State v. Huff

• Court: Court of Appeals of North Carolina
• Decided: May 6, 2026
• Docket: 25-912
• Status: Published
• Author: Judge Chris Dillon

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 25-912

Filed 6 May 2026

Yancey County, Nos. 23CR216749-990, 23CR235928-990

STATE OF NORTH CAROLINA

v.

BRANDAN DANIEL HUFF, Defendant.

Appeal by defendant from judgments entered 19 July 2024 by Judge Gary M.

Gavenus in Yancey County Superior Court. Heard in the Court of Appeals 24 March

2026.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Lindsey W. Spain, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for the defendant-appellant.

DILLON, Chief Judge.

Defendant Brandan Daniel Huff appeals from judgments entered upon a jury

verdict finding him guilty of one count of contributing to the delinquency or neglect

of a juvenile and one count of statutory rape of a person who was fifteen years of age

or younger. These convictions were based on the State’s evidence of a sexual

encounter Defendant had with Cathy (a pseudonym) during the early morning hours

of 22 January 2023 in Defendant’s house. We conclude Defendant received a fair

trial, free from reversible error. STATE V. HUFF

Opinion of the Court

I. Background

The State’s evidence tended to show as follows: In late 2022 or early 2023,

Defendant came to know Cathy through her older brother. At this time, Defendant

was twenty years of age; Cathy was thirteen. Sometime after being acquainted,

Defendant asked Cathy for her Instagram account, which she provided to him.

Around midnight on 22 January 2023, Defendant messaged Cathy, asking if

she wanted to come over to his house. Initially, Cathy did not agree because of their

age difference. However, Cathy eventually agreed. Defendant picked Cathy up at

her house where she lived with her mother, stepfather, and brother.

Upon arriving at Defendant’s house, the two went into Defendant’s bedroom,

sat on his bed, watched television, and talked. At some point, Defendant leaned over

and kissed Cathy on the lips. The kissing led to sexual intercourse.

Around 1 a.m., Cathy’s mother called the police and reported her daughter

missing. The police eventually located Cathy about an hour later, around 2 a.m., at

Defendant’s house where they saw her through a window sitting on Defendant’s bed.

Weeks later, in mid-February 2023, a family advocate at a child advocacy

center (“CAC”) interviewed Cathy. Separately, an officer from the Yancey County

Sheriff’s Office also interviewed Cathy. CAC and the Yancey County Sheriff’s Office

recorded these interviews, and the State admitted them as exhibits at trial. Cathy,

herself, also testified at trial to the events that occurred at Defendant’s house.

Most relevant to this appeal, about a month after the incident, a pediatric

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nurse practitioner examined and interviewed Cathy. The nurse practitioner testified

at trial. The State also offered into evidence a child medical examination (“CME”)

report prepared by the nurse.

Defendant testified at trial in his own defense. He admitted he messaged

Cathy and picked her up from her house around midnight and that the two watched

television at his house. Defendant, however, denied having sexual intercourse with

Cathy. Defendant admitted knowing Cathy was thirteen years old at the time.

After deliberating for approximately forty minutes, the jury found Defendant

guilty of one count of contributing to the delinquency of a juvenile and one count of

statutory rape. Defendant appeals.

II. Analysis

Defendant makes two arguments on appeal. We address each in turn.

A. Improper Vouching

Defendant argues the trial court erred by allowing into evidence certain

testimony of the nurse and an unredacted version of the nurse’s CME report.

Defendant concedes he failed to object at trial to either the nurse’s testimony or the

report. Defendant, though, asks we review for plain error. N.C. R. App. P. 10(a)(4).

In the recent seminal case on plain error, our Supreme Court described the

plain error as involving a “three-factor test,” requiring a defendant to prove three

elements to prove plain error: (1) “that a fundamental error occurred at trial”; (2)

that “absent the error, the jury probably would have returned a different verdict”;

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and (3) “that the error is an ‘exceptional case’ that warrants plain error review[.]”

State v. Reber, 386 N.C. 153, 158 (2024) (citation omitted). The Court, though, focused

its analysis in Reber on the second prong, on whether the error had a probable impact

on the jury’s verdict. Id.

The Court in Reber does not expound on the first prong, on what is a

“fundamental error,” though the Court cites to State v. Lawrence, 365 N.C. 506, 518

(2012), to identify the existence of a “fundamental error” as the first prong of a plain

error analysis. In cases prior to Reber, however, our Supreme Court has suggested

that an error is “fundamental” where it is shown that the error is shown to satisfy

either or both the second and third Reber prongs, thereby suggesting that a showing

that the error is “fundamental” was not thought of as a separate prong.

For instance, in 1983, when the Court first articulated a plain error test, it

suggested a defendant met his burden of showing a “fundamental error” by producing

evidence of either the second or third factors later articulated in Reber. Specifically,

relying on a Fourth Circuit opinion, the Court in 1983 stated that a “fundamental

error” is one which is either “so prejudicial” (the second Reber factor) or which

“seriously affect[ed] the fairness, integrity or public reputation of [the] judicial

proceedings” (the third Reber factor). State v. Odom, 307 N.C. 655, 660 (1983) (citing

United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). The Court, though,

went on to hold the defendant in that case had to show the error had a “probable

impact” on the jury’s verdict. Id. at 661.

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The Court in Lawrence in 2012, however, stated a “fundamental error” is one

which had a probable impact on the verdict, the factor later articulated as the second

Reber factor. For instance, the Court expressly states “[t]o show that an error [is]

fundamental, a defendant must establish prejudice, [namely that] . . . the error ‘had

a probable impact on the jury’s finding [of guilt].’ ” Lawrence, 365 N.C. at 518. A few

paragraphs later, the Court again describes “a fundamental error” as an “error

[which] had a probable impact on the jury verdict.” Id. We note the Court then

describes the third Reber factor separately, that a defendant must also show the error

was an “exceptional case” which “seriously affect[ed] the fairness, integrity, or public

reputation of the judicial proceedings.” Id.

In 2018, six years after Lawrence, our Supreme Court does describe the plain

error test as having three prongs, but describes the first prong as simply that the

error must have been one that occurred “at trial”. State v. Miller, 371 N.C. 266, 269

(2018). The Court then explains that the defendant must separately show the error

was “fundamental”, explaining that to do so the defendant must show the error

encapsulates both the second and third prongs later described in Reber. Specifically,

the Court explains that to show plain error a defendant must show, in addition that

the error occurred at trial, that “the error was ‘fundamental’—meaning that the error

‘had a probable impact on the jury’s finding that the defendant was guilty’ and

‘seriously affected the fairness, integrity, or public reputation of judicial proceedings.’

Id. (emphasis added) (citations omitted).

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Six years later, in 2024, our Supreme Court decided Reber, separating out

“fundamental” from the other two factors. Reber, 386 N.C. at 158. The Court, at least

twice in 2025, reiterated the Reber view, that “fundamental” was not synonymous

with “probable impact” (second factor) or with “exceptional case” (third factor). See,

e.g., State v. Allison, 388 N.C. 664, 670 (2025) (citing Reber, describing that a

defendant must show “(1) a fundamental error occurred at trial, (2) such error had a

probable impact on the outcome, and (3) the error is an exceptional case warranting

plain error review[.]”). See also State v. Bowman, 387 N.C. 509, 515 (2025) (same).

In sum, in Reber and cases since, the Court suggests that a “fundamental” error

occurring at trial means something separate from the other two factors. Otherwise,

the other two factors would be surplusage. That is, if the Court meant for

“fundamental” to mean the same thing as the second or both the second and third

factors as in previous cases, the Court would have omitted the word “fundamental”

when describing the first factor.

Based on other Supreme Court cases, we construe “fundamental” as an error

by the trial court which is “obvious” or “apparent”. Indeed, our Supreme Court has

described “plain” error as an error that, at its base, is an “obvious” or “apparent” error,

see State v. Collins, 334 N.C. 54, 62 (1993); Odom, 307 N.C. at 660. Specifically, the

Court explained in these cases that “plain error” did not “simply mean [an] obvious

or apparent error.” Collins, 334 N.C. at 62 (emphasis added); Odom, 307 N.C. at 660

(emphasis added). The requirement that a defendant show that the error is obvious

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and apparent is not otherwise picked up by the Reber factors.

Further, our Supreme Court has described plain error as an error by the trial

court. See State v. Raines, 362 N.C. 1, 16 (2007) (quoting State v. Walker, 316 N.C.

33, 39 (1986) (holding “[b]efore deciding that an error by the trial court amounts to

‘plain error’ . . . .”)). Such errors could be from the “commission” of the trial court,

that is, by an overt act by the trial court in giving an instruction or allowing in

evidence. Or such errors could be from an “omission” by the trial court, that is, by

failing to give an instruction or by failing to intervene during testimony. See, e.g.,

State v. Benner, 380 N.C. 621, 640 (2022) (noting defendant’s failure to argue a trial

court’s omission of an instruction constituted plain error).

We must note a trial court does not always have the obligation to intervene

when improper evidence is offered. Rather, it may be a matter of trial strategy by a

party whether to object to certain incompetent evidence offered by the other side; in

such case, the judge should not intervene but rather allow each party to try his case.

See Reber, 386 N.C. at 157 (citation omitted) (discussing our preservation rules are

designed in part to “prevent[ ] parties from [not objecting to evidence] as a matter of

trial strategy and then assigning error to them if the strategy does not work”).

Again, we conclude a defendant shows a fundamental error by showing the

error was by the trial court, either as an act of omission or commission, that is obvious

and apparent. To be obvious and apparent, it must be clear that the action is, indeed,

error and that the opposing party’s failure to object could not be reasonable trial

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strategy.1

We now turn to the case at hand.

During the nurse’s testimony, the State offered and the trial court admitted,

without objection by Defendant, the CME report prepared by the nurse. Unlike the

nurse’s trial testimony, this CME report did contain statements which suggested the

nurse’s belief that Cathy had, in fact, “experience[d] . . . child sexual assault.”

We first address the nurse’s trial testimony that Cathy’s medical history and

presentment “was consistent with child sexual abuse.” We note the nurse never

expressly opined in her testimony any belief Cathy had, in fact, been sexually abused.

Our Supreme Court has held it improper for an expert to expressly state sexual

abuse on a child “in fact” occurred in the absence of physical findings. State v. Stancil,

355 N.C. 266, 267 (2002) (per curiam) (emphasis in original). Where there is no

physical evidence of sexual abuse, an expert may still “testify about the

characteristics of sexually abused children and whether an alleged victim exhibits

1 To illustrate, consider if the only evidence offered by the State was an officer’s testimony

about what Cathy told him about her encounter with Defendant. Clearly, the testimony would be inadmissible hearsay (assuming Cathy was available to testify). And, clearly, the evidence had a “probable impact” on the verdict, as it would have been the only evidence of Defendant’s guilt, thus satisfying Reber’s second factor. But Defendant would not be able to satisfy Reber’s first factor, showing it was clear from the record the trial court erred by not intervening, as it would not be clear to the trial court Defendant was failing to object for any reason other than prudent trial strategy. It may be the prosecutor chose to get the evidence in through the officer to relieve Cathy of any trauma from having to testify. And it may be Defendant’s counsel chose not to object so the jury would hear about the event through the officer’s hearsay testimony rather than directly from Cathy. In such case, Defendant’s remedy would be to bring an ineffective assistance of counsel claim through a motion for appropriate relief at the trial court level, where his counsel could explain why no objection was lodged.

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such characteristics.” State v. Towe, 366 N.C. 56, 62 (2012) (citing Stancil, 355 N.C.

at 267). However, an expert may not testify about said characteristics where they

are based “on the . . . child’s story alone[.]” Towe, 366 N.C. at 61.

Here, there was evidence of behavior changes in Cathy. Such evidence, when

coupled with the child’s testimony that she has been abused, is admissible. See State

v. Clark, 380 N.C. 204, 212–13 (2022). We, therefore, conclude the trial court did not

err in allowing the nurse’s testimony at trial.

But assuming arguendo the trial court committed error by failing to intervene

during the nurse’s testimony, we conclude the error did not rise to plain error.

Specifically, we conclude Defendant has failed to demonstrate the second factor,

namely how any such error had a probable impact on the jury’s verdict in light of

Cathy’s testimony of the encounter with Defendant.

We next address the trial court’s admission of the nurse’s CME report.

Defendant does not argue the CME report was inadmissible in its entirety; he only

complains that certain portions of the CME report should have been redacted before

its admission. Specifically, he points to statements in the report expressing the

nurse’s belief that Cathy had suffered sexual abuse and statements regarding the

effect the abuse had on Cathy.

In 2022, prior to Reber, our Supreme Court held a trial court committed plain

error by allowing a nurse who had examined the alleged victim to opine that

Defendant had sexually abused the alleged victim, where there was a lack of physical

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evidence of abuse, even though there was evidence of behavior changes in the alleged

victim. Clark, 380 N.C. at 213 (“Accordingly, we hold that permitting [the nurse] to

testify that Jane was ‘sexually assaulted’ in the absence of definitive physical

evidence, irrespective of testimony concerning the victim’s behavioral changes,

constituted plain error.”).

In Reber, though, our Supreme Court held it was not plain error for the trial

court not to intervene when the defendant charged with sexually abusing a child was

questioned during cross-examination about a prior sexual encounter he had with

another person who was drunk during that encounter. Reber, 386 N.C. at 163.

We conclude Defendant has failed to demonstrate that the error in allowing

the unredacted CME report was a fundamental error (the first Reber factor). The

report was thirty-four pages long, and it was not made obvious or apparent to the

trial court that the report contained potentially inadmissible opinions of the nurse or

other inadmissible information. It is a defendant’s obligation to lodge an objection to

bring such matters to the trial court’s attention. Further, it may have been a matter

of trial strategy not to highlight that the report contained the information of which

Defendant now complains. And it appears Defendant’s counsel acted strategically in

not objecting, as it does not appear from the record that the jury considered the

contents of the CME report as the jury came back within an hour with its verdict.

Further, we conclude Defendant has failed to demonstrate any error had a

probable impact on the jury’s verdict (the second Reber factor). Here, unlike in Clark,

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the only statement by the nurse suggesting her belief Cathy was sexually abused was

contained in the CME report and not in her trial testimony. The CME report was

approximately thirty-four pages. Assuming the trial court had a duty to inspect the

thirty-four pages on its own to search for improper statements to redact before

allowing the report into evidence, we cannot say the trial court’s failure rose to the

level of plain error. Given the length of the report and the speed at which the jury

convicted Defendant, we cannot say the unredacted admission of the report had a

probable impact on the jury’s verdict in this case in light of Cathy’s testimony.

In sum, we conclude any error in allowing portions of the nurse’s trial

testimony and the portions of the CME report of which Defendant now complains on

appeal, even in the aggregate, did not rise to the level of plain error.

B. Ineffective Assistance of Counsel

Defendant alleges his trial counsel was ineffective for failing to object to the

unredacted CME report.2

Ineffective assistance of counsel claims brought on direct review “will be

decided on the merits when the cold record reveals that no further investigation is

required[.]” State v. Fair, 354 N.C. 131, 166 (2001); see N.C. R. App. P. 9(a).

“[T]he right to counsel is the right to the effective assistance of counsel.”

McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); see also Strickland v.

2 Defendant also states the admission of the nurse’s testimony may be due to ineffective assistance of counsel but makes no legal argument supporting this statement. N.C. R. App. P. 28(b)(6).

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Washington, 466 U.S. 668, 686–87 (1984). A claim for “defective” assistance of

counsel requires a showing the attorney’s performance fell below Sixth Amendment

standards, and the attorney’s performance prejudiced the defendant. Strickland, 466

U.S. at 687. A defendant is prejudiced when “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. A “reasonable probability” is one “sufficient to undermine the

confidence in the outcome.” Id. This standard is a lesser standard than the

preponderance of the evidence standard. Id. at 694. Stickland notes, however,

“strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable[.]” Id. at 690.

Here, Defendant argues the admission of the unredacted CME report

prejudiced him because it contained evidence tending to arouse sympathy for the

victim, which our Supreme Court deems prejudicial. See State v. Alford, 339 N.C. 56,

572 (1995). We disagree.

As stated above, it may be that Defendant’s counsel’s decision not to object to

the unredacted CME report constituted trial strategy, as counsel did not want to draw

the jury’s attention to the now challenged portions of the thirty-four-page report.

But even assuming the decision by Defendant’s counsel fell below the standard

of effective assistance, Defendant has failed to show that a reasonable probability

exists the outcome would have been different had his counsel objected. Rather, the

record shows the offending portions of the report were never read into the record or

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referred to during the nurse’s testimony. Further, Defendant did not object to the

report which he now argues was prejudicial, and we cannot definitely say it was ever

brought to the jury’s attention. See Fair, 354 N.C. at 168.

III. Conclusion

We conclude Defendant received a fair trial, free of reversible error.

NO ERROR.

Judges WOOD and GRIFFIN concur.

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