendant were not getting along well, that she no longer wanted to be married, that if defendant had not left by May, 1997, she would "push the issue" for him to leave, that defendant told her that one day he would come home and find her dead with her throat cut, and that she believed defendant wanted her to sell her house so he could get some of her money, were admissible under this rule. State v. Aldridge, 139 N.C. App. 706, 534 S.E.2d 629 (2000), cert. denied, 353 N.C. 269, 546 S.E.2d 114 (2000).

Murder victim's statements about her frustration with the defendant and her intent to end their marriage were properly introduced into evidence since such statements indicated the victim's mental condition at the time the statements were made and were not merely a recitation of facts, and also related directly to circumstances giving rise to a potential confrontation with the defendant. State v. King, 353 N.C. 457, 546 S.E.2d 575 (2001), cert. denied, 534 U.S. 1147, 122 S. Ct. 1107, 151 L. Ed. 2d 1002 (2002).

Testimony by a victim and a deceased victim's cousin regarding their relationships with the deceased was properly admitted under subdivision (3) of this rule since the testimony sufficiently expressed the deceased's emotional state and made the appropriate statements of fact which supplied context to the emotions. State v. Meadows, 158 N.C. App. 390, 581 S.E.2d 472 (2003), cert. denied, 357 N.C. 467, 586 S.E.2d 774 (2003).

Testimony regarding the victim's state of mind was admissible because it related directly to the victim's fear of defendant. State v. Erickson, 181 N.C. App. 479, 640 S.E.2d 761 (2007), review improvidently granted, 2007 N.C. LEXIS 1102 (N.C. Nov. 9, 2007).

Evidence Improperly Excluded. - Trial court erred in excluding testimony regarding threats made by decedents against defendant where defendant relied upon the theory of self-defense. State v. Ransome, 342 N.C. 847, 467 S.E.2d 404 (1996).

Testimony of witness about telephone conversation with victim which tended to show victim's state of mind was properly admitted. State v. Burke, 343 N.C. 129, 469 S.E.2d 901 (1996).

Uncommunicated Threat. - Defendant's conviction and sentence on a charge of first-degree murder pursuant to G.S. 14-17 was upheld; the trial court properly excluded the victim's uncommunicated threats to defendant into evidence, because defendant failed to put on evidence of self-defense as was required to admit such evidence pursuant to G.S. 8C-1, N.C. R. Evid. 803(3), and defendant did not suffer any prejudice pursuant to G.S. 15A-1443(a) (2001) because defendant testified to substantially the same evidence that was contained in the uncommunicated threat. State v. Messick, 159 N.C. App. 232, 585 S.E.2d 392 (2003).

State of Mind Exception. - Sister's conversations with victim following attack by defendant were within the state of mind exception to the hearsay rule. State v. Exum, 128 N.C. App. 647, 497 S.E.2d 98 (1998).

When a terminated state law enforcement agent alleged discrimination on the basis of political affiliation, the testimony by a former deputy secretary of the North Carolina Department of Public Safety (DPS) that a state senator told the deputy secretary that the agent's reassignment shouldn't have occurred and that they were going to fix it and that the incoming Secretary of the DPS had agreed that the reassignment shouldn't have happened was admissible in an administrative hearing to show the declarants' existing mental states and motives. N.C. Dep't of Pub. Safety v. Ledford, 247 N.C. App. 266, 786 S.E.2d 50 (2016).

Evidence Admissible to Rebut Testimony And Indicate State of Mind. - The decedent/wife's statements that her husband was jealous and had repeatedly threatened to kill her were admissible although arguably no more than recitations of fact where the facts that she recited tended to show her state of mind as to her marriage, indicated her relationship with the defendant and, therefore, were relevant under Rule 403, and rebutted testimony by the defendant that they had a good marriage. State v. Jones, 137 N.C. App. 221, 527 S.E.2d 700 (2000).

V. STATEMENTS FOR DIAGNOSIS OR TREATMENT.

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Diagnosis for Purpose of Treatment. - The diagnosis for which the exception to the hearsay rule under subdivision (4) of this rule applies should be diagnosis for the purpose of treating a disease. State v. Stafford, 77 N.C. App. 19, 334 S.E.2d 799, writ allowed, 314 N.C. 673, 335 S.E.2d 500 (1985), aff'd, 317 N.C. 568, 346 S.E.2d 463 (1986).

Testimony is only admissible under the medical diagnosis or treatment exception when two inquiries are satisfied: first, the declarant intended to make the statements in order to obtain medical diagnosis or treatment; second, the declarant's statements were reasonably pertinent to medical diagnosis or treatment. Because the record indicated that no one explained to an alleged child sexual abuse victim the importance of truthful answers or the medical purpose for the interview, and because the interview took place in a non-medical environment, and the record did not demonstrate that the victim possessed the requisite intent, the testimony was not admissible. State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663 (2000).

The basis for allowing admission of statements for purposes of medical diagnosis or treatment as exceptions to the hearsay rule is that such statements are inherently trustworthy and reliable, for the reason that the patient has an interest in telling or relaying to medical personnel as accurately as possible the cause for the patient's condition. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

Statements made for the purpose of diagnosis or treatment are inherently trustworthy and reliable because the patient is motivated to tell the truth in order to receive proper diagnosis or treatment. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, cert. denied, 320 N.C. 174, 358 S.E.2d 64 (1987).

Statements made for the purpose of medical diagnosis and treatment, because of their inherent reliability, are admissible under an exception to the hearsay rule. Statements made to a physician in preparation for trial, however, are considered to be less reliable and are inadmissible hearsay. Williams v. Williams, 91 N.C. App. 469, 372 S.E.2d 310 (1988).

Subdivision (4) of this rule does not limit the permissible testifying recipient of the statement to a treating physician, so long as the purpose of the declarant's statement is to obtain medical treatment for himself. Donavant v. Hudspeth, 318 N.C. 1, 347 S.E.2d 797 (1986).

Subjective record plaintiff kept of her pain fell under the hearsay exception for statements for purposes of medical diagnosis or treatment under subsection (4) of this rule. Reed v. Abrahamson, 108 N.C. App. 301, 423 S.E.2d 491 (1992), cert. denied, 333 N.C. 463, 427 S.E.2d 624 (1993).

Statements Inadmissible under This Exception May Be Admissible for Some Other Reason. - While the testimony of the victim's mother - that the victim had explained that defendant touched her in her "private part," was "rubbing her hard," and that it hurt - was improperly admitted under this rule because the record revealed no evidence that the victim made these statements to her mother with the understanding that they would lead to medical treatment, such testimony was admissible to corroborate the victim's trial testimony or as an excited utterance. State v. McGraw, 137 N.C. App. 726, 529 S.E.2d 493 (2000).

Statements of the defendant's mother and wife were inadmissible under this rule because only the statements of the person being diagnosed or treated are excepted from the prohibition against hearsay. State v. Jones, 339 N.C. 114, 451 S.E.2d 826 (1994), cert. denied, 515 U.S. 1169, 115 S. Ct. 2634, 132 L. Ed. 2d 873, reh'g denied, 515 U.S. 1183, 116 S. Ct. 32, 132 L. Ed. 2d 913 (1995).

Rape victim's statements to medical personnel were properly admissible under subdivision (4), where they were made to medical personnel for the purpose of diagnosis and treatment. State v. Jackson, 320 N.C. 452, 358 S.E.2d 679 (1987).

In a second-degree rape case, where doctor testified he asked the victim if "anything" was put inside her and the victim responded, "Yes", the victim's statements to the doctor were made for the purpose of diagnosis and treatment and were reasonably pertinent to the doctor's diagnosis and treatment; therefore, the question and answer were permitted as an exception to the general hearsay rule. State v. Summers, 92 N.C. App. 453, 374 S.E.2d 631 (1988), cert. denied, 324 N.C. 341, 378 S.E.2d 806 (1989).

A child sexual abuse victim's statements to a nurse, social worker, and physician at a hospital were admissible as statements made for the purpose of medical diagnosis where the statements were made soon after the abuse and the child testified that she went to the hospital because defendant "hurt her privacy." State v. Stancil, 146 N.C. App. 234, 552 S.E.2d 212 (2001), cert. dismissed, 705 S.E.2d 343, 2010 N.C. LEXIS 946 (2010), review dismissed, 705 S.E.2d 393 (2011).

Trial court did not err by admitting the statements of two deceased victims to a police major, in violation of the Confrontation Clause, because their statements to the health care personnel who treated them at the time of the assaults were admissible under the exception to the hearsay rule for statements given for purposes of medical diagnosis or treatment; the statements to the police were properly admitted to corroborate their statements to the medical personnel who treated them shortly after each victim was sexually assaulted; and their statements to health care personnel, in combination with the DNA evidence, provided sufficient evidentiary support for all of the charges that were submitted to the jury. State v. Thompson, 250 N.C. App. 158, 792 S.E.2d 177 (2016), cert. denied, 795 S.E.2d 366, 2017 N.C. LEXIS 74 (2017); review denied, 2017 N.C. LEXIS 74 (2017).

Statements to Rape Task Force Volunteers. - The hearsay exception under subdivision (4) of this rule was not created to except from the operation of the hearsay rule statements made to persons acting in the capacity of Rape Task Force Volunteers at a time after the victims had already reached the hospital and had received medical treatment and diagnosis. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

Statement Six Weeks After Initial Hospitalization. - Statement made by victim to her doctor, identifying her assailant, made at least six weeks after her initial admission to the hospital for treatment, could not have been pertinent to the treatment of her injuries, and was not, therefore, admissible pursuant to subdivision (4) of this rule. State v. Hollingsworth, 78 N.C. App. 578, 337 S.E.2d 674 (1985).

Statements of Child Victim of Sexual Abuse to Health Care Professional. - Statements of child victim of sexual abuse were pertinent to diagnosis and treatment as they suggested to physician the nature of the problem, in which, in turn, dictated the type of examination she performed for diagnostic purposes, and additionally, the victim's identification of the defendant as perpetrator was pertinent to continued treatment of victim's possible psychological and emotional problems resulting from the rape. Thus, the victim's statements to the physician were properly admitted under subsection (4) of this rule. State v. Aguallo, 318 N.C. 590, 350 S.E.2d 76 (1986).

In case where defendant was convicted of a sexual offense with a three-year-old female, trial court properly admitted doctor's testimony as to the out-of-court statements of the child pursuant to subdivision (4) of this rule; although doctor never treated the child, the doctor used the statements of the child in making his diagnosis and in recommending follow-up visits with another doctor and, while doctor's examination of the child did prepare him for his testimony at trial, it was clearly not the sole purpose for the examination. In re Lucas, 94 N.C. App. 442, 380 S.E.2d 563 (1989).

Trial court, in a child abuse and neglect case, did not err in admitting the testimony of two doctors regarding out-of-court statements made by a minor female to them because the statements were made in the course of medical diagnosis and evaluation. In re Mashburn, 162 N.C. App. 386, 591 S.E.2d 584 (2004), appeal dismissed, - N.C. - , 603 S.E.2d 884 (2004).

Videotapes of the nurses' interviews of the children regarding defendant's sexual abuse of the children were admissible under the hearsay exception for statements made for the purpose of medical diagnosis and treatment under G.S. 8C-1-803(4); the statements were made in a medical atmosphere, a hospital, the statements were taken by nurses prior to a medical examination, the statements were taken for the children's first treatment after the abuse, and the statements, including identification of defendant, aided diagnosis of psychological problems and treatment for those problems. State v. Lewis, 172 N.C. App. 97, 616 S.E.2d 1 (2005).

Defendant's conviction of six counts of first-degree sexual offense of a child under the age of 13 years was affirmed because admission of videotape interviews of the children victims was permissible under G.S. 8C-1-803(4) because the challenged statements were made to pediatric nurses at the children's center prior to examination by the doctor; there was sufficient evidence to support the charges. State v. Burgess, 181 N.C. App. 27, 639 S.E.2d 68 (2007), cert. denied 717 S.E.2d 384, 2011 N.C. LEXIS 728 (N.C. 2011).

Statements of Child Victim of Sexual Abuse to Psychiatrist. - The defendant, convicted by a jury on one count of taking indecent liberties with a minor, was entitled to a new trial where the record on appeal failed to show that the child had a treatment motive when she told a psychiatrist about the defendant's conduct, especially considering that the interview took place in a "child-friendly" room that contained only child-sized furniture and lots of toys, an environment which, according to the Alabama Supreme Court, does not emphasize the need for honesty, and where none of the child's statements about the defendant was spontaneous; in fact, they lacked inherent reliability because of the nature of the psychiatrist's leading questions, the lack of physical evidence of abuse, and where the psychiatrist's testimony was treated as substantive, not corroborative. State v. Bates, 140 N.C. App. 743, 538 S.E.2d 597 (2000).

Statements Made by a Child Abuse Victim to Health Care Professional. - Hearsay testimony concerning statements made by a child to a licensed psychological associate during an evaluation interview by a medical center's child sexual abuse team did not violate the defendant's confrontation rights, where the child was found incompetent to testify, and the statements were found to be trustworthy in that they were made for the purpose of medical diagnosis or treatment, and there was no evidence that law enforcement officials were involved in the decision to evaluate the child. State v. Waddell, 130 N.C. App. 488, 504 S.E.2d 84 (1998), aff'd in part and modified in part, 351 N.C. 413, 527 S.E.2d 644 (2000).

Statements made by a child victim of a sex offender to a nurse and then a doctor who examined her after she was taken to a hospital were admissible under the medical diagnosis exception to the hearsay rule as the required assurances of trustworthiness were present and the statements made were reasonably pertinent to diagnosis. State v. Isenberg, 148 N.C. App. 29, 557 S.E.2d 568 (2001), cert. denied, 355 N.C. 288, 561 S.E.2d 268 (2002).

Where the declarant, a three-year-old child abuse victim, told nurses that defendant kicked the declarant, neither a psychological evaluation nor a voir dire examination was necessary for the determination of whether the declarant had the requisite intent to qualify the statements under the medical treatment exception of G.S. 8C-1, N.C. R. Civ. P. 803(4). State v. Carter, 153 N.C. App. 756, 570 S.E.2d 772 (2002).

Defendant's right to confront the victim under U.S. Const., amend. VI, was not violated when the trial court allowed into evidence the victim's interview at the Children's Advocacy Center in lieu of his live testimony, as the primary purpose of the interview was to promote the victim's well-being, the statements were made to a nurse, the statements were not intended for prosecution, and the interview was admitted under the medical diagnosis and treatment exception to the hearsay rule. State v. McLaughlin, 246 N.C. App. 306, 786 S.E.2d 269 (2016).

Trial court erred by excluding defendant's children's interview statements because the statement evinced the requisite intent, as it was evident from their conduct and responses that they understood the importance of honesty, and the statements clearly pertained to medical treatment or diagnosis, as based on the results of the physical examinations the pediatrician diagnosed both children as victims of child abuse based on exposure to domestic violence and recommended that they receive mental health services. State v. Corbett, - N.C. App. - , 839 S.E.2d 361 (2020), cert. dismissed, as moot, mot. denied, 845 S.E.2d 793, 2020 N.C. LEXIS 742 (N.C. 2020); aff'd, 855 S.E.2d 228, 2021 N.C. LEXIS 176 (N.C. 2021).

Examining doctor's testimony as to what three and a half year old victim told him, including identification of defendant as the perpetrator of sexual offenses, fell within the statutory exception to the hearsay rule created for statements made for purposes of medical diagnosis or treatment. The doctor not only needed to know who the perpetrator was in order to plan for the psychological treatment of the victim, but also to comply with the North Carolina child abuse reporting and treatment statutes. State v. Gregory, 78 N.C. App. 565, 338 S.E.2d 110 (1985), aff'd, 900 F.2d 705 (4th Cir.), cert. denied, 498 U.S. 879, 111 S. Ct. 211, 112 L. Ed. 2d 171 (1990).

Statements of Child Victims to Grandmother. - In prosecution for rape of four- and five-year-old victims, grandmother's testimony regarding her conversations with the victims, including the identification of the defendant as the assailant, resulting in their being examined, diagnosed, and treated at the hospital, was properly admitted as substantive evidence pursuant to the hearsay exception of subdivision (4) of this rule, and as an excited utterance under subdivision (2). State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

Statements of Child Victim to Mother. - In child abuse case where mother testified that she took child to see doctor because child complained that her "bottom" hurt and because child had used a sexually explicit four letter word, the doctor actually examined child on visit; therefore, mother's testimony of what she recounted to the doctor was admissible under subdivision (4) of this rule. State v. Britt, 93 N.C. App. 126, 377 S.E.2d 79 (1989), overruled on other grounds, State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990), appeal dismissed, 324 N.C. 544, 380 S.E.2d 772 (1989).

Mother's testimony regarding her conversations with her child was properly admitted as substantive evidence pursuant to subdivision (4) of this rule, where the statements of the child to the mother regarding what defendant allegedly did to her resulted in the child receiving, within 14 days, medical attention at a local hospital, and a subsequent evaluation by doctor, and the child's statements were pertinent to diagnosis and treatment as they suggested to the doctors the nature of the problem which in turn directed the doctors in their examination of the child. In re Lucas, 94 N.C. App. 442, 380 S.E.2d 563 (1989).

A child sexual abuse victim's statements to her mother and to a police officer were admissible under the excited utterance and existing mental, emotional, and physical condition exceptions to the hearsay rule. State v. Hinnant, 131 N.C. App. 591, 508 S.E.2d 537 (1998).

Statements of Child Victim's Parent to Health Care Provider. - Assuming that a third-party's statements to medical personnel were admissible under G.S. 8C-1, N.C. R. Evid. 803(4), the trial court nonetheless properly excluded the statements of the minor victim's mother to a physician's assistant who conducted a physical examination of the victim because the mother's statements failed both prongs of the test for the admissibility of statements for the purpose of medical diagnosis or treatment. State v. Norman, 196 N.C. App. 779, 675 S.E.2d 395 (2009), review denied, 363 N.C. 587, 683 S.E.2d 382 (2009).

In an adjudication, disposition, and permanency planning order concluding that the son was an abused juvenile, the mother's out-of-court statements detailing the father's alleged abuse of the son to physicians were admissible pursuant to the medical diagnosis or treatment exception to the hearsay rule because, at the time the statements were made, the extent of the son's injuries were not known, and medical professionals were attempting to diagnose them; a medical history and inquiry would have been part of any physician's attempt to diagnose the extent and cause of the son's injuries; and the patient was not required to be the declarant as the son was only two months old at the time his injuries were discovered. In re J.M. & J., 255 N.C. App. 483, 804 S.E.2d 830 (2017), appeal dismissed, 808 S.E.2d 442, 2018 N.C. LEXIS 9 (N.C. 2018).

Four-year-old victim's statements to social worker and coordinator and child evaluator for the Duke Child Protection Team were made for the purpose of medical diagnosis, and were properly admitted under this exception. State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139 (1988).

The testimony of a social worker and coordinator and child evaluator for Child Protection Team was properly admitted as substantive evidence under Rule 803(4). State v. Figured, 116 N.C. App. 1, 446 S.E.2d 838 (1994), cert. denied, 339 N.C. 617, 454 S.E.2d 261 (1995).

Statements Made to Expert in Pediatric Social Work. - On the facts, statements made by four year old victim to expert in pediatric social work were for the purpose of medical diagnosis or treatment, so as to permit admission of testimony that victim told her that juvenile respondent anally penetrated her as a statement for the purpose of medical diagnosis or treatment within the meaning of this rule. In re J.A., 103 N.C. App. 720, 407 S.E.2d 873 (1991).

Statements Made in Preparing "Rape Trauma Syndrome" Theory. - Testimony of pediatrician regarding statements of the prosecuting witness concerning symptoms she had experienced months earlier, which symptoms he indicated fulfilled some of the criteria for "rape trauma syndrome," was not admissible in defendant's rape trial, where witness' statements were made not for purposes of diagnosis or treatment, but for the purpose of preparing and presenting the State's "rape trauma syndrome" theory at trial. State v. Stafford, 317 N.C. 568, 346 S.E.2d 463 (1986).

Post-Traumatic Stress Disorder. - For case allowing admission of testimony by psychologist on post-traumatic stress disorder suffered by victim, and distinguishing State v. Stafford, 317 N.C. 568, 346 S.E.2d 463 (1986), see State v. Strickland, 96 N.C. App. 642, 387 S.E.2d 62 (1990).

A statement made by one physician to another regarding the nontestifying physician's observations of the patient and statements by yet a third physician regarding his concerns about the patient's condition did not come within the hearsay exception of statements made by a patient to a treating physician. Donavant v. Hudspeth, 318 N.C. 1, 347 S.E.2d 797 (1986) (decided under law in effect prior to this chapter).

Information Relied on by Physician. - A physician, as an expert witness, may render his opinion, including a diagnosis, based either on personal knowledge or observation or on information supplied to him by others, including the patient, if the information is inherently reliable, even though such information is independently admissible into evidence; and if the expert's opinion is admissible, the expert may testify to the information he relied upon in forming it, for the purpose of showing the basis of the opinion. State v. Spangler, 314 N.C. 374, 333 S.E.2d 722 (1985).

Statements made by a victim of child sexual abuse to a psychologist during the course of diagnosis and treatment are admissible. State v. Bullock, 320 N.C. 780, 360 S.E.2d 689 (1987).

Statements made by children to a psychologist counselling them were admissible in custody proceeding as statements made to a psychologist for purposes of medical diagnosis or treatment. Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363 (1986), overruled on other grounds, Petersen v. Rowe, 337 N.C. 397, 445 S.E.2d 901 (1994).

Statements of Mentally Retarded Victim to Psychologist. - In a prosecution for rape and sexual offense committed against a mentally retarded female, drawings and statements made by the prosecuting witness during interview with psychologist were held admissible. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, cert. denied, 320 N.C. 174, 358 S.E.2d 64 (1987).

Use of Anatomical Dolls to Illustrate Testimony. - The courts of this State have allowed the use of anatomical dolls in sexual abuse cases to illustrate the testimony of child witnesses since the practice is wholly consistent with existing rules governing the use of photographs and other items to illustrate testimony and it conveys the information sought to be elicited, while it permits the child to use a familiar item, thereby making him more comfortable. State v. Chandler, 324 N.C. 172, 376 S.E.2d 728 (1989).

Even though dolls were used to illustrate the testimony of a social worker rather than the abused children, the evidence was still admissible; the demonstration illustrated the social worker's testimony as to the manner in which the children communicated accounts of sexual abuse, and the social worker's demonstration of what she observed each child do with the dolls also corroborated the testimony of each child. State v. Chandler, 324 N.C. 172, 376 S.E.2d 728 (1989).

Statements Regarding Sexually Transmitted Diseases - In a sexual abuse prosecution, testimony from a public health department that defendant and the victim were both diagnosed with and treated for gonorrhea at approximately the same time, according to the department's records, was admissible as statements for purposes of medical diagnosis or treatment, under G.S. 8C-1, N.C. R. Evid. 803(4). State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643 (2002).

Statements Held Admissible. - Hearsay statements made to social workers and resulting in medical treatment and diagnosis were properly allowed by trial court. State v. Crumbley, 135 N.C. App. 59, 519 S.E.2d 94 (1999).

Trial court erred in ruling that the statements by the victim's children regarding the victim's relationship with his wife and their own relationship with their father and stepmother were inadmissible under the exception for medical diagnosis and treatment, because the children properly identified the event which triggered the forensic interview and were award of the need to be truthful. State v. Corbett, - N.C. - , - S.E.2d - (Mar. 12, 2021).

Statements Not Admissible. - Defendant's statements to a psychiatrist who saw defendant less than two months before trial and nine months after the killing, and whose interview with defendant was arranged by defense counsel, were not admissible. State v. Harris, 338 N.C. 211, 449 S.E.2d 462 (1994).

The admission of hearsay statements concerning the rape of defendant's stepdaughter as substantive evidence under this section was error entitling him to a new trial where: the record was devoid of evidence that the victim understood she was making the statements for medical purposes, or that the medical purpose of the examination and importance of truthful answers were adequately explained to her; where the two doctors saw her almost three months after her initial examination; and the nurse's hearsay testimony was the only direct evidence of actual penetration. State v. Watts, 141 N.C. App. 104, 539 S.E.2d 37 (2000).

Defendant's statement following a vehicular accident to medical personnel at a hospital that he had been drinking and had been driving the vehicle that crashed was not admissible into evidence as being related to medical diagnosis or treatment under subdivision (4) of this rule. State v. Smith, 157 N.C. App. 493, 581 S.E.2d 448 (2003).

Trial court properly determined that defendant's statement to a doctor was not admissible under G.S. 8C-1, N.C. R. Evid. 803(4) because defendant saw the doctor for the purpose of preparing a defense, and the statement defendant sought to admit was not shown to be pertinent to a medical diagnosis or treatment; thus, the trial court did not err in denying defendant's motion to admit the doctor's testimony. State v. Lowery, 219 N.C. App. 151, 723 S.E.2d 358 (2012), cert. denied, 2013 U.S. LEXIS 869, 184 L. Ed. 2d 742 (U.S. 2013).

Exclusion Held Harmless. - Trial court's decision to prevent defendant's expert from relating statements made by defendant to him and used by him to form the basis of his expert opinion of defendant's mental state at the time of the homicide, if an abuse of discretion, was harmless error, since the same information was related in answers given by the expert to other questions. State v. Holston, 134 N.C. App. 599, 518 S.E.2d 216 (1999).

Statements to Social Worker Admissible - Rape victim's statements to a social worker were admissible, since the victim made the statements to the social worker with the understanding that they would lead to medical diagnosis or treatment and the statements were reasonably pertinent to diagnosis or treatment. State v. Thornton, 158 N.C. App. 645, 582 S.E.2d 308 (2003).

VI. RECORDED RECOLLECTION.

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Subdivision (5) is a codification of the recorded past recollection rule that existed when the Rules of Evidence were adopted. State v. Nickerson, 320 N.C. 603, 359 S.E.2d 760 (1987).

Used to Refresh Recollection or Impeachment. - Where prior statements were used either to refresh the witnesses' recollections, or to impeach portions of his courtroom testimony which were inconsistent with them, use of the statements was proper. State v. Demery, 113 N.C. App. 58, 437 S.E.2d 704 (1993).

Trial court did not err when it allowed a witness to refresh his memory from the written transcript of his interview with the police because the witness testified to some of the events of the night in question before he was shown the transcript of his police interview, and when he was shown the transcript he was equivocal about whether or not he remembered making the statements found therein; the trial court then allowed the witness to listen to the entire audio recording of his statements outside the presence of the jury, and after hearing the tape, the witness admitted that it refreshed his memory as to certain aspects of the case and then testified in detail to the events of the night in question, without further reference to the interview transcript. State v. Black, 197 N.C. App. 731, 678 S.E.2d 689 (2009), appeal dismissed, 363 N.C. 657, 685 S.E.2d 108 (2009), cert. dismissed 365 N.C. 208, 710 S.E.2d 38, 2011 N.C. LEXIS 486 (N.C. 2011), cert. denied, 805 S.E.2d 694, 2017 N.C. LEXIS 876 (N.C. 2017).

Witness was properly allowed to a use prior statement, concerning a conversation with defendant, to refresh her recollection. Even assuming the trial court committed plain error in allowing the statement to be read into evidence, defendant could not show plain error where the witness testified independently about the statement's contents. State v. Harrison, 218 N.C. App. 546, 721 S.E.2d 371 (2012).

Trial court did not commit error in allowing the State's video interview evidence to be played for the jury as a "past recorded recollection" exception to hearsay after a witness could not recall statements made to a detective at the time of the offense. State v. Harris, 253 N.C. App. 322, 800 S.E.2d 676 (2017), review denied, 803 S.E.2d 388, 2017 N.C. LEXIS 607 (N.C. 2017).

Improperly Admitted Statement Resulted in New Trial. - Defendant was entitled to yet another new trial where a witness' purported summary, allegedly written by an investigating officer who was not called as a witness by the State, was improperly and prejudicially admitted into evidence although it was not admissible as a recorded recollection under subdivision (5) of this rule, did not refresh the witness' recollection, was not properly used to impeach her under Rule 607, and the witness, in fact, objected to parts of the statement. State v. Spinks, 136 N.C. App. 153, 523 S.E.2d 129 (1999).

Record Not Prepared According to Requirements in Subdivision (5) May Still Be Used to Refresh Memory. - In an action to remove the executor of an estate, where the court clerk independently recalled that she had awarded attorneys' fees for services performed by the executor, the clerk was allowed to refresh her memory as to specific services with a list she had prepared after reviewing the estate file and the answer filed by the executor, and there was no abuse of discretion by the judge's refusal to strike the clerk's testimony. Matthews v. Watkins, 91 N.C. App. 640, 373 S.E.2d 133 (1988), aff'd, 324 N.C. 541, 379 S.E.2d 857 (1989).

Where victim testified that when she wrote letter implicating defendant, it did not correctly reflect her knowledge of the events, and she did not know facts that she had forgotten by the time of the trial, the trial court should not have admitted the letter into evidence as a recorded recollection. State v. Hollingsworth, 78 N.C. App. 578, 337 S.E.2d 674 (1985).

Statement Made to Police over Two Hours And Forty Minutes After Crime. - A written statement, given by the victim to a police officer at the hospital two hours and forty-five minutes after the argument with the defendant, was a prior consistent statement that the trial court properly admitted for the limited purpose of corroborating her in-court testimony and was properly read aloud in court (with appropriate portions redacted as requested by defense counsel) although it was not identical to her in-court testimony. State v. Guice, 141 N.C. App. 177, 541 S.E.2d 474 (2000), cert. dismissed, 353 N.C. 731, 551 S.E.2d 112 (2001).

Synopsis of Defendant's Statement to Police Was Not Recorded Recollection. - The trial court properly refused to admit a synopsis of defendant's statement given to police officer, as the synopsis did not did not fall within the recorded recollection hearsay exception under G.S. 8C-1, N.C. R. Evid. 803(5), because there was no showing that defendant had an insufficient recollection of events, and the trial court properly denied defendant's motion to dismiss pursuant to G.S. 15A-954, because the State adequately proved the elements of the crime of voluntary manslaughter. State v. Alston, 161 N.C. App. 367, 588 S.E.2d 530 (2003), aff'd, 359 N.C. 61, 602 S.E.2d 674 (2004).

Statement of Defendant's Spouse to Police Properly Introduced As a Recorded Recollection Even Though Not Signed. - In defendant's trial on a charge of communicating threats, in violation of G.S. 14-277.1, the trial court properly admitted a statement that defendant's wife made to police shortly after defendant allegedly threatened to punch her, as a recorded recollection, even though the statement was not signed. State v. Love, 156 N.C. App. 309, 576 S.E.2d 709 (2003).

Cellmate's Statements. - Trial judge properly allowed written statements by cellmate to be read to jurors, where witness gave the statements within a reasonable time of having heard them and testified that they were accurate when given, even though he was unable at trial to recall what he knew and said. State v. Leggett, 135 N.C. App. 168, 519 S.E.2d 328 (1999).

Tape Recording of Telephone Conversation. - Railroad was not entitled to military contractor immunity in a personal injury action filed by a brakeman who suffered a neck injury while sitting in a chair that did not meet the specification in the military contract, because recorded telephone conversations between a railroad official and an agency official, while admissible pursuant to G.S. 8C-1, N.C. R. Evid. 803, did not establish that the government assented to the use of the substandard chairs, and because the trial court erroneously prohibited the brakeman's expert from testifying about a conversation with a government official concerning the chairs, since the denial of approval by the official could have been allowed as an admission of a party opponent, G.S. 8C-1, N.C. R. Evid. 801(d). Stilwell v. Gen. Ry. Servs., 167 N.C. App. 291, 605 S.E.2d 500 (2004), cert. denied, 359 N.C. 326, 611 S.E.2d 852 (2005).

Statements Properly Admitted. - In a case in which a jury found defendant guilty of two counts of first-degree murder, the trial court did not violate the rule against hearsay by admitting two witnesses' prior written statements as substantive evidence. The State properly established that the written statements correctly reflected the witnesses' prior knowledge of the matters recorded therein. State v. Brown, 258 N.C. App. 58, 811 S.E.2d 224 (2018), review denied, 813 S.E.2d 853, 2018 N.C. LEXIS 449 (2018).

VII. RECORDS OF REGULARLY CONDUCTED ACTIVITY.

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Constitutionality. - The recorded recollection exception codified under this rule is firmly rooted and not a violation of defendant's constitutional right of confrontation. State v. Leggett, 135 N.C. App. 168, 519 S.E.2d 328 (1999).

"Other qualified witness" has been construed to mean a witness who is familiar with the business entries and the system under which they are made. State v. Miller, 80 N.C. App. 425, 342 S.E.2d 553 (1986).

Witness Qualified Despite Lack of Personal Knowledge About Method Used in Obtaining Data. - Defendant-employer's corporate safety specialist's knowledge of and relationship to air sample tests performed for the defendant-employer by a private laboratory were sufficient to qualify him as a "qualified other witness" who could introduce that data under subdivision (6) of this rule; even though the specialist was not personally knowledgeable about the scientific method used in obtaining the data, he was familiar with the system used by his company in obtaining tests and filing the results with his office. Barber v. Babcock & Wilcox Constr. Co., 98 N.C. App. 203, 390 S.E.2d 341 (1990), rev'd on other grounds on rehearing, 101 N.C. App. 564, 400 S.E.2d 735.

Document Prepared Under the Voting Rights Act. - Trial court erred in not treating a document prepared by an agency official to obtain federal preclearance under the Voting Rights Act as a public record under G.S. 8C-1-803(8) where it was prepared pursuant to a statutory duty. Blankenship v. Bartlett, 184 N.C. App. 327, 646 S.E.2d 584 (2007), review granted, appeal dismissed, 668 S.E.2d 24 (N.C. 2008).

Results of Psychological Testing. - Even with the availability of the business exception to the hearsay rule, the results of a Minnesota Multiphasic Personality Inventory test were hearsay and incompetent, and were improperly admitted where the psychologist who administered the test was not present at the trial, there was no testimony at trial to establish that the test was properly administered, there was no testimony whether results of the analysis were temporary or permanent, the results were admitted for the truth of the matter asserted, and the trial court provided no limiting instruction with respect to the testimony. Barringer v. Mid Pines Dev. Group, L.L.C., 152 N.C. App. 549, 568 S.E.2d 648 (2002).

Medical Records. - Subsection (6) explicitly permits use of a record custodian's testimony to establish a foundation for admission of the records; it does not require that this foundation be established by a "medical expert" as sought by defendant; thus, medical records were properly admitted. State v. Woods, 126 N.C. App. 581, 486 S.E.2d 255 (1997).

In a sexual abuse prosecution, testimony from a public health department that defendant and the victim were both diagnosed with and treated for gonorrhea at approximately the same time, according to the department's records, was admissible under the hearsay exception for records of regularly conducted activity, in G.S. 8C-1, N.C. R. Evid. 803(6). State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643 (2002).

Although medical records were admitted (in reliance on Rule 10.3, Twelfth Judicial District Juvenile Case Management Plan) into evidence without proper foundation, as required by G.S. 8C-1, N.C. R. Evid. 703, 803(6), in order to fit within the exceptions to the hearsay rule, G.S. 8C-1, N.C. R. Evid. 801(c), 802, because - pursuant to G.S. 7B-804 - the rules of evidence in civil cases were to apply to child neglect cases, respondents, parents of the children, who were found neglected, had the burden of showing prejudice at the admission of the records; but they could not, given the other extensive direct testimony from medical experts upon which it was presumed the trial court had relied. In re T.M., 187 N.C. App. 694, 654 S.E.2d 502 (2007).

Nurse's testimony was sufficient to authenticate the victim's medical records because she testified that she was a staff nurse in the hospital's emergency department during the victim's care, she was familiar with the hospital's recordkeeping procedures, she was familiar with the victim's medical records, she provided care to the victim during a portion of her stay at the hospital, and the victim's medical records were created and maintained contemporaneously with her care. State v. Elder, - N.C. App. - , - S.E.2d - (July 20, 2021).

Hospital Records. - Absent an allegation supported by proof that hospital routine was in some manner deviated from, the entries in a patient's permanent hospital record are inherently reliable and admissible under the business records exception upon authentication by the proponent. State v. Miller, 80 N.C. App. 425, 342 S.E.2d 553 (1986), cert. denied, 317 N.C. 711, 347 S.E.2d 448 (1986).

An affidavit from the director of medical records of the hospital stating that the records were being sent by certified mail in response to a subpoena, that the records were authentic copies, and that they were made in the course of business at or near the time of the acts recorded satisfied the requirements of G.S. 8C-1-803(6). Chamberlain v. Thames, 131 N.C. App. 705, 509 S.E.2d 443 (1998).

Trial court's limiting instructing to the jury to not consider as substantive evidence anything in the hospital records stating that the defendant was driving the vehicle that crashed rendered harmless any error in the admitting of any such hearsay evidence in the hospital records. State v. Smith, 157 N.C. App. 493, 581 S.E.2d 448 (2003).

When Medical Records Must Be Made. - For purposes of the medical records exception, it is not necessary that the notes, records or memoranda be made at or near the time of the accident, but that they be made at or near the time of the treatment rendered to plaintiff. Chamberlain v. Thames, 131 N.C. App. 705, 509 S.E.2d 443 (1998).

Letter from Nurse Practitioner Not Admissible In Child Custody Case. - In a modification of child custody case, the trial court did not abuse its discretion by excluding a letter authored by a certified nurse practitioner from evidence as it failed to meet the requirements of a record of regularly conducted activity because it was written at the request of the mother and her counsel; the letter specifically refuted a doctor's report regarding the child's allergies, and appeared to have been drafted to be submitted to the trial court for that purpose; and pediatrician offices were not in the regular practice of producing opinion letters on expert reports for court, and, thus, the record was not kept in the course of a regularly conducted business activity. Peeler v. Joseph, 263 N.C. App. 198, 823 S.E.2d 155 (2018).

Blood Test Results. - The results of defendant driver's blood test, even though hearsay, are nonetheless admissible if they fall within the business records exception to the hearsay rule. Business records are defined to include the records of hospitals. State v. Miller, 80 N.C. App. 425, 342 S.E.2d 553 (1986), cert. denied, 317 N.C. 711, 347 S.E.2d 448 (1986).

Authentication of blood test results was not undermined because the person who actually analyzed the blood in the laboratory was not present to testify as a witness. State v. Miller, 80 N.C. App. 425, 342 S.E.2d 553 (1986), cert. denied, 317 N.C. 711, 347 S.E.2d 448 (1986).

Highway Accident Reports. - Under subdivision (6) of this rule, highway accident reports may be admissible as a business records exception to the hearsay rule. To be admissible, such reports must be authenticated by their writer, prepared at or near the time of the acts reported, by or from information transmitted by a person with knowledge of the acts, and kept in the course of a regularly conducted business activity, with such being a regular practice of that business activity, unless the circumstances surrounding the report indicate a lack of trustworthiness. Wentz v. Unifi, Inc., 89 N.C. App. 33, 365 S.E.2d 198, cert. denied, 322 N.C. 610, 370 S.E.2d 257 (1988).

The trial court properly admitted sections of an authenticated police report, prepared in the regular course of business, containing accident information about a hit-and-run vehicle because the record indicated that the information about that car's positioning, etc. was obtained from witnesses with "first-hand knowledge" and because the defendant did not initially object to the report's contents. Nunnery v. Baucom, 135 N.C. App. 556, 521 S.E.2d 479 (1999).

In a motorcyclist's negligence action against a driver, a trial court did not abuse its discretion in admitting an accident report, pursuant to G.S. 8C-1, N.C. R. Evid. 803(6), because the report was authenticated and a proper foundation was laid by the investigating officer, who testified: (1) he authored the accident report; (2) the report admitted into evidence was a copy of the report he completed; (3) the report was prepared near the place and time of the accident; (4) it was prepared in the regular course of business; and (5) it was the regular course of practice for the police department to make such reports. Joines v. Moffitt, 226 N.C. App. 61, 739 S.E.2d 177 (2013).

In a motorcyclist's negligence action against a driver, a trial court did not abuse its discretion in admitting an accident report, pursuant to G.S. 8C-1, N.C. R. Evid. 803(6), because the investigating officer prepared both the report's narrative and diagram using information he received from the driver and two eyewitnesses, and the officer explicitly stated both at trial and in his report that the hand-drawn diagram was not drawn to scale; the motorcyclist failed to demonstrate that either the narrative or the diagram lacked sufficient trustworthiness to warrant its exclusion. Joines v. Moffitt, 226 N.C. App. 61, 739 S.E.2d 177 (2013).

In a motorcyclist's negligence action against a driver, a trial court did not abuse its discretion in admitting an accident report, pursuant to G.S. 8C-1, N.C. R. Evid. 803(6), because the investigating officer prepared the report near the time of the accident, using information he received from the driver and two eyewitnesses, and the fact that the officer did not interview the motorcyclist, who was receiving medical attention at the scene, did not render the report untrustworthy. Joines v. Moffitt, 226 N.C. App. 61, 739 S.E.2d 177 (2013).

Police Report and Revocation Report. - Assuming arguendo that the North Carolina Rules of Evidence applied to a license revocation proceeding, an officer's police report and revocation report were properly admitted as substantive evidence under the records of regularly conducted activity exception to the hearsay rule as in the absence of a complete record and petitioner's failure to assert specific errors that were committed during the revocation hearing before the trial court, the appellate court presumed a proper foundation was laid with respect to the evidence. Johnson v. Robertson, 227 N.C. App. 281, 742 S.E.2d 603 (2013).

A federal firearms form which was filled out by defendant and the salesman who sold defendant the murder weapon was clearly admissible under subdivision (6) of this rule. State v. Holden, 321 N.C. 125, 362 S.E.2d 513 (1987), cert. denied, 486 U.S. 1061, 108 S. Ct. 2835, 100 L. Ed. 2d 935 (1988).

Records Prepared Ante Litem Motam. - Although a worksheet evidencing lab test results was produced after defendant's arrest, where none of the technicians performing the tests knew of the charges against defendant, the worksheet was prepared ante litem motam for purposes of admission under the business records exception. State v. Deanes, 323 N.C. 508, 374 S.E.2d 249 (1988), cert. denied, 490 U.S. 1101, 109 S. Ct. 2455, 104 L. Ed. 2d 1009 (1989).

Fingerprint Records. - Because a fingerprint card created upon defendant's arrest, and contained in the Automated Fingerprint Identification System database, was a business record and therefore non-testimonial, the trial court did not violate defendant's Sixth Amendment right to confrontation by admitting into evidence law enforcement record cards allegedly bearing his fingerprints. State v. Windley, 173 N.C. App. 187, 617 S.E.2d 682 (2005).

Pretrial Release Form. - Where pretrial release officer testified about where correspondence directed to the defendant was sent while defendant was on pretrial release, defendant asserted that because witness was not present when defendant filled in the form and was not the record keeper for the pretrial release office, the witness' testimony was inadmissible hearsay; however, witness' testimony was admissible under the exception to the hearsay rule permitting admission of business records; the witness testified that the record was kept in the ordinary course of the pretrial release office's business, and that while she was not the records custodian for the entire pretrial release office, she had custody and control over defendant's file. State v. Marshall, 94 N.C. App. 20, 380 S.E.2d 360, appeal dismissed and cert. denied, 325 N.C. 275, 384 S.E.2d 526 (1989).

Sales Ticket. - Sales ticket and testimony concerning the purchase of ammunition from store was admissible under the business records exception. State v. Ligon, 332 N.C. 224, 420 S.E.2d 136 (1992).

Reservation deposit receipts, photographic copies of checks written to condominium development corporation by potential purchasers as deposits, and receipts for public offering statements signed by the purchaser and sales person were admissible in trial for embezzlement pursuant to the business records exception to the hearsay rule. State v. Rupe, 109 N.C. App. 601, 428 S.E.2d 480 (1993).

Business Records Held Admissible. - Where business records involved evidence of plaintiff's damages as a result of whitened walnut furniture, where records were made in the usual course of plaintiff's business and were made contemporaneously with the occurrences of situations involving the damaged furniture, and where the evidence was identified through the testimony of a witness familiar with the business entries and the system under which they were made and who could have also authenticated the records, the trial court's ruling that this evidence was inadmissible was in error. Steelcase, Inc. v. Lilly Co., 93 N.C. App. 697, 379 S.E.2d 40, cert. denied, 325 N.C. 276, 384 S.E.2d 530 (1989).

Where a witness testified that records were public, kept in the ordinary course of business and prepared under his personal supervision at or near the time of the events depicted in the documents, the witness should have been permitted to testify about the records and their significance; however, since the records themselves were admitted into evidence, any error in refusing the witness permission to read from the records was not prejudicial to defendant. Allen v. Simmons, 99 N.C. App. 636, 394 S.E.2d 478 (1990).

Monthly rental report created based on personal knowledge and in the regular course of business qualified as a business record under the regularly conducted activity exception to the hearsay rule. State v. Friend, 164 N.C. App. 430, 596 S.E.2d 275 (2004).

Results of a drug test performed on the mother and a letter from Alcohol and Drug Services were admissible under the business records exception to the hearsay rule because the social worker for the Department of Social Services was qualified to introduce the results of the drug test and the letter under the business records exception where the social worker, in the course of regularly conducted business activity, collected the mother's sample, ordered the drug test, and filed the results of the drug test with the social worker's office. In re S.D.J., 192 N.C. App. 478, 665 S.E.2d 818 (2008).

Judgment convicting defendant of robbery with a dangerous weapon, possession of stolen property, and misdemeanor fleeing to elude arrest with a motor vehicle, was affirmed because the trial court properly admitted, under G.S. 8C-1-803(6), testimony that the NCIC database indicated a gun with the same serial number as the one possessed by defendant had been reported stolen; information in the NCIC database was a "database compilation, in any form" falling within Rule 803(6). State v. Sneed, 210 N.C. App. 622, 709 S.E.2d 455 (2011).

Trial court did not err by admitting an officer's testimony regarding a report from the National Precursor Log Exchange database reflecting defendant's pseudoephedrine purchases as a business record since the officer thoroughly demonstrated his understanding of the database, the method by which the data was gathered, transmitted, and stored, and the underlying basis for the report admitted into evidence. State v. Hicks, 243 N.C. App. 628, 777 S.E.2d 341 (2015).

Where the notice prohibiting defendant's entry in all of a retailer's stores was made in the ordinary course of business at or near the time of the transaction involved and was authenticated at trial by a witness familiar with such notices and the system under which they were made, the document was properly authenticated and the trial court did not err in admitting it. State v. Allen, 258 N.C. App. 285, 812 S.E.2d 192 (2018).

ALJ did not err in admitting job applications and other information about the qualifications of job applicants as business records, because interview notes were part of the regular practice of the employer and the subject documents were kept in the court of regularly conducted business activity. Weaver v. N.C. HHS, 261 N.C. App. 293, 819 S.E.2d 642 (2018).

Electronic Monitoring Device Data Admissible as Business Record. - Officer's testimony concerning how the electronic monitoring device worn by defendant transmitted data to a secured server where the data was stored and routinely accessed in the normal course of business established a sufficient foundation of trustworthiness for the tracking evidence to be admitted as a business record. State v. Jackson, 229 N.C. App. 644, 748 S.E.2d 50 (2013).

Trial court did not err in allowing a probation officer to testify that tracking data verified an ankle monitor had been assigned to thedefendant because the testimony established a sufficient foundation of trustworthiness for the evidence to be admissible as a business record; the officer demonstrated the officer's familiarity with the electronic monitoring system and testified that the information transmitted through the technology was stored in a software database the probation office used to conduct business. State v. Waycaster, 260 N.C. App. 684, 818 S.E.2d 189 (2018), aff'd, in part, 846 S.E.2d 688, 2020 N.C. LEXIS 689 (N.C. 2020).

DNA Results Properly Admitted. - State investigative reports that gave the results of DNA tests incriminating defendant were properly admitted at his trial for murder and rape as business records under G.S. 8C-1, N.C. R. Evid. 803(6), even though the investigator who made the reports did not testify. His supervisor testified, and the reports were not testimonial but were neutral and were not prepared exclusively for trial. State v. Forte, 360 N.C. 427, 629 S.E.2d 137 (2006).

Sex Offender Registration. - Notice of Pending Registration and a Sex Offender Registration Worksheet were properly admitted under G.S. 8C-1-803(6). State v. Wise, 178 N.C. App. 154, 630 S.E.2d 732 (2006).

Foundational Requirements for Business Records. - Trial court erred in considering affidavits at summary judgment because none of the affidavits addressed the foundational requirements for the admission of evidence to establish an employee's on-call pay rate through a business record under G.S. 8C-1, N.C. R. Evid. 803(6), and thus did not present personal knowledge setting forth facts admissible in evidence. Further, nothing in one affiant's affidavit established a foundation that a facsimile cover page was a record of regularly conducted activity, which would fall under the business records exception to the hearsay rule, because the affiant relied on a hand-written note on a cover page that purported to summarize the contents of missing memos. Gilreath v. N.C. HHS, 177 N.C. App. 499, 629 S.E.2d 293 (2006).

Testimony About Matters Contained in Business Records. - Although a witness did not have personal knowledge of the matters contained in documents in plaintiff's file, the documents were admissible in evidence under the business records exception to the hearsay rule; thus, the witness's subsequent testimony about the matters contained in the business records was admissible. N.C. Indus. Capital, LLC v. Clayton, 185 N.C. App. 356, 649 S.E.2d 14 (2007).

Social worker's testimony regarding a county social services department report was properly admitted under G.S. 8C-1, N.C. R. Evid. 803(6), where the worker was not only familiar with the report, but personally signed it and appeared to be one of its authors, and although the report was not admitted into evidence at the termination hearing, the majority of its contents had been admitted at prior hearings, and it would have been admissible under the business records exception. In re C.R.B., 245 N.C. App. 65, 781 S.E.2d 846 (2016).

Booking-Area Phone Call Recording. - Trial court did not abuse its discretion in admitting into evidence a booking-area phone call under the business record exception to the hearsay rule, G.S. 8C-1-803(6), because the circumstantial evidence authenticated the caller's identity; sergeant testified that inmates' calls were recorded in the normal course of business and kept at the county jail according to the inmates' positive identification number, the call was made to the same number as defendant's subsequent calls and featured a voice similar to his subsequent calls, and the undercover officer who interacted with defendant during the drug buy also identified him as the caller. State v. Mobley, 206 N.C. App. 285, 696 S.E.2d 862 (2010), review denied, 365 N.C. 75, 706 S.E.2d 229, 2011 N.C. LEXIS 51 (2011).

GPS Evidence a Business Record. - GPS tracking evidence was properly admitted as a business record, as the tracking data constituted a data compilation, and it constituted a reliable source of information. State v. Gardner, 237 N.C. App. 496, 769 S.E.2d 196 (2014).

Detention Center Incident Reports. - With regard to defendant's convictions on two counts of first-degree murder, the trial court did not violate defendant's right to confrontation with regard to allowing a captain to read from various detention center incident reports because the detention center incident reports were not testimonial in nature nor were the statements contained therein testimonial. The reports were more like business records, which by their nature are not testimonial, pursuant to G.S. 8C-1, N.C. R. Civ. P. 803(6). State v. Raines, 362 N.C. 1, 653 S.E.2d 126 (2007), cert. denied, - U.S. - , 129 S. Ct. 2857, 174 L. Ed. 2d 601 (2009).

Shopping Mall's Security's Testimony as to Handling of Worthless Checks. - Director of security at the mall where defendant passed the worthless checks to obtain gift certificates was properly permitted to testify where the director testified only about the mall's handling of the checks, not the bank's process of the same. State v. Cagle, 182 N.C. App. 71, 641 S.E.2d 705 (2007).

VIII. PUBLIC RECORDS AND REPORTS.

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Relation to Business Records Exception. - Where defendant argued that the language of G.S. 8C-1-803(8), regarding the hearsay exception for public records and reports, restricted the business records exception of G.S. 8C-1-803(6), the argument failed; G.S. 8C-1-803(8) was adopted without the intention of changing the common law rule allowing admissions of public records of purely ministerial observations, as the intended purpose of G.S. 8C-1-803(8) was to prevent prosecutors from attempting to prove their cases through police officers' reports of their observations during the investigation of crime. State v. Lyles, 172 N.C. App. 323, 615 S.E.2d 890, appeal dismissed, 360 N.C. 73, 622 S.E.2d 625 (2005).

Reports, etc., from Investigation Pursuant to Authority Granted by Law. - Under subdivision (8)(C) of this rule, records, reports or statements, in any form, of public offices or agencies, setting forth factual findings, although hearsay, are admissible against the State in a criminal case if they result from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate a lack of trustworthiness. State v. Acklin, 317 N.C. 677, 346 S.E.2d 481 (1986).

Medical Examiner's Report. - Termination of a mother's parental rights to her children pursuant to G.S. 7B-1111(a)(8) was affirmed because the trial court's findings fully supported its determination that the mother committed voluntary manslaughter, as the evidence indicated that the child died from injuries arising from abuse, and the trial court properly admitted evidence pursuant to hearsay exceptions, as a medical examiner's report was admissible under G.S. 8C-1-803(8) as a public record, and a police officer was properly allowed to testify as to statements by the mother's daughter that she saw her mother hit the deceased child on the head pursuant to the excited utterance exception. In re J.S.B., 183 N.C. App. 192, 644 S.E.2d 580 (2007).

Driver's License Records. - Instead of being error, receiving the civil part of the revocation order into evidence, to show that defendant's driver's license was revoked and he knew it, was authorized by the public records exception to the hearsay rule. State v. Woody, 102 N.C. App. 576, 402 S.E.2d 848 (1991).

Prison records. - Prison records on defendant's father were admissible under the public records exception to the hearsay rule. State v. Watson, 179 N.C. App. 228, 634 S.E.2d 231 (2006), review denied, 361 N.C. 437, 649 S.E.2d 896 (2007).

Highway accident reports may be admissible as "official" reports under subdivision (8) of this rule if properly authenticated. Wentz v. Unifi, Inc., 89 N.C. App. 33, 365 S.E.2d 198, cert. denied, 322 N.C. 610, 370 S.E.2d 257 (1988).

Out-of-Court Exculpatory Statements by Defendant to Police Officer. - Subdivision (8) of this rule specifically excludes in criminal cases matters observed by police officers and other law enforcement personnel, and thus out-of-court exculpatory statements made by defendant to police officer were not admissible as public records and reports. State v. Maness, 321 N.C. 454, 364 S.E.2d 349 (1988).

Evidence in a Police Report Properly Admitted. - Testimony of police officer concerning statements made by decedent at the scene of the accident, made via police officer's investigative report, was admissible pursuant to subdivision (6) as a record of regularly conducted activity and subdivision (8) as a public record and report. Keith v. Polier, 109 N.C. App. 94, 425 S.E.2d 723 (1993).

Evidence in a Police Report Properly Excluded. - Police report containing evidence that police officer assumed that another person was the driver and that defendant was only a passenger, was not admissible under the provisions of this section since the evidence had no probative value and was therefore properly excluded. State v. Williams, 90 N.C. App. 615, 369 S.E.2d 832, cert. denied, 323 N.C. 369, 373 S.E.2d 555 (1988).

S.B.I. Reports. - In trial for first-degree rape and first-degree kidnapping, the trial court committed prejudicial error in refusing to admit laboratory reports prepared by two forensic chemists with the State Bureau of Investigation, showing that a hair examination comparison on hairs taken from the victim's head and pubic area and hairs taken from the defendant's pubic area revealed that a pubic hair found in the pubic hair combings received from the victim after the rape was microscopically different from defendant's pubic hairs, and that the semen found was not attributable to defendant. State v. Acklin, 317 N.C. 677, 346 S.E.2d 481 (1986).

National Transportation Safety Board Report. - Where National Transportation Safety Board (NTSB) reports contained statements by pilots, witnesses and other non-officials who were not present to testify at trial, trial court properly exercised its discretion in excluding the hearsay portions thereof; to the extent portions were admissible independent of the report, those portions were admissible. Bolick v. Sunbird Airlines, 96 N.C. App. 443, 386 S.E.2d 76 (1989), appeal of right allowed pursuant to N.C.R.A.P., Rule 16(b) and petition denied as to additional issues, 326 N.C. 363, 389 S.E.2d 811 (1990).

Occupational Safety and Health Administration Report. - Trial court was correct to allow author of Occupational Safety and Health Administration (OSHA) report to introduce the report and discuss its findings, but not allow him to state the report's conclusion that the accident was caused by brake failure. Haymore v. Thew Shovel Co., 116 N.C. App. 40, 446 S.E.2d 865 (1994).

Undercover officer's written summaries of two drug transactions with defendant were inadmissible hearsay. State v. Harper, 96 N.C. App. 36, 384 S.E.2d 297 (1989).

Error Held Cured by Testimony. - Where plaintiff's attorney's question invited a police officer to express an opinion as to fault in an automobile accident, the question was clearly prohibited. The officer saved the situation, however, by limiting his response to repeating from his report what he had been told about what happened. Since the sum total of the officer's testimony was to disavow any assessment or attribution of fault, the error of the trial court in not sustaining plaintiff's objection was rendered nonprejudicial. Mickens v. Robinson, 103 N.C. App. 52, 404 S.E.2d 359 (1991).

Report Not Within Exception. - Report did not fall within the subsection (8)(C) exception where the report was not the result of "authority granted by law" to conduct an investigation into the murder, there was no assurance that the report contained factual findings that would be admissible, the report was not prepared for the purpose of being introduced against the State in a criminal case, and the prosecution did not have an opportunity to cross-examine the persons interviewed for the report. State v. Hunt, 339 N.C. 622, 457 S.E.2d 276 (1994).

DNA Reports Properly Admitted. - State investigative reports that gave the results of DNA tests incriminating defendant were properly admitted at his trial for murder and rape under G.S. 8C-1, N.C. R. Evid. 803(8), as public records, even though the investigator who made the records did not testify. His supervisor testified, the reports concerned routine matters and recorded only ministerial observations, and defendant's right of confrontation was not violated. State v. Forte, 360 N.C. 427, 629 S.E.2d 137 (2006).

Evidence Properly Admitted. - Trial court transcript did not provide adequate support of a determination by the court of appeals that the trial court erred in admitting an exhibit to an affidavit of a research specialist for legal services for the Administrative Office of the Courts on only a limited basis because the trial court admitted the evidence in its discretion under G.S. 8C-1, N.C. R. Evid. 803(8) and apparently made findings of fact based on what it considered trustworthy information; the records kept by the Administrative Office of the Courts concerning its submissions to the United States Department of Justice clearly fall within the purview of Rule 803(8) as public records, and the records are admissible insofar as they are relevant. Blankenship v. Bartlett, 363 N.C. 518, 681 S.E.2d 759 (2009).

Photographs in a police department database that were taken and compiled as a routine procedure following an arrest fell under the public records exception to the hearsay rule under G.S. 8C-1-803(8); thus, the admission of testimony identifying defendant as the person in the photograph selected by a deputy was not error. State v. McLean, 205 N.C. App. 247, 695 S.E.2d 813 (2010).

Birth certification was, which was authenticated and deemed trustworthy, was properly admitted into evidence was a public record. State v. DeJesus, 265 N.C. App. 279, 827 S.E.2d 744 (2019), review denied, 372 N.C. 707, 830 S.E.2d 837, 2019 N.C. LEXIS 734 (2019).

IX. VITAL STATISTICS.

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Opinions contained on death certificates are no longer barred by the hearsay rule. In order to be admissible, however, pursuant to subdivision (8) of this rule the opinion expressed must result from an investigation made pursuant to authority granted by law. Segrest v. Gillette, 331 N.C. 97, 414 S.E.2d 334 (1992), reh'g denied, 331 N.C. 97, 414 S.E.2d 334 (1992).

Exclusion of Statements on Death Certificate Held Proper. - In case brought by widow of insured to recover under life insurance policy, coroner's statement on death certificate that the gunshot wound which killed the insured was intentionally self-inflicted was not based on personal knowledge of the events which took place and could only be described as hearsay and conclusory. The admission of such a statement would thwart the fairness of the trial and in essence shift the burden of proof on the issue of the cause of death from defendant to plaintiff. Therefore, the exclusion of this statement on the death certificate was proper. Likewise, statements listing suicide as cause of death in medical examiner's report were properly excluded at trial. Drain v. United Servs. Life Ins. Co., 85 N.C. App. 174, 354 S.E.2d 269, cert. denied, 320 N.C. 630, 360 S.E.2d 85 (1987).

X. LEARNED TREATISES.

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Failure to Challenge Reliability of Authority. - A party who fails to challenge the reliability of authority prima facie admissible under subdivision (18) must overcome a presumption of admissibility on appeal. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, cert. denied, 320 N.C. 174, 358 S.E.2d 64 (1987).

Expert Need Not Rely on Treatise. - This rule does not require that the treatise at issue must have been relied on by the expert during his direct examination. Rowan County Bd. of Educ. v. United States Gypsum Co., 103 N.C. App. 288, 407 S.E.2d 860 (1991), aff'd in part, disc. rev. improvidently granted, 332 N.C. 1, 418 S.E.2d 648 (1992).

Learned Treatise Not Shown. - Article about which the State cross-examined doctor was not established as a learned treatise and thus was not admissible as substantive evidence. State v. Lovin, 339 N.C. 695, 454 S.E.2d 229 (1995).

XI. REPUTATION AS TO BOUNDARIES OR GENERAL HISTORY.

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Customs Affecting Land. - Reputation as to customs affecting land is not excluded by the hearsay rule, and such evidence is not limited to the lifetime of the witness. Broyhill v. Coppage, 79 N.C. App. 221, 339 S.E.2d 32 (1986); McFadyen v. Olive, 89 N.C. App. 545, 366 S.E.2d 544 (1988).

XII. REPUTATION AS TO CHARACTER.

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Questioning by Prosecutor Upheld. - Prosecutor's cross-examination of two of defendant's character witnesses regarding a purported rumor that defendant had an affair with a certain 18-year-old girl and regarding defendant's wife's purported statement that she had "expected something was going on" between defendant and their daughter, were held proper. State v. Wall, 87 N.C. App. 621, 361 S.E.2d 900, cert. denied, 321 N.C. 479, 363 S.E.2d 72 (1987).

XIII. OTHER EXCEPTIONS.

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Trials Prior to July 1, 1984. - The requirement that hearsay evidence not falling within a recognized exception to the hearsay rule and offered because of necessity and a reasonable probability of truthfulness may be resorted to only when more probative evidence on the point cannot be procured through reasonable efforts applies to hearsay evidence offered in a trial conducted prior to the effective date of the North Carolina Rules of Evidence. Donavant v. Hudspeth, 318 N.C. 1, 347 S.E.2d 797 (1986).

Subdivision (16) is identical to the federal rule and may be applied to any kind of document. Rowan County Bd. of Educ. v. United States Gypsum Co., 103 N.C. App. 288, 407 S.E.2d 860 (1991), aff'd in part, disc. rev. improvidently granted, 332 N.C. 1, 418 S.E.2d 648 (1992).

Evidence Offered Under Ancient Document Exception. - Evidence offered under this rule is subject to the general requirements applicable to hearsay exceptions, for example, firsthand knowledge by the declarant (which may appear from the statement or be inferable from circumstances) and probative value balanced against the danger of unfair prejudice. Rowan County Bd. of Educ. v. United States Gypsum Co., 103 N.C. App. 288, 407 S.E.2d 860 (1991), aff'd in part, disc. rev. improvidently granted, 332 N.C. 1, 418 S.E.2d 648 (1992).

Residual Hearsay Exception is Disfavored. - The residual hearsay exception in G.S. 8C-1, N.C. R. Evid. 803(24) is disfavored and should be invoked very rarely and only in exceptional circumstances; additionally, In addition, any evidence proffered under this exception must be carefully scrutinized. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124 (2003), cert. denied, 357 N.C. 169, 581 S.E.2d 447 (2003).

Trial Court's Inquiry for Admission Under G.S. 8C-1, Rule 803(24) and G.S. 8C-1, Rule 804(b)(5). - Under Rules 803(24) and 804(b)(5), the trial judge is required to analyze hearsay's admissibility by undertaking a six-part inquiry; specifically, the trial court must determine the following: First, that proper notice was given of the intent to offer hearsay evidence under G.S. 8C-1, Rules 803(24) or 804(b)(5); second, that the hearsay evidence was not specifically covered by any of the other hearsay exceptions; third, that the hearsay evidence possesses certain circumstantial guarantees of trustworthiness; fourth, that the evidence is material to the case at bar; fifth, that the evidence is more probative on an issue than any other evidence procurable through reasonable efforts; and sixth, that admission of the evidence will best serve the interests of justice. State v. Agubata, 92 N.C. App. 651, 375 S.E.2d 702 (1989).

While trial court erred by not making specific findings for each step in the six-part inquiry into the admissibility of hearsay evidence, the error did not prejudice defendant because the evidence would still have been excluded. While the six-part inquiry is useful to appellate review of the admission of hearsay under G.S. 8C-1, Rule 803(24) or under this rule, its utility is diminished when an appellate court reviews the exclusion of hearsay; in other words, if proffered evidence fails to meet the requirements of one of the inquiry steps, the trial judge's findings concerning the preceding steps are unnecessary. State v. Harris, 139 N.C. App. 153, 532 S.E.2d 850 (2000).

Requirements for a hearsay statement to be admissible under G.S. 8C-1, Rule 803(24) where the availability of the declarant is immaterial are: (1) the proponent must notify his adversary in writing of his intent to introduce the statement; (2) the statement must not be admissible under any of the listed hearsay exceptions; (3) the statement must possess circumstantial guarantees of trustworthiness equivalent to those of the listed exceptions; (4) the statement must be offered as evidence of a material fact; (5) the statement must be more probative on the point for which it is offered than other evidence which the proponent can produce through reasonable efforts; and (6) the general purposes of the rules of evidence and the interests of justice must best be served by admission of the statement into evidence. For a hearsay statement to be admissible under G.S. 8C-1, Rule 804(b)(5), where the availability of the declarant is material, the same six requirements must be met after the proponent first proves that the declarant is unavailable. State v. Castor, 150 N.C. App. 17, 562 S.E.2d 574 (2002), cert. denied, 357 N.C. 508, 587 S.E.2d 885 (2003).

The six-part inquiry employed to evaluate hearsay is very useful when an appellate court reviews the admission of hearsay under subdivision (24) of this rule or G.S. 8C-1, Rule 804(b)(5), but its utility is diminished when the court reviews the exclusion of hearsay; if proffered evidence fails to meet the requirements of one of the inquiry steps, the trial judge's findings concerning the preceding steps are unnecessary. State v. Hardison, 143 N.C. App. 114, 545 S.E.2d 233 (2001).

Victim's statements to his friends that he had a confrontation with defendant and was afraid of defendant were properly admissible under G.S. 8C-1, N.C. R. Evid. 803(24) and G.S. 8C-1, N.C. R. Evid. 804(b)(5) because the victim (1) had personal knowledge of the events the statements described, and the statements were made within two hours of the first altercation between defendant and the victim; (2) had no reason to lie to his friends, and there was no indication he would have benefitted from altering the story; (3) never recanted the statements and he died shortly after making them; and (4) was unavailable to testify, having died, so the evidence established that the statements possessed "equivalent circumstantial guarantees of trustworthiness." State v. Valentine, 357 N.C. 512, 591 S.E.2d 846 (2003).

Section 8C-1, Rule 804(b)(5) Compared. - Section 8C-1, Rule 804(b)(5) is a verbatim copy of subdivision (24) of this rule, except that G.S. 8C-1, Rule 804(b)(5) also requires that the declarant be unavailable before the hearsay may be admitted and subdivision (24) does not. State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986).

The hearsay exception under G.S. 8C-1, N.C. R. Evid. 803(24) is almost identical to the exception in G.S. 8C-1, N.C. R. Evid. 804(b)(5), except that a party may invoke G.S. 8C-1, N.C. R. Evid. 803(24) even if a declarant is available. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124 (2003), cert. denied, 357 N.C. 169, 581 S.E.2d 447 (2003).

Evidence proffered for admission pursuant to subdivision (24) of this rule must be carefully scrutinized by the trial judge within the framework of the rule's requirements. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

Because of the residual "catchall" nature of the hearsay exception in subdivision (24) of this rule, it is potentially subject to abuse in the face of unfettered judicial discretion. Accordingly, evidence proffered for admission pursuant to subdivision (24) must be carefully scrutinized by the trial court within the framework of the rule's requirements. State v. McElrath, 322 N.C. 1, 366 S.E.2d 442 (1988).

Trustworthiness. - Finding that an inverse condemnation had occurred was improper because the admission of the affidavits could only have been by reliance on G.S. 8C-1, N.C. R. Evid. 803(24) and, lacking the proper procedural safeguards, was erroneous. Although the affiants had personal knowledge of the information contained in their affidavits, nothing was known of their motivation to speak the truth or of the reasons for their failure to testify at the hearing. N.C. DOT v. Cromartie, 214 N.C. App. 307, 716 S.E.2d 361 (2011), review denied and dismissed, 735 S.E.2d 177, 2012 N.C. LEXIS 1051 (2012).

Trial court erred by excluding defendant's children's interview statements because its determination that there were insufficient circumstantial guarantees of trustworthiness to support admission of the children's statements was made on the basis of inaccurate and incomplete findings of fact used to reach unsupported conclusions of law. The overwhelming evidence showed that both children understood the seriousness of the proceedings and the importance of truthfulness, as well as the temporal proximity of the children's statements to their father's death. State v. Corbett, - N.C. App. - , 839 S.E.2d 361 (2020), cert. dismissed, as moot, mot. denied, 845 S.E.2d 793, 2020 N.C. LEXIS 742 (N.C. 2020); aff'd, 855 S.E.2d 228, 2021 N.C. LEXIS 176 (N.C. 2021).

Court Must Determine Trustworthiness. - Before statements in a letter purportedly written by unavailable declarant could be received into evidence under either this rule or G.S. 8C-1, Rule 804, the trial court had to determine, inter alia, that the surrounding circumstances indicated that the statements were trustworthy. State v. Agubata, 94 N.C. App. 710, 381 S.E.2d 191 (1989).

The trial judge must engage in the inquiry required by the rule prior to admitting or denying proffered hearsay evidence pursuant to subdivision (24) of this rule. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

For case setting out comprehensive requirements for admission of evidence under subdivision (24) of this rule, see State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985), made applicable only to cases the trial of which begins after the certification date of the opinion.

Racial Correlation Between Defendants and Witnesses. - Any judicial suggestion that racial correlation between defendants and witnesses constitutes an important factor in determining the reliability of a witness' testimony is at best inappropriate. State v. Rhome, 120 N.C. App. 278, 462 S.E.2d 656 (1995).

Reliance by the court, however minimal, upon the racial identity of defendant and the witness in admitting the latter's hearsay statement into evidence constituted error. State v. Rhome, 120 N.C. App. 278, 462 S.E.2d 656 (1995).

Availability as Crucial Consideration. - The availability of a witness to testify at trial is a crucial consideration under the residual hearsay exceptions, subdivision (24) of this rule and G.S. 8C-1, Rule 804 (b)(5). The "availability" of the declarant to testify at trial unavoidably enters into the determination of admissibility of a "hearsay" witness' testimony as to out-of-court statements made by the declarant pursuant to either residual hearsay exception. State v. Fearing, 315 N.C. 167, 337 S.E.2d 551 (1985).

The availability of the witness to testify at trial is a crucial consideration under the residual hearsay exceptions, subdivision (24) of this rule and G.S. 8C-1, Rule 804 (b)(5), because usually the live testimony of the declarant will be the more probative evidence on the point for which it is offered. State v. Hollingsworth, 78 N.C. App. 578, 337 S.E.2d 674 (1985).

Although G.S. 8C-1, N.C. R. Evid. 803(24) is an exception to the hearsay rule where availability of a witness is immaterial, the availability of a witness to testify at trial is a crucial consideration under both of the residual hearsay exceptions found at G.S. 8C-1, N.C. R. Evid. 803(24) and 804(b)(5). Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124 (2003), cert. denied, 357 N.C. 169, 581 S.E.2d 447 (2003).

"Guarantees of Trustworthiness." - In determining whether a statement has the necessary "guarantees of trustworthiness," evidence that the declarant later recanted the statement is relevant. State v. Hollingsworth, 78 N.C. App. 578, 337 S.E.2d 674 (1985).

In determining whether a statement proffered under a "catchall" exception to the hearsay rule possesses circumstantial guarantees of trustworthiness, certain factors are significant in guiding trial courts; among these factors are (1) assurance of personal knowledge of the declarant of the underlying event; (2) "the declarant's motivation to speak the truth or otherwise; (3) whether the declarant ever recanted the statement"; and (4) the reasons, within the meaning of G.S. 8C-1, Rule 804(a), for the declarant's unavailability. State v. Agubata, 92 N.C. App. 651, 375 S.E.2d 702 (1989).

Lack of Circumstances Indicating Statements' Trustworthiness. - Where the only evidence that the purported declarant existed was defendant's statements to that effect, the declarant was not produced at trial and no one other than defendant was produced to testify that the declarant existed or lived at defendants' residence where drugs were found, letters allegedly written by the declarant purporting to admit declarant's ownership of the contraband were properly excluded. State v. Agubata, 92 N.C. App. 651, 375 S.E.2d 702 (1989).

Trustworthiness of Child Victim's Out-of-Court Statements in Sexual Abuse Case. - In defendant's trial for first-degree rape of a five-year-old, the victim's out-of-court statements to social worker contained sufficient guarantees of trustworthiness for admission under subdivision (24) of this rule. State v. Deanes, 323 N.C. 508, 374 S.E.2d 249 (1988), cert. denied, 490 U.S. 1101, 109 S. Ct. 2455, 104 L. Ed. 2d 1009 (1989), applying State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

Absent a history of fabrication in a child, there is no authority for the proposition that to be motivated to tell the truth a five-year-old must be subject to punishment. State v. Deanes, 323 N.C. 508, 374 S.E.2d 249 (1988), cert. denied, 490 U.S. 1101, 109 S. Ct. 2455, 104 L. Ed. 2d 1009 (1989).

There was no reason to question the truthfulness of a five-year-old simply because she did not initiate conversations with a social worker and doctor to report an incident of child abuse; in cases of sexual abuse, it is often necessary to ask questions designed to help the child describe what happened. State v. Deanes, 323 N.C. 508, 374 S.E.2d 249 (1988), cert. denied, 490 U.S. 1101, 109 S. Ct. 2455, 104 L. Ed. 2d 1009 (1989).

In a rape prosecution, child victim's hearsay statements to police officer and counselor were sufficiently trustworthy to be admitted pursuant to residual hearsay exception of subdivision (24) of this rule despite trial judge's lone statement, found in the transcript of the in camera hearing, that the child "did not seem to understand the consequences of not telling the truth." State v. Holden, 106 N.C. App. 244, 416 S.E.2d 415, appeal dismissed, 332 N.C. 669, 424 S.E.2d 413 (1992).

Expert's testimony regarding defendant's sexual abuse of son was precluded from admission under the residual exception to hearsay where the State declared that "The testimony of [the expert] comes in under the medical diagnosis" and the trial court failed to make any findings of fact and conclusions of law supporting admissibility as residual hearsay; however, its admission was not reversible error because defendant not only did not object to the admission of the testimony at trial, but also stated he thought the testimony as to the examination of the child was admissible, and he failed to show that a different result would have been reached by the jury without the testimony. State v. Waddell, 351 N.C. 413, 527 S.E.2d 644 (2000).

Three boys' statements possessed equivalent guarantees of trustworthiness for purposes of the residual hearsay exception as, inter alia: (1) the discussion of sexual matters was initiated spontaneously by the children; (2) the adults to whom the statements were made were credible witnesses; (3) the nature of the statements tended to show that they were trustworthy as they were very explicit sexual statements that would not ordinarily be stated by boys of their age unless the statements were true; and (4) the trial court had an opportunity to see the boys on the witness stand at the motion hearing and it appeared obvious that their presence on the witness stand in front of defendant was traumatic for them. State v. Brigman, 178 N.C. App. 78, 632 S.E.2d 498 (2006), appeal dismissed, cert. denied, 636 S.E.2d 813 (N.C. 2006).

Child's out-of-court statements of the child's brother's sexual abuse were admissible under G.S. 8C-1, N.C. R. Evid. 803(24), because (1) the statements were more probative than other evidence reasonably available, as the child's testimony would harm the child's therapeutic progress, and (2) the statements' trustworthiness was sufficiently guaranteed, as internal inconsistencies were irrelevant, the child was motivated to tell the truth, and the child could express herself and understood the duty to tell the truth. In re M.A.E., - N.C. App. - , - S.E.2d - (July 21, 2015).

Findings and Conclusions Required for Admission of Hearsay Under Subdivision (24). - Before allowing the admission of hearsay evidence to be presented under subdivision (24) of this rule, the trial judge must enter appropriate statements, rationale, or findings of fact and conclusions of law in the record to support his discretionary decision that such evidence is admissible under that rule. If the record does not comply with these requirements and it is clear that the evidence was admitted pursuant to subdivision (24), its admission must be held to be error. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

Notice of Intent to Proffer Statement Under Subdivision (24). - It is the duty of the proponent of a proffered hearsay statement to alert the trial judge that the statement is being offered as a hearsay exception under subdivision (24) of this rule. Should the trial judge determine that notice of the intent to proffer hearsay testimony under subdivision (24) was not given, was inadequate, or was untimely provided, his inquiry must cease and a proffered hearsay statement must be denied admission under subdivision (24). State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

A hearsay statement may not be admitted under subdivision (24) of this rule unless notice (a) is in writing; and (b) is provided to the adverse party sufficiently in advance of offering it to allow him to prepare to meet it; and (c) contains (1) a statement of the proponent's intention to offer the hearsay testimony, (2) the "particulars" of the hearsay testimony, and (3) the name and address of the declarant. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

Notice of Intent to Use Hearsay Statements at Trial Held Sufficient. - Although the address of the declarant was not provided as required by State v. Smith, 315 N.C. at 92, 337 S.E.2d at 844 (1985), defense counsel's letter informed the prosecutor that the declarant's address was unknown; therefore, where the prosecutor did not request additional information about the purported declarant's letter or a copy of the letter prior to trial, the notice provided by defense counsel, a full month prior to trial, was sufficient to provide the prosecution with a fair opportunity to prepare to meet the hearsay statements contained in the letter. State v. Agubata, 92 N.C. App. 651, 375 S.E.2d 702 (1989).

Notice of Intent to Use Hearsay at Trial Insufficient. - Witness's hearsay statement identifying the perpetrator was not admissible under G.S. 8C-1, Rule 803 because the State did not provide sufficient written notice to defendant of its intent to use the statement prior to trial. State v. Lawson, 173 N.C. App. 270, 619 S.E.2d 410 (2005).

Admitting Evidence Without Conforming to G.S. 8C-1, Rule 804(b)(5) Held Reversible Error. - The trial court erred by admitting into evidence the statement given by the child witness in a sexual offense case to the investigating officer without making the specific findings of fact and conclusions of law pursuant to G.S. 8C-1, Rule 804(b)(5), as required by State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985), and State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986); State v. Benefield, 91 N.C. App. 228, 371 S.E.2d 306, cert. denied, 323 N.C. 367, 323 N.C. 478, 373 S.E.2d 868 (1988).

Failure to Determine Competency of Child Victim. - In a prosecution charging defendant with first-degree rape, incest, and taking indecent liberties with his three-year-old daughter, the trial judge's adoption of counsel's stipulation in concluding that the child victim was incompetent to testify, where he never personally examined or observed the child's demeanor in responding to questions during a voir dire examination, was reversible error, where highly prejudicial testimony was erroneously admitted pursuant to subdivision (24) of this rule and G.S. 8C-1, Rule 804 (b)(5) on the basis of this improperly based conclusion. State v. Fearing, 315 N.C. 167, 337 S.E.2d 551 (1985).

Admission of Child Victim's Statements Where Child Adjudged Incompetent as Witness. - When considering admission of a child victim's statement to a social worker when the child is found to be incompetent as a witness, the confrontation clause and subdivision (24) of this rule require a case-by-case examination of the facts of each case. State v. Deanes, 323 N.C. 508, 374 S.E.2d 249 (1988), cert. denied, 490 U.S. 1101, 109 S. Ct. 2455, 104 L. Ed. 2d 1009 (1989).

Evidence Held Inadmissible. - Trial judge's ruling which in effect allowed testimony of Rape Task Force Volunteer to be considered as substantive evidence in prosecution for rape and first-degree sexual offense involving four or five year old victim constituted reversible error where the record on appeal showed no support for admission of the testimony under subdivision (24) of this rule, and the testimony as to commission of first-degree sexual offense was in direct conflict with the testimony of the victim. State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

Defendant's contention that the trial court erred in not allowing him to testify that witness in the car during the killing of a State Trooper said "You don't remember killing a State Trooper?" was without merit as defendant's testimony was hearsay and not within any of the exceptions to the rule prohibiting hearsay. See State v. McQueen, 324 N.C. 118, 377 S.E.2d 38 (1989).

Where there was no express or implied statement of fact that a "sexual act" occurred, the testimony of witnesses concerning victim's prior statements to the contrary was inadmissible for any purpose. State v. Murphy, 100 N.C. App. 33, 394 S.E.2d 300 (1990).

Trial court properly excluded hearsay testimony that the defendant sought to admit under the residual exception of G.S. 8C-1, N.C. R. Evid. 803(24) because the court found that the defendant did not give proper notice of his intention to offer hearsay testimony, and that even if the defendant had given proper notice, the testimony of the witnesses concerning the decedent's statements lacked sufficient guarantees of trustworthiness. State v. Carrigan, 161 N.C. App. 256, 589 S.E.2d 134 (2003).

Trial court's entry of a domestic violence protective order under G.S. 50B-3(b) in favor of a wife was error where the trial court relied on inadmissible hearsay testimony from her under G.S. 8C-1, N.C. R. Evid. 801(c) and 802 that she had a diagnosis of a cervical strain; there was no showing that such testimony was within any of the exceptions under G.S. 8C-1, N.C. R. Evid. 803. Little v. Little, 226 N.C. App. 499, 739 S.E.2d 876 (2013).

Trial court erred by admitting the video under both residual hearsay exceptions because it found it would be detrimental to the children's health and safety for them to testify based upon unwritten findings of fact from a nonexistent order, and this same unsupported finding could not support any finding that the hearsay statements of the children in their recorded interviews were more probative than any other evidence. In re B.W., - N.C. App. - , - S.E.2d - (Nov. 17, 2020).

Evidence Held Admissible. - The hearsay statement of an unavailable declarant was properly admitted where: (1) the statement was made while the declarant was in a law enforcement vehicle; (2) the declarant had first-hand knowledge of the event; (3) the declarant had no motive to lie, as the statement was adverse to the interests of a relative, and the declarant was not trying to evade personal responsibility for the crime; (4) there was no indication the statement was recanted; and (5) the declarant was unavailable for the trial, despite the State's diligent efforts to locate the declarant. State v. Castor, 150 N.C. App. 17, 562 S.E.2d 574 (2002), cert. denied, 357 N.C. 508, 587 S.E.2d 885 (2003).

Victim's statements accompanied by pictures showing her with a black eye, reflected the victim's fear of her uncertain future and thus, there was a sufficient relation to both the victim's state of mind and the status of her relationship with defendant to be admissible under the state of mind hearsay exception. State v. Dawkins, 162 N.C. App. 231, 590 S.E.2d 324 (2004), cert. denied, 358 N.C. 237, - S.E.2d - (2004).

As two children were available to testify, although neither the State nor defendant called them to testify, defendant waived her right to confront the children; additionally, none of the challenged statements constituted formal statements to the police or other government officers because the statements were not procured by a government officer but by the children's foster parents, and although the statements were conveyed both to the department of social services and the police, the statements were not formal testimonial statements. State v. Brigman, 171 N.C. App. 305, 615 S.E.2d 21 (2005), cert. denied, 360 N.C. 67, 621 S.E.2d 881 (2005).

Children's statements to their foster parents were properly admitted under the residual hearsay exception as, inter alia: (1) the children were unavailable as they had no memory of the subject matter; (2) the statements were evidence of material facts; (3) the statements were not covered by any of the hearsay exceptions listed in G.S. 8C-1-804(b)(1)-(4) and G.S. 8C-1-803(1)-(23); and (4) the statements possessed equivalent circumstantial guarantees of trustworthiness. State v. Brigman, 178 N.C. App. 78, 632 S.E.2d 498 (2006), appeal dismissed, cert. denied, 636 S.E.2d 813 (N.C. 2006).

Error in excluding codefendant's statement under the residual hearsay exception after codefendant invoked his rights under the Fifth Amendment was not harmless because the subject testimony conflicted with a third codefendant's testimony and could have permitted the jury to reach a different verdict. State v. Sargeant, 206 N.C. App. 1, 696 S.E.2d 786 (2010), aff'd in part and modified in part, 365 N.C. 58, 707 S.E.2d 192, 2011 N.C. LEXIS 143 (2011).

In defendant's trial for larceny, testimony of values of vehicles based on information from an automobile valuation publication and pricing guides was admissible under the market reports and publications exception to hearsay rule at G.S. 8C-1-803(17). State v. Dallas, 205 N.C. App. 216, 695 S.E.2d 474 (2010).

Trial court did not err by admitting hearsay statements a murder victim made to her sister-in-law under G.S. 8C-1, N.C. R. Evid. 803(3) as the contested testimony involved the relationship between defendant and the victim and statements by the victim that defendant was harassing her and had threatened her; defendant did not show that the alleged error prejudiced him as he admitted that the victim's statements to her sister-in-law were not testimonial, made no compelling argument that his constitutional right to confront witnesses against him was denied, and did not show that a reasonable probability existed that, absent the evidence, a different result would have been reached at trial. State v. Mills, 225 N.C. App. 773, 741 S.E.2d 427 (2013).

Trial court did not err by admitting a document handwritten by the victim because it contained statements of abuse the victim suffered by defendant, from which the trial court could determine that the document showed her state of mind. State v. Enoch, 261 N.C. App. 474, 820 S.E.2d 543 (2018), review denied, 824 S.E.2d 422, 2019 N.C. LEXIS 261 (2019).

It was an abuse of discretion for the trial court to exclude the statements that the victim's children made in their interviews with the Department of Social Services' social worker under the residual exception to the hearsay rule because the statements were trustworthy, they were material and probative, and their admission served the interests of justice by enabling defendants to present an adequate defense. State v. Corbett, - N.C. - , - S.E.2d - (Mar. 12, 2021).

Exclusion Held Proper. - The trial court incorrectly found that defendant failed to give the proper written notice to the prosecutor of his intent to offer hearsay evidence under G.S. 8C-1, Rules 803(24) and 804(b)(5); however, the trial court's findings that the defendant did not satisfy the requirement that "equivalent circumstantial guarantees of trustworthiness" be shown and the finding that the interests of justice would not be served by the letters' admission into evidence were proper; therefore, the trial court's exclusion of the letters was proper. State v. Agubata, 92 N.C. App. 651, 375 S.E.2d 702 (1989).

Exclusion Held Improper. - Trial court's finding of fact that testifying would be detrimental to the health and safety of the children was unsupported and was insufficient to support its conclusion that the children were unavailable to testify in person at the adjudication hearing based upon the sexual abuse they allegedly suffered because the counselor's testimony was not set forth in the adjudication order, and the counselor's letter was not a substitute for sworn testimony and did not contain required findings. In re B.W., - N.C. App. - , - S.E.2d - (Nov. 17, 2020).

Rule 804. Hearsay exceptions; declarant unavailable.

  1. Definition of unavailability. - "Unavailability as a witness" includes situations in which the declarant:
    1. Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; or
    2. Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or
    3. Testifies to a lack of memory of the subject matter of his statement; or
    4. Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
    5. Is absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), his attendance or testimony) by process or other reasonable means.
  2. Hearsay exceptions. - The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
    1. Former Testimony. - Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
    2. Statement Under Belief of Impending Death. - A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.
    3. Statement Against Interest. - A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability is not admissible in a criminal case unless corroborating circumstances clearly indicate the trustworthiness of the statement.
    4. Statement of Personal or Family History. - (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.
    5. Other Exceptions. - A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it gives written notice stating his intention to offer the statement and the particulars of it, including the name and address of the declarant, to the adverse party sufficiently in advance of offering the statement to provide the adverse party with a fair opportunity to prepare to meet the statement.

A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 804 except for the last sentence of Exception (3), which is discussed below.

Subdivision (a) defines unavailability. The Advisory Committee's Note states:

"The definition of unavailability implements the division of hearsay exceptions into two categories by Rules 803 and 804(b).

At common law the unavailability requirement was evolved in connection with particular hearsay exceptions rather than along general lines. * * * However, no reason is apparent for making distinctions as to what satisfies unavailability for the different exceptions. The treatment in the rule is therefore uniform. * * *

Five instances of unavailability are specified:

  1. Substantial authority supports the position that exercise of a claim of privilege by the declarant satisfies the requirement of unavailability (usually in connection with former testimony). * * * A ruling by the judge is required, which clearly implies that an actual claim of privilege must be made.
  2. A witness is rendered unavailable if he simply refuses to testify concerning the subject matter of his statement despite judicial pressures to do so, a position supported by similar considerations of practicality. * * *
  3. The position that a claimed lack of memory by the witness of the subject matter of his statement constitutes unavailability likewise finds support in the cases, though not without dissent. If the claim is successful, the practical effect is to put the testimony beyond reach, as in the other instances. In this instance, however, it will be noted that the lack of memory must be established by the testimony of the witness himself, which clearly contemplates his production and subjection to cross-examination.
  4. Death and infirmity find general recognition as grounds. * * *
  5. Absence from the hearing coupled with inability to compel attendance by process or other reasonable means also satisfies the requirement. * * *

If the conditions otherwise constituting unavailability result from procurement or wrongdoing of the proponent of the statement, the requirement is not satisfied. The rule contains no requirement that an attempt be made to take the deposition of a declarant."

Under North Carolina law the unavailability requirement varies with respect to particular hearsay requirements.

Under the hearsay exception for former testimony, North Carolina courts recognize grounds (1), (4), and (5). Brandis on North Carolina Evidence § 145 (1982). Although grounds (2) and (3) are not explicitly accepted or rejected by existing North Carolina precedents, Professor Brandis asserts that they should be accepted when occasion arises. Id. at 575.

Under the hearsay exception for dying declarations, G.S. 8-51.1 requires that the declarant be dead.

Under the exception for statements against interest, apparently any legitimate reason for unavailability is sufficient. Brandis on North Carolina Evidence § 147, at 589, n. 80 (1982).

With respect to statements of family history, it was said in the older cases that the declarant must be dead. However, Professor Brandis asserts that any legitimate reason for unavailability should be acceptable. Id. at 597.

The Advisory Committee's Note states:

"If the conditions otherwise constituting unavailability result from the procurement or wrongdoing of the proponent of the statement, the requirement is not satisfied. The rule contains no requirement that an attempt be made to take the deposition of a declarant."

Exception (1) concerns former testimony.

In North Carolina, the "testimony must have been given at a former trial of the same cause, or a preliminary stage of the same cause, or the trial of another cause involving the issue and subject matter to which the testimony is directed at the current trial." Brandis on North Carolina Evidence § 145, at 575-76 (1982) (footnotes omitted). The Advisory Committee's Note states:

"The common law did not limit the admissibility of former testimony to that given in an earlier trial of the same case, although it did require identity of issues as a means of insuring that the former handling of the witness was the equivalent of what would now be done if the opportunity were presented. Modern decisions reduce the requirement to 'substantial' identity. McCormick § 233. Since identity of issues is significant only in that it bears on motive and interest in developing fully the testimony of the witness, expressing the matter in the latter terms is preferable. Id. "

Also, the Advisory Committee's Note states:

"Under the exception, the testimony may be offered (1) against the party against whom it was previously offered or (2) against the party by whom it was previously offered. In each instance the question resolves itself into whether fairness allows imposing, upon the party against whom now offered, the handling of the witness on the earlier occasion. (1) If the party against whom now offered is the one against whom the testimony was offered previously, no unfairness is apparent in requiring him to accept his own prior conduct of cross-examination or decision not to cross-examine. Only demeanor has been lost, and that is inherent in the situation. (2) If the party against whom now offered is the one by whom the testimony was offered previously, a satisfactory answer becomes somewhat more difficult. One possibility is to proceed somewhat along the line of an adoptive admission, i.e., by offering the testimony proponent in effect adopts it. However, this theory savors of discarded concepts of witnesses' belonging to a party, of litigants' ability to pick and choose witnesses, and of vouching for one's own witnesses. * * * A more direct and acceptable approach is simply to recognize direct and redirect examination of one's own witness as the equivalent of cross-examining an opponent's witness. * * * Allowable techniques for dealing with hostile, double-crossing, forgetful, and mentally deficient witnesses leave no substance to a claim that one could not adequately develop his own witness at the former hearing. An even less appealing argument is presented when failure to develop fully was the result of a deliberate choice."

North Carolina practice currently permits testimony against the party against whom it was offered. Brandis on North Carolina Evidence § 145, at 577 (1982). There are no North Carolina cases concerning testimony offered against the party by whom it was previously offered.

With respect to identity of the parties, the Advisory Committee's Note states:

"As a further assurance of fairness in thrusting upon a party the prior handling of the witness, the common law also insisted upon identity of parties, deviating only to the extent of allowing substitution of successors in a narrowly construed privity. Mutuality as an aspect of identity is now generally discredited, and the requirement of identity of the offering party disappears except as it might affect motive to develop the testimony. * * * The question remains whether strict identity, or privity, should continue as a requirement with respect to the party against whom offered."

North Carolina practice apparently departs from the privity requirement to the extent of allowing former testimony "if the party against whom it was admitted had not merely an opportunity for cross-examination but the same motive for cross-examination as the party against whom it is offered." Brandis on North Carolina Evidence § 145, at 577 (1982). Exception (1) permits former testimony in civil cases if a predecessor in interest had an opportunity and similar motive to develop the testimony.

Under certain circumstances, Exception (1) permits a broader use of depositions than does N.C. Civ. Pro. Rule 32. See also G.S. 8-83.

Exception (2) differs from Fed. R. Evid. 804(b)(2) in that it omits the phrase "In a prosecution for homicide or in a civil action or proceeding".

The exception is similar to G.S. 8-51.1. Unlike Fed. R. Evid. 804(b)(2) which limits admissibility of dying declarations in criminal cases to homicide prosecution, Exception (2) and G.S. 8-51.1 permit dying declarations to be admitted in all types of criminal and civil actions and proceedings. Under G.S. 8-51.1 the declarant must have died from the causes or circumstances on which he commented. Upon adoption of Exception (2), G.S. 8-51.1 should be repealed.

Exception (3) concerns statements against interest and differs from Fed. R. Evid. 804(b)(3) as noted below. The Advisory Committee's Note states:

"The circumstantial guaranty of reliability for declarations against interest is the assumption that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true. * * * If the statement is that of a party, offered by his opponent, it comes in as an admission, * * * and there is no occasion to inquire whether it is against interest, this not being a condition precedent to admissibility of admissions by opponents."

North Carolina cases have recognized declarations against pecuniary or proprietary interest as an exception to the hearsay rule. See Brandis on North Carolina Evidence § 147 (1982). In State v. Haywood, 295 N.C. 709, the North Carolina Supreme Court abandoned the Court's previous approach that excluded from the exception declarations against penal interest.

The last sentence of Fed. R. Evid. 804(b)(3) provides that: "A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." Requiring corroborating circumstances to indicate clearly the trustworthiness of statements exculpating the accused while imposing no such requirement with respect to statements implicating the accused raises serious constitutional questions. Accordingly, Exception (3) differs from Fed. R. Evid. 804(b) (3) in that it imposes the requirement of corroborating circumstances with respect to both exculpating and implicating statements.

In Haywood, the Court listed several very restrictive requirements that a declaration against penal interest must meet. The exception should not be construed to add requirements in addition to the requirement that "corroborating circumstances clearly indicate the trustworthiness of the statement." As the Advisory Committee's Note states: "The requirement of corroboration should be construed in such a manner as to effectuate its purpose of circumventing fabrication."

Declarations against penal interests are admissible in both criminal and civil cases. However, the requirement of corroborating circumstances applies only in criminal cases.

The exception does not purport to deal with questions of the right to confrontation.

Exception (4) concerns statements of personal or family history.

The common law requirement in North Carolina that a declaration in this area must have been made before the beginning of the controversy was dropped in Fed. R. Evid. 804(b) (3), which is identical to this exception, as bearing more appropriately on weight than admissibility. See Brandis on North Carolina Evidence § 149 (1982); Advisory Committee's Note. Unlike North Carolina law that requires that the declarant be dead, Rule 804 merely requires that the declarant be unavailable. See Brandis, supra.

The first part of the rule specifically disclaims any need of firsthand knowledge respecting declarant's own personal history. Advisory Committee's Note.

The second part of the rule deals with declarations concerning the history of another person. North Carolina common law provides that the declarant is qualified if related by blood or marriage. Brandis, supra. In addition, and contrary to the common law in North Carolina, the declarant qualifies under the exception by virtue of intimate association with the family.

The Advisory Committee's Note states that: "The requirement sometimes encountered that when the subject of the statement is the relationship between two other persons the declarant must qualify as to both is omitted. Relationship is reciprocal." There are no North Carolina cases on this point.

Exception (5) is identical to Rule 803(24) and differs from the federal rule. See commentary to Rule 803(24).

Legal Periodicals. - For note, "State v. Smith: Facilitating the Admissibility of Hearsay Statements in Child Sexual Abuse Cases," see 64 N.C.L. Rev. 1352 (1986).

For article, "Guilty by Intuition: The Insufficiency of Prior Inconsistent Statements To Convict," see 65 N.C.L. Rev. 1 (1986).

For article, "Not So 'Firmly Rooted': Exceptions to the Confrontation Clause," see 66 N.C.L. Rev. 1 (1987).

For note, "North Carolina Relaxes Foundation Requirements for Mitigating Evidence in Capital Sentencing Hearings," see 66 N.C.L. Rev. 1221 (1988).

For note, "Criminal Procedure - Presumed Guilty: The Use of Videotaped and Closed-Circuit Televised Testimony in Child Sex Abuse Prosecutions and the Defendant's Right to Confrontation - Coy v. Iowa," see 11 Campbell L. Rev. 381 (1989).

For note, "Constitutional Admissibility of Hearsay Under the Confrontation Clause: Reliability Requirement for Hearsay Admitted Under a Non-'Firmly Rooted' Exception," see 14 Campbell L. Rev. 347 (1993).

For article, "Confrontation and Hearsay: New Wine in An Old Bottle," 16 Campbell L. Rev. 1 (1994).

For article, "Issues Once Moot: The Other Evidentiary Objections to the Admission of Exculpatory Polygraph Examinations," see 32 Wake Forest L. Rev. 1045 (1997).

For note, "State v. Alston: North Carolina Continues to Broaden its Mind to Admissibility of a Victim's Out-of-Court Statements Under the Rule 803(3) Hearsay Exception in Criminal Cases," see 32 Wake Forest L. Rev. 1327 (1997).

For note, "Not-So-Secrets? The State of the Attorney-Client Privilege in North Carolina in the Wake of In re Investigation of Death of Eric Miller and Crawford v. Washington," see 83 N.C. L. Rev. 1591 (2005).

For note, "Making Waves in a Sea of Uncertainty: Howerton Muddies the Waters of Expert Testimony Admissibility Standards in North Carolina," see 83 N.C. L. Rev. 1613 (2005).

CASE NOTES

I. GENERAL CONSIDERATION.

Every writing sought to be admitted must be properly authenticated, and must satisfy the requirements of the "best evidence rule," G.S. 8C-1, Rule 1002, or one of its exceptions, set forth in G.S. 8C-1, Rule 1003, et seq. Furthermore, if offered for a hearsay purpose, the writing must fall within one or more of the exceptions to the hearsay rule established by Rule 803 and this rule. FCX, Inc. v. Caudill, 85 N.C. App. 272, 354 S.E.2d 767 (1987).

Written Notice as Condition of Admission. - Admission of a hearsay statement when the declarant is unavailable is conditioned upon the proponent's written notice of his intention to offer the statement to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to meet the statement. State v. Howard, 78 N.C. App. 262, 337 S.E.2d 598 (1985), appeal dismissed, 316 N.C. 198, 341 S.E.2d 581 (1986).

Defense counsel failed to give the prosecutor timely, written notice of her intent to use witness' testimony, a prerequisite to admission of evidence under subsection (b)(5). State v. Hester, 343 N.C. 266, 470 S.E.2d 25 (1996).

Notice Held Sufficient. - Defendant received adequate notice of the State's intention to offer hearsay evidence where, almost two months before trial, in compliance with discovery request, the State disclosed the substance of witness's statements, and defendant conceded that he knew the State intended to call witness and, in general, the expected content of his testimony. State v. Bullock, 95 N.C. App. 524, 383 S.E.2d 431 (1989).

State provided timely written notice of intent to offer statements of unavailable witness at trial where: (1) it filed written notice of its intent about one month prior to the pretrial hearing; (2) it attached to that notice a copy of one of the statements as well as an officer's notes concerning the other statement (there is relevancy in a defendant's receipt of the declarant's statement well in advance of trial); and (3) it filed an amended notice providing defendant with a telephone number for the witness and indicating that the witness was living at an unknown address in India. State v. Fowler, 353 N.C. 599, 548 S.E.2d 684 (2001), cert. denied, 535 U.S. 939, 122 S. Ct. 1322, 152 L. Ed. 2d 230 (2002).

Admissibility Upheld Despite Lack of Written Notice. - Where defendants did not receive written notice of prosecution's intention to offer the written statement of the decedent until the morning of the trial, but were given a continuance to prepare to meet the prosecution's proffer of the written statement, and the trustworthiness of the statement was well litigated by cross-examination of the person who took the statement and by approximately 50 pages of direct examination of the attending physician in the presence of the jury and with access to all medical records requested by defendants, it was not error for the court to admit the statement. State v. Howard, 78 N.C. App. 262, 337 S.E.2d 598 (1985), appeal dismissed, 316 N.C. 198, 341 S.E.2d 581 (1986).

Written Notice on Day of Trial. - Written notice of State's intent to offer victim's statements, given to defendant on the day defendant's trial began, when considered in light of prior oral notice, provided defendant a fair opportunity to prepare to meet the statements and to contest their use, and the trial judge did not err by admitting them into evidence. State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986).

This Section Contains Requirements for Unavailability, Not Competency. - The trial court applied an erroneous legal standard in denying respondent father's request to call the children as witnesses because the focus of the voir dire was incorrectly directed to the effect the children's testifying would have on their mental health, rather than upon the ability of the children to understand their obligation to tell the truth and to relate events which they may have seen, heard or experienced; rather than determining whether all or any of them were competent to testify under G.S. 8C-1, Rule 601, the trial court disqualified them as being "unavailable," apparently relying upon the definition of "unavailability" contained in this section, but the question of a potential witness' unavailability becomes relevant only with respect to the admissibility of his hearsay declarations. In re Faircloth, 137 N.C. App. 311, 527 S.E.2d 679 (2000).

Right of Confrontation - Admission of the victim's statement to a police detective did not violate defendant's confrontation rights; the admission of the evidence under an exception to the hearsay rule trumped the right of confrontation. State v. Finney, 157 N.C. App. 267, 581 S.E.2d 764 (2003), cert. granted, 357 N.C. 453, 586 S.E.2d 273 (2003).

Error Was Harmless Beyond a Reasonable Doubt. - Defendant was not entitled to a new trial because the State demonstrated that the error of admitting prejudicial testimony of a co-conspirator was harmless beyond a reasonable doubt since the evidence of defendant's participation in the crimes was overwhelming. State v. Harris, 136 N.C. App. 611, 525 S.E.2d 208 (2000).

Findings Held Insufficient. - The court failed to make the requisite findings and conclusions necessary in order to admit a letter from the plaintiffs' doctor to plaintiffs' counsel in which the doctor opined that the minor who was injured in a car accident had suffered brain damage; in light of the conflicting testimony by experts at trial and because the opinion of the minor's treating medical doctor for more than two years after the accident carried significant weight, the error was prejudicial, entitling defendants to a new trial. Fox-Kirk v. Hannon, 142 N.C. App. 267, 542 S.E.2d 346 (2001), review denied, 353 N.C. 725, 551 S.E.2d 437 (2001), review dismissed, 353 N.C. 725, 551 S.E.2d 437 (2001).

Defendant waived his right to appellate review of the admissibility of hearsay evidence under G.S. 8C-1, Rule 803(3) where he only argued erroneous admission under subsection (b)(5) of this rule. State v. Parker, (N.C. App. Oct. 3, 2000).

Not Admissible Where no Findings Made by Trial Court. - Although a victim's statement was not properly admissible under the present sense impression exception to the hearsay rule, pursuant to G.S. 8C-1, N.C. R. Evid. 803(1), where it was made approximately seven hours after she was shot by defendant's co-conspirators and after the victim had undergone general anesthesia and surgery, and there were no requisite findings made by the trial court to allow it to be admitted under G.S. 8C-1, N.C.R. Evid. 804(b)(5), the admission was deemed harmless error; it was noted that the same information contained in the victim's written statement had been properly introduced into evidence by other witnesses and through other means. State v. Wiggins, 159 N.C. App. 252, 584 S.E.2d 303 (2003), cert. denied, 541 U.S. 910, 124 S. Ct. 1617, 158 L. Ed. 2d 256 (2004).

Counsel Not Ineffective for Failing to Raise Another Suspect's Confession Because Confession Did Not Fall Under Hearsay Exception. - Habeas petitioner's claim that counsel was ineffective for failing to get admitted at his murder trial another suspect's alleged confession to the crime - after the other suspect had committed suicide - failed because the federal district court was required to defer to the state court's determination that the confession, made only at home and to his girlfriend, would not subject him to criminal liability; therefore, the confession did not fall under the hearsay exception in G.S. 8C-1, N.C. R. Evid. 804(b)(3), and counsel was not ineffective for failing to raise the issue. Sharpe v. Bell, 593 F.3d 372 (4th Cir. 2010).

Applied in State v. Giles, 83 N.C. App. 487, 350 S.E.2d 868 (1986); State v. Purdie, 93 N.C. App. 269, 377 S.E.2d 789 (1989); State v. Harrell, 96 N.C. App. 426, 386 S.E.2d 103 (1989); State v. Levan, 326 N.C. 155, 388 S.E.2d 429 (1990); State v. Whitted, 99 N.C. App. 502, 393 S.E.2d 590 (1990); State v. Garner, 330 N.C. 273, 410 S.E.2d 861 (1991); Investors Title Ins. Co. v. Herzig, 330 N.C. 681, 413 S.E.2d 268 (1992); State v. Reeb, 331 N.C. 159, 415 S.E.2d 362 (1992); State v. Harris, 338 N.C. 211, 449 S.E.2d 462 (1994); State v. Brown, 339 N.C. 426, 451 S.E.2d 181 (1994), cert. denied, 516 U.S. 825, 116 S. Ct. 90, 133 L. Ed. 2d 46 (1995); State v. McLaughlin, 341 N.C. 426, 462 S.E.2d 1 (1995); State v. Gray, 347 N.C. 143, 491 S.E.2d 538 (1997), cert. denied, 523 U.S. 1031, 118 S. Ct. 1323, 140 L. Ed. 2d 486 (1998); Reis v. Hoots, 131 N.C. App. 721, 509 S.E.2d 198 (1998); In re Rhyne, 154 N.C. App. 477, 571 S.E.2d 879 (2002), cert. denied, 356 N.C. 672, 577 S.E.2d 637 (2003), cert. dismissed, 356 N.C. 672, 577 S.E.2d 637 (2003); State v. McLaughlin, 246 N.C. App. 306, 786 S.E.2d 269 (2016).

Cited in In re Helms, 77 N.C. App. 617, 335 S.E.2d 917 (1985); State v. Paige, 316 N.C. 630, 343 S.E.2d 848 (1986); State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986); State v. Roberts, 82 N.C. App. 733, 348 S.E.2d 151 (1986); State v. Aguallo, 318 N.C. 590, 350 S.E.2d 76 (1986); Fortune v. First Union Nat'l Bank, 87 N.C. App. 1, 359 S.E.2d 801 (1987); State v. Kerley, 87 N.C. App. 240, 360 S.E.2d 464 (1987); State v. Hunt, 324 N.C. 343, 378 S.E.2d 754 (1989); State v. Lynch, 327 N.C. 210, 393 S.E.2d 811 (1990); State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990); Braswell v. Braswell, 98 N.C. App. 231, 390 S.E.2d 752 (1990); State v. Sherrill, 99 N.C. App. 540, 393 S.E.2d 352 (1990); State v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991); State v. Tucker, 331 N.C. 12, 414 S.E.2d 548 (1992); State v. Holden, 106 N.C. App. 244, 416 S.E.2d 415 (1992); State v. Clark, 107 N.C. App. 184, 419 S.E.2d 188 (1992); State v. Jolly, 332 N.C. 351, 420 S.E.2d 661 (1992); State v. McHone, 334 N.C. 627, 435 S.E.2d 296 (1993); State v. Brown, 335 N.C. 477, 439 S.E.2d 589 (1994); State v. Swindler, 339 N.C. 469, 450 S.E.2d 907 (1994), overruled in part, State v. Jackson, 348 N.C. 644, 503 S.E.2d 101 (1998); State v. Alston, 341 N.C. 198, 461 S.E.2d 687 (1995), cert. denied, 516 U.S. 1148, 116 S. Ct. 1021, 134 L. Ed. 2d 100 (1996); State v. Ransome, 342 N.C. 847, 467 S.E.2d 404 (1996); State v. Sharpe, 344 N.C. 190, 473 S.E.2d 3 (1996); State v. Scott, 343 N.C. 313, 471 S.E.2d 605 (1996); State v. Taylor, 344 N.C. 31, 473 S.E.2d 596 (1996); State v. Norwood, 344 N.C. 511, 476 S.E.2d 349 (1996), cert. denied, 520 U.S. 1158, 117 S. Ct. 1341, 137 L. Ed. 2d 500 (1997); State v. Pickens, 346 N.C. 628, 488 S.E.2d 162 (1997); State v. Jordan, 130 N.C. App. 236, 502 S.E.2d 679 (1998); State v. Jackson, 348 N.C. 644, 503 S.E.2d 101 (1998); State v. Washington, 131 N.C. App. 156, 506 S.E.2d 283 (1998), cert. denied, 352 N.C. 362, 544 S.E.2d 562 (2000); State v. Childers, 131 N.C. App. 465, 508 S.E.2d 323 (1998); State v. Small, 131 N.C. App. 488, 508 S.E.2d 799 (1998); State v. Rivera, 350 N.C. 285, 514 S.E.2d 720 (1999); State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663 (2000); State v. Thibodeaux, 352 N.C. 570, 532 S.E.2d 797 (2000), cert denied, 531 U.S. 1155, 121 S. Ct. 1106, 148 L. Ed. 2d 976 (2001); State v. Aldridge, 139 N.C. App. 706, 534 S.E.2d 629 (2000), cert. denied, 353 N.C. 269, 546 S.E.2d 114 (2000); State v. Anthony, 354 N.C. 372, 555 S.E.2d 557 (2001); State v. King, 353 N.C. 457, 546 S.E.2d 575 (2001), cert. denied, 534 U.S. 1147, 122 S. Ct. 1107, 151 L. Ed. 2d 1002 (2002); State v. Allen, 353 N.C. 504, 546 S.E.2d 372 (2001); Kroh v. Kroh, 152 N.C. App. 347, 567 S.E.2d 760 (2002), cert. denied, 356 N.C. 673, 577 S.E.2d 120 (2003); Suarez v. Wotring, 155 N.C. App. 20, 573 S.E.2d 746 (2002), cert. denied, 357 N.C. 66, 579 S.E.2d 107, cert. dismissed, 357 N.C. 66, 579 S.E.2d 107
(2003); Estate of Graham v. Morrison, 156 N.C. App. 154, 576 S.E.2d 355 (2003); State v. Banks, 210 N.C. App. 30, 706 S.E.2d 807 (2011); State v. Rhodes, 219 N.C. App. 599, 724 S.E.2d 148 (2012), rev'd 743 S.E.2d 37, 2013 N.C. LEXIS 493 (2013); State v. Cook, 246 N.C. App. 266, 782 S.E.2d 569 (2016), review denied, 792 S.E.2d 778, 2016 N.C. LEXIS 682 (2016); State v. Thompson, 250 N.C. App. 158, 792 S.E.2d 177 (2016), cert. denied, 795 S.E.2d 366, 2017 N.C. LEXIS 74 (2017); review denied, 2017 N.C. LEXIS 74 (2017).

II. UNAVAILABILITY AS A WITNESS.

Trial Courts' Inquiry for Admission Under G.S. 8C-1, Rule 803(24) and G.S. 8C-1, Rule 804(b)(5). - Requirements for a hearsay statement to be admissible under G.S. 8C-1, Rule 803(24) where the availability of the declarant is immaterial are: (1) the proponent must notify his adversary in writing of his intent to introduce the statement; (2) the statement must not be admissible under any of the listed hearsay exceptions; (3) the statement must possess circumstantial guarantees of trustworthiness equivalent to those of the listed exceptions; (4) the statement must be offered as evidence of a material fact; (5) the statement must be more probative on the point for which it is offered than other evidence which the proponent can produce through reasonable efforts; and (6) the general purposes of the rules of evidence and the interests of justice must best be served by admission of the statement into evidence. For a hearsay statement to be admissible under G.S. 8C-1, Rule 804(b)(5), where the availability of the declarant is material, the same six requirements must be met after the proponent first proves that the declarant is unavailable. State v. Castor, 150 N.C. App. 17, 562 S.E.2d 574 (2002), cert. denied, 357 N.C. 508, 587 S.E.2d 885 (2003).

Determination of Trustworthiness. - Factors to be considered in determining whether hearsay statements admitted under this rule possess sufficient indicia of trustworthiness are: (1) Assurances of the declarant's personal knowledge of the underlying event; (2) the declarant's motivation to speak the truth or otherwise; (3) whether the declarant recanted the statements; and (4) the practical availability of the declarant at trial for meaningful cross-examination. State v. Stutts, 105 N.C. App. 557, 414 S.E.2d 61 (1992); State v. Chapman, 342 N.C. 330, 464 S.E.2d 661 (1995), cert. denied, 518 U.S. 1023, 116 S. Ct. 2560, 135 L. Ed. 2d 1077 (1996).

As to the admission of hearsay testimony under G.S. 8C-1, Rule 804(b)(5), the trial court must first find that the declarant is unavailable, and second, the trial court must conduct a six-prong inquiry to determine admissibility; the trial court should consider the following factors when analyzing the question of the third prong, trustworthiness: (1) the declarant's personal knowledge of the underlying event, (2) the declarant's motivation to speak the truth, (3) whether the declarant recanted, and (4) the practical availability of the declarant at trial for meaningful cross-examination. State v. Fowler, 353 N.C. 599, 548 S.E.2d 684 (2001), cert. denied, 535 U.S. 939, 122 S. Ct. 1322, 152 L. Ed. 2d 230 (2002).

Trial court erred in excluding codefendant's statement to a detective after codefendant invoked his rights under the Fifth Amendment because codefendant had personal knowledge of the events surrounding the charges against defendant and the trial court's other findings related to lack of trustworthiness were not supported by competent evidence. State v. Sargeant, 206 N.C. App. 1, 696 S.E.2d 786 (2010), aff'd in part and modified in part, 365 N.C. 58, 707 S.E.2d 192, 2011 N.C. LEXIS 143 (2011).

Determination of Trustworthiness Necessary. - Before statements in a letter purportedly written by unavailable declarant could be received into evidence under either G.S. 8C-1, Rule 803 or this rule, the trial court had to determine, inter alia, that the surrounding circumstances indicated that the statements were trustworthy. State v. Agubata, 94 N.C. App. 710, 381 S.E.2d 191 (1989).

Trustworthiness Shown. - Declarant's identification possessed sufficient guarantees of trustworthiness to be admissible under G.S. 8C-1, N.C. R. Evid. 804 where the declarant was an eyewitness to the incident and had personal knowledge of the event, she was motivated to speak the truth in order to aid in the apprehension of her daughter's killer, and she never recanted her identification of the individual who shot her daughter. State v. Allen, 162 N.C. App. 587, 592 S.E.2d 31 (2004).

Three boys' statements possessed equivalent guarantees of trustworthiness for purposes of the residual hearsay exception as, inter alia: (1) the discussion of sexual matters was initiated spontaneously by the children; (2) the adults to whom the statements were made were credible witnesses; (3) the nature of the statements tended to show that they were trustworthy as they were very explicit sexual statements that would not ordinarily be stated by boys of their age unless the statements were true; and (4) the trial court had an opportunity to see the boys on the witness stand at the motion hearing and it appeared obvious that their presence on the witness stand in front of defendant was traumatic for them. State v. Brigman, 178 N.C. App. 78, 632 S.E.2d 498 (2006), appeal dismissed, cert. denied, 636 S.E.2d 813 (N.C. 2006).

Trustworthiness Not Shown. - Although the record contained sufficient evidence upon which the trial court could have made sufficient findings of fact and conclusions of law regarding the trustworthiness of statement, it failed to do so; therefore, defendant was awarded a new trial. State v. Dammons, 121 N.C. App. 61, 464 S.E.2d 486 (1995).

Trial court did not err in denying the testimony of an unavailable witness where defendant did not establish that the declarant's statement possessed equivalent circumstantial guarantees of trustworthiness, and the trial judge specifically concluded that the general purposes of the rules and the interests of justice would not be best served by the admission of the statement. State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808 (2003).

Witness's hearsay statement identifying the perpetrator was not admissible under G.S. 8C-1, Rule 804 since the trial court did not find the witness to be unavailable and there was no indicia of reliability regarding the statement. State v. Lawson, 173 N.C. App. 270, 619 S.E.2d 410 (2005).

Trial court properly concluded that a statement lacked the trustworthiness necessary to be admitted under G.S. 8C-1-804(b)(5), given the large amount of alcohol consumed at the declarant's house and defendant's choice not to call the other people present at the declarant's house to testify; moreover, the statement was not more probative than evidence that could be secured from other alibi witnesses. State v. Ryals, 179 N.C. App. 733, 635 S.E.2d 470 (2006), review denied, 362 N.C. 91, 657 S.E.2d 27 (2007).

Burden of Proof upon Proponent. - Where the author of letter was unknown, and, therefore, there was no evidence as to his or her availability as a witness, the defendant, as the proponent of the evidence, bore the burden of satisfying the requirements of unavailability under this rule. State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

The degree of detail required in a finding of unavailability of a witness will depend on the circumstances of a particular case; for example, in a case where the declarant is dead, a trial judge's determination of unavailability in such cases must be supported by a finding that the declarant is dead, which finding in turn must be supported by evidence of death. Situations involving out-of-state or ill declarants or declarants invoking their fifth amendment right against self-incrimination may require a greater degree of detail in the findings of fact. Furthermore, while parties are not required to establish beyond doubt that a declarant is unavailable at the summary judgment stage of the proceedings, parties must at least put forth some evidence of a declarant's unavailability. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124 (2003), cert. denied, 357 N.C. 169, 581 S.E.2d 447 (2003).

Good-Faith Effort to Obtain Presence. - A witness is not unavailable for purposes of the (a)(4) exception to the confrontation requirement unless the State has made a good-faith effort to obtain her presence at trial. State v. Swindler, 129 N.C. App. 1, 497 S.E.2d 318 (1998), cert. denied, 348 N.C. 508, 510 S.E.2d 670 (1998), aff'd, 349 N.C. 347, 507 S.E.2d 284 (1998).

Where defendant argued that, because the victim was unavailable due to the actions of the State, the victim's statement to the police detective should have been excluded, the argument failed as there was no evidence that the State acted in any way to keep the victim from testifying, especially since the victim was subpoenaed. State v. Finney, 157 N.C. App. 267, 581 S.E.2d 764 (2003), cert. granted, 357 N.C. 453, 586 S.E.2d 273 (2003).

In a capital murder case, defendant's confrontation rights were violated where there was insufficient evidence to support a conclusion that the State employed good-faith efforts to contact and produce a witness at sentencing. State v. Nobles, 357 N.C. 433, 584 S.E.2d 765 (2003).

Admission of witness's statement through a police officer was proper under G.S.8C-1, N.C. R. Evid. 804(b)(5) since the prosecution made sufficient effort to locate the witness and defendant failed to show he was prejudiced by the amount of notice he received regarding the testimony. State v. Bailey, 163 N.C. App. 84, 592 S.E.2d 738 (2004), appeal dismissed, cert. denied, 358 N.C. 733, 601 S.E.2d 861 (2004).

G.S. 8C-1, N.C. R. Evid. 804 creates a hearsay exception and allows admission of prior testimony into evidence if the declarant is unavailable, and Rule 804 lists several definitions for "unavailability as a witness," including situations where the declarant is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. State v. Clark, 165 N.C. App. 279, 598 S.E.2d 213 (2004), cert. denied, 358 N.C. 734, 601 S.E.2d 866 (2004), cert. dismissed, 359 N.C. 192, 607 S.E.2d 651 (2004), cert. dismissed, - N.C. - , 631 S.E.2d 136 (2006).

When a police officer testified that he had "repeatedly" tried to locate a witness, and the prosecutor's statements regarding unsuccessful efforts to locate the witness corroborated the officer's testimony, this sufficiently demonstrated the State's good-faith efforts to procure the witness for the trial court to declare the witness unavailable. State v. Clark, 165 N.C. App. 279, 598 S.E.2d 213 (2004), cert. denied, 358 N.C. 734, 601 S.E.2d 866 (2004), cert. dismissed, 359 N.C. 192, 607 S.E.2d 651 (2004), cert. dismissed, - N.C. - , 631 S.E.2d 136 (2006).

The assertion of a conflict of interest due to retention of witness' law firm by the plaintiff subsequent to the first trial was not a privilege under paragraph (1) of subsection (a) of this rule, and the trial court erred in finding the witness to be unavailable and in admitting his testimony from the first trial. Asheville Mall, Inc. v. F.W. Woolworth Co., 83 N.C. App. 532, 350 S.E.2d 875 (1986), cert. denied, 319 N.C. 402, 354 S.E.2d 709 (1987).

To be admissible at trial, the deposition of an unavailable non-party witness must meet the requirements of both N.C.R. Civ.P. 32 and subdivision (b)(1). Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C. App. 650, 464 S.E.2d 47 (1995).

Court's Consideration of Unavailability Sufficient. - Where judge noted witness was under court order to appear and testify, witness refused, and judge concluded that in witness's statements there was a circumstantial guarantee of trustworthiness, trial court clearly took into account the reason for the declarant's unavailability. State v. Bullock, 95 N.C. App. 524, 383 S.E.2d 431 (1989).

Unavailability Requirement Satisfied. - Unavailability requirement was satisfied where the defendant was unable to procure the purported declarant's attendance by process. State v. Agubata, 92 N.C. App. 651, 375 S.E.2d 702 (1989).

Where four year old child was unable to answer question put to her regarding sexual abuse due to fear, judge's declaration that the child "is simply going to be unable to testify," amounted to an implicit declaration of unavailability within the meaning of subdivision (a)(4) of this rule and medical testimony was not required for that conclusion; the witness was not unavailable as the result of an existing medical condition, and the trial judge had the opportunity to observe the demeanor of the witness and her inability to respond to questions. In addition, State fulfilled the constitutional requirement of the confrontation clause by showing a good-faith attempt to secure the witness for trial by producing the witness and attempting to elicit her testimony. State v. Chandler, 324 N.C. 172, 376 S.E.2d 728 (1989).

Where the State had subpoenaed potential witness numerous times to appear in court, but was unable to locate her and defendant was made aware that the State was going to use potential witness' statement at trial, the trial court's determination that potential witness was unavailable was sufficient. State v. Dammons, 121 N.C. App. 61, 464 S.E.2d 486 (1995).

Witness's first trial testimony was properly admitted into evidence over defendant's objections where witness was unavailable because he asserted his constitutional right against self-incrimination. State v. Hunt, 339 N.C. 622, 457 S.E.2d 276 (1994).

Witness was unavailable under G.S. 8C-1, Rule 804(a)(5), after the State was unable to determine the witness's exact address in India, and the witness refused to attend proceedings because of the witness's gunshot injuries and fear for the witness's safety, despite the State's offer to pay the witness's travel and other expenses. State v. Fowler, 353 N.C. 599, 548 S.E.2d 684 (2001), cert. denied, 535 U.S. 939, 122 S. Ct. 1322, 152 L. Ed. 2d 230 (2002).

Victim was unavailable to testify within the meaning of unavailability of subdivision (a)(2) of this rule where the victim persisted in refusing to testify at trial. State v. Finney, 157 N.C. App. 267, 581 S.E.2d 764 (2003), cert. granted, 357 N.C. 453, 586 S.E.2d 273 (2003).

Declarants who were in Mexico, refused to return for trial, and could not be located were unavailable for purposes of testifying. State v. Allen, 162 N.C. App. 587, 592 S.E.2d 31 (2004).

Unavailability Requirement Not Satisfied. - Neither the fact that witnesses failed to remember every detail of killing, nor the fact that they disagreed with officer's account of their out-of-court statements, was sufficient to render them "unavailable" as witnesses for the purposes of this rule. State v. Miller, 330 N.C. 56, 408 S.E.2d 846 (1991).

An order to testify from the trial court is an essential component in a declaration of unavailability under G.S. 8C-1, Rule 804(a)(2). State v. Linton, 145 N.C. App. 639, 551 S.E.2d 572 (2001), cert. denied, 355 N.C. 498, 564 S.E.2d 229 (2002).

Hearsay testimony that another individual committed the murder that defendant was charged with was properly excluded because defendant was unable to prove the declarant's unavailability due to death, under G.S. 8C-1, N.C. R. Evid. 804(a)(4). State v. McCail, 150 N.C. App. 643, 565 S.E.2d 96 (2002).

Trial court did not err in excluding the transcript of the testimony of a witness from the first trial where the employee presented no evidence showing that the witness was unavailable and thus, failed to meet his burden of proving the unavailability of the witness. Brewer v. Cabarrus Plastics, Inc., 160 N.C. App. 688, 586 S.E.2d 819 (2003).

Trial court erred in admitting testimony of a witness regarding another parties' statements regarding duplicate keys defendant allegedly made for the victim's home because the trial court failed to make any findings regarding the declarant's availability to testify and the reliability of her statements; however, the error did not require reversal. State v. Scanlon, 176 N.C. App. 410, 626 S.E.2d 770 (2006).

Trial court erred by allowing a witness's deposition testimony to be entered into evidence in lieu of her live testimony due to her military deployment in violation of this rule, U.S. Const. amend. VI, and N.C. Const. art. I because the trial court failed to make the required findings of fact to demonstrate unavailability for the purposes of Rule 804 or the Confrontation Clause, the State failed in its burden of showing that the witness could not be made present at trial by process or other reasonable means, and the State failed in its burden of proving it had carried its constitutionally required burden of demonstrating that it had made a good-faith effort to obtain the witness' presence at trial. State v. Clonts, 254 N.C. App. 95, 802 S.E.2d 531 (2017), aff'd, review improvidently allowed, in part, 371 N.C. 191, 813 S.E.2d 796, 2018 N.C. LEXIS 426 (2018).

Trial court's finding of fact that testifying would be detrimental to the health and safety of the children was unsupported and was insufficient to support its conclusion that the children were unavailable to testify in person at the adjudication hearing based upon the sexual abuse they allegedly suffered because the counselor's testimony was not set forth in the adjudication order, and the counselor's letter was not a substitute for sworn testimony and did not contain required findings. In re B.W., - N.C. App. - , - S.E.2d - (Nov. 17, 2020).

Effect of Unavailability of Witness on Defendant's Right to Confrontation. - For purposes of a claim of a confrontation clause violation under N.C. Const. Art. I, § 23, a trial court's confrontation clause analysis of a statement should proceed as follows: the initial determination is whether the statement is testimonial or nontestimonial, and if the statement is testimonial, the trial court must then ask whether the declarant is available or unavailable to testify during the trial; if the declarant is unavailable pursuant to the G.S. 8C-1, N.C. R. Evid. 804(b)(5) hearsay exception, the trial court must determine whether the accused had a prior opportunity to cross-examine the declarant about this statement, and if the accused had such an opportunity, the statement may be admissible if it is not otherwise excludable hearsay, but if the accused did not have this opportunity, the statement must be excluded. State v. Lewis, 360 N.C. 1, 619 S.E.2d 830 (2005), vacated, remanded, Lewis v. North Carolina, 126 S. Ct. 2983, 165 L. Ed. 2d. 985 (2006) (remanded for further consideration in light of Davis v. Washington, 126 S. Ct. 226, 165 L. Ed. 2d. 224 (2006)).

Suicidal Tendency of Witness. - Where the trial judge not only observed the demeanor of the witness, but heard the testimony of the witness's former psychiatrist that the witness suffered from a mental infirmity such that testifying could make her suicidal, the record supported the trial court's determination that the witness was unavailable. State v. Carter, 338 N.C. 569, 451 S.E.2d 157 (1994), cert. denied, 515 U.S. 1107, 115 S. Ct. 2256, 132 L. Ed. 2d 263 (1995).

Evidence held to support finding that witness was unavailable so as to allow an admission to the investigating officers. State v. Bowie, 340 N.C. 199, 456 S.E.2d 771 (1995), cert. denied, 516 U.S. 994, 116 S. Ct. 529, 133 L.E.2d 435 (1995), cert denied, 516 U.S. 994, 116 S. Ct. 529, 113 L.E.2d 435 (1995), State v. Bowie, 340 N.C. 199, 456 S.E.2d 771 (1995), cert. denied, 516 U.S. 994, 116 S. Ct. 529, 133 L.E.2d 435 (1995).

Surviving Witness. - The hearsay statements of an unavailable witness were more probative than any other evidence because he was the only surviving victim of the crimes, he was the only eyewitness to the entire event, and he was the closest person to the assailants and therefore had the best opportunity to observe them. State v. Fowler, 353 N.C. 599, 548 S.E.2d 684 (2001), cert. denied, 535 U.S. 939, 122 S. Ct. 1322, 152 L. Ed. 2d 230 (2002).

Diligent Attempt to Produce Witness. - State acted diligently in trying to produce unavailable witness to testify, and it was practically impossible to return him to this country to testify, where: (1) state officials contacted him in India, and he informed them there was no way he would return to the United States to testify; (2) he was not willing to return to this country because his painful injuries made travel difficult and he feared for his safety; (3) the State spoke numerous times with his brother in California in attempts to locate him; (4) the State offered to provide him with police protection during his stay; and (5) the State offered to pay for his airfare, lodging, meals, and care for his injuries during his stay. State v. Fowler, 353 N.C. 599, 548 S.E.2d 684 (2001), cert. denied, 535 U.S. 939, 122 S. Ct. 1322, 152 L. Ed. 2d 230 (2002).

Defendant's Right to Confrontation of Witnesses. - Appellate court erred in finding that defendant's right to confrontation pursuant to N.C. Const. Art. I, § 23 was violated by allowing an officer to testify pursuant to G.S. 8C-1, N.C. R. Evid. 804(b)(5), that the deceased victim picked defendant from a lineup; although the hearsay statement was testimonial, and thus implicated the confrontation clause, the error was harmless pursuant to G.S. 15A-1443(b), as the outcome of the trial probably would have been the same if the lineup was excluded based on the victim's independent identification of defendant as the perpetrator. State v. Lewis, 360 N.C. 1, 619 S.E.2d 830 (2005), vacated, remanded, Lewis v. North Carolina, 126 S. Ct. 2983, 165 L. Ed. 2d. 985 (2006) (remanded for further consideration in light of Davis v. Washington, 126 S. Ct. 226, 165 L. Ed. 2d. 224 (2006)).

Forfeiture by Wrongdoing. - Trial court properly found, by at least a preponderance of the evidence, that the net effect of defendant's conduct was to pressure and intimidate his girlfriend into not appearing in court and testifying at trial. Accordingly, the trial court properly concluded defendant forfeited his confrontation rights by wrongdoing. State v. Allen, - N.C. App. - , 828 S.E.2d 562 (2019).

Statement Held Admissible. - Hearsay statement of unavailable declarant was properly admitted where: (1) the statement was made while the declarant was in a law enforcement vehicle; (2) the declarant had first-hand knowledge of the event; (3) the declarant had no motive to lie, as the statement was adverse to the interests of a relative, and the declarant was not trying to evade personal responsibility for the crime; (4) there was no indication the statement was recanted; and (5) the declarant was unavailable for the trial, despite the State's diligent efforts to locate the declarant. State v. Castor, 150 N.C. App. 17, 562 S.E.2d 574 (2002), cert. denied, 357 N.C. 508, 587 S.E.2d 885 (2003).

In defendant's trial on charges of first degree murder, first degree burglary, second degree kidnapping, and robbery with a dangerous weapon, the trial court (1) properly admitted the videotaped statement that defendant's wife gave to police, pursuant to G.S. 8C-1, N.C. R. Evid. 804(b)(5), after defendant's wife refused to testify for the State at defendant's trial, (2) properly admitted letters one of defendant's co-conspirators wrote to a girlfriend urging her to lie about her involvement in the co-conspirator's attempt to conceal evidence of the crime, pursuant to G.S. 8C-1, N.C. R. Evid. 804(b)(3), (b)(5), and (3) properly admitted evidence of similar crimes that defendant committed shortly after the murder, pursuant to G.S. 8C-1, N.C. R. Evid. 404(b). State v. Carter, 156 N.C. App. 446, 577 S.E.2d 640 (2003), cert. denied, 358 N.C. 547, - S.E.2d - (2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 868, 160 L. Ed. 2d 784 (2005).

Statements of the unknown men that the store was being robbed and then, moments after the robbery, that the robbers had driven off in a gray jeep described events either while they were happening or immediately afterwards and therefore, qualified as a present sense impression; there was also sufficient evidence of a startling experience-an armed robbery-and that the statements were a spontaneous reaction to justify admission as excited utterances. State v. Clark, 159 N.C. App. 520, 583 S.E.2d 680 (2003).

Because the child's statements were made to a person close to him (his foster mother) and without the reasonable belief that the statements would be used at a subsequent trial, the statements were not testimonial and therefore did not violate the Confrontation Clause; additionally, although the child was unavailable to testify, the trial court did not err in admitting the statements as hearsay exceptions. State v. Brigman, 171 N.C. App. 305, 615 S.E.2d 21 (2005), cert. denied, 360 N.C. 67, 621 S.E.2d 881 (2005).

Children's statements to their foster parents were properly admitted under the residual hearsay exception as, inter alia: (1) the children were unavailable as they had no memory of the subject matter; (2) the statements were evidence of material facts; (3) the statements were not covered by any of the hearsay exceptions listed in G.S. 8C-1-804(b)(1)-(4) and G.S. 8C-1-803(1)-(23); and (4) the statements possessed equivalent circumstantial guarantees of trustworthiness. State v. Brigman, 178 N.C. App. 78, 632 S.E.2d 498 (2006), appeal dismissed, cert. denied, 636 S.E.2d 813 (N.C. 2006).

Trial court did not abuse its discretion in admitting decedent's statements before decedent's death that defendant and another man were the shooters as the statements constituted a dying declaration under G.S. 8C-1, N.C. R. Evid. 804(b)(2). State v. Calhoun, 189 N.C. App. 166, 657 S.E.2d 424 (2008), review denied, appeal dismissed, 362 N.C. 476, 666 S.E.2d 651 (2008).

Statement Held Inadmissible. - Trial court properly excluded hearsay testimony that the defendant sought to admit under the residual exception of G.S. 8C-1, N.C. R. Evid. 804(b)(5) because the court found that the defendant did not give proper notice of his intention to offer hearsay testimony and that even if the defendant had given proper notice, the testimony of the witnesses concerning the decedent's statements lacked sufficient guarantees of trustworthiness. State v. Carrigan, 161 N.C. App. 256, 589 S.E.2d 134 (2003).

New trial was warranted in a murder case because a trial court erred by allowing the introduction of a 911 report, which included an anonymous citizen's phone call that defendant should have been treated as a robbery suspect, because this amounted to hearsay under G.S. 8C-1, N.C. R. Evid. 801(c); defendant did not open the door to the admission of the substance of improper hearsay statements. The State could have elicited at trial that there was an anonymous call that rebutted an initial be on the lookout, but it was prejudicial for the State to elicit the substance of the call. State v. Sharpless, 221 N.C. App. 132, 725 S.E.2d 894 (2012).

III. FORMER TESTIMONY.

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Even though there exists a preference for face-to-face confrontation at trial subsection b(1) recognizes an exception to this requirement. State v. Hunt, 339 N.C. 622, 457 S.E.2d 276 (1994).

Testimony at Preliminary Stage of Same Cause. - When the original witness is unavailable, his testimony at a preliminary stage of the same cause is admissible under the prior testimony exception to the hearsay rule and may be proved by the testimony of a person who heard it. State v. Highsmith, 74 N.C. App. 96, 327 S.E.2d 628, cert. denied, 314 N.C. 119, 332 S.E.2d 486 (1985).

Testimony from Criminal Trial Offered at Civil Proceeding Held Properly Excluded. - Decedent's father, plaintiff in civil action, was not a party to the criminal proceeding brought against defendant based upon the same facts and had no opportunity to cross examine the proposed witness; therefore, although the state's prosecuting attorney may have had a similar motive to develop the testimony, he was not a predecessor in interest to decedent's estate, and exclusion of the former testimony was correct. Hinnant v. Holland, 92 N.C. App. 142, 374 S.E.2d 152 (1988), cert. denied, 324 N.C. 335, 378 S.E.2d 792 (1989).

Testimony Properly Admitted. - Co-conspirator/brother's prior trial testimony was not statutorily inadmissable under subsection (b)(5) where the record supports the court's conclusion that he was unavailable under subsection (a)(2) because he willfully refused to testify at the defendant's trial and where his testimony was trustworthy, material, probative and served the interest of justice: because he had personal knowledge of the underlying events, his prior testimony was material and (in light of his refusal to testify at defendant's trial) more probative than any evidence the State could procure through reasonable efforts. State v. McNeill, 140 N.C. App. 450, 537 S.E.2d 518 (2000).

Testimony of defendant's former girlfriend given at his bond hearing was properly admitted against him at his trial, under G.S. 8C-1, N.C. R. Evid. 804(b)(1), because the girlfriend was unavailable at trial and the bond hearing was a preliminary proceeding to the trial in which the testimony was offered at which defendant was represented by counsel and had the same motive to cross-examine the witness as at trial. State v. Ramirez, 156 N.C. App. 249, 576 S.E.2d 714 (2003), cert. denied, 357 N.C. 255, 583 S.E.2d 286 (2003), cert. denied, 540 U.S. 991, 124 S. Ct. 487, 157 L. Ed. 2d 388 (2003).

Trial court did not err in admitting into evidence defendant's aunt's prior testimony from the Alford plea hearing, because defendant had an opportunity to cross-examine the aunt at that hearing and possessed a similar motive to cross-examine the aunt at the hearing. State v. Rollins, 226 N.C. App. 129, 738 S.E.2d 440 (2013).

Testimony Properly Excluded. - When taxpayers sued county commissioners for entering into a contract which benefitted one of the commissioners, the trial court properly excluded the testimony of a former county manager given in another proceeding because the prior testimony was not admissible under G.S. 8C-1, N.C. R. Evid. 804(b)(5); given the manager's motivation to exculpate himself by attempting to blame the commissioners, his statements did not meet the "circumstantial guarantees of trustworthiness." Gibbs v. Mayo, 162 N.C. App. 549, 591 S.E.2d 905, cert. denied, 358 N.C. 543, 599 S.E.2d 45 (2004).

In taxpayers' suit against county commissioners for entering into a contract that benefitted one of the commissioners, the trial court properly excluded the testimony of a former county manager given in another proceeding because, while the manager was unavailable, pursuant to G.S. 8C-1, N.C. R. Evid. 804(a)(1), because he asserted his Fifth Amendment privilege, his statements did not fall within the hearsay exceptions in G.S. 8C-1, N.C. R. Evid. 804(b)(1), as the issues from the other proceeding were far different from the issues in the trial at which the evidence was sought to be introduced. Gibbs v. Mayo, 162 N.C. App. 549, 591 S.E.2d 905, cert. denied, 358 N.C. 543, 599 S.E.2d 45 (2004).

Testimony Improperly Excluded. - In a criminal case, where the trial court had already declared that a victim-witness was an unavailable witness, and where that witness had given testimony under oath during voir dire, it was improper for the trial court to deny the defendant's attempt to admit that sworn testimony as rebuttal evidence against the State's evidence; the State was permitted an opportunity to examine the witness concerning the voir dire testimony, so it was admissible under Rule 804(b)(1). State v. Finney, 358 N.C. 79, 591 S.E.2d 863 (2004).

IV. BELIEF OF IMPENDING DEATH.

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Videotape Recording of Identification. - In a murder trial, the trial court did not err in allowing the State to introduce a videotape recording of victim's out-of-court identification of the defendant in a photographic line-up, made one day before his death, when he knew death was imminent. State v. Penley, 318 N.C. 30, 347 S.E.2d 783 (1986).

Surrounding Circumstances Supported Dying Declaration. - Trial court did not abuse the court's discretion in admitting a victims's dying declaration evidence where: (1) three and a half minutes after the victim called 911, he told his mother that he was going to die; (2) he had been shot five times and was bleeding; and (3) he was taken to the hospital, received medical treatment in the emergency room, and later died the same day. The circumstances surrounding the victim's statements supported the requirements for admission of a dying declaration under G.S. 8C-1, N.C. R. Evid. 804(b)(2). State v. Bodden, 190 N.C. App. 505, 661 S.E.2d 23 (2008), review denied, appeal dismissed 336 N.C. 131, 675 S.E.2d 660 (2009), cert. denied, 130 S. Ct. 175, 175 L. Ed. 2d 111 (2009).

V. STATEMENT AGAINST INTEREST.

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Subdivision (b)(3) of this rule requires a two-pronged analysis. Once a statement is deemed to be against declarant's penal interest, the trial judge must be satisfied that corroborating circumstances clearly indicate the trustworthiness of the statement if it exposes declarant to criminal liability. State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988); State v. Agubata, 92 N.C. App. 651, 375 S.E.2d 702 (1989).

The circumstantial guaranty of reliability for declarations against interest is the assumption that persons do not make statements which are damaging to themselves unless they are satisfied for good reasons that they are true. State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988).

Co-conspirator's statements against interest must contain "particularized guarantees of trustworthiness" such that adversarial testing would be expected to add little, if anything, to the statements' reliability; the indicia of reliability must be present in the statement itself and not by reference to other evidence presented at trial. State v. Harris, 136 N.C. App. 611, 525 S.E.2d 208 (2000).

Criminal Liability. - Subdivision (b)(3) of this rule requires that in order for a statement to be admissible, it must actually subject the declarant to criminal liability. State v. Singleton, 85 N.C. App. 123, 354 S.E.2d 259, appeal dismissed and cert. denied, 320 N.C. 516, 358 S.E.2d 530 (1987).

Identity of Declarant. - It is only where the identity of the declarant is revealed in the statement that the guaranty of reliability arises; the statement must actually subject the declarant to criminal liability. State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Circumstances of the Statement. - If the evidence had been properly developed at the time of trial, counsel could have persuasively argued that the statement was against penal interest and sufficiently credible to place before the jury for consideration and/or that the statements were sufficiently trustworthy and that due process required admission so that the jury could weigh the boyfriend's admission against the eyewitness accounts, the only evidence presented of the inmate's guilt. Although the State court reasoned that the trial court would have rejected admission of the evidence as a statement against penal interest because the boyfriend made the statement to his live-in girlfriend, the boyfriend's repeated inculpatory statements to his girlfriend, especially in light of the reward for information, created circumstances under which he was putting himself in legal jeopardy; there was no established North Carolina law excluding a statement as being considered a statement against penal interest solely because it is made to a girlfriend or other confidant or in the confines of a private setting Sharpe v. Bell, 595 F. Supp. 2d 636 (E.D.N.C. 2009).

Declarant Must Understand Damaging Potential of Statement. - For a statement to qualify as a declaration against interest the declarant must have understood the damaging potential of his statement, and in the case of an anonymous letter, where the declarant actually believed that the anonymity of the statement shielded him or her from criminal liability, requirement of the hearsay exception had not been fulfilled. State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990), in light of State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Corroboration Insufficient. - Federal habeas petitioner's counsel was not ineffective for failing to introduce a witness's testimony that a person who died before petitioner's trial allegedly told the witness that petitioner was not involved in a murder and robbery; there was no corroboration for the testimony, and its introduction would have opened the door to other evidence implicating petitioner that counsel had succeeded in excluding. Morrow v. Harkleroad, 247 F. Supp. 2d 805 (W.D.N.C. 2003).

Statement Held Inadmissible. - Hearsay testimony that another individual committed the murder that defendant was charged with was properly excluded because the proffered testimony did not provide the corroborating circumstances required for the admission of a statement tending to expose an unavailable declarant to criminal liability, under G.S. 8C-1, N.C. R. Evid. 804(b)(3). State v. McCail, 150 N.C. App. 643, 565 S.E.2d 96 (2002).

Co-defendant's statement was not admissible as a statement against interest under G.S. 8C-1-804(b)(3) as no evidence corroborated the co-defendant's statement, and the co-defendant had a motive to give a false statement, as the co-defendant's statement exculpated defendant and attempted to establish a possible claim of self-defense. State v. Choudhry, 206 N.C. App. 418, 697 S.E.2d 504 (2010), aff'd and modified 717 S.E.2d 348, 2011 N.C. LEXIS 659 (N.C. 2011).

Statement Held Admissible. - Statement by defendant regarding a murder that he had committed fit within the hearsay exception in subdivision (b)(3) and within the exception for statements of a co-conspirator in Rule 801(d)(E). State v. Barnes, 345 N.C. 184, 481 S.E.2d 44 (1997), cert. denied, 522 U.S. 876, 118 S. Ct. 196, 139 L. Ed. 2d 134 (1997), cert. denied, 523 U.S. 1024, 118 S. Ct. 1309, 140 L. Ed. 2d 473 (1998), cert. denied, 362 N.C. 239, 660 S.E.2d 53 (2008).

Statements by two witnesses implicating defendant, along with his brother, in the murder of the brother's wife were admissible as statements against interest or, because they were corroborated by other testimony, at any rate, their admission was not prejudicial. State v. Kimble, 140 N.C. App. 153, 535 S.E.2d 882 (2000).

Statements Not Found to Be Against Interest. - are admissible, even though they are themselves neutral as to declarant's interest, if they are integral to a larger statement which is against declarant's interest. State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988).

Where collateral statements, inculpatory to defendant, made by murder victim-declarant were part and parcel of his disserving statement, were integral to the larger statement made by victim to deputy, and were essential to an understanding of victim's motivation in making disserving statement to deputy, the trial judge was correct in admitting this collateral material, since it actually tended to fortify the initial statement's disserving aspects. State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988).

Statements made by arrestee to defendant admitting that LSD found in a box underneath the defendant while in arrestee's car belongs to arrestee and not to defendant were not admissible as statements made against arrestee's penal interests under subdivision (b)(3) because it is simply not a crime to know that drugs do not belong to a particular individual. State v. Eggert, 110 N.C. App. 614, 430 S.E.2d 699 (1993).

In taxpayers' suit against county commissioners for entering into a contract that benefitted one of the commissioners, the trial court properly excluded the testimony of a former county manager given in another proceeding because the prior testimony was not admissible under G.S. 8C-1, N.C. R. Evid. 804(b)(3) because the manager avoided any incriminating statements against himself by repeatedly asserting his Fifth Amendment privilege, so the statements were not so contrary to his pecuniary or proprietary interest that he would not have made them unless they were true. Gibbs v. Mayo, 162 N.C. App. 549, 591 S.E.2d 905, cert. denied, 358 N.C. 543, 599 S.E.2d 45 (2004).

VI. OTHER EXCEPTIONS.

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Trial Prior to July 1, 1984. - The requirement that hearsay evidence not falling within a recognized exception to the hearsay rule and offered because of necessity and a reasonable probability of truthfulness may be resorted to only when more probative evidence on the point cannot be procured through reasonable efforts applies to hearsay evidence offered in a trial conducted prior to the effective date of the North Carolina Rules of Evidence. Donavant v. Hudspeth, 318 N.C. 1, 347 S.E.2d 797 (1986).

Petitioner's habeas petition was properly denied because admission of certain hearsay statements under G.S. 8C-1, N.C. R. Evid. 804(b)(5) was not contrary to, nor an unreasonable application of United States Supreme Court precedent. Hayes v. York, 311 F.3d 321 (4th Cir. 2002), cert. denied, 538 U.S. 979, 123 S. Ct. 1803, 155 L. Ed. 2d 669 (2003).

Section 8C-1, Rule 803(24) Compared. - Subdivision (b)(5) of this rule is a verbatim copy of G.S. 8C-1, Rule 803(24), except that subdivision (b)(5) also requires that the declarant be unavailable before the hearsay may be admitted and G.S. 8C-1, Rule 803(24) does not. State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986).

Requirements for Admission of Hearsay Under Subdivision (b)(5). - Just as in G.S. 8C-1, Rule 803(24) cases, before hearsay testimony can be admitted under subdivision (b)(5) of this rule, the trial judge must engage in the six-part inquiry prescribed in State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985). In cases under subdivision (b)(5) of this rule, though, the trial judge first must find that the declarant is unavailable before commencing the six-part inquiry. However, the requirements of State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986). For annotations covering the Smith case, see analysis line XIII Other Exceptions, under Rule 803, above.

Before hearsay testimony can be admitted under subdivision (b)(5) of this rule, the trial judge must first find that the declarant is unavailable, and then engage in a six-part inquiry, as follows: (1) Has proper notice been given? (2) Is the hearsay not specifically covered elsewhere? (3) Is the statement trustworthy? (4) Is the statement material? (5) Is the statement more probative on the issue than any other evidence which the proponent can procure through reasonable efforts? (6) Will the interests of justice be best served by admission? Phillips & Jordan Inv. Corp. v. Ashblue Co., 86 N.C. App. 186, 357 S.E.2d 1, cert. denied, 320 N.C. 633, 360 S.E.2d 92 (1987).

Under G.S. 8C-1, Rules 803(24) and 804(b)(5), the trial judge is required to analyze hearsay's admissibility by undertaking a six-part inquiry; specifically, the trial court must determine the following: First, that proper notice was given of the intent to offer hearsay evidence under G.S. 8C-1, Rule 803(24) or 804(b)(5); second, that the hearsay evidence is not specifically covered by any of the other hearsay exceptions; third, that the hearsay evidence possesses certain circumstantial guarantees of trustworthiness; fourth, that the evidence is material to the case at bar; fifth, that the evidence is more probative on an issue than any other evidence procurable through reasonable efforts; and sixth, that admission of the evidence will best serve the interests of justice. State v. Agubata, 92 N.C. App. 651, 375 S.E.2d 702 (1989).

While no showing of necessity or trustworthiness is required for the other firmly rooted hearsay exceptions, a showing of necessity and trustworthiness is required for statements admitted under the catch-all exception to the hearsay rule to avoid violating the constitutional right to confrontation. State v. Wagoner, 131 N.C. App. 285, 506 S.E.2d 738 (1998).

While the trial court erred by not making specific findings for each step in the six-part inquiry into the admissibility of hearsay evidence, the error did not prejudice defendant because the evidence would still have been excluded. While the six-part inquiry is useful to appellate review of the admission of hearsay under this rule or under G.S. 8C-1, Rule 803(24), its utility is diminished when an appellate court reviews the exclusion of hearsay; in other words, if proffered evidence fails to meet the requirements of one of the inquiry steps, the trial judge's findings concerning the preceding steps are unnecessary. State v. Harris, 139 N.C. App. 153, 532 S.E.2d 850 (2000).

Although a defendant's son, who had witnessed his father's assault on his mother, was not shown to be unavailable to testify at trial, a trial court did not err by admitting the son's hearsay evidence as an excited utterance under G.S. 8C-1, N.C. R. Evid. 803(2) without any showing that the son was unavailable and without making the findings required by G.S. 8C-1, N.C. R. Evid. 804(b)(5) for a determination of the applicability of the residual exception to the hearsay rule, G.S. 8C-1, N.C. R. Evid. 803(24). State v. Lowe, 154 N.C. App. 607, 572 S.E.2d 850 (2002).

To meet the residual hearsay exception found in G.S. 8C-1, N.C. R. Evid. 803(24), a six-part inquiry must be satisfied: (1) that proper notice was given of the intent to offer hearsay evidence under, G.S. 8C-1, N.C. R. Evid. §§ 803(24) or 804(b)(5); (2) that the hearsay evidence is not specifically covered by any of the other hearsay exceptions; (3) that the hearsay evidence possesses certain circumstantial guarantees of trustworthiness; (4) that the evidence is material to the case at bar; (5) that the evidence is more probative on an issue than any other evidence procurable through reasonable efforts; and (6) that admission of the evidence will best serve the interests of justice. As in the case of the unavailability of a declarant at the summary judgment stage, while a party need not establish beyond doubt that the six-prong test is satisfied, a party must at least put forth some evidence that these six requirements will be met; otherwise, the requirement under G.S. 1A-1, N.C. R. Civ. P. 56(e), that statements not based on personal knowledge or not admissible into evidence shall not be considered by a trial court in ruling on a motion for summary judgment, could be circumvented with minimal effort. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124 (2003), cert. denied, 357 N.C. 169, 581 S.E.2d 447 (2003).

As the victim was unavailable under G.S. 8C-1, N.C. R. Evid. 804(a), his statements to his friends that he had a confrontation with defendant and was afraid of defendant were properly admissible under G.S. 8C-1, N.C. R. Evid. 803(24) and G.S. 8C-1, N.C. R. Evid. 804(b)(5) because the victim (1) had personal knowledge of the events the statements described, and the statements were made within two hours of the first altercation between defendant and the victim; (2) had no reason to lie to his friends, and there was no indication he would have benefitted from altering the story; (3) never recanted the statements and he died shortly after making them; and (4) was unavailable to testify, having died, so the evidence established that the statements possessed "equivalent circumstantial guarantees of trustworthiness." State v. Valentine, 357 N.C. 512, 591 S.E.2d 846 (2003).

Trial court erred when it excluded the hearsay statement of a witness implicating the state's eyewitness in a murder, as the statement was admissible under G.S. 8C-1-804(b)(5) because the witness had personal knowledge, never recanted, was available for cross-examination, and was motivated to speak truthfully when the witness made the statement. State v. Sargeant, 365 N.C. 58, 707 S.E.2d 192 (2011).

Given that the attorney was now deceased, plaintiffs provided notice of their intent to admit his transcript, and the trial court denied admission after plaintiffs argued for its admission under the only other applicable hearsay exceptions, the state bar proceedings had sufficient circumstantial guarantees of trustworthiness, the attorney's testimony was material, and he was the best source of evidence, such that the transcript would likely be admitted under the rule if properly considered. Brissett v. First Mt. Vernon Indus. Loan Ass'n, 233 N.C. App. 241, 756 S.E.2d 798 (2014).

Case law requires the trial court, upon being notified that a party is seeking to admit evidence pursuant to a residual hearsay exception, to ensure the record reflects it is considering the exception and engage in the six-part inquiry prior to admitting or denying proffered hearsay evidence; although plaintiffs argued for admission under the exception, the trial court did not indicate it considered admission or engaged in the required inquiry when the trial court denied admission of the transcript, which was an abuse of discretion and prejudicial. Brissett v. First Mt. Vernon Indus. Loan Ass'n, 233 N.C. App. 241, 756 S.E.2d 798 (2014).

Availability as Crucial Consideration. - The availability of a witness to testify at trial is a crucial consideration under the residual hearsay exceptions, G.S. 8C-1, Rule 803(24) and subdivision (b)(5) of this rule. The "availability" of the declarant to testify at trial unavoidably enters into the determination of admissibility of a "hearsay" witness' testimony as to out-of-court statements made by the declarant pursuant to either residual hearsay exception. State v. Fearing, 315 N.C. 167, 337 S.E.2d 551 (1985).

The availability of the witness to testify at trial is a crucial consideration under the residual hearsay exceptions of G.S. 8C-1, Rule 803(24) and subdivision (b)(5) of this rule, because usually the live testimony of the declarant will be the more probative evidence on the point for which it is offered. State v. Hollingsworth, 78 N.C. App. 578, 337 S.E.2d 674 (1985).

The degree of detail required in the finding of unavailability will depend on the circumstances of the particular case. State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986).

"Guarantees of Trustworthiness." - In determining whether a statement has the necessary "guarantees of trustworthiness," evidence that the declarant later recanted the statement is relevant. State v. Hollingsworth, 78 N.C. App. 578, 337 S.E.2d 674 (1985).

Threshold determination of trustworthiness is the most significant requirement of admissibility under the residual hearsay exception. Findings of fact and conclusions of law as to the trustworthiness requirement must appear in the record. State v. Moore, 87 N.C. App. 156, 360 S.E.2d 293 (1987), cert. denied, 321 N.C. 477, 364 S.E.2d 664 (1988).

Circumstances Indicating Trustworthiness. - Murder victim's statements to her attorney concerning defendant were admissible under the "catch-all" exception to hearsay; the attorney-client relationship was sufficient guaranty of trustworthiness to admit the statements. State v. Faucette, 326 N.C. 676, 392 S.E.2d 71 (1990).

Trial court erroneously admitted, under the residual exception of G.S. 8C-1-804(b)(5), the hearsay statements made by the witness to the police detective; in finding that the proffered statements were trustworthy, the trial court erroneously considered the corroborative nature of the witness's statements. State v. Champion, 171 N.C. App. 716, 615 S.E.2d 366 (2005).

Factors in Determining Whether Statement Possesses Equivalent Guarantees of Trustworthiness. - In determining whether a hearsay statement possesses "equivalent circumstantial guarantees of trustworthiness," the trial court should consider, inter alia: (1) The declarant's relationship with both the defendant and the government; (2) the declarant's motivation; (3) the extent of the declarant's personal knowledge; (4) whether the declarant ever recanted the statement; and (5) the practical availability of the declarant at trial for cross-examination. This list is not all inclusive and other factors may be considered when appropriate. State v. McLaughlin, 316 N.C. 175, 340 S.E.2d 102 (1986), aff'd in part and rev'd in part, 321 N.C. 267, 362 S.E.2d 280 (1987).

In weighing the "circumstantial guarantees of trustworthiness" of a hearsay statement for purposes of subdivision (b)(5) of this rule, the trial judge must consider, among other factors, (1) assurances of the declarant's personal knowledge of the underlying events; (2) the declarant's motivation to speak the truth or otherwise; (3) whether the declarant has ever recanted the statement; and (4) the practical availability of the declarant at trial for meaningful cross-examination. Also pertinent are factors such as the nature and character of the statement and the relationship of the parties. State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986).

A trial judge should consider a number of factors in determining whether a hearsay statement possesses sufficient indicia of trustworthiness to be admitted under subdivision (b)(5) of this rule. Among these factors are: (1) the declarant's personal knowledge of the underlying event; (2) the declarant's motivation to speak the truth; (3) whether the declarant recanted; and (4) the reason, within the meaning of subsection (a) of this rule, for the declarant's unavailability. However, this list is not inclusive, and other factors may be considered when appropriate. State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988).

In determining whether a statement proffered under a "catchall" exception to the hearsay rule possesses circumstantial guarantees of trustworthiness, certain factors are significant in guiding trial courts; among these factors are (1) assurance of personal knowledge of the declarant of the underlying event; (2) "the declarant's motivation to speak the truth or otherwise; (3) whether the declarant ever recanted the statement"; and (4) the reasons, within the meaning of G.S. 8C-1, Rule 804(a), for the declarant's unavailability. State v. Agubata, 92 N.C. App. 651, 375 S.E.2d 702 (1989).

The six-part inquiry employed to evaluate hearsay is very useful when an appellate court reviews the admission of hearsay under subdivision (b)(5) of this rule or G.S. 8C-1, Rule 803(24), but its utility is diminished when the court reviews the exclusion of hearsay; if proffered evidence fails to meet the requirements of one of the inquiry steps, the trial judge's findings concerning the preceding steps are unnecessary. State v. Hardison, 143 N.C. App. 114, 545 S.E.2d 233 (2001).

In the rape case, the victim's statement to the police detective that she had recently undergone a hysterectomy, making sexual intercourse nearly impossible without discomfort, was properly read to the jury pursuant to subdivision (b)(5) of this rule as notice to the defense of the use of the hearsay evidence was not required due to the suddenness of the victim's refusal to testify, the statement was not covered by any of the hearsay exceptions listed in subdivisions (b)(1)-(4), the statement possessed circumstantial guarantees of trustworthiness because the victim had personal knowledge of the rape and the victim's story never changed, the statement was offered as evidence of a material fact, the statement was more probative than any other evidence produced by the State, and the general purposes of the rules of evidence were best served by allowing the statement into evidence. State v. Finney, 157 N.C. App. 267, 581 S.E.2d 764 (2003), cert. granted, 357 N.C. 453, 586 S.E.2d 273 (2003).

When a statement sought to be admitted under subdivision (b)(5) of this rule nearly fits an enumerated exception, it has a degree of circumstantial trustworthiness which is relevant to the ultimate determination the trial court must make. State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988).

Independent verification, while not alone sufficient to enable the trial court to admit an absent witness' statement under subdivision (b)(5) of this rule, provides a useful basis for evaluating its trustworthiness. State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988).

Findings and Conclusions. - In order for a statement to fall within the hearsay "catchall" exception of subsection (b)(5) of this rule, the statement must not be admissible under any other exception to the hearsay rule. Detailed findings of fact are not required, but the trial judge must enter his conclusion in the record. State v. Moore, 87 N.C. App. 156, 360 S.E.2d 293 (1987), cert. denied, 321 N.C. 477, 364 S.E.2d 664 (1988).

Under the law espoused in case law, the trial court is only required to issue findings of fact and conclusions of law to support a decision to admit evidence pursuant to the residual exception rule, and there is no requirement that the trial court issue findings of fact or conclusions of law regarding the admissibility of evidence pursuant to any other exception. Brissett v. First Mt. Vernon Indus. Loan Ass'n, 233 N.C. App. 241, 756 S.E.2d 798 (2014).

Lack of Circumstances Indicating Statements' Trustworthiness. - Where the only evidence that the purported declarant existed was defendant's statements to that effect, the declarant was not produced at trial and no one other than defendant was produced to testify that the declarant existed or lived at defendants' residence where drugs were found, letters allegedly written by the declarant purporting to admit declarant's ownership of the contraband were properly excluded. State v. Agubata, 92 N.C. App. 651, 375 S.E.2d 702 (1989).

Trustworthiness Not To Be Based on Corroborating Evidence. - The trial court committed prejudicial error in basing its determination of statement's trustworthiness on the presence of corroborating evidence. State v. Downey, 127 N.C. App. 167, 487 S.E.2d 831 (1997).

Trustworthiness of Statement by Child. - The circumstances of each challenged hearsay statement by a child sexual abuse victim showed sufficient guarantees of trustworthiness for admission under the catch-all exception to the hearsay rule, where the child spoke with personal knowledge of the underlying events and had no motive to lie, she demonstrated how the defendant abused her by placing her finger in an anatomically correct female doll's vagina, and she never recanted her statements about the defendant. State v. Wagoner, 131 N.C. App. 285, 506 S.E.2d 738 (1998).

Counselor who had examined child sexual abuse victim permitted to testify at trial as to substantive evidence based on what the victim had told him under the subdivision (5) residual exception to G.S. 8C-1, Rule 804 after the victim refused to testify. State v. Isenberg, 148 N.C. App. 29, 557 S.E.2d 568 (2001), cert. denied, 355 N.C. 288, 561 S.E.2d 268 (2002).

Trial court did not err by admitting the child victim's statements about defendant's alleged sexual abuse to her grandparents and another witness under the residual hearsay exception because there were sufficient guarantees of trustworthiness, as the victim possessed personal knowledge of the evidence, she had no motivation to fabricate at the time of the statements, she never recounted the statements, and she was unavailable because of her lack of memory of the events. State v. Blankenship, 259 N.C. App. 102, 814 S.E.2d 901 (2018), review denied, writ denied, stay lifted, 372 N.C. 295, 827 S.E.2d 98, 2019 N.C. LEXIS 452 (2019), review denied, 372 N.C. 295, 827 S.E.2d 98, 2019 N.C. LEXIS 454 (2019).

Trial court erred by excluding defendant's children's interview statements because its determination that there were insufficient circumstantial guarantees of trustworthiness to support admission of the children's statements was made on the basis of inaccurate and incomplete findings of fact used to reach unsupported conclusions of law. The overwhelming evidence showed that both children understood the seriousness of the proceedings and the importance of truthfulness, as well as the temporal proximity of the children's statements to their father's death. State v. Corbett, - N.C. App. - , 839 S.E.2d 361 (2020), cert. dismissed, as moot, mot. denied, 845 S.E.2d 793, 2020 N.C. LEXIS 742 (N.C. 2020); aff'd, 855 S.E.2d 228, 2021 N.C. LEXIS 176 (N.C. 2021).

Otherwise Inadmissible Evidence as Basis for Expert Opinion. - The well-established practice has been to admit evidence otherwise inadmissible as hearsay for the purpose of revealing the basis for expert opinion testimony. State v. Jones, 322 N.C. 406, 368 S.E.2d 844 (1988).

A testifying expert can reasonably rely on the opinion of an out-of-court expert and can testify to the content of that opinion. This accords with case law prior to adoption of the Rules of Evidence. State v. Jones, 322 N.C. 406, 368 S.E.2d 844 (1988).

Out-of-Court Communication. - This rule has been interpreted to permit an expert witness to rely on an out-of-court communication as a basis for an opinion and to relate the content of that communication to the jury. State v. Jones, 322 N.C. 406, 368 S.E.2d 844 (1988).

Inability of Witness to Tell Truth from Fantasy. - Finding a witness unavailable to testify because of an inability to tell truth from fantasy prevents that witness' out-of-court statements from possessing guarantees of trustworthiness to be admissible at trial under the residual exception set forth in subdivision (b)(5) of this rule. State v. Stutts, 105 N.C. App. 557, 414 S.E.2d 61 (1992).

Current Inability of Witness to Tell Truth From Fantasy Not Relevant. - The trial court's conclusion that a child victim of alleged sexual abuse was incompetent to testify two years later did not invalidate her prior statements made truthfully with personal knowledge where nothing indicated that the child was incapable of telling the truth or distinguishing reality from imagination at the time of the sexual abuse. State v. Wagoner, 131 N.C. App. 285, 506 S.E.2d 738 (1998).

Failure to Determine Competency of Child Victim. - In a prosecution charging defendant with first-degree rape, incest, and taking indecent liberties with his three-year-old daughter, the trial judge's adoption of counsel's stipulation in concluding that the child victim was incompetent to testify, where he never personally examined or observed the child's demeanor in responding to questions during a voir dire examination, was reversible error, where highly prejudicial testimony was erroneously admitted pursuant to G.S. 8C-1, Rule 803(24) and subdivision (b)(5) of this rule on the basis of this improperly based conclusion. State v. Fearing, 315 N.C. 167, 337 S.E.2d 551 (1985).

Statements by murder victim, not knowing of his impending death, in which he identified the defendant as the person who shot him, held admissible under this rule as other exceptions. State v. Penley, 318 N.C. 30, 347 S.E.2d 783 (1986).

Necessity Shown. - In the circumstance where the State's case depended mainly on child sex abuse victim's statements and the child was incompetent to testify, the unavailability of the victim due to incompetency and the evidentiary importance of the victim's statements adequately demonstrated the necessity prong of this test. State v. Wagoner, 131 N.C. App. 285, 506 S.E.2d 738 (1998).

Admission of Evidence Upheld. - Statements by the victim to her daughter and to a friend, describing prior attacks upon her by the defendant (her son) and her fear of the defendant, possessed the "circumstantial guarantees of trustworthiness" necessary under subdivision (b)(5) of this rule. State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986).

Absent witness' statement held to contain sufficient circumstantial guarantees of trustworthiness to be admitted under subdivision (b)(5) of this rule. State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988).

Where the victim testified that defendant stated "they are never going to take me in again alive," the statement was probative of defendant's knowledge of his guilt, and defendant made no showing that the probative value of the statement was substantially outweighed by its prejudicial effect. State v. Charles, 92 N.C. App. 430, 374 S.E.2d 658 (1988), cert. denied, 324 N.C. 338, 378 S.E.2d 800 (1989).

Assault victim's statements to a police officer and to her neighbor were properly admitted where defendant was given notice of the State's intention to use the statements one week before trial and where the victim's testimony was the only eye-witness account of the beatings. State v. Shubert, 102 N.C. App. 419, 402 S.E.2d 642 (1991).

Where witness testified to events about which only she could have known, made statements against her penal interest regarding her use of illegal drugs and participation in prostitution, was incarcerated for much of the time between the interview and the trial, and never attempted to recant her statement which was made to a law enforcement officer, the hearsay testimony possessed sufficient guarantees of trustworthiness to be constitutionally admissible under this rule. State v. Peterson, 337 N.C. 384, 446 S.E.2d 43 (1994).

A victim-declarant's statements to a law enforcement officer describing (i) ill will between the defendant and herself and fear of the defendant and (ii) prior attacks by the defendant and the victim's fear are likely to possess the required guarantees. State v. Baker, 338 N.C. 526, 451 S.E.2d 574 (1994).

There was no error in admitting hearsay statements identifying defendant as the person who poured gasoline on victim and set her on fire where the statements were made to a nurse and the victim was deceased. State v. Tyler, 346 N.C. 187, 485 S.E.2d 599 (1997), cert. denied, 522 U.S. 1001, 118 S. Ct. 571, 139 L. Ed. 2d 411 (1998).

Recorded oral statement to police by co-conspirator's girlfriend, who was murdered after the statement was given, was trustworthy and properly admitted. State v. Hurst, 127 N.C. App. 54, 487 S.E.2d 846 (1997), cert. denied, 523 U.S. 1031, 118 S. Ct. 1324, 140 L. Ed. 2d 486 (1998).

A murder victim's statement possessed circumstantial guarantees of trustworthiness and was admissible in her husband's murder trial under the residual hearsay exception, where the victim told a witness that her husband had threatened to make her the next Nicole Simpson, that he had followed her to the bank, and that the victim told her husband that the money she withdrew was her "get out" money and that she was leaving him. State v. Hayes, 130 N.C. App. 154, 502 S.E.2d 853 (1998), aff'd, 350 N.C. 79, 511 S.E.2d 302 (1999).

Where victim was unavailable to testify against defendant/father, evidence and findings supported the trial court's admission of hearsay statements under this rule. State v. Pretty, 134 N.C. App. 379, 517 S.E.2d 677, cert. denied, appeal dismissed, 351 N.C. 117, 540 S.E.2d 745 (1999).

Admission of Evidence Held Harmless. - Failure of the trial court to determine specifically that murder victim's statement to her attorney was not covered by any explicit exception to the hearsay rule was error, but the error was harmless where the evidence of defendant's guilt was overwhelming. State v. Faucette, 326 N.C. 676, 392 S.E.2d 71 (1990).

Evidence Held Inadmissible. - Where statement made by defendant's alleged accomplice was not made under oath or under a threat of perjury, the defendant did not have the opportunity to cross-examine him as to the veracity of the statement, and he made the statement to gain favor with the police and in hopes of a favorable plea bargain, but later recanted, claiming that the police drafted the statement and that he signed it under coercion by his attorney, the totality of the circumstances surrounding the confession justified the conclusion that it lacked the required "equivalent circumstantial guarantees of trustworthiness" to be admitted under the residual exception of subdivision (b)(5) of this rule. State v. McLaughlin, 316 N.C. 175, 340 S.E.2d 102 (1986), aff'd in part and rev'd in part, 321 N.C. 267, 362 S.E.2d 280 (1987).

The trial court erred by admitting into evidence the statement given by the child witness in a sexual offense case to the investigating officer without making the specific findings of fact and conclusions of law pursuant to G.S. 8C-1, Rule 804(b)(5), as required by State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985), and State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986). State v. Benefield, 91 N.C. App. 228, 371 S.E.2d 306, cert. denied, 323 N.C. 367, 323 N.C. 478, 373 S.E.2d 868 (1988).

The trial court incorrectly found that defendant failed to give the proper written notice to the prosecutor of his intent to offer hearsay evidence under G.S. 8C-1, Rules 803(24) and 804(b)(5); however, the trial court's finding that the defendant did not satisfy the requirement that "equivalent circumstantial guarantees of trustworthiness" be shown and the finding that the interests of justice would not be served by the letters' admission into evidence were proper; therefore, the trial court's exclusion of the letters was proper. State v. Agubata, 92 N.C. App. 651, 375 S.E.2d 702 (1989).

Defendant's contention that the trial court erred in not allowing him to testify that witness in the car during the killing of a State Trooper said "You don't remember killing a State Trooper?" was without merit as defendant's testimony was hearsay and not within any of the exceptions to the rule prohibiting hearsay. State v. McQueen, 324 N.C. 118, 377 S.E.2d 38 (1989).

Trial court properly refused to admit letter which was not a statement against penal interest because witness had already entered a guilty plea and was serving a sentence for the murder when the letter was written. State v. Pickens, 346 N.C. 628, 488 S.E.2d 162 (1997).

The residual hearsay exception was improperly exercised to allow the admission in a rape case of the victim-witness' statements to a police detective where the witness never definitively refused to testify, where she did not persist in a refusal to testify in the manner contemplated by Rule 804, and where, during her voir dire by the State when she was originally called as a witness, she never indicated an unequivocal persistence in refusing to testify; since the witness was improperly deemed unavailable, admission of the hearsay testimony under the residual exception was improper. State v. Finney, 358 N.C. 79, 591 S.E.2d 863 (2004).

Trial court erred by admitting the video under both residual hearsay exceptions because it found it would be detrimental to the children's health and safety for them to testify based upon unwritten findings of fact from a nonexistent order, and this same unsupported finding could not support any finding that the hearsay statements of the children in their recorded interviews were more probative than any other evidence. In re B.W., - N.C. App. - , - S.E.2d - (Nov. 17, 2020).

The notice requirement of subdivision (b)(5) of this rule should be construed flexibly, in light of the express policy of providing a party with a fair opportunity to meet the proffered evidence. State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988).

By giving defendant additional time to prepare to meet absent witness' statement, and to locate him if possible, the court ensured that notice provisions of subdivision (b)(5) of this rule were met. State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988).

Notice Held Sufficient. - Defendant held to have been provided with a fair opportunity to meet absent witness' statement, so that the notice given by the prosecutor of his intention to admit the statement was sufficient under subdivision (b)(5) of this rule. State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988).

Although the address of the declarant was not provided as required by State v. Smith, 315 N.C. at 92, 337 S.E.2d at 844 (1985), defense counsel's letter informed the prosecutor that the declarant's address was unknown; therefore, where the prosecutor did not request additional information about the purported declarant's letter or a copy of the letter prior to trial, the notice provided by defense counsel, a full month prior to trial, was sufficient to provide the prosecution with a fair opportunity to prepare to meet the hearsay statements contained in the letter. State v. Agubata, 92 N.C. App. 651, 375 S.E.2d 702 (1989).

Statement Inadmissible. - Trial court did not err in excluding the testimony of three defense witnesses that a man who died before trial had stated that he knew that the defendant did not commit the attempted robbery and murder for which defendant was charged, because the trustworthiness of the statement exposing the declarant to criminal liability was not clearly indicated by corroborating circumstances. State v. Wardrett, 145 N.C. App. 409, 551 S.E.2d 214 (2001).

Statements by the victim to his wife and daughter, made sever days after the robbery, were not admissible under the residual hearsay exception, since the statements gave contradicting accounts of the evidence and thus, could not be said to have sufficient indicia of reliability. State v. Blackstock, 165 N.C. App. 50, 598 S.E.2d 412 (2004), appeal dismissed, cert. denied, 359 N.C. 283, 610 S.E.2d 208 (2005).


Rule 805. Hearsay within hearsay.

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 805. The Advisory Committee's Note states:

"On principle it scarcely seems open to doubt that the hearsay rule should not call for exclusion of a hearsay statement which includes a further hearsay statement when both conform to the requirements of a hearsay exception. Thus a hospital record might contain an entry of the patient's age based on information furnished by his wife. The hospital record would qualify as a regular entry except that the person who furnished the information was not acting in the routine of the business. However, her statement independently qualifies as a statement of pedigree (if she is unavailable) or as a statement made for purposes of diagnosis or treatment, and hence each link in the chain falls under sufficient assurance. Or, further to illustrate, a dying declaration may incorporate a declaration against interest by another declarant. See McCormick § 290, p. 611."

Rule 805 is consistent with North Carolina practice. See, e.g., State v. Connley, 295 N.C. 327 (1978).

CASE NOTES

National Transportation Safety Board Report. - Where National Transportation Safety Board (NTSB) reports contained statements by pilots, witnesses and other non-officials who were not present to testify at trial, trial court properly exercised its discretion in excluding the hearsay portions thereof; to the extent portions were admissible independent of the report, those portions were admissible. Bolick v. Sunbird Airlines, 96 N.C. App. 443, 386 S.E.2d 76 (1989), appeal of right allowed pursuant to N.C.R.A.P., Rule 16(b) and petition denied as to additional issues, 326 N.C. 363, 389 S.E.2d 811 (1990).

That an Admission of Defendant Was Contained Within a Hearsay Statement by Another Individual did not affect admissibility where both statements were admissible; officers' testimony about the notes he took during an interview with defendant were not hearsay and were properly admitted into evidence - they were also not hearsay within hearsay. State v. Chapman, 359 N.C. 328, 611 S.E.2d 794 (2005).

Passenger's Statement to Defendant Not Hearsay. - Defendant's statement to an officer that a passenger told him to stop the car during a police chase was not offered for its truth, and thus was properly admitted in defendant's second-degree murder trial because it was not hearsay evidence under N.C. R. Evid. 801(c), and was introduced to demonstrate malice. State v. Hazelwood, 187 N.C. App. 94, 652 S.E.2d 63 (2007), cert. denied, 363 N.C. 133, 673 S.E.2d 867 (2009), cert. denied, 558 U.S. 1013, 130 S. Ct. 553, 175 L. Ed. 2d 385 (2009).

Applied in In re Rhyne, 154 N.C. App. 477, 571 S.E.2d 879 (2002), cert. denied, 356 N.C. 672, 577 S.E.2d 637 (2003), cert. dismissed, 356 N.C. 672, 577 S.E.2d 637 (2003).

Cited in Ferguson v. Williams, 101 N.C. App. 265, 399 S.E.2d 389 (1991); State v. Hurst, 127 N.C. App. 54, 487 S.E.2d 846 (1997), cert. denied, 523 U.S. 1031, 118 S. Ct. 1324, 140 L. Ed. 2d 486 (1998); Wooten v. Newcon Transp., Inc., 178 N.C. App. 698, 632 S.E.2d 525 (2006), review denied, 361 N.C. 704, 655 S.E.2d 405 (2007).


Rule 806. Attacking and supporting credibility of declarant.

When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as if under cross-examination.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 806 except that the phrase "or a statement defined in 801(d)(2)(C), (D), or (E)" has been omitted from the first sentence. Fed. R. Evid. 801 treats admissions by a party-opponent as statements that are not hearsay. Since Rule 801 treats such statements as exceptions to the hearsay rule, the above phrase is superfluous.

The Advisory Committee's Note states:

"The declarant of a hearsay statement which is admitted in evidence is in effect a witness. His credibility should in fairness be subject to impeachment and support as though he had in fact testified. See Rules 608 and 609. There are however, some special aspects of the impeaching of a hearsay declarant which require consideration. These special aspects center upon impeachment by inconsistent statement, arise from factual differences which exist between the use of hearsay and an actual witness and also between various kinds of hearsay, and involve the question of applying to declarants the general rule disallowing evidence of an inconsistent statement to impeach a witness unless he is afforded an opportunity to deny or explain. * * *

The principal difference between using hearsay and an actual witness is that the inconsistent statement will in the case of the witness almost inevitably of necessity in the nature of things be a prior statement, which it is entirely possible and feasible to call to his attention, while in the case of hearsay the inconsistent statement may well be a subsequent one, which practically precludes calling it to the attention of the declarant. The result of insisting upon observation of this impossible requirement in the hearsay situation is to deny the opponent, already barred from cross-examination, any benefit of this important technique of impeachment. The writers favor allowing the subsequent statement. McCormick § 37, p. 69; 3 Wigmore § 1033. * * *

When the impeaching statement was made prior to the hearsay statement, differences in the kinds of hearsay appear which arguably may justify differences in treatment. If the hearsay consisted of a simple statement by the witness, e.g., a dying declaration or a declaration against interest, the feasibility of affording him an opportunity to deny or explain encounters the same practical impossibility as where the statement is a subsequent one, just discussed, although here the impossibility arises from the total absence of anything resembling a hearing at which the matter could be put to him. The courts by a large majority have ruled in favor of allowing the statement to be used, under these circumstances. McCormick § 37, p. 69; 3 Wigmore § 1033. If, however, the hearsay consists of former testimony or a deposition, the possibility of calling the prior statement to the attention of the witness or deponent is not ruled out, since the opportunity to cross-examine was available. It might thus be concluded that with former testimony or depositions the conventional foundation should be insisted upon. Most of the cases involve depositions, and Wigmore describes them as divided. 3 Wigmore § 1031. Deposition procedures at best are cumbersome and expensive, and to require the laying of the foundation may impose an undue burden. Under the federal practice, there is no way of knowing with certainty at the time of taking a deposition whether it is merely for discovery or will ultimately end up in evidence. With respect to both former testimony and depositions the possibility exists that knowledge of the statement might not be acquired until after the time of the cross-examination. Moreover, the expanded admissibility of former testimony and depositions under Rule 804(b)(1) calls for a correspondingly expanded approach to impeachment. The rule dispenses with the requirement in all hearsay situations, which is readily administered and best calculated to lead to fair results."

In Hooper v. Moore, 48 N.C. 428 (1856), the court stated that in order to impeach the credibility of a declarant by showing an inconsistent statement made before the time when a deposition was taken, the declarant must be given an opportunity to explain. Professor Brandis is uncertain whether the requirement of an opportunity to explain bars proof of statements or conduct showing bias on the part of a hearsay declarant not present to testify; but in his view it should not. Brandis on North Carolina Evidence § 48, p. 183 (1982).

The provision for cross-examination of a declarant upon his hearsay statement is a corollary of general principles of cross-examination and is consistent with North Carolina practice. See N.C. Civ. Pro. Rule 32(c).

Legal Periodicals. - For a practice-oriented discussion of impeachment of hearsay declarants by trial judges and attorneys, see 13 Campbell L. Rev. 157 (1991).

For recent development, "The Defense Calls ... the Accuser? State v. Brigman and How the North Carolina Court of Appeals Misconstrued Crawford's Application to Available Witnesses," see 84 N.C. L. Rev. 2082 (2006).

CASE NOTES

Where the witness had formed an opinion as to the prosecuting witness' character for truth and veracity based on personal knowledge gained in the course of her position as prosecuting witness' supervisor, this threshold requirement was all that was needed in order to allow her to testify as to such opinion. State v. Morrison, 84 N.C. App. 41, 351 S.E.2d 810, cert. denied, 319 N.C. 408, 354 S.E.2d 724 (1987).

Rebuttal Evidence Admitted. - Evidence of an out-of-court declarant's inconsistent statements was admissible under this rule to impeach his credibility, where declarant's inculpatory statements regarding his involvement in the crime and exculpating the defendant were admitted pursuant to the defendant's motion. State v. Small, 131 N.C. App. 488, 508 S.E.2d 799 (1998).

Prior Convictions of Declarant - Trial court did not commit reversible error by allowing the State to question a defense witness as to defendant's prior conviction for forcible robbery because evidence of defendant's prior conviction was admissible to attack defendant's credibility as a hearsay declarant; the defense witness's testimony assisted in establishing an alibi for defendant and was hearsay because it was offered for the truth of the matter asserted. State v. McConico, 153 N.C. App. 723, 570 S.E.2d 776 (2002), cert. denied, 357 N.C. 168, 581 S.E.2d 440 (2003).

Trial court properly overruled defendant's objections to questions the State asked a police detective during redirect examination, about a conversation the detective had with a victim who was kidnapped, because defendant opened the door to those questions during cross-examination when he asked the detective to discuss admissions the victim made, in an attempt to attack the victim's credibility. State v. Forrest, 164 N.C. App. 272, 596 S.E.2d 22 (2004), cert. denied, 359 N.C. 193, 607 S.E.2d 653 (2004), aff'd, - N.C. - , 611 S.E.2d 833 (2005), remanded, Forrest v. North Carolina, 126 S.C. 29777 (U.S. 2006).

Cited in State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986); State v. Adams, 90 N.C. App. 145, 367 S.E.2d 362 (1988); State v. Lovin, 339 N.C. 695, 454 S.E.2d 229 (1995); State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995); State v. Lemons, 352 N.C. 87, 530 S.E.2d 542 (2000), cert. denied, 531 U.S. 1091, 121 S. Ct. 813, 148 L. Ed. 2d 698 (2001).


ARTICLE 9. Authentication and Identification.

Rule

Rule 901. Requirement of authentication or identification.

  1. General provision. - The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
  2. Illustrations. - By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
    1. Testimony of Witness with Knowledge. - Testimony that a matter is what it is claimed to be.
    2. Nonexpert Opinion on Handwriting. - Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
    3. Comparison by Trier or Expert Witness. - Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
    4. Distinctive Characteristics and the Like. - Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
    5. Voice Identification. - Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
    6. Telephone Conversations. - Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
    7. Public Records or Reports. - Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
    8. Ancient Documents or Data Compilations. - Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.
    9. Process or System. - Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
    10. Methods Provided by Statute. - Any method of authentication or identification provided by statute.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 901 except that in example (10) the word "statute" is inserted in lieu of the phrase "Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority."

The Advisory Committee's Note states:

"Subdivision (a). Authentication and identification represent a special aspect of relevancy. * * * Thus a telephone conversation may be irrelevant because on an unrelated topic or because the speaker is not identified. The latter aspect is the one here involved. Wigmore describes the need for authentication as "an inherent logical necessity." 7 Wigmore § 2129, p. 564.

This requirement of showing authenticity or identity falls in the category of relevancy dependent upon fulfillment of a condition of fact and is governed by the procedure set forth in Rule 104(b).

The common law approach to authentication of documents has been criticized as an 'attitude of agnosticism,' McCormick, Cases on Evidence 388, n. 4 (3rd ed. 1956), as one which 'departs sharply from men's customs in ordinary affairs,' and as presenting only a slight obstacle to the introduction of forgeries in comparison to the time and expense devoted to proving genuine writings which correctly show their origin on their face, McCormick § 185, pp. 395, 396. Today, such available procedures as requests to admit and pretrial conference afford the means of eliminating much of the need for authentication or identification. Also, significant inroads upon the traditional insistence on authentication and identification have been made by accepting as at least prima facie genuine items of the kind treated in Rule 902, infra. However, the need for suitable methods of proof still remains, since criminal cases pose their own obstacles to the use of preliminary procedures, unforeseen contingencies may arise, and cases of genuine controversy will still occur."

Subdivision (a) is in accord with North Carolina practice.

With respect to subdivision (b), the Advisory Committee's Note states:

"The treatment of authentication and identification draws largely upon the experience embodied in the common law and in statutes to furnish illustrative applications of the general principle set forth in subdivision (a). The examples are not intended as an exclusive enumeration of allowable methods but are meant to guide and suggest, leaving room for growth and development in this area of the law.

The examples relate for the most part to documents, with some attention given to voice communications and computer printouts. As Wigmore noted, no special rules have been developed for authenticating chattels. Wigmore, Code of Evidence § 2086 (3rd ed. 1942).

It should be observed that compliance with requirements of authentication or identification by no means assures admission of an item into evidence, as other bars, hearsay for example, may remain.

Example (1) contemplates a broad spectrum ranging from testimony of a witness who was present at the signing of a document to testimony establishing narcotics as taken from an accused and accounting for custody through the period until trial, including laboratory analysis."

Example (1) is in accord with North Carolina practice.

The Advisory Committee's Note states:

"Example (2) states conventional doctrine as to lay identification of handwriting, which recognizes that a sufficient familiarity with the handwriting of another person may be acquired by seeing him write, by exchanging correspondence, or by other means, to afford a basis for identifying it on subsequent occasions. McCormick § 189. * * * Testimony based upon familiarity acquired for purposes of the litigation is reserved to the expert under the example which follows."

Example (2) is in accord with North Carolina practice. See Brandis on North Carolina Evidence § 197 (1982).

Example (3) is comparison by the trier of fact or by expert witnesses with specimens that have been authenticated. In State v. LeDuc, 306 N.C. 62 (1982), the Court permitted handwriting comparisons by the jury unaided by lay or expert testimony. G.S. 8-40, which should be repealed upon enactment of this rule, requires that the exemplar used for comparison be "proved to the satisfaction of the judge to be genuine". However, the Advisory Committee's Note states:

"The history of common law restrictions upon the technique of proving or disproving the genuineness of a disputed specimen of handwriting through comparison with a genuine specimen, by either the testimony of expert witnesses or direct viewing by the triers themselves, is detailed in 7 Wigmore §§ 1991-1994. In breaking away, the English Common Law Procedure Act of 1854, 17 and 18 Vict., c. 125, § 27, cautiously allowed expert or trier to use exemplars 'proved to the satisfaction of the judge to be genuine' for purposes of comparison. The language found its way into numerous statutes in this country, e.g., California Evidence Code §§ 1417, 1418. While explainable as a measure of prudence in the process of breaking with precedent in the handwriting situation, the reservation to the judge of the question of the genuineness of exemplars and the imposition of an unusually high standard of persuasion are at variance with the general treatment of relevancy which depends upon fulfillment of a condition of fact. Rule 104(b). No similar attitude is found in other comparison situations, e.g., ballistics comparison by jury . . . or by experts . . . and no reason appears for its continued existence in handwriting cases. Consequently Example (3) sets no higher standard for handwriting specimens and treats all comparison situations alike, to be governed by Rule 104(b).

Precedent supports the acceptance of visual comparison as sufficiently satisfying preliminary authentication requirements for admission in evidence. * * *

Example (4). The characteristics of the offered item itself, considered in the light of circumstances, afford authentication techniques in great variety. Thus a document or telephone conversation may be shown to have emanated from a particular person by virtue of its disclosing knowledge of facts known peculiarly to him . . .; similarly, a letter may be authenticated by content and circumstances indicating it was in reply to a duly authenticated one. * * * Language patterns may indicate authenticity or its opposite."

Example (4) is in accord with North Carolina practice. See generally Brandis, supra, § 195, 236.

The Advisory Committee's Note states:

"Example (5). Since aural voice identification is not a subject of expert testimony, the requisite familiarity may be acquired either before or after the particular speaking which is the subject of the identification, in this respect resembling visual identification of a person rather than identification of handwriting. Cf. Example (2), supra. "

Example (5) is in accord with North Carolina practice. See generally Brandis, supra, § 96.

The Advisory Committee's Note states:

"Example (6). The cases are in agreement that a mere assertion of his identity by a person talking on the telephone is not sufficient evidence of the authenticity of the conversation and that additional evidence of his identity is required. The additional evidence need not fall in any set pattern. Thus the content of his statements or the reply technique, under Example (4), supra, or voice identification, under Example (5), may furnish the necessary foundation. Outgoing calls made by the witness involve additional factors bearing upon authenticity. The calling of a number assigned by the telephone company reasonably supports the assumption that the listing is correct and that the number is the one reached. If the number is that of a place of business, the mass of authority allows an ensuing conversation if it relates to business reasonably transacted over the telephone, on the theory that the maintenance of the telephone connection is an invitation to do business without further identification. Otherwise, some additional circumstance of identification of the speaker is required. The authorities divide on the question whether the self-identifying statement of the person answering suffices. Example (6) answers in the affirmative on the assumption that usual conduct respecting telephone calls furnish adequate assurances of regularity, bearing in mind that the entire matter is open to exploration before the trier of fact."

Part (A) of Example (6) is in accord with North Carolina practice. See Brandis, supra, § 96. Part (B) permits identity to be established by evidence that the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. There are no North Carolina cases directly on this point.

The Advisory Committee's Note states:

"Example (7). Public records are regularly authenticated by proof of custody, without more. McCormick § 191; 7 Wigmore §§ 2158, 2159. The example extends the principle to include data stored in computers and similar methods, of which increasing use in the public records area may be expected."

Example (7) is in accord with North Carolina practice. See Brandis, supra, § 195.

The Advisory Committee's Note states:

"Example (8). The familiar ancient document rule of the common law is extended to include data stored electronically or by other similar means. Since the importance of appearance diminishes in this situation, the importance of custody or place where found increases correspondingly. This expansion is necessary in view of the widespread use of methods of storing data in forms other than conventional written records.

Any time period selected is bound to be arbitrary. The common law period of 30 years is here reduced to 20 years, with some shift of emphasis from the probable unavailability of witnesses to the unlikeliness of a still viable fraud after the lapse of time. * * *

The application of Example (8) is not subject to any limitation to title documents or to any requirement that possession, in the case of a title document, has been consistent with the document. See McCormick § 190."

Example (8) is in accord with North Carolina practice, except that the period of 30 years is reduced to 20 years. See Brandis, supra, § 196.

The Advisory Committee's Note states:

"Example (9) is designed for situations in which the accuracy of a result is dependent upon a process or system which produces it. X-rays afford a familiar instance. Among more recent developments is the computer. . . . Example (9) does not, of course, foreclose taking judicial notice of the accuracy of the process or system."

Example (9) is in accord with North Carolina practice.

Example (10) makes clear that methods of authentication provided by the Rules of Civil Procedure or other statutes are not intended to be superseded. Illustrative are the provisions for authentication of official records in Civil Procedure Rule 44 and for the authentication of depositions in Civil Procedure Rule 30(f).

CASE NOTES

Every writing sought to be admitted must be properly authenticated, and must satisfy the requirements of the "best evidence rule," G.S. 8C-1, Rule 1002, or one of its exceptions, set forth in G.S. 8C-1, Rule 1003, et seq. Furthermore, if offered for a hearsay purpose, the writing must fall within one or more of the exceptions to the hearsay rule established by Rules 803 and 804. FCX, Inc. v. Caudill, 85 N.C. App. 272, 354 S.E.2d 767 (1987).

Authentication under this rule is only one prerequisite to admissibility. The document still must satisfy other pertinent evidentiary standards. Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 340 S.E.2d 755, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986).

Compliance with the facial requirements of subsection (a) of this rule does not mean (i) that an exhibit automatically qualifies as relevant under G.S. 8C-1, Rule 401 or (ii) if relevant, that it is admissible under G.S. 8C-1, Rule 802. State v. Patterson, 103 N.C. App. 195, 405 S.E.2d 200, aff'd, 332 N.C. 409, 420 S.E.2d 98 (1992).

Testimony of Mother Regarding Handwriting. - Where the victim's mother testified that she was familiar with her daughter's handwriting, that the letter was written in her daughter's handwriting and that she recognized the signature as that of her daughter, there was sufficient evidence of authenticity to support the trial court's admission of letter into evidence. State v. Alston, 341 N.C. 198, 461 S.E.2d 687 (1995), cert. denied, 516 U.S. 1148, 116 S. Ct. 1021, 134 L. Ed. 2d 100 (1996).

Post-Accident Drug Test. - Trial court did not err in admitting laboratory report of post-accident drug test as a business record. Conner v. Continental Indus. Chem., Inc., 123 N.C. App. 70, 472 S.E.2d 176 (1996).

Stipulation that a document is genuine authenticates a document. Olympic Prods. Co. v. Roof Sys., 88 N.C. App. 315, 363 S.E.2d 367 (1988).

Identity of telephone caller may be established by direct or circumstantial evidence anytime throughout the development of the case. Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585, 339 S.E.2d 799 (1986).

It is not necessary that proof of identification of telephone caller be made before introduction of evidence of the conversation. Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585, 339 S.E.2d 799 (1986).

Identification of telephone caller may be established by evidence that the caller disclosed knowledge of facts known peculiarly to him. Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585, 339 S.E.2d 799 (1986).

But Not Merely by Statement of His Name. - When there is no other evidence to authenticate the identity of speaker who placed call except that he stated his name, the evidence is inadmissible as hearsay. Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585, 339 S.E.2d 799 (1986).

However, the State's failure to properly authenticate telephone calls was not reversible error; the witnesses who testified about these phone calls did not recognize the defendant's voice but simply accepted the caller's self-identification. State v. Jones, 137 N.C. App. 221, 527 S.E.2d 700 (2000).

Fact that defendant was the sole occupant of the residence in which documents were found was sufficient for them to be admitted into evidence; the weight given the evidence was for the jury to decide. State v. Mercer, 89 N.C. App. 714, 367 S.E.2d 9 (1988).

Jury Review of Writings. - Before handwritings may be submitted to a jury for its comparison, the trial court must satisfy itself that there is enough similarity between the genuine handwriting and the disputed handwriting such that the jury could reasonably infer that the disputed handwriting is also genuine. State v. Owen, 130 N.C. App. 505, 503 S.E.2d 426 (1998), cert. denied, 349 N.C. 372, 525 S.E.2d 188 (1998).

Authentication of Tape Recording. - Under this rule, testimony as to accuracy based on personal knowledge is all that is required to authenticate a tape recording, and a recording that so authenticated is admissible if it was legally obtained and contains otherwise competent evidence. State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991).

The authentication requirements of this rule have superseded and replaced the seven-pronged test in State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971), for the admission of tape-recorded evidence. State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991).

The trial court erred by excluding a tape recording offered to impeach testimony of coconspirator based on improper foundation, where a witness had sufficient personal knowledge of coconspirator's voice to properly identify her voice from a prior relationship, and the State and defendant stipulated to the date of the tape recording. State v. Withers, 111 N.C. App. 340, 432 S.E.2d 692, cert. denied, 335 N.C. 180, 438 S.E.2d 207 (1993).

Audiotape of an emergency call was properly authenticated by witnesses who were able to identify their own voice and the voices of each other on the tape. State v. Gaither, 161 N.C. App. 96, 587 S.E.2d 505 (2003), cert. denied, 358 N.C. 157, 593 S.E.2d 83 (2004).

Audiotape of a conversation defendant had with his wife and stepson, which the wife's relatives found 10 months after the wife and stepson were killed, was properly authenticated, and the state supreme court held that the trial court did not err when it admitted the tape for the limited purpose of showing defendant's malice, intent, and ill will towards the victims. State v. Jones, 358 N.C. 330, 595 S.E.2d 124 (2004).

Trial court did not abuse its discretion in admitting into evidence a booking-area phone call under the business record exception to the hearsay rule, G.S. 8C-1-803(6), because the circumstantial evidence authenticated the caller's identity; sergeant testified that inmates' calls were recorded in the normal course of business and kept at the county jail according to the inmates' positive identification number, the call was made to the same number as defendant's subsequent calls and featured a voice similar to his subsequent calls, and the undercover officer who interacted with defendant during the drug buy also identified him as the caller. State v. Mobley, 206 N.C. App. 285, 696 S.E.2d 862 (2010), review denied, 365 N.C. 75, 706 S.E.2d 229, 2011 N.C. LEXIS 51 (2011).

State failed to offer a proper foundation for the introduction of the surveillance video, as no testimony was elicited concerning the equipment used or its general reliability and no one testified that the video accurately depicted the events observed. State v. Moore, - N.C. App. - , 800 S.E.2d 734 (2017).

State failed to offer a proper foundation for admission of a surveillance video, as there was no testimony concerning the type of recording equipment used and no witness was asked whether the video accurately depicted events he had observed. State v. Moore, 254 N.C. App. 544, 803 S.E.2d 196 (2017), review denied, writ denied, stay denied, mot. dismissed, as moot, 805 S.E.2d 690, 2017 N.C. LEXIS 887 (N.C. 2017).

Foundation for Admission of Surveillance Video Recording Into Evidence. - Restaurant manager's testimony as to a recording from a video surveillance system for the restaurant was sufficient to lay a foundation for the admission of the surveillance video of the break-in of the restaurant into evidence. Any error of the video's admission into evidence did not rise to the level of plain error because defendant did not make any showing that the State of North Carolina would not have been able to lay a proper foundation had defendant lodged an objection or that the video was somehow flawed State v. Ross, 249 N.C. App. 672, 792 S.E.2d 155 (2016).

Authentication of Letters. - Trial court did not err in admitting into evidence two letters from decedent to the brother, as well as the envelopes which contained those letters; the letters and envelopes were not hearsay because they were not offered for the truth of the matter, but were offered to provide a sample of decedent's handwriting so that the jury could compare it to the signature on a contract at issue, and the letters were properly authenticated by a witness familiar with decedent's handwriting. Taylor v. Abernethy, 174 N.C. App. 93, 620 S.E.2d 242 (2005), appeal dismissed, 360 N.C. 367, 630 S.E.2d 454 (2006).

Letters defendant had written to a codefendant were properly authenticated using, inter alia, defendant's return address on two letters and references to defendant and the codefendant using names only they used to refer to the other. State v. Young, 186 N.C. App. 343, 651 S.E.2d 576 (2007), appeal dismissed, 362 N.C. 372, 662 S.E.2d 394 (2008).

Authentication of Text Message. - Defendant's motion in limine seeking to exclude a text message under G.S. 8C-1, N.C. R. Evid. 901 was proper as there was substantial circumstantial evidence showing that defendant was the sender of the text where: (1) a car that matched defendant's car was seen being driven by a person on a cell phone on the victim's street on the day of the crime; (2) some of the stolen property was found in the car's trunk; (3) the text referenced a stolen item; and (4) expert witnesses established the time of the calls and tracked the phone from the area of defendant's home to the area of the victim's home and back. State v. Wilkerson, 223 N.C. App. 195, 733 S.E.2d 181 (2012).

Testimony of a detective, who took photographs of the text messages introduced into evidence, was sufficient to authenticate the exhibit. State v. Gray, 234 N.C. App. 197, 758 S.E.2d 699 (2014).

Authentication of Photographs. - Confidential informant's testimony was sufficient to authenticate two of three photographs as people from whom the informant had purchased drugs in the past and the third photograph as defendant, such that it was properly admitted. However, the testimony from a police detective was not sufficient to authenticate the two photographs as photographs depicting defendant's sons. State v. Murray, 229 N.C. App. 285, 746 S.E.2d 452 (2013).

Trial court did not plainly err by admitting photo lineup evidence where the photographs of defendant were properly authenticated as both victims identified the man in the photograph as the person who robbed them, and the jury was able to draw their own conclusion about whether the defendant was the person depicted in the photograph. State v. Young, 248 N.C. App. 815, 790 S.E.2d 182 (2016).

Trial court properly admitted a photograph because it illustrated a detective's testimony that the victim used the photograph to identify defendant; the detective testified as to how the victim located the photograph and used it to identify defendant and thus, authenticated the photograph. State v. Thompson, 254 N.C. App. 220, 801 S.E.2d 689 (2017).

Photographs Held Properly Authenticated. - Where the witness clearly indicated that the photographs accurately portrayed what he had observed, the photographs were properly authenticated for illustrative purposes. State v. Alston, 91 N.C. App. 707, 373 S.E.2d 306 (1988).

Trial court did not err in admitting the photographs of defendant and his tattoos taken at the jail after his arrest as there was no authentication issue with the photographs because the custodial photographs did not purport to show defendant's arm at the time of the robbery; and defendant did not contest that the photographs fairly and accurately depicted his arm while he was in custody. State v. Carpenter, 232 N.C. App. 637, 754 S.E.2d 478 (2014).

Right of Way Agreement Held Authenticated. - Copy of a right of way agreement accompanied by certification signed by the manager of the Right of Way Branch of the Department of Transportation held authenticated. DOT v. Bollinger, 121 N.C. App. 606, 468 S.E.2d 796 (1996).

Authentication of Buy Ticket. - Known sample of the signature, found on the defendant's self-authenticating affidavit, showed a certain signature, and the letters were formed in essentially the same way and were nearly identical, and thus the buy ticket with the disputed signature was properly admitted and the jury was free to compare the signature on the ticket with the signature on the self-authenticating affidavit. State v. McCoy, 234 N.C. App. 268, 759 S.E.2d 330 (2014).

Ancient Documents or Data Compilations. - Documents relating to laboratory experiments were admissible pursuant to subdivision (b)(8) of this rule, where suspicion concerning the authenticity of the documents was raised by their condition or internal consistency; their archival locations were logical for authentic documents; and they had been in existence for more than 20 years. Rowan County Bd. of Educ. v. United States Gypsum Co., 103 N.C. App. 288, 407 S.E.2d 860 (1991), aff'd in part, disc. rev. improvidently granted, 332 N.C. 1, 418 S.E.2d 648 (1992).

Admission of police officer's testimony concerning identification of defendant's voice heard over a radio transmitter was proper even though officer had never previously heard defendant's voice over a radio transmitter; police officer had personally known defendant for several years and had had conversations with defendant on several occasions prior to defendant's arrest. State v. Mullen, 98 N.C. App. 472, 391 S.E.2d 520 (1990).

Evidence Held Admissible. - Where witness testified concerning his familiarity with defendant's handwriting, there was sufficient evidence to support the trial court's admission of handwritten letter into evidence. State v. Wiggins, 334 N.C. 18, 431 S.E.2d 755 (1993).

Where victim identified paper writing as the yellow paper on which she wrote the statement for detective and testified that the handwriting on the papers was her handwriting when she was eight years old and detective testified that he gave her a blank yellow legal pad and asked her to write down what the defendant had done to her, the written statement was authenticated by the testimony of victim and detective. State v. Woody, 124 N.C. App. 296, 477 S.E.2d 462 (1996).

The trial court properly determined that the previously authenticated signature of a murder defendant was similar enough to the signature on a letter written to the murder victim to allow the letter to be admitted into evidence, even though there was no expert testimony on the similarity of the signatures. State v. Owen, 130 N.C. App. 505, 503 S.E.2d 426 (1998), cert. denied, 349 N.C. 372, 525 S.E.2d 188 (1998).

A 911 audiotape was properly authenticated where (1) an employee of the 911 center testified that the tape was an exact copy of the digital telephone recording made the night of the incident at issue, and that he had listened both to the original and to the copy and that they were identical, (2) the employee identified the voices of 911 emergency center employees on the tape, and (3) a witness and the defendant testified that they could identify the other voices on the tape. State v. Rourke, 143 N.C. App. 672, 548 S.E.2d 188 (2001).

A pornographic videotape seized from defendant's residence, which one of the victims of his sexual offense testified she and the other victim watched with him, was properly authenticated by an officer's testimony that it was the same videotape the officer had seized. State v. Williamson, 146 N.C. App. 325, 553 S.E.2d 54 (2001).

Pursuant to G.S. 8-97 and G.S. 8C-1-901, the trial court properly admitted the videotape evidence of defendant committing sexual acts with the victim, a minor child, and the photographs taken therefrom, because: (1) a state agent established an unbroken chain of custody from the time the tape was found in defendant's residence; (2) the state agent testified that the room depicted in the videotape shown to the jury was identical to the master bedroom in defendant's residence and that the man on the videotape was defendant; (3) the victim's mother, who had previously dated defendant, testified that defendant owned a camcorder and a tripod, which he had used to videotape them having sexual intercourse in the master bedroom of defendant's residence; (4) the victim's mother identified the room depicted in the videotape as defendant's master bedroom and the man on the videotape as defendant; (5) the victim's mother identified the young girl on the videotape as the victim, her daughter; (6) there was testimony that defendant's camcorder was in working condition; and (7) there was sufficient evidence from the testimony regarding the chain of custody to establish that the videotape had not been edited or altered, and that the same videotape seized from defendant's residence was the same videotape reviewed by the jury. State v. Prentice, 170 N.C. App. 593, 613 S.E.2d 498 (2005), cert. denied, appeal dismissed, - N.C. - , 622 S.E.2d 628 (2005).

In a suit brought against a store to recover for personal injuries a customer sustained when he tripped on a stock cart in an aisle of the store, the trial court did not err in admitting the store's employee safety handbook into evidence because the testimony of the store's manager, identifying the document, stating that he obtained a copy of the handbook effective at the time of the customer's injury, and testifying that it was the same handbook required to be distributed to all store employees, was sufficient to support a finding that the document produced by the customer was a copy of the store's employee handbook in effect at the time of the customer's accident. Herring v. Food Lion, LLC, 175 N.C. App. 22, 623 S.E.2d 281 (2005), aff'd, 360 N.C. 472, 628 S.E.2d 761 (2006).

Text messages were sufficiently authenticated when a manager of the Nextel branch testified that the subject messages where those that the manager retrieved as the stored incoming and outgoing messages for a specific cellular phone. State v. Taylor, 178 N.C. App. 395, 632 S.E.2d 218 (2006).

Trial court did not err by admitting defendant and the officer's cell phone records into evidence over defendant's objection for insufficient authentication; there was sufficient evidence to show that the records were, as the State claimed, records from the telecommunications company, and any question as to the accuracy or reliability of such records was a jury question. State v. Crawley, 217 N.C. App. 509, 719 S.E.2d 632 (2011), review denied 365 N.C. 553, 722 S.E.2d 607, 2012 N.C. LEXIS 188 (N.C. 2012).

Affidavit was sworn and subscribed before a deputy clerk who also signed the document, which was a self-authenticating document, and thus the affidavit did not need to be authenticated pursuant to another authentication rule, and the trial court did not err in admitting the affidavit without consideration of that rule. State v. McCoy, 234 N.C. App. 268, 759 S.E.2d 330 (2014).

State properly authenticated a surveillance video because it presented evidence that the video surveillance system was reliable and that the video presented at trial had not been altered; the testimony of a regional loss prevention manager for the department store was sufficient to authenticate the video because the manager testified that the recording equipment was industry standard and that the videos produced by the surveillance system contained safeguards to prevent tampering. State v. Snead, 368 N.C. 811, 783 S.E.2d 733 (2016).

State properly authenticated a surveillance video because defendant freely admitted that he was one of the two people seen in the video stealing shirts from a department store and that he in fact stole the shirts; therefore, defendant offered the trial court no reason to doubt the reliability or accuracy of the footage contained in the video. State v. Snead, 368 N.C. 811, 783 S.E.2d 733 (2016).

Trial court did not err by admitting two screenshots taken from defendant's social media webpage where the State presented substantial evidence that tended to show that it was defendant's webpage, as it contained content unique to defendant, including his nickname, pictures of defendant and his dog, and videos of his dog, and the content was directly related to whether defendant had been criminally negligent in allowing his dog to attack and kill the victim. State v. Ford, 245 N.C. App. 510, 782 S.E.2d 98 (2016).

Where the notice prohibiting defendant's entry in all of a retailer's stores was made in the ordinary course of business at or near the time of the transaction involved and was authenticated at trial by a witness familiar with such notices and the system under which they were made, the document was properly authenticated and the trial court did not err in admitting it. State v. Allen, 258 N.C. App. 285, 812 S.E.2d 192 (2018).

Defendant's claim that the trial court erred in admitting the victim's Honduran birth certificate due to lack of authentication failed because nothing indicated that the birth certificate offered into evidence was forged or otherwise unauthentic and school personnel stated that they would not have made a copy unless they had the original. State v. DeJesus, 265 N.C. App. 279, 827 S.E.2d 744 (2019), review denied, 372 N.C. 707, 830 S.E.2d 837, 2019 N.C. LEXIS 734 (2019).

Trial court did not err in admitting an evidence bag containing a substance an officer received from the informant on the date of the drug buy and sent off to the lab in the form of an "off-white-colored small rock" because, even if the change in form was material the State established the required chain of custody though the testimony of two officers. State v. Dawkins, - N.C. App. - , 837 S.E.2d 138 (2019).

Although defendant contended that the white rocks which defendant sold to an undercover detective who handled them with the detective's bare hands and then placed the rocks into the console area of the detective's car without securing the rocks were exposed to potential contaminants and were therefore inadmissible, defendant's concerns about the handling of the physical evidence went to weight and credibility, not admissibility, and the evidence readily was sufficient to send the possession with intent to sell or deliver cocaine charge to the jury. State v. Jackson, - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

Evidence Held Inadmissible. - The best evidence rule was implicated when defendants handed witness a memorandum and asked him what it said. Because witness denied receiving the memorandum, the exhibit was not authenticated; as a result, it was not admissible, and witness could not testify about its contents. Hedgecock Bldrs. Supply Co. v. White, 92 N.C. App. 535, 375 S.E.2d 164 (1989).

Where petitioners challenged a city annexation ordinances, the trial court properly ruled that their spreadsheets could not be offered to show that the city's methodology was not calculated to provide reasonably accurate results, as required by G.S. 160A-54, because they presented no expert testimony about the spreadsheets, and testimony of the city's principal planner was insufficient to establish a foundation for their admissibility. Brown v. City of Winston-Salem, 176 N.C. App. 497, 626 S.E.2d 747 (2006).

Trial court did not err in excluding the screenshot of Skype calls allegedly made between a father and the mother's sister because the mother was not a party to the alleged screenshots, and her only knowledge of the information needed to authenticate the screenshots would have come only from her sister, who was not present to testify. the mother did not properly authenticate the screenshots, and the trial court did not err by sustaining the father's objection to admission of that evidence. Waly v. Alkamary, - N.C. App. - , - S.E.2d - (Aug. 17, 2021).

Failure to Object at Trial. - Defendant did not object at trial to any lack of proper authentication of incriminating photographs; therefore he could not on appeal assign error to the admissibility of the photographs on this ground. State v. Terry, 329 N.C. 191, 404 S.E.2d 658 (1991).

Because the State laid a sufficient foundation to establish the trustworthiness of the Mutual Aid Agreement between Robeson County and all police departments in the county, and because defendant neither moved to pass the agreement among the jurors nor cross-examine the police captain on its contents, defendant could not subsequently complain that the jurors never saw the detailed provisions of the agreement. State v. Locklear, 136 N.C. App. 716, 525 S.E.2d 813 (2000).

Failure to Authenticate Documents Submitted in Opposition to Summary Judgment Motion. - Trial court properly granted summary judgment in favor of defendants because the documents upon which plaintiff based her challenges to the trial court's order failed to meet the admissibility requirement of G.S. 1A-1-56(e) since plaintiff failed to properly authenticate the documents pursuant to G.S. 8C-1-901 or G.S. 8C-1-902 at the time that she submitted them in opposition to defendants' request for summary judgment, demonstrating that the documents were not properly before the trial court at the time of the hearing on defendants' summary judgment motion; record contained no evidence that at the time that defendants' summary judgment motion was heard before the trial court, plaintiff offered any evidence tending to show what the documents in question were, failed to proffer certified copies of either document, and did not make any other effort to authenticate the documents. Rankin v. Food Lion, 210 N.C. App. 213, 706 S.E.2d 310 (2011).

Plain Error Not Found. - It was not plain error for the trial court to admit copies of defendant's previous judgments during his habitual felon proceedings because defendant did not challenge the authenticity of the certified judgment sheets or the veracity of the convictions. State v. McNeil, 165 N.C. App. 777, 600 S.E.2d 31 (2004).

Applied in State v. Ruiz, 77 N.C. App. 425, 335 S.E.2d 32 (1985); State v. Holder, 331 N.C. 462, 418 S.E.2d 197 (1992); State v. Gibson, 333 N.C. 29, 424 S.E.2d 95 (1992); State v. Baker, 112 N.C. App. 410, 435 S.E.2d 812 (1993); State v. Hartley, 212 N.C. App. 1, 710 S.E.2d 385 (2011), review denied 717 S.E.2d 383, 2011 N.C. LEXIS 695 (N.C. 2011); State v. Howard, 215 N.C. App. 318, 715 S.E.2d 573 (2011).

Cited in State v. West, 317 N.C. 219, 345 S.E.2d 186 (1986); State v. Head, 79 N.C. App. 1, 338 S.E.2d 908 (1986); State v. Kamtsiklis, 94 N.C. App. 250, 380 S.E.2d 400 (1989); Carolina Mills Lumber Co. v. Huffman, 96 N.C. App. 616, 386 S.E.2d 437 (1989); State v. Lee, 335 N.C. 244, 439 S.E.2d 547 (1994), cert. denied, 513 U.S. 891, 115 S. Ct. 239, 130 L. Ed. 2d 162 (1994); State v. Cox, 344 N.C. 184, 472 S.E.2d 760 (1996); State v. Spinks, 136 N.C. App. 153, 523 S.E.2d 129 (1999); State v. Redd, 144 N.C. App. 248, 549 S.E.2d 875 (2001); State v. Martinez, 149 N.C. App. 553, 561 S.E.2d 528 (2002); Kroh v. Kroh, 152 N.C. App. 347, 567 S.E.2d 760 (2002), cert. denied, 356 N.C. 673, 577 S.E.2d 120 (2003); State v. Theer, 181 N.C. App. 349, 639 S.E.2d 655 (2007), cert. denied, - U.S. - , 128 S. Ct. 2473, 171 L. Ed. 2d 769 (2008); Morris v. Moore, 186 N.C. App. 431, 651 S.E.2d 594 (2007); State v. Harrison, 218 N.C. App. 546, 721 S.E.2d 371 (2012).


Rule 902. Self-authentication.

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

  1. Domestic Public Documents Under Seal. - A document bearing a seal purporting to be that of the United States, or of any state, district, commonwealth, territory or insular possession thereof, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
  2. Domestic Public Documents Not Under Seal. - A document purporting to bear the signature in his official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.
  3. Foreign Public Documents. - A document purporting to be executed or attested in his official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.
  4. Certified Copies of Public Records. - A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) or complying with any law of the United States or of this State.
  5. Official Publications. - Books, pamphlets, or other publications purporting to be issued by public authority.
  6. Newspapers and Periodicals. - Printed materials purporting to be newspapers or periodicals.
  7. Trade Inscriptions and the Like. - Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.
  8. Acknowledged Documents. - Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
  9. Commercial Paper and Related Documents. - Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.
  10. Presumptions Created by Law. - Any signature, document, or other matter declared by any law of the United States or of this State to be presumptively or prima facie genuine or authentic.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule differs from Fed. R. Evid. 902 in that the phrase "or the Panama Canal Zone" has been deleted from paragraph (1). Paragraph (4) differs from the federal rule in that the phrase "any law of the United States or of this State" has been substituted in lieu of the phrase "of this Rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority." Paragraph (10) differs from the federal rule in that the phrase "any law of the United States or of this State" is used in lieu of the phrase "Act of Congress".

The Advisory Committee's Note states:

"Case law and statutes have, over the years, developed a substantial body of instances in which authenticity is taken as sufficiently established for purposes of admissibility without extrinsic evidence to that effect, sometimes for reasons of policy but perhaps more often because practical considerations reduce the possibility of unauthenticity to a very small dimension. The present rule collects and incorporates these situations, in some instances expanding them to occupy a larger area which their underlying considerations justify. In no instance is the opposite party foreclosed from disputing authenticity."

Paragraph (1) provides that a document bearing the seal of an officer of the government and a signature purporting to be an attestation or execution does not require extrinsic evidence of authenticity as a condition precedent to admissibility. See Brandis on North Carolina Evidence § 153, at 610 (1982). The Advisory Committee's Note states:

"The acceptance of documents bearing a public seal and signature, most often encountered in practice in the form of acknowledgments or certificates authenticating copies of public records is actually of broad application. Whether theoretically based in whole or in part upon judicial notice, the practical underlying considerations are that forgery is a crime and detection is fairly easy and certain. 7 Wigmore § 2161, p. 638. . . ."

Paragraph (2) is derived from Federal Civil Procedure Rule 44. North Carolina Civil Procedure Rule 44, which is similar, should be amended to conform to Rule 902. Paragraph (2) applies to documents as well as public records. The Advisory Committee's Note states:

"While statutes are found which raise a presumption of genuineness of purported official signatures in the absence of an official seal, 7 Wigmore § 2167 . . . the greater ease of effecting a forgery under these circumstances is apparent. Hence this paragraph of the rule calls for authentication by an officer who has a seal. Notarial acts by members of the armed forces and other special situations are covered in paragraph (10)."

Paragraph (3) is derived from Federal Civil Procedure Rule 44(a) (2), which was amended in 1966 to provide for greater clarity, efficiency, and flexibility in the procedure for authenticating copies of foreign official records. North Carolina Civil Procedure Rule 44 should be amended to conform to Rule 902. Paragraph (3) applies to public documents rather than being limited to public records.

Paragraph (4) is confined to official records and reports, and documents authorized to be recorded or filed and actually recorded or filed. The Advisory Committee's Note states:

"The common law and innumerable statutes have recognized the procedure of authenticating copies of public records by certificate. The certificate qualifies as a public document, receivable as authentic when in conformity with paragraphs (1), (2), or (3). * * * It will be observed that the certification procedure here provided extends only to public records, reports, and recorded documents, all including data compilations, and does not apply to public documents generally. Hence documents provable when presented in original form under paragraphs (1), (2), or (3) may not be provable by certified copy under paragraph (4)."

G.S. 1A-1, Rule 44, G.S. 8-34, G.S. 8-35, G.S. 8-18, G.S. 8-20, G.S. 47-31, and G.S. 47-34 should be amended to conform to Rule 902.

Paragraph (5) has the same effect as North Carolina Civil Procedure Rule 44(a), which should be amended to conform to Rule 902. The Advisory Committee's Note states:

"Dispensing with preliminary proof of the genuineness of purportedly official publications, most commonly encountered in connection with statutes, court reports, rules, and regulations, has been greatly enlarged by statutes and decisions. 5 Wigmore § 1684. Paragraph (5), it will be noted, does not confer admissibility upon all official publications; it merely provides a means whereby their authenticity may be taken as established for purposes of admissibility. Rule 44(a) of the Rules of Civil Procedure has been to the same effect."

Paragraph (6) changes North Carolina practice by providing that printed materials purporting to be newspapers or periodicals are self-authenticating. The Advisory Committee's Note states:

"The likelihood of forgery of newspapers or periodicals is slight indeed. Hence no danger is apparent in receiving them. Establishing the authenticity of the publication may, of course, leave still open questions of authority and responsibility for items therein contained. See 7 Wigmore § 2150."

Paragraph (7) changes North Carolina practice by providing that inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin are self-authenticating. The Advisory Committee's Note states:

"Several factors justify dispensing with preliminary proof of genuineness of commercial and mercantile labels and the like. The risk of forgery is minimal. Trademark infringement involves serious penalties. Great efforts are devoted to inducing the public to buy in reliance on brand names, and substantial protection is given them."

Paragraph (8) extends the exception for acknowledged title documents to include other acknowledged documents. The Advisory Committee's Note states:

"In virtually every state, acknowledged title documents are receivable in evidence without further proof. Statutes are collected in 5 Wigmore § 1676. If this authentication suffices for documents of the importance of those affecting titles, logic scarcely permits denying this method when other kinds of documents are involved."

Paragraph (9) provides that commercial paper, signatures thereon, and documents relating thereto are authenticated to the extent provided by general commercial law. The term "general commercial law" refers to the Uniform Commercial Code, except that federal commercial law will apply when federal commercial paper is involved. Pertinent provisions of the Uniform Commercial Code are §§ 25-1-202, 25-3-307, and 25-3-510, dealing with third-party documents, signatures on negotiable instruments, protests, and statements of dishonor.

Paragraph (10) provides for the authentication of any signature, document, or other matter declared by any federal or North Carolina statute to be presumptively or prima facie genuine or authentic.

CASE NOTES

Self-Authenticating Document Did Not Require Additional Authentication. - Affidavit was sworn and subscribed before a deputy clerk who also signed the document, which was a self-authenticating document, and thus the affidavit did not need to be authenticated pursuant to another authentication rule, and the trial court did not err in admitting the affidavit without consideration of that rule. State v. McCoy, 234 N.C. App. 268, 759 S.E.2d 330 (2014).

Cause of Death - Death Certificate. - In case brought by widow of insured to recover under life insurance policy, coroner's statement on death certificate that the gunshot wound which killed the insured was intentionally self-inflicted was not based on personal knowledge of the events which took place and could only be described as hearsay and conclusory. The admission of such a statement would thwart the fairness of the trial and in essence shift the burden of proof on the issue of the cause of death from defendant to plaintiff. Therefore, the exclusion of this statement on the death certificate was proper. Drain v. United Servs. Life Ins. Co., 85 N.C. App. 174, 354 S.E.2d 269, cert. denied, 320 N.C. 630, 360 S.E.2d 85 (1987).

Public records. - Extrinsic evidence of authenticity is not a condition precedent for the admissibility of documents bearing seal and certified copies of public records. State v. Watson, 179 N.C. App. 228, 634 S.E.2d 231 (2006), review denied, 361 N.C. 437, 649 S.E.2d 896 (2007).

Same - Medical Examiner's Report. - In case brought by widow of insured to recover under life insurance policy, statements listing suicide as the cause of death in medical examiner's report were properly excluded at trial. Drain v. United Servs. Life Ins. Co., 85 N.C. App. 174, 354 S.E.2d 269, cert. denied, 320 N.C. 630, 360 S.E.2d 85 (1987).

Excerpts from Publication. - The trial court did not err in allowing plaintiffs to present excerpts from a publication in opposition to the motion for summary judgment hearing where the publication was self-authenticating and could be admitted without any extrinsic showing of legitimacy pursuant to this section. Pierson v. Cumberland County Civic Ctr. Comm'n, 141 N.C. App. 628, 540 S.E.2d 810 (2000).

Plain Error Not Found. - It was not plain error for the trial court to admit copies of defendant's previous judgments during his habitual felon proceedings because defendant did not challenge the authenticity of the certified judgment sheets or the veracity of the convictions. State v. McNeil, 165 N.C. App. 777, 600 S.E.2d 31 (2004).

Failure to Authenticate Documents Submitted in Opposition to Summary Judgment Motion. - Trial court properly granted summary judgment in favor of defendants because the documents upon which plaintiff based her challenges to the trial court's order failed to meet the admissibility requirement of G.S. 1A-1-56(e) since plaintiff failed to properly authenticate the documents pursuant to G.S. 8C-1-901 or G.S. 8C-1-902 at the time that she submitted them in opposition to defendants' request for summary judgment, demonstrating that the documents were not properly before the trial court at the time of the hearing on defendants' summary judgment motion; record contained no evidence that at the time that defendants' summary judgment motion was heard before the trial court, plaintiff offered any evidence tending to show what the documents in question were, failed to proffer certified copies of either document, and did not make any other effort to authenticate the documents. Rankin v. Food Lion, 210 N.C. App. 213, 706 S.E.2d 310 (2011).

Comparison of Signatures by Jury. - Known sample of the signature, found on defendant's self-authenticating affidavit, showed a certain signature, and the letters were formed in essentially the same way and were nearly identical, and thus the buy ticket with the disputed signature was properly admitted and the jury was free to compare the signature on it with the signature on the self-authenticating affidavit. State v. McCoy, 234 N.C. App. 268, 759 S.E.2d 330 (2014).

Cited in Morris v. Moore, 186 N.C. App. 431, 651 S.E.2d 594 (2007).


Rule 903. Subscribing witness' testimony unnecessary.

The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 903.

The Advisory Committee's Note states:

"The common law required that attesting witnesses be produced or accounted for. Today the requirement has generally been abolished except with respect to documents which must be attested to be valid, e.g., wills in some states."

The requirement of proof by the attesting witness was abolished by G.S. 8-38, which should be repealed upon enactment of Rule 903. Rule 903 is not intended to affect the method and manner of proving instruments for registration.

ARTICLE 10. Contents of Writings, Recordings and Photographs.

Rule

Rule 1001. Definitions.

For the purposes of this Article the following definitions are applicable:

  1. Writings and Recordings. - "Writings" and "recordings" consist of letters, words, sounds, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
  2. Photographs. - "Photographs" include still photographs, x-ray films, video tapes, and motion pictures.
  3. Original. - An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."
  4. Duplicate. - A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 1001 except that the word "sounds" has been added to paragraph (1) between "words" and "or numbers".

The Advisory Committee's Note states:

"Paragraph (1). Traditionally the rule requiring the original centered upon accumulations of data and expressions affecting legal relations set forth in words and figures. This meant that the rule was one essentially related to writings. Present day techniques have expanded methods of storing data, yet the essential form which the information ultimately assumes for usable purposes is words and figures. Hence the considerations underlying the rule dictate its expansion to include computers, photographic systems, and other modern developments."

Paragraph (1) clarifies North Carolina law by providing that the best evidence rule applies to recordings and photographs. See Brandis on North Carolina Evidence § 190 (1982).

With respect to Paragraph (3), the Advisory Committee's Note states:

"In most instances, what is an original will be self-evident and further refinement will be unnecessary. However, in some instances particularized definition is required. A carbon copy of a contract executed in duplicate becomes an original, as does a sales ticket carbon copy given to a customer. While strictly speaking the original of a photograph might be thought to be only the negative, practicality and common usage require that any print from the negative be regarded as a original. Similarly, practicality and usage confer the status or original upon any computer printout."

Paragraph (3) is substantially in accord with North Carolina practice. See Brandis, supra, § 190; G.S. 55-37.1 [see now G.S. 55-16-01] and G.S. 55A-27.1.

With respect to Paragraph (4), the Advisory Committee's Note states:

"The definition describes 'copies' produced by methods possessing an accuracy which virtually eliminates the possibility of error. Copies thus produced are given the status of originals in large measure by Rule 1003, infra. Copies subsequently produced manually, whether handwritten or typed, are not within the definition. It should be noted that what is an original for some purposes may be a duplicate for others. Thus a bank's microfilm record of checks cleared is the original as a record. However, a print offered as a copy of a check whose contents are in controversy is a duplicate."

CASE NOTES

Rules Did Not Apply to License Revocation Proceedings. - Reports of a police officer and sergeant and the affidavit of the officer were properly admitted in a license revocation proceeding as under this rule, the North Carolina Rules of Evidence did not apply to North Carolina Division of Motor Vehicle (DMV) proceedings pursuant to G.S. 20-16.2; the Rules of Evidence do not apply to DMV hearings held pursuant to G.S. 20-16.2.. Johnson v. Robertson, 227 N.C. App. 281, 742 S.E.2d 603 (2013).

Certified Record. - Judgment and commitment of defendant's prior conviction for conspiracy to sell and deliver cocaine constituted a certified official record of defendant's prior conviction per the seal and signature of the deputy clerk of the superior court, and where a detective testified that the judgment and commitment was correct, the document was properly authenticated. State v. Gaither, 161 N.C. App. 96, 587 S.E.2d 505 (2003), cert. denied, 358 N.C. 157, 593 S.E.2d 83 (2004).


Rule 1002. Requirement of original.

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 1002.

The rule is the familiar "best evidence rule" expanded to include explicitly writings, recordings, and photographs, as defined in Rule 1001(1) and (2), supra. See Brandis on North Carolina Evidence § 190, at 100 (1982). However, the requirement for the original is overridden in many instances by other rules such as Rule 1003, which allows duplicates to be admitted.

The rule in North Carolina is consistent with Rule 1002 in that it requires the original of a writing only when its content is sought to be proved. Id.

The Advisory Committee's Note states:

"Application of the rule requires a resolution of the question whether contents are sought to be proved. Thus an event may be proved by nondocumentary evidence, even though a written record of it was made. If, however, the event is sought to be proved by the written record, the rule applies. For example, payment may be proved without producing the written receipt which was given. Earnings may be proved without producing books of account in which they are entered. * * * Nor does the rule apply to testimony that books or records have been examined and found not to contain any reference to a designated matter.

The assumption should not be made that the rule will come into operation on every occasion when use is made of a photograph in evidence. On the contrary, the rule will seldom apply to ordinary photographs. In most instances a party wishes to introduce the item and the question raised is the propriety of receiving it in evidence. Cases in which an offer is made of the testimony of a witness as to what he saw in a photograph or motion picture, without producing the same, are most unusual. The usual course is for a witness on the stand to identify the photograph or motion picture as a correct representation of events which he saw or of a scene with which he is familiar. In fact he adopts the picture as his testimony, or, in common parlance, uses the picture to illustrate his testimony. Under these circumstances, no effort is made to prove the contents of the picture, and the rule is inapplicable. * * *

On occasion, however, situations arise in which contents are sought to be proved. Copyright, defamation, and invasion of privacy by photograph or motion picture fall in this category. Similarly as to situations in which the picture is offered as having independent probative value, e.g., automatic photograph of bank robber. * * * The most commonly encountered of this latter group is of course, the X-ray, with substantial authority calling for production of the original.

It should be noted, however, that Rule 703, supra, allows an expert to give an opinion based on matters not in evidence, and the present rule must be read as being limited accordingly in its application. Hospital records which may be admitted as business records under Rule 803(6) commonly contain reports interpreting X-rays by the staff radiologist, who qualifies as an expert, and these reports need not be excluded from the records by the instant rule."

CASE NOTES

"Best Evidence" Rule Articulated. - The so-called "best evidence" rule merely requires the exclusion of secondary evidence offered to prove the contents of a document whenever the original document itself is available. United States Leasing Corp. v. Everett, Creech, Hancock & Herzig, 88 N.C. App. 418, 363 S.E.2d 665, cert. denied, 322 N.C. 329, 369 S.E.2d 364 (1988).

Every writing sought to be admitted must be properly authenticated, and must satisfy the requirements of this rule, the "best evidence rule," or one of its exceptions, set forth in G.S. 8C-1, Rule 1003, et seq. Furthermore, if offered for a hearsay purpose, the writing must fall within one or more of the exceptions to the hearsay rule established by G.S. 8C-1, Rules 803 and 804. FCX, Inc. v. Caudill, 85 N.C. App. 272, 354 S.E.2d 767 (1987).

To prove the content of a writing, the original is usually required. Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 340 S.E.2d 755, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986).

If a party elects to prove an independent fact through the content of a writing, the best evidence rule applies and if the writing cannot be introduced in evidence, the rule prohibits inquiry into its contents to establish the fact. Hedgecock Bldrs. Supply Co. v. White, 92 N.C. App. 535, 375 S.E.2d 164 (1989).

When Document Must Be Produced. - This rule, better known as the "best evidence rule," requires the production of a document only where the contents or terms of the document are in question. Drain v. United Servs. Life Ins. Co., 85 N.C. App. 174, 354 S.E.2d 269, cert. denied, 320 N.C. 630, 360 S.E.2d 85 (1987).

Best Evidence Rule Not Applicable. - Where detective was not attempting to prove the contents of the tape recording or the transcript of the recorded statement given by defendant, but used the transcript of the recorded statement to refresh his personal recollection of defendant's responses to the questions asked, the "best evidence" rule did not apply. State v. Brown, 335 N.C. 477, 439 S.E.2d 589 (1994).

At defendant's trial for felony child abuse, the best evidence rule, G.S. 8C-1, N.C. R. Evid. 1002, was not violated by the admission of a written transcript of a prior juvenile proceeding where an audio recording was available to all parties and the contents of the recording were not in question. State v. Haas, 202 N.C. App. 345, 688 S.E.2d 98 (2010).

Best Evidence Rule Not Violated. - Where trial court admitted testimony of witness regarding papers she had found in house where she lived with defendant and where witness testified that in collecting defendant's personal belongings at request of defendant's parents she came upon folder containing papers that related to life insurance policy on victim and in which she saw defendant's name listed first as beneficiary, admission of testimony did not violate best evidence rule since contents of policy insuring life of defendant's husband were not in question and witness's testimony as to policy was collateral. State v. Clark, 324 N.C. 146, 377 S.E.2d 54 (1989).

In a case in which defendant appealed his conviction for breaking or entering a motor vehicle, since an officer's testimony was sufficient to submit the element of lack of consent to the jury, even excluding a photocopy of the vehicle's registration, it was unnecessary for the court to address defendant's arguments that the photocopy violated the best evidence rule and that its admission was hearsay as to the ownership of the vehicle. State v. Jacobs, 202 N.C. App. 350, 688 S.E.2d 112 (2010), review denied, 364 N.C. 328, 701 S.E.2d 243, 2010 N.C. LEXIS 631 (2010).

Printouts from the Automated Criminal/Infraction System (ACIS) database were admissible evidence to prove a prior felony under the Habitual Felon Act and, thus, were not barred by the best evidence rule because the clerk of court, who maintained the physical court records, testified that the printout was a certified true copy of the information in ACIS; the best evidence rule does not bar the admission of the printout merely because the original judgment was unaccounted for at trial. State v. Waycaster, 260 N.C. App. 684, 818 S.E.2d 189 (2018), aff'd, in part, 846 S.E.2d 688, 2020 N.C. LEXIS 689 (N.C. 2020).

Failure to Produce Best Evidence. - Where defendant sought not only to introduce document, but also to prove that its contents were what he claimed they were, i.e., a list of bank accounts with the names of the persons authorized to sign on them, for this purpose original signature cards clearly were the best evidence, and as no reason was given for their nonproduction, the court did not err in excluding the document. Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 340 S.E.2d 755, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986).

The "except as otherwise provided . . . by statute" exception under both G.S. 8C-1, Rule 802 and this rule clearly covers written statements under G.S. 20-279.21(b)(3). Crowder v. North Carolina Farm Bureau Mut. Ins. Co., 79 N.C. App. 551, 340 S.E.2d 127, cert. denied, 316 N.C. 731, 345 S.E.2d 387 (1986).

The order in which notes written by defendant were read and introduced as exhibits had no bearing on whether the writing itself violated the best evidence rule, and in view of the fact that the State produced the original notes in proving the contents of the notes, there was no violation of the best evidence rule. State v. Wingard, 317 N.C. 590, 346 S.E.2d 638 (1986).

Sufficient Foundation Established. - Where surveillance videos which an employer sought to introduce were a recording of events occurring in the service area at the employer's business, the employer laid a sufficient foundation, which consisted of evidence concerning the operation of the video camera, the chain of custody of the DVDs, and testimony that the videotape had not been edited and that the picture fairly and accurately recorded the actual appearance of the area photographed, to support admission of the surveillance videos; thus, the Industrial Commission erred by refusing to consider the surveillance videos as evidence. Bowman v. Cox Toyota Scion, 224 N.C. App. 1, 737 S.E.2d 384 (2012).

Applied in State v. Jones, 98 N.C. App. 342, 391 S.E.2d 52 (1990); State v. Walker, 343 N.C. 216, 469 S.E.2d 919 (1996), cert. denied, 519 U.S. 901, 117 S. Ct. 254, 136 L. Ed. 2d 180 (1996); State v. York, 347 N.C. 79, 489 S.E.2d 380 (1997); State v. Leach, 227 N.C. App. 399, 742 S.E.2d 608 (2013), review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 814 (2013).

Cited in Kroh v. Kroh, 152 N.C. App. 347, 567 S.E.2d 760 (2002), cert. denied, 356 N.C. 673, 577 S.E.2d 120 (2003); Whitlock v. Triangle Grading Contrs. Dev., Inc., 205 N.C. App. 444, 696 S.E.2d 543 (2010); State v. Howard, 215 N.C. App. 318, 715 S.E.2d 573 (2011).


Rule 1003. Admissibility of duplicates.

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 1003.

Rule 1003 departs from the common law in North Carolina and other jurisdictions by providing that a duplicate is admissible to the same extent as an original unless a genuine question as to the authenticity of the original is raised or it would be unfair to admit the duplicate in the particular case. Traditionally, in North Carolina no special showing has been necessary in order to require production of the original.

The Advisory Committee's Note states:

"When the only concern is with getting the words or other contents before the court with accuracy and precision, then a counterpart serves equally as well as the original, if the counterpart is the product of a method which insures accuracy and genuineness. By definition in Rule 1001(4), supra, a 'duplicate' possesses this character. Therefore, if no genuine issue exists as to authenticity and no other reason exists for requiring the original, a duplicate is admissible under the rule. Other reasons for requiring the original may be present when only a part of the original is reproduced and the remainder is needed for cross-examination or may disclose matters qualifying the part offered or otherwise useful to the opposing party."

Courts should be liberal in permitting questions of genuineness to be raised. The court should examine the quality of the duplicate, the specificity and sincerity of the challenge, the importance of the evidence to the case, and the burdens of producing the original before determining whether a genuine question of authenticity is raised.

CASE NOTES

"Best Evidence" Rule Articulated. - The so-called "best evidence" rule merely requires the exclusion of secondary evidence offered to prove the contents of a document whenever the original document itself is available. United States Leasing Corp. v. Everett, Creech, Hancock & Herzig, 88 N.C. App. 418, 363 S.E.2d 665, cert. denied, 322 N.C. 329, 369 S.E.2d 364 (1988).

Every writing sought to be admitted must be properly authenticated, and must satisfy the requirements of the "best evidence rule," G.S. 8C-1, Rule 1002, or one of its exceptions, set forth in this rule. Furthermore, if offered for a hearsay purpose, the writing must fall within one or more of the exceptions to the hearsay rule established by G.S. 8C-1, Rules 803 and 804. FCX, Inc. v. Caudill, 85 N.C. App. 272, 354 S.E.2d 767 (1987).

Duplicate trust agreement was admissible, where the original trust agreement had not been located despite plaintiff's attempt to issue a subpoena duces tecum to defendant. Investors Title Ins. Co. v. Herzig, 101 N.C. App. 127, 398 S.E.2d 659 (1990), rev'd on other grounds, 330 N.C. 681, 413 S.E.2d 269 (1992).

Recorded Statement. - North Carolina Industrial Commission did not err in admitting an employee's recorded statement to an insurance adjuster, who conducted a tape-recorded telephone interview with the employee, because the employee did not object on the basis that the original recording was not made available to him but made only a general objection, and the adjuster stated that she had the original recording of the statement with her at the deposition, but the employee's counsel did not ask for it or admit it into evidence; the adjuster fully authenticated the transcription of the statement and also testified to her own independent recollection of her conversation with the employee, thus providing independent and unchallenged evidence of the same statements by the employee. Watkins v. Trogdon Masonry, Inc., 203 N.C. App. 289, 692 S.E.2d 112 (2010), review denied, 364 N.C. 334, 701 S.E.2d 681, 2010 N.C. LEXIS 593 (2010).

Cited in Kroh v. Kroh, 152 N.C. App. 347, 567 S.E.2d 760 (2002), cert. denied, 356 N.C. 673, 577 S.E.2d 120 (2003); State v. Howard, 215 N.C. App. 318, 715 S.E.2d 573 (2011); Bowman v. Cox Toyota Scion, 224 N.C. App. 1, 737 S.E.2d 384 (2012).


Rule 1004. Admissibility of other evidence of contents.

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:

  1. Originals Lost or Destroyed. - All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
  2. Original Not Obtainable. - No original can be obtained by any available judicial process or procedure; or
  3. Original in Possession of Opponent. - At a time when an original was under the control of a party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing; or
  4. Collateral Matters. - The writing, recording, or photograph is not closely related to a controlling issue.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 1004.

The Advisory Committee's Note states:

"Basically the rule requiring the production of the original as proof of contents has developed as a rule of preference: if failure to produce the original is satisfactorily explained, secondary evidence is admissible. The instant rule specifies the circumstances under which production of the original is excused.

The rule recognizes no 'degrees' of secondary evidence."

Paragraph (1) provides that loss or destruction of the original, unless due to bad faith of the proponent, is a satisfactory explanation of nonproduction. See McCormick § 201. This paragraph is consistent with current North Carolina practice. See Brandis on North Carolina Evidence § 192 (1982).

Paragraph (2) provides that when the original is in the possession of a third person, inability to procure it from him by resort to process or other judicial procedure is a sufficient explanation of nonproduction. The Advisory Committee's Note states that: "Judicial procedure includes subpoena duces tecum as an incident to the taking of a deposition in another jurisdiction. No further showing is required. See McCormick § 202." Extreme expense and inconvenience in obtaining the document will not constitute unavailability.

Paragraph (3) is consistent with North Carolina practice in that secondary evidence of the contents of a writing is admissible if the opponent who is in possession of the original fails, after notice, to produce it at the trial. See Brandis on North Carolina Evidence § 193 (1982). The Advisory Committee's Note states:

"A party who has an original in his control has no need for the protection of the rule if put on notice that proof of contents will be made. He can ward off secondary evidence by offering the original. The notice procedure here provided is not to be confused with orders to produce or other discovery procedures, as the purpose of the procedure under this rule is to afford the opposite party an opportunity to produce the original, not to compel him to do so. McCormick § 203."

Under the rule, notice may be given by the pleadings. There are no North Carolina cases on this point.

Paragraph (4) is consistent with North Carolina cases in that production of the original is not required if the writing is only collaterally involved in the case. See Brandis on North Carolina Evidence § 191 (1982). The Advisory Committee's Note states:

"While difficult to define with precision, situations arise in which no good purpose is served by production of the original. Examples are the newspaper in an action for the price of publishing defendant's advertisement, Foster-Holcomb Investment Co. v. Little Rock Publishing Co., 151 Ark. 449, 236 S.W. 597 (1922), and the streetcar transfer of plaintiff claiming status as a passenger, Chicago City Ry. Co. v. Carroll, 206 Ill. 318, 68 N.E. 1087 (1903). Numerous cases are collected in McCormick § 200, p. 412, n. 1."

CASE NOTES

"Best Evidence" Rule Articulated. - The so-called "best evidence" rule merely requires the exclusion of secondary evidence offered to prove the contents of a document whenever the original document itself is available. United States Leasing Corp. v. Everett, Creech, Hancock & Herzig, 88 N.C. App. 418, 363 S.E.2d 665, cert. denied, 322 N.C. 329, 369 S.E.2d 364 (1988).

Fact that an insurance policy was missing did not necessarily preclude recovery by an injured employee on a workers' compensation policy under G.S. 8C-1-1004; the employee could be permitted to offer other evidence of the contents of the insurance policy. Vaughan v. Carolina Indus. Insulation, 183 N.C. App. 25, 643 S.E.2d 613 (2007).

Best Evidence Rule Not Violated. - Where trial court admitted testimony of witness regarding papers she had found in house where she lived with defendant and where witness testified that in collecting defendant's personal belongings at request of defendant's parents she came upon folder containing papers that related to life insurance policy on victim and in which she saw defendant's name listed first as beneficiary, admission of testimony did not violate best evidence rule since contents of policy insuring life of defendant's husband were not in question and witness's testimony as to policy was collateral. State v. Clark, 324 N.C. 146, 377 S.E.2d 54 (1989).

That jurors were unable to view a lost videotape did not, per se, result in a violation of G.S. 8C-1, Rule 403; G.S. 8C-1, Rule 1004 permits admissibility of secondary evidence where the original is lost or destroyed. State v. Thorne, 173 N.C. App. 393, 618 S.E.2d 790 (2005).

Failure to Produce Best Evidence. - Where defendant sought not only to introduce document, but to prove that its contents were what he claimed they were, i.e., a list of bank accounts with the names of the persons authorized to sign on them, for this purpose original signature cards clearly were the best evidence, and as no reason was given for their nonproduction, the court did not err in excluding the document. Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 340 S.E.2d 755, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986).

Duplicate trust agreement was admissible, where the original trust agreement had not been located despite plaintiff's attempt to issue a subpoena duces tecum to defendant. Investors Title Ins. Co. v. Herzig, 101 N.C. App. 127, 398 S.E.2d 659 (1990), rev'd on other grounds, 330 N.C. 681, 413 S.E.2d 269 (1992).

Applied in State v. Jarrell, 133 N.C. App. 264, 515 S.E.2d 247 (1999).


Rule 1005. Public records.

The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 1005.

Admission of certified copies of registered instruments and official records are currently governed by G.S. 8-18, G.S. 8-34, and G.S. 1A-1, Rule 44.

The Advisory Committee's Note states:

"Public records call for somewhat different treatment. Removing them from their usual place of keeping would be attended by serious inconvenience to the public and to the custodian. As a consequence judicial decisions and statutes commonly hold that no explanation need be given for failure to produce the original of a public record. McCormick § 204; 4 Wigmore §§ 1215-1228. This blanket dispensation from producing or accounting for the original would open the door to the introduction of every kind of secondary evidence of contents of public records were it not for the preference given certified or compared copies. Recognition of degrees of secondary evidence in this situation is an appropriate quid pro quo for not applying the requirement of producing the original."

Rule 1006. Summaries.

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 1006.

Where documents are so voluminous that it would be impracticable to produce and examine them in court, North Carolina Courts have allowed a qualified witness to testify to the results of his examination of the documents. Brandis on North Carolina Evidence § 192 (1982).

CASE NOTES

When Summary May Be Excluded. - A summary is properly excluded from evidence if it does not fairly represent the underlying document. Coman v. Thomas Mfg. Co., 105 N.C. App. 88, 411 S.E.2d 626, cert. denied, 331 N.C. 284, 417 S.E.2d 249 (1992).

Plaintiffs' attempt to generate an exhibit during trial while a witness was undergoing cross-examination, by extracting and charting portions of the testimony, was governed by G.S. 8C-1-611(a), not by this rule, and the trial court acted within its discretion in disallowing it as a kind of premature final argument. Marley v. Graper, 135 N.C. App. 423, 521 S.E.2d 129 (1999).

Admission in Summary Form. - Trial court did not err in admitting voluminous videotape recordings in summary form, as such an approach to the evidence was permitted under the North Carolina Rules of Civil Procedure and the jury was informed that the videos, taken for use in a private nuisance case, were edited from many hours of tape recorded over a period of several months. Broadbent v. Allison, 176 N.C. App. 359, 626 S.E.2d 758 (2006), review dismissed, review denied, 361 N.C. 350, 644 S.E.2d 4 (2007).


Rule 1007. Testimony or written admission of party.

Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by his written admission, without accounting for the nonproduction of the original.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 1007.

This rule is consistent with North Carolina practice in that the original writing need not be produced where the opponent admits that the copy offered in evidence is correct. See Brandis on North Carolina Evidence § 192, at 113 (1982). The rule clarifies North Carolina law by not allowing proof of contents by oral evidence of an oral admission. See Norcum v. Savage, 140 N.C. 472 (1906). The Advisory Committee's Note states:

"While the parent case, Slatterie v. Pooley, 6 M. & W. 664, 151 Eng. Rep. 579 (Exch. 1840), allows proof of contents by evidence of an oral admission by the party against whom offered, without accounting for nonproduction of the original, the risk of inaccuracy is substantial and the decision is at odds with the purpose of the rule giving preference to the original. See 4 Wigmore § 1255. The instant rule follows Professor McCormick's suggestion of limiting this use of admissions to those made in the course of giving testimony or in writing. McCormick § 208, p. 424. The limitation, of course, does not call for excluding evidence of an oral admission when nonproduction of the original has been accounted for and secondary evidence generally has become admissible. Rule 1004, supra. "

Rule 1008. Functions of court and jury.

When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of Rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.

History

(1983, c. 701, s. 1.)

COMMENTARY

This rule is identical to Fed. R. Evid. 1008.

The Advisory Committee's Note states:

"Most preliminary questions of fact in connection with applying the rule preferring the original as evidence of contents are for the judge, under the general principles announced in Rule 104, supra. Thus, the question whether the loss of the originals has been established, or of the fulfillment of other conditions specified in Rule 1004, supra, is for the judge. However, questions may arise which go beyond the mere administration of the rule preferring the original and into the merits of the controversy. For example, plaintiff offers secondary evidence of the contents of an alleged contract, after first introducing evidence of loss of the original, and defendant counters with evidence that no such contract was ever executed. If the judge decides that the contract was never executed and excludes the secondary evidence, the case is at an end without ever going to the jury on a central issue. Levin, Authentication and Content of Writings, 10 Rutgers L. Rev. 632, 644 (1956). The latter portion of the instant rule is designed to insure treatment of these situations as raising jury questions. The decision is not one for uncontrolled discretion of the jury but is subject to the control exercised generally by the judge over jury determinations. See Rule 104(b), supra. "

Although there are no North Carolina cases directly on point, Rule 1008 follows the division of function between the court and the jury with respect to competency and conditional relevancy. See Brandis on North Carolina Evidence § 8 (1982).

ARTICLE 11. Miscellaneous Rules.

Rule

Rule 1101. Applicability of rules.

  1. Proceedings generally. - Except as otherwise provided in subdivision (b) or by statute, these rules apply to all actions and proceedings in the courts of this State.
  2. Rules inapplicable. - The rules other than those with respect to privileges do not apply in the following situations:
    1. Preliminary Questions of Fact. - The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a).
    2. Grand Jury. - Proceedings before grand juries.
    3. Miscellaneous Proceedings. - Proceedings for extradition or rendition; first appearance before district court judge or probable cause hearing in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; proceedings with respect to release on bail or otherwise.
    4. Contempt Proceedings. - Contempt proceedings in which the court is authorized by law to act summarily.

History

(1983, c. 701, s. 1; 1983 (Reg. Sess., 1984), c. 1037, s. 14; 1985, c. 509, s. 2.)

COMMENTARY

This rule resembles Fed. R. Evid. 1101 with appropriate modifications.

Subdivision (b)(1) restates, for convenience, the provisions of the second sentence of Rule 104(a), supra. See Advisory Committee's Note to that rule.

Current North Carolina practice with respect to voir dire, sentencing hearings, probation revocation hearings, and juvenile proceedings is not meant to be changed by adoption of these rules.

CASE NOTES

Admission of Speculative Evidence. - Testimony by defendant's friend tending to suggest that defendant would have a positive impact on young people visiting prison was purely speculative and therefore properly held inadmissible; evidence was not admissible to rebut the State's evidence that defendant would not be useful to society in prison and would be a danger to unarmed civilians in prison. State v. Davis, 353 N.C. 1, 539 S.E.2d 243 (2000), cert. denied, 534 U.S. 839, 122 S. Ct. 95, 151 L. Ed. 2d 55 (2001).

Applicability of Rules of Evidence to Suppression Hearing. - Defendant's argument that the trial court was required in defendant's suppression hearing to apply the North Carolina Rules of Evidence and erroneously permitted a state trooper's testimony under those rules was without merit because the Rules of Evidence did not apply in suppression hearings. State v. Ezzell, - N.C. App. - , - S.E.2d - (May 4, 2021).

Rules Not Applicable to Sentencing Proceedings. - Although the North Carolina Rules of Evidence do not apply to sentencing proceedings, they may be helpful as a guide to reliability and relevance. State v. Bond, 345 N.C. 1, 478 S.E.2d 163 (1996), reh'g denied, 345 N.C. 355, 479 S.E.2d 210, cert. denied, 521 U.S. 1124, 117 S. Ct. 2521, 138 L. Ed. 2d 1022 (1997); State v. Strickland, 346 N.C. 443, 488 S.E.2d 194 (1997), cert. denied, 522 U.S. 1078, 118 S. Ct. 858, 139 L. Ed. 2d 757 (1998).

In sentencing proceedings the Rules of Evidence do not limit the trial courts discretion over the scope of cross-examination because they do not apply. State v. Warren, 347 N.C. 309, 492 S.E.2d 609 (1997), cert. denied, 523 U.S. 1109, 118 S. Ct. 1681, 140 L. Ed. 2d 818 (1998).

The admissibility of mitigating evidence during the penalty phase is not constrained by the Rules of Evidence, although the trial judge must determine the admissibility of such evidence subject to general rules excluding evidence that is repetitive, unreliable, or lacking an adequate foundation. State v. Locklear, 349 N.C. 118, 505 S.E.2d 277 (1998), cert. denied, 526 U.S. 1075, 119 S. Ct. 1475, 143 L. Ed. 2d 559 (1999).

Trial court did not err, in defendant's capital sentencing hearing, in limiting defendant's opportunity to cross-examine a witness about a different murder, in furtherance of using that evidence to support aggravating circumstances of G.S. 15A-2000(e)(2), (3), because defendant had ample opportunity to cross-examine her on that issue and the Rules of Evidence did not strictly govern capital sentencing proceedings pursuant to G.S. 8C-1, N.C. R. Evid. 1101(b)(3); additionally, the issue involved prior inconsistent statements as to how many intruders were involved in that murder which was collateral to the fact of it happening and therefore, was subject to the limits imposed by the trial court's discretion. State v. Carter, 357 N.C. 345, 584 S.E.2d 792 (2003), cert. denied, 541 U.S. 943, 124 S. Ct. 1670, 158 L. Ed. 2d 368 (2004).

Trial court did not err in admitting hearsay evidence of an alleged bribe offered to the witness by defendant at defendant's sentencing; further, the use of this hearsay evidence did not violate the Confrontation Clause. State v. Sings, 182 N.C. App. 162, 641 S.E.2d 370, cert. denied, appeal dismissed, 361 N.C. 574, 2007 N.C. LEXIS 885 (2007).

Because the proceeding was a probation revocation hearing, the trial court was not bound by the formal rules of evidence and acted within its discretion when it admitted hearsay evidence; the hearsay evidence was relevant for determining whether defendant had violated a condition of his probation by committing a criminal offense. State v. Murchison, 367 N.C. 461, 758 S.E.2d 356 (2014).

During a capital sentencing proceeding, the State must be permitted to present any competent evidence supporting the imposition of the death penalty. State v. Holden, 346 N.C. 404, 488 S.E.2d 514 (1997), cert. denied, 522 U.S. 1126, 118 S. Ct. 1074, 140 L. Ed. 2d 132 (1998).

Rules Applicable to Motions for Post-Conviction DNA Testing. - North Carolina Rules of Evidence applied to motions for post-conviction DNA testing because (1) the motion was a procedural means for obtaining relief, and a trial court conducted a hearing on the motion, so the motion resulted in a proceeding, and (2) the motion was not listed among the exceptions in G.S. 8C-1, N.C. R. Evid. 1101(b) to the applicability of the Rules of Evidence. State v. Foster, 222 N.C. App. 199, 729 S.E.2d 116 (2012).

Because the rules of evidence do not apply in capital sentencing proceedings, a trial court has great discretion to admit any evidence relevant to sentencing. State v. Thomas, 350 N.C. 315, 514 S.E.2d 486 (1999), cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388 (1999).

The trial court did not violate this section in allowing the admission of testimony regarding defendant's temperament, a fight defendant had with his girlfriend at work, an alleged statement by defendant that he smoked marijuana, and a high school homework assignment that showed defendant's knowledge of drugs, as the testimony was competent, relevant evidence of defendant's character and did not violate his right to a fundamentally fair capital sentencing proceeding. State v. Davis, 353 N.C. 1, 539 S.E.2d 243 (2000), cert. denied, 534 U.S. 839, 122 S. Ct. 95, 151 L. Ed. 2d 55 (2001).

Applied in State v. Moses, 350 N.C. 741, 517 S.E.2d 853 (1999), cert. denied, 528 U.S. 1124, 120 S. Ct. 951, 145 L. Ed. 2d 826 (2000), cert. denied 706 S.E.2d 246, 2011 N.C. LEXIS 121 (N.C. 2011; State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004).

Cited in State v. Crouch, 74 N.C. App. 565, 328 S.E.2d 833 (1985); Haponski v. Constructor's Inc., 87 N.C. App. 95, 360 S.E.2d 109 (1987); State v. Williams, 343 N.C. 345, 471 S.E.2d 379 (1996), cert. denied, 519 U.S. 1061, 117 S. Ct. 695, 136 L. Ed. 2d 618 (1997); State v. Cummings, 346 N.C. 291, 488 S.E.2d 550 (1997), cert. denied, 522 U.S. 1092, 118 S. Ct. 886, 139 L. Ed. 2d 873 (1998); State v. Stephens, 347 N.C. 352, 493 S.E.2d 435 (1997); State v. Atkins, 349 N.C. 62, 505 S.E.2d 97 (1998), cert. denied, 526 U.S. 1147, 119 S. Ct. 2025, 143 L. Ed. 2d 1036 (1999); State v. Flippen, 349 N.C. 264, 506 S.E.2d 702 (1998), cert. denied, 526 U.S. 1135, 119 S. Ct. 1813, 143 L. Ed. 2d 1015 (1999); State v. Smith, 352 N.C. 531, 532 S.E.2d 773 (2000), cert. denied, 532 U.S. 949, 121 S. Ct. 1419, 149 L. Ed. 2d 360 (2001); State v. Blakeney, 352 N.C. 287, 531 S.E.2d 799 (2000), cert. denied, 531 U.S. 1117, 121 S. Ct. 868, 148 L. Ed. 2d 780 (2001); State v. Hardy, 353 N.C. 122, 540 S.E.2d 334 (2000), cert. denied, 534 U.S. 840, 122 S. Ct. 96, 151 L. Ed. 2d 56 (2001); State v. Taylor, 354 N.C. 28, 550 S.E.2d 141 (2001), cert. denied, 535 U.S. 934, 122 S. Ct. 1312, 152 L. Ed. 2d 221 (2002); State v. Savage, 199 N.C. App. 299, 680 S.E.2d 881 (2009).


Rule 1102. Short title.

These rules shall be known and may be cited as the "North Carolina Rules of Evidence."

History

(1983, c. 701, s. 1.)