An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-313
Filed 7 January 2026
Ashe County, No. 23CR444237-040
STATE OF NORTH CAROLINA
v.
CAITLIN HOFFMAN, Defendant.
Appeal by defendant from judgment entered 30 July 2024 by Judge William A.
Wood in Ashe County Superior Court. Heard in the Court of Appeals 28 October 2025.
Attorney General Jeff Jackson, by Assistant Attorney General Farrah R. Raja, for the State.
Joseph Gerber, for defendant-appellant.
FLOOD, Judge.
Defendant Caitlin Hoffman appeals her conviction of misdemeanor assault on
a child under the age of twelve. On appeal, Defendant argues the trial court: first,
erred under North Carolina Rules of Evidence 104(b), 404(b), and 403 by allowing
witness testimony concerning her behavior prior to the alleged offense; second,
plainly erred by allowing an officer to improperly vouch during his testimony; and
third, erred by allowing the State to use the word “assault” while questioning STATE V. HOFFMAN
Opinion of the Court
witnesses. Alternatively, Defendant claims she received ineffective assistance of
counsel (“IAC”) and further alleges cumulative error. Upon careful review, we hold
the trial court did not err by allowing witness testimony of prior bad acts, where the
evidence was admitted to show an absence of mistake; did not plainly err by allowing
the officer’s testimony, where the testimony did not have a probable impact on the
jury; and did not err by allowing the State to use the word “assault” while questioning
witnesses, where the prosecutor was not stating an opinion on the matter. Finally,
we conclude Defendant did not receive IAC, where she has failed to show counsel’s
performance was deficient, and we further conclude the trial court did not commit
cumulative error.
I. Factual and Procedural Background
On 29 September 2023, Defendant, working as a lead teacher of a pre-K
program, took a group of nine children outside by herself to play on the playground,
while Amber Rash, the assistant teacher, prepared for lunch inside. Among the group
of nine children was D.C.,1 a four-year-old boy in Defendant’s class at the time. At
some point, D.C. came running into the classroom, crying, and explaining to Amber
that his head hurt because it had hit a brick wall after Defendant pushed him.
Defendant was charged with misdemeanor child abuse and misdemeanor assault on
a child under the age of twelve. The child abuse charge was subsequently dropped,
1 A pseudonym is used to protect the identity of the juvenile, pursuant to N.C. R. App. P. 42.
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and Defendant was found guilty of the remaining charge at district court. Defendant
appealed to superior court.
On 29 July 2024, this matter came on for trial in Ashe County Superior Court.
At trial, D.C. testified that, on the day of the incident, he “got in trouble” while playing
with another child on the playground, and Defendant asked him to “sit down” beside
a brick wall. D.C. testified he wanted to get up; when he tried to, Defendant “pushed
[him] into the wall[,]” causing his head to hit a brick wall.
Amber also testified for the State at trial. The State first asked Amber to
discuss the daycare’s discipline policy at the time of the incident, which Amber
explained was “[d]o not spank, shake, bite, pinch, push, pull, slap, or otherwise
physically punish the children.” Amber then testified about the events on 29
September 2023, recounting that she was inside the classroom when Defendant
opened the door from outside and “asked for a washcloth, because [D.C.] had hurt his
head.” “He came walking in and as soon as he got to me, he said, ‘[Defendant] pushed
me down.’” Amber then explained to the court that, right after D.C. told her this, she
filled out an incident report because “[w]e fill out incident reports for anything . . .
just to document so parents can know what happened, everybody signs it. It is
accountability.” Amber included both accounts of the events in the report, writing
“[Defendant] said [D.C.] fell and [D.C.] said that [Defendant] pushed him.”
Defendant included a written statement with the report. In the statement, she
recounted that D.C. got in trouble on the playground; Defendant had him sit down
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next to a brick wall; D.C. then became upset and “started to throw mulch at
[Defendant]”; Defendant asked him to stop; and when he would not, she “bent down
and put both hands gently on his hands and told [D.C.] that [she] didn’t like that. He
started to scream [and] flail[] out of anger” and when he “flailed[,] he hit his side right
head on the brick wall.”
Amber observed that, in the past, D.C. and Defendant did “not get along very
well.” She noted Defendant had a history of punishing D.C. beyond what was
authorized under daycare policy. She specifically explained that “[D.C.] would scream
sometimes. [Defendant] would yell back at him. If he got in trouble in the mornings,
she would not let him have his comfort items at nap time, even though it was hours
later, which is not acceptable punishment at the daycare by anyone.” Overall, she
explained Defendant was “very cold” to the “harder kids[,]” and that she was “not a
nurturing teacher like the hugging kind.”
Christina Rash, who was the assistant director of a daycare at which
Defendant previously worked, also testified at trial. The trial court conducted a voir
dire of Christina prior to her testifying before the jury. During voir dire, Christina
explained to the court that, during Defendant’s time with her previous daycare, “[w]e
had five instances across eight months of harsh tone, behavior, [and] negative
interaction that [Defendant] had with children.” Although Christina did not witness
the instances themselves, as the assistant director, she was present for each
discussion with Defendant of the writeups filed and present when Defendant signed
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each writeup. She noted that the instances included “[r]ough interactions, finger
pointing, [and an incident in which] she played tug of war at one point with a child,
being very rough.”
Defense counsel objected to Christina’s testimony coming before the jury under
North Carolina Evidence Rule 404(b). The trial court overruled the objection, stating,
with regard to the 404-B ruling in this case, the [c]ourt is going to find that there is sufficient evidence to show that the Defendant admitted the various 404-B acts in question. The proper 404-B evidence does serve the proper purposes that would be absence of mistake, intent or plan. It is sufficiently similar to the acts in question in that it involves acts of described as either rough or aggressive, physical acts or rough acts, I believe, toward the children in a daycare setting which is the same as we have in the case at hand. I would also add that the proper 404-B evidence is temporal and proximate to the case at hand which we’re trying I believe in either 2018 and 2019, and the one we’re trying I believe is 2023 which is just a few years. The facts being similar at least the circumstances of the incidents being similar.
The trial court further noted, for purposes of North Carolina Evidence Rule 403, that
the probative value was not outweighed by the danger of unfair prejudice to
Defendant.
The jury was brought back in, and the trial court gave the following limiting
instruction:
Evidence is about to be received tending to show that on or about 2018 or 2019 . . . Defendant engaged in certain conduct of rough or gruff behavior or interactions with children at a different daycare. This evidence is received solely for the purpose of showing plan, intent, or absence of
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mistake in the case which we’re hearing evidence in. If you believe this evidence that you’re about to hear, you may consider it, but only for the limited purposes with which it has been received. You may not consider it for any other reason. In other words, you can’t find . . . Defendant guilty of the current charge she’s being tried for solely because of the evidence you’re about to hear that occurred on that earlier occasion.
After the trial court gave the limiting instruction, Christina testified that,
“over the course of the eight months [Defendant] worked with us, we did see the harsh
tones, rough gestures, very gruff behavior. And it was in a variety of inside and
outside the classroom, so on the playground and in the classroom, and it was noted
by different employees.” Christina described one particular instance in which “a child
wouldn’t let go of a toy,” so Defendant “engaged in tug of war over a toy with the
child[,]” eventually let go and the child hit their head. Christina explained Defendant
had been observed engaging in jerking motions with the children, which is behavior
that “seems forceful, rough, you know, not pleasant for the child[,]” like “forcefully
putting them in the chair or picking them up.” Christina testified Defendant was not
open to taking direction and was eventually terminated for this rough type of
behavior.
On cross examination, defense counsel asked:
Q. Now, you had testified that you don’t think she was receptive to guidance.
A. Correct.
Q. Now, by that[,] do you mean that she would say that
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what was said did not happen?
A. No. She would not -- she did not implement things that we asked her to do, so if we said, you know, please watch your tone or please have gentle interactions, we found that it continued to be loud, sharp, rough.
In addition, Detective Jennifer DeSpain, a special victims detective with the
Ashe County Sheriff’s Office, testified, explaining that a child’s first disclosure—an
“admittance of events that have happened”—is “very important” and “usually the
most accurate.” Without any objection, the State inquired whether the first disclosure
by a child is “the most truthful part[,]” and Detective DeSpain responded, “[y]es.”
At the close of trial, the jury subsequently returned a guilty verdict, and
Defendant timely appealed.
II. Jurisdiction
This Court has jurisdiction to review this appeal from a final judgment of a
superior court pursuant to N.C.G.S. §§ 7A-27(b) and 15A-1444(a) (2023).
III. Analysis
On appeal, Defendant argues (A) the trial court erred by allowing witness
testimony of her behavior prior to the alleged offense; (B) the trial court plainly erred
by allowing Detective DeSpain to impermissibly vouch for the child; and (C) the trial
court erred by failing to intervene ex mero motu when the State used the word
“assault” several times while questioning witnesses in the presence of the jury. In the
alternative, Defendant argues (D) Defendant received IAC, and (E) Defendant is
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entitled to a new trial based on the cumulative weight of all error. We address each
argument, in turn.
A. Witness Testimony
Defendant first argues the trial court erred by allowing Christina to testify
regarding Defendant’s prior actions at the previous daycare. She subdivides this
argument into three distinct prongs: (1) Defendant argues the trial court erred by
allowing the testimony under its Rule 104(b) preliminary determination; (2) she
argues the testimony constituted improper character evidence under Rule 404(b); and
(3), she argues the evidence was substantially more prejudicial than probative and
therefore violative of Rule 403. We disagree.
1. Rule 104(b)
Evidence of “other crimes, wrongs, or acts” is admissible only if offered for a
proper purpose. N.C.G.S. § 8C-1, Rule 404(b) (2023). 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.” Id. “Even
if offered for a proper purpose under Rule 404(b), evidence of prior crimes, wrongs, or
acts must be relevant, and such evidence is not relevant unless it reasonably tends to
prove a material fact in issue other than the character of the accused.” State v.
Haskins, 104 N.C. App. 675, 679 (1991) (citation and internal quotation marks
omitted). “Furthermore, the ‘other crimes, wrongs, or acts’ evidence is relevant only
if the jury can conclude by a preponderance of the evidence that the extrinsic act
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occurred and that the defendant was the actor.” Id. Thus, “the trial court is required
to make an initial determination pursuant to Rule 104(b) of whether there is
sufficient evidence that the defendant in fact committed the extrinsic act.” Id. at 679–
80.
Rule 104(b) provides that, “[w]hen 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.” N.C.G.S. § 8C-1, Rule 104(b) (2023). To make this initial determination
under Rule 104(b), “the trial court must find the evidence to be substantial.” See
Haskins, 104 N.C. App. at 680. “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” State v. Williams,
307 N.C. 452, 454 (1983) (citation omitted).
Here, Defendant argues Christina’s testimony should have been excluded
under Rule 104(b) because there “was never a sufficient basis for finding that
[Defendant] committed any of the alleged prior bad ‘acts’ in the first place[,]” as
Christina’s testimony was “a vague and generic cloud of character aspersions[,]” and
Christina never personally witnessed Defendant’s behavior. Cf. N.C.G.S. § 8C-1, Rule
602 (providing that “[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”).
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Christina, however, testified that she learned of Defendant’s prior acts from
writeups detailing the incidents, was present for the counseling sessions in which
these actions were discussed with Defendant, and was likewise present when
Defendant signed each of these writeups. This evidence is substantial, as a
reasonable mind might accept Christina’s testimony as “adequate to support a
conclusion” that these actions took place. See Williams, 307 N.C. at 454. Therefore,
the trial court did not err in preliminarily determining that the evidence of
Defendant’s prior acts would be allowed for the jury’s consideration.
2. Rule 404(b)
Defendant next argues Christina’s testimony was offered and admitted for the
improper purpose of showing Defendant’s propensity to commit the alleged offense
and that the prior acts were not similar enough to the act at issue in the case to
warrant their admission under Rule 404(b).
When a trial court has made findings of fact and conclusions of law to support
its Rule 404(b) determination, this Court looks “to whether the evidence supports the
findings and whether the findings support the conclusions.” State v. Beckelheimer,
366 N.C. 127, 130 (2012). The trial court’s legal conclusion regarding whether the
evidence is covered under Rule 404(b) is reviewed de novo. Id. Under a de novo review,
this Court “considers the matter anew and freely substitutes its own judgment for
that of the lower court.” State v. Harris, 276 N.C. App. 128, 131 (2021) (citation
omitted).
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Our Supreme Court has explained that, under North Carolina precedent, Rule
404(b) 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, 278–79 (1990) (alterations in original). “Accordingly,
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. Lloyd, 354 N.C. 76, 88 (2001)
(citation and internal quotation marks omitted) (alterations in original).
“Where, as here, an accident is alleged, evidence of similar acts is more
probative than in cases in which an accident is not alleged. The need for such proof
is clear.” State v. Stager, 329 N.C. 278, 304 (1991). “The doctrine of chances
demonstrates that the more often a defendant performs a certain act, the less likely
it is that the defendant acted innocently.” Id. at 305.
The recurrence or repetition of the act increases the likelihood of a mens rea or mind at fault. In isolation, it might be plausible that the defendant acted accidentally or innocently; a single act could easily be explained on that basis. However, in the context of other misdeeds, the defendant’s act takes on an entirely different light. The fortuitous coincidence becomes too abnormal, bizarre, implausible, unusual, or objectively improbable to be believed. The coincidence becomes telling evidence of mens rea.
Id. (citation omitted).
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“In addition to the requirement that the evidence be offered for a purpose other
than to show criminal propensity, the admissibility of evidence under Rule 404(b) is
guided by two further constraints—similarity and temporal proximity of the acts.”
Lloyd, 354 N.C. at 88 (citation modified). “Prior acts are sufficiently similar if there
are some unusual facts present in both crimes that would indicate that the same
person committed them. We do not require that the similarities rise to the level of the
unique and bizarre.” Beckelheimer, 366 N.C. at 131 (internal citations and quotation
marks omitted). Meanwhile, for temporal proximity, our courts have upheld the
admissibility of 404(b) evidence with year-long periods between the past and present
incidents. See, e.g., State v. Wilson-Angeles, 251 N.C. App. 886, 894 (2017) (affirming
admissibility of 404(b) evidence of an act that occurred approximately four years
before the incident on appeal); State v. Carter, 338 N.C. 569, 588–89 (1994) (affirming
admissibility of 404(b) evidence of a prior crime after an eight-year period).
“[R]emoteness in time is less significant when the prior conduct is used to show
intent, motive, knowledge, or lack of accident[.]” Stager, 329 N.C. at 307.
Here, the State had the burden to prove that Defendant pushed D.C., and D.C.
did not fall into the wall by himself when Defendant “bent down and put both hands
gently on his hands[.]” Christina’s testimony conveyed similarities between
Defendant’s actions at the previous daycare and the actions to which D.C. testified.
In both cases, Defendant engaged in actions that were “forceful, rough, you know, not
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pleasant for the child”—the opposite of gentle. Similar to the present instance,
Defendant had previously engaged in a rough tug-of-war with a child that resulted in
the child bumping their head, like the roughness of the interaction with D.C. The
trial court found that Christina’s testimony “serve[s] the proper purposes that would
be absence of mistake, intent or plan”; “is sufficiently similar to the acts in question
in that it involves acts described as either rough or aggressive, physical acts . . .
toward the children in a daycare setting which is the same as we have in the case at
hand”; and “is temporal and proximate to the case at hand which we’re trying I believe
in either 2018 and 2019, and the one we’re trying I believe is 2023 which is just a few
years.”
We conclude there is competent evidence in the Record from testimony at trial
to support the findings for the proper purpose of absence of mistake and that these
findings support the trial court’s conclusion of law that this evidence was admissible
under Rule 404(b). See Beckelheimer, 366 N.C. at 130. Defendant’s prior actions were
“relevant” and “offered for a proper purpose” of absence of mistake, such that the
evidence “reasonably tend[ed] to prove a material fact in issue”—that this incident
was not an accident—rather than just about “the character of the accused.” See
Haskins, 104 N.C. App. at 679. Based on this evidence, we hold that the trial court
properly admitted the evidence to show lack of accident; however, we do not agree
this evidence shows an intent or plan. “Although it is error to admit other crimes
evidence for a purpose not supported in the evidence, the error cannot prejudice
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defendant when the same other crimes evidence is admitted for a purpose which is
supported in the evidence.” Id. at 683.
3. Rule 403
Finally, Defendant argues that, even if this evidence was admissible under
Rule 404(b), the probative value of this evidence was substantially outweighed by the
danger of unfair prejudice for purposes of Rule 403.
“Whether or not to exclude evidence under Rule 403 . . . is a matter within the
sound discretion of the trial court and its discretion will not be disturbed absent a
showing of an abuse of discretion.” State v. McCray, 342 N.C. 123, 131 (1995). “The
test for abuse of discretion is whether a decision is manifestly unsupported by reason,
or so arbitrary that it could not have been the result of a reasoned decision.” Little v.
Penn Ventilator Co., 317 N.C. 206, 218 (1986) (citation modified). This Court “is not
to substitute its judgment in place of the decision maker. Rather, the reviewing court
sits only to ensure that the decision could, in light of the factual context in which it
was made, be the product of reason.” Id. If the trial court did err in allowing this
testimony, the defendant must also show she was prejudiced; or, in other words, that
“there is a reasonable possibility that, had the error in question not been committed,
a different result would have been reached at the trial out of which the appeal arises.”
N.C.G.S. § 15A-1443(a) (2023).
Under Rule 403, “relevant[] evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . . .” N.C.G.S. § 8C-1,
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Rule 403.
Here, the trial court found the probative value of Christina’s testimony was
not substantially outweighed by unfair prejudice. As noted above, “[w]here, as here,
an accident is alleged, evidence of similar acts is more probative than in cases in
which an accident is not alleged[,]” and “[t]he need for such proof is clear.” Stager,
329 N.C. at 304. Where the purpose of this testimony was to show that the incident
was not an accident—showing the absence of mistake—we discern the trial court’s
decision to allow this testimony of prior aggressiveness with children at daycare was
a reasoned decision and not an abuse of discretion. See Little, 317 N.C. at 218.
Accordingly, we conclude the trial court did not err in admitting Christina’s
testimony.
B. Vouching
Defendant next argues the trial court plainly erred by allowing Detective
DeSpain to testify regarding the accuracy of a child’s “first disclosure.” Specifically,
Defendant contends this testimony was impermissible vouching. We disagree.
As an initial matter, we note Defendant conceded that she failed to preserve
this issue by failing to object to Detective DeSpain’s testimony. Acknowledging this,
Defendant requests this Court review this issue for plain error. “In criminal trials,
plain error review is available for challenges to jury instructions and evidentiary
issues.” State v. Giddens, 199 N.C. App. 115, 119 (2009), aff’d, 363 N.C. 826 (2010).
Plain error exists when the trial court has committed an error, and the error
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is “so basic, so prejudicial, so lacking in its elements that justice cannot have been
done[.]” State v. Odom, 307 N.C. 655, 660 (1983) (citation omitted). “Under the plain
error rule, [the] defendant must convince this Court not only that there was error,
but that absent the error, the jury probably would have reached a different result.”
State v. Jordan, 333 N.C. 431, 440 (1993). When reviewing for plain error, this Court
“examines the state of all the evidence except for the challenged evidence and asks
whether, in light of that remaining evidence, the jury probably would have done
something different.” State v. Reber, 386 N.C. 153, 162 (2024).
Under North Carolina law, “a witness may not vouch for the credibility of a
victim[,]” Giddens, 199 N.C. App. at 121 (citation omitted), because as our Supreme
Court has explained, “[t]he jury is the lie detector in the courtroom and is the only
proper entity to perform the ultimate function of every trial—determination of the
truth[,]” State v. Chul Yun Kim, 318 N.C. 614, 621 (1986). As such, “the trial court
commits a fundamental error when it allows testimony which vouches for the
complainant’s credibility in a case where the verdict entirely depends upon the jurors’
comparative assessment of the complainant’s and the defendant’s credibility.” State
v. Aguilar, 292 N.C. App. 596, 601 (2024) (citation omitted).
“[A] detective or other law enforcement officer may testify as to why they made
certain choices in the course of an investigation, including their basis for believing a
particular witness[,]” id. at 602, but they may not claim the victim’s testimony is “rock
solid[,]” see State v. Caballero, 383 N.C. 464, 472 (2022). For example, in Caballero,
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an officer—after he explained that a victim loses credibility when they “change [their]
story as you suggest things”—testified that the victim in that case “stuck to her
story”; “was resolute and rock solid”; “never wavered”; and “never changed what she
was saying.” 383 N.C. at 472. Our Supreme Court held this was impermissible
vouching, reasoning that, “[i]n the context of this discussion of witness credibility, a
reasonable juror could have only understood [the officer’s] description of [the victim’s]
performance on the test of credibility that he administered to her as ‘rock solid’ . . .
[and] should be deemed credible.” Id. at 478. The Court, however, did not conclude
the admission of this testimony was plain error “given the strength of the State’s case
against [the] defendant.” Id. at 481.
Defendant argues the present “case maps on well to that language deemed to
be plain error in State v. Warden[, 376 N.C. 503 (2020)].” In Warden, a child reported
she had been sexually assaulted by her father. Id. at 505. At trial, an investigator for
the Department of Social Services Child Protective Services testified, without
objection, that
part of our role is to determine whether or not we believe allegations to be true or not true. If we believe those allegations to be true, we will substantiate a case. If we believe them to be not true or we don’t have enough evidence to suggest that they are true, we would unsubstantiate a case. . . . We substantiated sexual abuse naming [the father] as the perpetrator.
Id. at 506. The State conceded this was impermissible vouching, and the Court’s “only
question” was whether this testimony amounted to plain error. Id. at 507.
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Here, assuming Detective DeSpain’s testimony amounted to improper
vouching, it did not rise to the level of plain error. Defendant has not shown that,
absent Detective DeSpain’s testimony regarding children’s first disclosures, the “jury
probably would have reached a different result.” Jordan, 333 N.C. at 440. “[I]n light
of that remaining evidence”—including D.C.’s testimony that Defendant pushed him,
Amber’s testimony that D.C. came in crying and told her Defendant pushed him, and
Christina’s testimony that Defendant had engaged in rough behavior with children
at daycare before, resulting in one child hitting their head—Defendant has not shown
the jury “probably would have done something different.” Reber, 386 N.C. at 162.
Accordingly, we conclude the trial court did not plainly err by allowing
Detective DeSpain to testify regarding the accuracy of a child’s first disclosure.
C. Ex Mero Motu
Defendant next argues the trial court erred by failing to intervene ex mero
motu when the State used the word “assault” several times while questioning
witnesses in the presence of the jury. Specifically, Defendant contends the prosecutor
“used ‘assault’ in a conclusory manner, often in leading questions, to imply her
personal belief in [Defendant’s] guilt[.]” We disagree.
When there is no objection at trial to a jury argument, “the standard of review
to determine if the trial court erred by not intervening ex mero motu is whether the
allegedly improper argument was so prejudicial and grossly improper that it
interfered with [the] defendant’s right to a fair trial.” State v. Knight, 340 N.C. 531,
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561 (1995). “The impropriety of the argument must be gross indeed in order for this
Court to hold that a trial judge abused his discretion in not recognizing and correcting
ex mero motu an argument which defense counsel apparently did not believe was
prejudicial when he heard it.” State v. Trull, 349 N.C. 428, 451 (1998) (citation
modified).
Our Supreme Court has explained that attorneys may use language
“consistent with the facts in evidence to present each side of the case . . . but counsel
may not, by argument or cross-examination, place before the jury incompetent and
prejudicial matters by injecting his own knowledge, beliefs and personal opinions not
supported by the evidence.” State v. Locklear, 294 N.C. 210, 217 (1978) (internal
citations omitted). Contrast State v. Jackson, 202 N.C. App. 564, 569 (2010) (holding
the prosecutor’s and witnesses’ use of the term “victim” when referring to the
complainant was not grossly improper) with Locklear, 294 N.C. at 217 (holding
the prosecutor’s statement that “you are lying through your teeth and you know you
are playing with a perjury count” was grossly improper and highly prejudicial).
Here, the State used the word “assault” six times during various points
throughout the trial:
“Can you walk us through September 29 of 2023; specifically, how you figured out that [D.C.] had been assaulted?”;
“And the basic gist of it is that he [D.C.] had disclosed that he had been assaulted by the Defendant?”;
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“And that that [first disclosure] had happened almost immediately after he [D.C.] had been assaulted?”;
“And speak to a total stranger about how he [D.C] got assaulted.”;
“Were you present when he [D.C.] was assaulted?”; and
“So according to you the day before this assault happened, he [D.C.] was antagonizing you further before this happened?”
Unlike the prosecutor’s statements in Locklear, the prosecutor here did not
state an opinion on the matter, but rather tracked the language of the charge itself—
an assault on a child under the age of twelve—and addressed the incident “consistent
with the facts in evidence” from the testimony of D.C. See Locklear, 294 N.C. at 217.
Accordingly, we conclude the prosecutor’s use of the term “assault” did not inject
“h[er] own knowledge, beliefs and personal opinions” on the trial, see id., and thus,
the trial court did not err in failing to intervene ex mero motu.
D. Ineffective Assistance of Counsel
Defendant alternatively argues that she received IAC where her trial counsel
failed to object to Christina’s testimony, Detective DeSpain’s testimony, and the
State’s use of the word “assault” while questioning witnesses. We disagree.
Under the United States Supreme Court opinion in Strickland v. Washington,
a defendant must satisfy a two-part test to show IAC:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the
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“counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.
466 U.S. 668, 687 (1984). To demonstrate prejudice, a defendant “must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. “[T]here is no reason
for a court deciding an [IAC] claim to . . . address both components of the inquiry if
the defendant makes an insufficient showing on one.” Id. at 697.
Here, as explained above, Christina’s testimony was admissible, the trial court
did not abuse its discretion in admitting her testimony, and the State’s use of the
word “assault” was not prejudicial. Further, if counsel was deficient for failing to
object to Detective DeSpain’s testimony, as explained above, Defendant has not
shown there was a reasonable probability that the outcome of the trial would have
been different without Detective DeSpain’s testimony. Id. at 694. We therefore
dismiss Defendant’s IAC claim.
E. Cumulative Error
Defendant finally argues that, even if no single error independently warrants
a new trial, the cumulation of all three errors requires a new trial. Defendant
contends that, “[i]n a contest that centered on credibility, the three errors—character
attacks, vouching, and prejudicial conclusory language—collectively operated to
simultaneously unfairly diminish and attack [Defendant’s] credibility and unfairly
inflate and insulate the prosecuting witness D.C.’s credibility.”
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“Under the cumulative error doctrine, cumulative errors lead to reversal when
taken as a whole they deprived the defendant of his due process right to a fair trial
free from prejudicial error.” State v. Teel, 296 N.C. App. 532, 545 (2024) (citation
modified). As explained above, however, the trial court did not err or plainly err; thus,
the trial court did not cumulatively err.
IV. Conclusion
Upon careful review, we hold the trial court did not err by allowing witness
testimony of prior bad acts, where the evidence was admitted to show an absence of
mistake; did not plainly err by allowing the officer’s testimony, where the testimony
did not have a probable impact on the jury; and did not err by allowing the State to
use the word “assault” while questioning witnesses, where the prosecutor was not
stating an opinion on the matter. Finally, we conclude Defendant did not receive IAC,
where she has failed to show counsel’s performance was deficient, and we further
conclude the trial court did not commit cumulative error.
NO ERROR.
Judges COLLINS and MURRY concur.
Report per Rule 30(e).
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