IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-16
No. 467A20
Filed 11 February 2022
STATE OF NORTH CAROLINA
v. RAFAEL ALFREDO PABON
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 273 N.C. App. 645 (2020), finding no prejudicial error in
judgments entered on 14 December 2018 by Judge Christopher W. Bragg in Superior
Court, Cabarrus County. On 15 December 2020, the Supreme Court allowed
defendant’s petition for discretionary review of an additional issue pursuant to
N.C.G.S. § 7A-31. Heard in the Supreme Court on 9 November 2021.
Joshua H. Stein, Attorney General, by Jeffrey B. Welty, Special Deputy Attorney General, for the State-appellee.
George B. Currin, for defendant-appellant.
HUDSON, Justice.
¶1 Here we consider whether defendant was prejudiced by the trial court’s
admission of certain testimony that we assume without deciding violated the
Confrontation Clause of the Sixth Amendment and Rule 404(b) of the North Carolina
Rules of Evidence. Because we conclude that even assuming there was error,
defendant was not prejudiced, we modify and affirm the ruling of the Court of STATE V. PABON
Opinion of the Court
Appeals.
I. Factual and Procedural Background
A. Trial
¶2 On 23 January 2017, a Cabarrus County grand jury indicted defendant Rafael
Pabon for the second-degree forcible rape and first-degree kidnapping of Samantha
Camejo-Forero (Forero). On 6 March 2017, superseding indictments were issued for
the same charges. Beginning on 4 December 2018, defendant was tried by a jury in
Superior Court, Cabarrus County, with Judge Christopher W. Bragg presiding.
¶3 At trial, the State’s evidence tended to show as follows: Defendant first met
Forero in November 2015 to discuss a roof repair warranty. At the time, Forero
worked “flipping houses” in the Charlotte area, and defendant worked as a
construction contractor. After their initial meeting, defendant and Forero
communicated periodically via text or phone call about work projects, their
professions, and their families. Defendant was married and had a daughter; Forero
was unmarried and had a son. Forero testified that she developed a friendship with
defendant and that they would occasionally get together for lunch or coffee.
¶4 On the morning of 4 January 2017, defendant and Forero planned to get
breakfast together. Forero testified that she had recently purchased a house and
wanted to see if defendant could help her find a painter. Shortly after 8:30am,
defendant picked Forero up at her house in Matthews. Defendant STATE V. PABON
had―unprompted―brought Forero a latte, which he handed to her to drink. Very
quickly after starting to drink the latte, Forero began “feeling weird.” Forero testified
feeling as if “you were in a movie[,] like . . . it wasn’t your body but you know you’re
there but you’re not.” Forero began having difficulty moving and could not think
clearly.
¶5 After driving for around forty-five minutes from Matthews to Concord,
defendant and Forero arrived at a Denny’s restaurant. Forero testified that she could
not read the menu, had difficulty controlling her body and mind, and could not
remember if she ate. Video surveillance footage from the Denny’s, which was played
at trial, showed Forero slouching at the table, staring into space, struggling to put
food into her mouth, nodding off, falling over, and having difficulty walking while
leaving. Demekia Harold-Strod, the waitress who served defendant and Forero,
testified that Forero looked as if she was on drugs, was moving very slowly, had her
head down a lot, and made little or no eye contact.
¶6 After leaving Denny’s around 10:30 a.m., defendant drove Forero about thirty
minutes away to his friend Mark Stones’s house. Defendant claimed that he needed
to pick up Stones’s mail while Stones was out of town. Stones’ house was located in a
secluded, wooded area without any close neighbors. When defendant and Forero
entered the house, Forero sat on a couch. Forero testified that defendant then sat
next to her on the couch and began making unwanted sexual advances toward her, STATE V. PABON
including kissing and touching her, pulling up her sweater, and kissing her breast.
Forero testified that although she did not want or consent to defendant’s advances,
she was mentally and physically incapacitated and unable to stop them. Forero
testified that defendant then picked her up, carried her to a nearby bedroom, and laid
her on a bed. Defendant removed his clothes, removed Forero’s underwear, and
continued to kiss and touch her. Forero testified that defendant then engaged in
nonconsensual vaginal intercourse with her. Forero testified that she later walked to
a nearby bathroom, where she saw a used condom on the floor. Afterward, defendant
acted “like nothing happened.”
¶7 Around 12:45 p.m., defendant and Forero left Stones’s house and began driving
back to Forero’s house. During the drive, Forero’s mother, Aura Forero de Camejo
(Camejo), who lived with Forero, called Forero’s cell phone. Camejo testified that she
called Forero “because [she] thought it was strange that a breakfast would have
lasted so long.” Forero answered, and the two had a short conversation. Camejo
testified that Forero’s speech was significantly slurred, that she had difficulty
speaking, and that she had never sounded like that before. Forero did not remember
talking to Camejo. Forero still could “not feel anything” and “didn’t feel [herself].” She
could not remember most of the drive home.
¶8 Around 1:30 p.m., defendant dropped Forero back off at her home. Camejo
testified that upon arriving, Forero was very pale, was swaying as she walked, and STATE V. PABON
“looked like a zombie or a dead person.” Forero immediately threw herself onto
Camejo’s bed and went to sleep. Forero slept through an alarm at 3:10 p.m. to pick
her son up from the bus stop and still could not get up when her son arrived home
and began shaking her and calling for her to wake up.
¶9 Around 5:00 p.m., Forero woke up and still felt “weird[,]” “couldn’t walk
straight[,]” and “couldn’t think.” Forero testified that “the first thing I ha[d] on my
mind when I woke up . . . was him, it was his face all over me, and I knew what
happen[ed].” At 5:23 p.m., Forero texted defendant to ask him what had happened
because although she knew, she “want[ed] him to tell [her].” At 5:28 p.m., defendant
called Forero and told her that nothing had happened—that after having breakfast
at Denny’s he had picked up the mail at Stones’s house while she waited in the car,
and then took her back home. After talking to defendant on the phone, Forero fell
back asleep for the rest of the evening.
¶ 10 The next day, 5 January 2017, Forero again called defendant to ask him what
had happened. Forero told defendant that she still did not feel well from the previous
day and that she couldn’t remember what had happened. Defendant again claimed
that nothing unusual had happened, that they had just eaten breakfast and went to
Stones’s house to pick up the mail.
¶ 11 Forero then began researching online about “resources for victims of rape” and
“how to report a rape.” She contacted the Matthews Police Department and was STATE V. PABON
directed to take a rape test at a hospital. She then left for the hospital “dressed the
exact same way that she was [the] night before.”
¶ 12 Forero went to Novant Health Presbyterian Medical Center in Charlotte.
There, Lucille Montminy, a sexual assault nurse examiner, conducted Forero’s sexual
assault examination. During the pre-examination interview, Forero told Montminy
that defendant had raped her the day before and recounted her memory of the events
surrounding the rape. At trial, Montminy testified that Forero’s account of the events
during this interview was fully consistent with Montminy’s knowledge of drug-
assisted sexual assaults, including memory loss, confusion about the events, and
feeling sick. During the subsequent physical examination, Montminy noted injuries
to Forero’s vaginal area that were “indicative of a penetration injury” from a penis.
After the physical examination, Montminy collected blood and urine samples to be
used in subsequent testing.
¶ 13 The next day, 6 January 2017, Forero gave a formal statement to detectives at
the Matthews Police Department, who later transferred the case to the Cabarrus
County Sheriff’s Office. Forero granted detectives access to her phone, including her
text messages, call records, and location data. Forero also provided detectives a hair
sample to be used in subsequent testing.
¶ 14 At trial, the State presented testimony from two forensic toxicologists involved
in the testing and analysis of Forero’s biological samples: Frank Lewallen and Dr. STATE V. PABON
Ernest Lykissa. Frank Lewallen was the forensic scientist manager at the Triad
Regional Laboratory of the North Carolina State Crime Laboratory, located in
Greensboro. Lewallen testified that his lab analyzed samples of Forero’s blood and
urine collected on 5 January 2017 during the sexual assault examination. Lewallen
specified that he did not personally perform any of the testing of Forero’s samples;
rather, the testing was performed by two other forensic toxicologists, Brian Morse
and Megan Deitz, and Lewallen subsequently reviewed their analysis. Lewallen
noted that at the time of trial, Morse and Deitz were attending a training in Indiana.
¶ 15 Lewallen testified that while the initial screening of Forero’s blood samples
screened negative for drugs or alcohol, the initial screening of her urine sample
revealed “a positive indication for Amphetamine and Methylenedioxyamphetamine
and for Benzodiazepines.” Next, Lewallen testified that a subsequent confirmatory
analysis test performed by Deitz again detected these results. Specifically, the
following exchange took place regarding Lewallen’s review of Deitz’s confirmatory
testing:
[Prosecutor]: So was this test performed in accordance with the state crime lab operating procedures?
[Defense Counsel]: Objection. Hearsay and confrontation.
THE COURT: Overruled.
[Lewallen]: Yes, ma’am, it was.
[Prosecutor]: And were you able to personally review all of STATE V. PABON
the data that the test produced?
[Lewallen]: Yes, ma’am, I was.
[Prosecutor]: Okay. Were you able to form an opinion about that test?
[Prosecutor]: What was the result of that test?
[Lewallen]: For the blood, no substances were found present in the blood sample. In the urine sample, 7- aminoclonazepam was detected.
[Prosecutor]: And what is 7-aminoclonazepam?
[Lewallen]: That is a biological metabolite or breakdown product of Clonazepam[,] which is a Benzodiazepine.
¶ 16 Lewallen then explained that Clonazepam is an anticonvulsant drug with
potential side effects including decreased pulse, decreased blood pressure,
drowsiness, dizziness, sedation, muscular incoordination, and amnesia. Lewallen
testified that a person who ingests Clonazepam could be significantly impaired, STATE V. PABON
including not remembering events, experiencing a dreamlike state, and exhibiting
speech impairment. Lewallen further noted that Clonazepam “has been documented
to be used in [drug-facilitated sexual assault] cases.”
¶ 17 The State also presented testimony from Dr. Lykissa. Dr. Lykissa was the
director of ExperTox Laboratories in Houston, Texas, which analyzed Forero’s hair
sample. After testing the hair sample, Dr. Lykissa determined that Forero’s hair
contained significant levels of Cyclobenzaprine, a muscle relaxant. Lykissa testified
that, as a muscle relaxant, Cyclobenzaprine “floods the brain with serotonin,” the
neurotransmitter that causes sleep. Lykissa noted that, in excess, Cyclobenzaprine
could “numb you to death[,]” and that drugs of this type “ha[ve] been known for a lot
of overdoses out there.”
¶ 18 In addition to his testimony regarding the hair analysis, Dr. Lykissa confirmed
that the State Crime Lab found Clonazepam in Forero’s urine sample. Dr. Lykissa
testified that, if ingested together, Cyclobenzaprine and Clonazepam can have a
“[s]ynergistic effect” resulting in “[v]ery serious impairment of [the person’s] mental
and physical faculties.” These effects would likely be intensified, Lykissa testified, by
a combination of the drugs with caffeine. Lykissa testified that a mix of these types
of drugs are common in drug-facilitated sexual assaults, and that Forero’s symptoms
were consistent with such a combination.
¶ 19 The State also presented testimony from Kari Norquist, a former forensic STATE V. PABON
scientist at the State Crime Lab. Norquist testified that she conducted a DNA
analysis of Forero’s rape test samples, including a swab from Forero’s breast.
Norquist determined that there were substantial amounts of defendant’s DNA on
Forero’s breast swab and that the amount of defendant’s DNA present was not
common from a “casual transfer.”
¶ 20 After Norquist, the State sought to present testimony from two of defendant’s
sisters-in-law: Chanel Samonds and Elise Weyersberg. In a voir dire hearing outside
the presence of the jury, Samonds and Weyersberg both testified that defendant had
previously sexually assaulted them. Based on the voir dire testimony and the
arguments by the State and defense counsel, the trial court determined that Samonds
and Weyersberg ’s testimony was admissible under Rule 404(b) of the North Carolina
Rules of Evidence as tending to illustrate intent and a common scheme or plan. The
court further determined that the danger of unfair prejudice from the testimony did
not substantially outweigh its probative value and that the testimony was therefore
also admissible under Rule 403. Finally, the trial court informed counsel that it would
provide the jury with a limiting instruction regarding their testimony. With these
preliminary issues resolved, the State was allowed to present Samonds’s and
Weyersberg ’s testimony to the jury.
¶ 21 Samonds, the wife of defendant’s brother-in-law, testified first. Samonds
testified that defendant raped her on 8 September 2008. Specifically, Samonds STATE V. PABON
testified that defendant came to her house, began making unwanted sexual advances
while the two sat on the couch, and engaged in forcible, nonconsensual vaginal
intercourse after Samonds repeatedly told him to stop. On cross-examination,
Samonds testified that defendant was not prosecuted for this alleged rape.
¶ 22 Weyersberg, the sister of defendant’s wife, testified next. Weyersberg testified
that in 2006 or 2007, when she was nineteen or twenty years old, defendant made
several unwanted sexual advances towards her while she lived at her parent’s house.
Weyersberg testified that during the first incident defendant came up behind her,
started rubbing her shoulders, and began moving toward her breasts. When
Weyersberg walked away, defendant followed and began rubbing her shoulders
again. During this incident, defendant “was telling [Weyersberg] about how he had
an orgy in Bolivia[,]” which made her “very uncomfortable.” On a different occasion,
when Weyersberg was alone downstairs in her parent’s house, defendant asked her
if she wanted to use massage oils with him and tried putting his hand up her pant
leg. Weyersberg testified that defendant finally stopped when she went upstairs to
her room.
¶ 23 After both Samonds’s and Weyersberg ’s testimony, the trial court gave the
jury the following instruction:
[T]he testimony of [the witness] is received solely for the purpose of showing that the defendant had the intent which is a necessary element of the crime charged in this case[,] and/or that there existed in the mind of the STATE V. PABON
defendant a plan, scheme, system, or design involving the crime charged in this case. If you believe this evidence, you may consider it but only for the limited purpose for which it was received. You may not consider it for any other purpose.
¶ 24 After the State completed its evidentiary showing, defendant testified in his
own defense. Defendant claimed that he and Forero had a romantic relationship
beyond a common friendship. Regarding the events of 4 January 2017, defendant
testified that he and Forero went to breakfast at Denny’s, stopped at Stones’s house,
and engaged in consensual sexual activity short of intercourse at Stones’s house.
Regarding Forero’s abnormal state of mind and body that day, defendant suggested
that perhaps Forero had a virus, but conceded that he “did not [know] at the time.”
¶ 25 On 14 December 2018, the jury found defendant guilty of second-degree forcible
rape and first-degree kidnapping. The trial court sentenced defendant to consecutive
terms of 104 to 185 months’ imprisonment for the rape conviction and 104 to 137
months’ imprisonment for the kidnapping conviction. Based on the rape conviction,
the trial court ordered defendant to enroll in lifetime satellite-based monitoring upon
his release from imprisonment. Defendant timely appealed.
B. Court of Appeals
¶ 26 On appeal, defendant alleged seven trial court errors: (1) that the trial court
erred when it denied his motions to dismiss; (2) that the trial court erred when it
admitted 404(b) evidence of alleged prior wrongs; (3) that the trial court erred when STATE V. PABON
it admitted expert testimony in violation of the Confrontation Clause; (4) that the
indictments were facially invalid; (5) that the trial court erred when it failed to
properly instruct the jury; (6) that the trial court erred when it allowed the jury to
consider evidence of aggravating factors; and (7) that the trial court erred when it
ordered defendant to enroll in satellite-based monitoring.
¶ 27 On 6 October 2020, the Court of Appeals filed an opinion rejecting each of
defendant’s arguments and “find[ing] that [d]efendant received a fair trial free of
prejudicial error.” State v. Pabon, 273 N.C. App. 645, 671 (2020). Specifically, two of
the seven issues raised by defendant are pertinent to this appeal.
¶ 28 First, the Court of Appeals rejected defendant’s argument that the trial court
erred in admitting the testimony of Lewallen in violation of the Confrontation Clause
of the Sixth Amendment. Id. at 661. Defendant argued that “Lewallen failed to
provide an independent opinion regarding the testing and analysis of [Forero]’s blood
and urine samples because both tests were performed by two nontestifying forensic
toxicologists.” Id. Defendant further asserted that because the nontestifying experts
were not unavailable to testify and he did not have a prior opportunity to cross-
examine them, the admission of Lewallen’s testimony regarding the test results
violated defendant’s rights under the Confrontation Clause. Id.
¶ 29 The Court of Appeals disagreed. Specifically, the court held that Lewallen
“offered his own opinion, without reference to or reliance upon the opinions or STATE V. PABON
conclusions of the nontestifying technicians.” Id. at 666. “Thus,” the court held,
“Lewallen’s opinion was based on his own analysis and was not merely surrogate
testimony for an otherwise inadmissible lab report or signed affidavit certifying the
nontestifying technician’s results.” Id. Further, because Lewallen’s independent
expert opinion was the substantive evidence that defendant had the right to, and did
in fact, confront through cross-examination, the court held that “[d]efendant’s
Confrontation Clause rights were not violated, [and] the trial court did not err in
admitting Lewallen’s expert testimony.” Id. at 667.
¶ 30 Second, the Court of Appeals rejected defendant’s argument regarding Rule
404(b) evidence. Defendant argued that the trial court erred in admitting Samonds’s
and Weyersberg’s testimony regarding defendant’s alleged prior sexual assaults
under Rule 404(b). Noting that “[t]his Court has been markedly liberal in admitting
evidence of similar sex offenses by a defendant for purposes [outlined] in Rule
404(b)[,]” the Court of Appeals agreed with the trial court that the Samonds and
Weyersberg testimony contained sufficient similarities with the present allegations
to be admissible as evidence of a common plan or scheme under that rule. Id. at 659
(second alteration in original) (quoting State v. Bagley, 321 N.C. 201, 207 (1987)).
Specifically, the Court of Appeals highlighted three similarities between all three
allegations: (1) “each woman testified that [d]efendant gained their trust prior to each
incident”; (2) “[d]efendant utilized that position of trust to sexually assault each STATE V. PABON
woman”; and (3) “[d]efendant tried to persuade each victim that he had not sexually
assaulted them.” Pabon, 273 N.C. App. at 659–60.
¶ 31 Regarding the temporal proximity element of Rule 404(b) analysis, the Court
of Appeals held that “[b]ecause these acts were performed continuously over a period
of years, the acts were not too remote to be considered for the purposes of 404(b).” Id.
at 660. Finally, the Court of Appeals held that the trial court did not abuse its
discretion in ruling that the probative value of the Samonds and Weyersberg
testimony was not substantially outweighed by the danger of unfair prejudice under
Rule 403. Id. at 661. Accordingly, the Court of Appeals held that the trial court did
not err in admitting the State’s Rule 404(b) evidence. Id.
¶ 32 Judge Murphy dissented in part from the Court of Appeals’ majority opinion.
While Judge Murphy concurred with the majority’s analysis regarding the motion to
dismiss, the Rule 404(b) evidence, and the indictment, he disagreed with the
majority’s Confrontation Clause analysis. Id. at 675 (Murphy, J., concurring in part
and dissenting in part). Specifically, the dissent would have found that Lewallen’s
testimony regarding the forensic reports did not provide an independent expert
opinion but rather “simply parroted the conclusions of a test performed by another
person not subject to the confrontation required by the United States Constitution.”
Id. at 674–75. Accordingly, the dissent would have held that “Lewallen’s testimony
was inadmissible and [d]efendant is entitled to a new trial free from this prejudicial STATE V. PABON
violation of his constitutional rights.” Id. at 675.
C. Present Appeal
¶ 33 On 10 November 2020, defendant simultaneously gave notice of appeal based
on the Confrontation Clause issue raised in Judge Murphy’s dissent and petitioned
this Court for discretionary review on the other issues he raised before the Court of
Appeals. On 15 December 2020, this Court allowed defendant’s petition for
discretionary review as to one additional issue: the admission of the Samonds and
Weyersberg testimony under Rule 404(b).
¶ 34 Before this Court, defendant asserts that the trial court committed two
prejudicial errors: (1) overruling his Confrontation Clause objections to the testimony
of Lewallen regarding the tests performed by a nontestifying chemical analyst; and
(2) overruling his objections to the Rule 404(b) testimony of Samonds and
Weyersberg.
¶ 35 First, defendant argues that the trial court erred in overruling his
Confrontation Clause objections to the testimony of Lewallen, the State’s expert from
the State Crime Lab, regarding the forensic tests performed by a nontestifying
chemical analyst. In alignment with the Court of Appeals dissent, defendant argues
that Lewallen did not provide an independent opinion as to the presence of the
Clonazepam in Forero’s urine sample but merely parroted the results of the test of a
nontestifying analyst. Further, defendant alleges that this error was prejudicial STATE V. PABON
because Lewallen’s testimony regarding the presence of Clonazepam in Forero’s urine
sample was “crucial to the State’s case.” Specifically, defendant contends that because
the State emphasized the “synergistic effect of mixing the two drugs and how this
mixture would cause very serious impairment of a person’s mental and physical
faculties[,] . . . the State would have been hard pressed to prove its case” in the
absence of Lewallen’s testimony.
¶ 36 Second, defendant argues that the trial court erred in overruling his objections
to the Rule 404(b) testimony of Samonds and Weyersberg. Defendant asserts that the
Samonds and Weyersberg testimony fall short of both requirements of Rule 404(b):
sufficient similarity and temporal proximity. Regarding the first requirement,
defendant argues that any similarities between the alleged prior bad acts and the
crimes for which he was charged were too generic in light of the stark dissimilarities
between the alleged acts to be considered admissible. Regarding the second
requirement, defendant argues that the elapsed time between the alleged prior bad
acts and the current charges—eight and one-half years and ten years, respectively—
renders them too attenuated to reasonably suggest intent or any common scheme or
plan. Finally, defendant asserts that the trial court’s erroneous admission of the
Samonds and Weyersberg testimony was prejudicial because “[t]here was not
overwhelming evidence of [d]efendant’s guilt and [d]efendant testified at trial and
denied [Forero]’s allegations.” Rather, defendant contends that the case boiled down STATE V. PABON
to a “credibility contest” between him and Forero, and that the improper admission
of the Samonds and Weyersberg testimony of alleged prior sexual assaults therefore
prejudicially bolstered Forero’s credibility with the jury while undermining his own.
¶ 37 In response, the State contends that neither the Confrontation Clause issue
nor the Rule 404(b) issue amounted to trial court error, and even assuming they did,
neither error would be prejudicial. Regarding the first issue, the State argues that
Lewallen’s testimony offered his independent expert opinion on the forensic analysis,
therefore complying with the requirements of the Confrontation Clause. Regarding
the second issue, the State argues that the Samonds and Weyersberg testimony, for
the reasons expressed by the Court of Appeals, was both sufficiently similar and
temporally proximate to the present charges to be properly admitted under Rule
404(b). In any event, the State argues, even assuming that these issues constituted
errors, neither would be prejudicial. The State contends that even without the
testimony in question, “[i]n light of the supporting testimony and physical evidence,
no reasonable juror would have been left with the impression that . . . [d]efendant’s
version of events was truthful.”
II. Analysis
¶ 38 After careful consideration, we assume, without deciding, that the trial court
erred on both the Confrontation Clause issue and the Rule 404(b) issue, but
nevertheless determine that neither assumed error was prejudicial. STATE V. PABON
A. Confrontation Clause: Independent Expert Opinion Testimony
¶ 39 First, we consider defendant’s Confrontation Clause claim. This Court reviews
alleged constitutional errors in the admission of testimony in violation of the
Confrontation Clause de novo. State v. Ortiz-Zape, 367 N.C. 1, 10 (2013).
¶ 40 The Sixth Amendment to the United States Constitution establishes that “[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him[.]” U.S. Const. amend VI. This “bedrock procedural
guarantee applies to both federal and state prosecutions.” Crawford v. Washington,
541 U.S. 36, 42 (2004) (citing Pointer v. Texas, 380 U.S. 400, 406 (1965)). Although
the basic theory of the right to confront one’s accusers “dates back to Roman times[,]”
our country’s “immediate source of the concept . . . was the [English] common law.
Crawford, 541 U.S. at 43.
¶ 41 Modern times and technologies introduced a new question to this old right: who
does the accused have the right to confront when the “accuser” is a not a person, but
a forensic report? In 2011, the Supreme Court of the United States answered this
question in Bullcoming v. New Mexico. 564 U.S. 647 (2011). There, the principal
evidence presented against defendant Donald Bullcoming in his trial for driving while
intoxicated was “a forensic laboratory report certifying that [his] blood-alcohol
concentration was well above the [legal] threshold.” Id. at 651. “At trial, the
prosecution did not call as a witness the analyst who signed the certification. Instead, STATE V. PABON
the State called another analyst who was familiar with the laboratory’s testing
procedures, but had neither participated in nor observed the test on Bullcoming’s
blood sample.” Id. The Court held that this did not satisfy Bullcoming’s rights under
the Confrontation Clause because the testifying analyst provided mere “surrogate
testimony” without expressing any “ ‘independent opinion’ concerning Bullcoming’s
BAC.”
¶ 42 Since Bullcoming, this Court has sought to apply this constitutional protection
with fidelity. In Ortiz-Zape, for instance, because a forensic scientist “testified as to
her opinion that a substance was cocaine based upon her independent analysis of
testing performed by another analyst in her laboratory[,]” this Court held that “the
testifying expert was the witness whom defendant had the right to confront.” 367
N.C. 1, at 2, 12–13 (2013). Accordingly, we reversed the Court of Appeals’ holding
that the expert’s testimony violated the Confrontation Clause. Id. at 14.
¶ 43 In State v. Craven, 367 N.C. 51, (2013), this Court reached the opposite
conclusion on the same question where a forensic chemist who had not personally
performed the testing of the alleged cocaine “testified about the identity, composition,
and weight of the substances recovered” from the defendant. Id. at 54. However,
based on a review of the testimony, this Court determined that the testifying witness
“did not offer—or even purport to offer—her own independent analysis or opinion on
the . . . samples. Instead, [she] merely parroted [the nontestifying analysts’] STATE V. PABON
conclusions from their lab reports.” Id. at 56–57. Accordingly, this Court held that
the testifying expert’s “surrogate testimony violated defendant’s Sixth Amendment
right to confrontation.” Id. at 57.
¶ 44 When a Confrontation Clause violation is established, the reviewing court
must then “determine if the admission of [the offending] evidence . . . was such
prejudicial error as to require a new trial.” State v. Watson, 281 N.C. 221, 232 (1972).
“A violation of the defendant’s rights under the Constitution of the United States is
prejudicial unless the appellate court finds that it was harmless beyond a reasonable
doubt.” N.C.G.S. § 15A-1443(b). “The burden is upon the State to demonstrate,
beyond a reasonable doubt, that the error was harmless.” N.C.G.S. § 15A-1443(b). If
it does so, the jury’s verdict is not disturbed on appeal, in spite of a Confrontation
Clause violation. See Watson, 281 N.C. at 233 (determining that a Confrontation
Clause error was harmless beyond a reasonable doubt).
¶ 45 Here, we assume without deciding that the trial court’s admission of
Lewallen’s testimony regarding the results of Deitz’s confirmatory test of Forero’s
urine sample violated defendant’s right to confrontation under the Sixth Amendment.
However, because we conclude that this assumed error was harmless beyond a
reasonable doubt, we modify and affirm the holding Court of Appeals finding no
prejudicial error on this issue.
¶ 46 First, any improper testimony from Lewallen was not the only evidence of STATE V. PABON
Clonazepam in Forero’s urine sample. Rather, Lewallen testified about two distinct
findings of Clonazepam in Forero’s sample: first describing the “initial” or
“preliminary” testing, and then describing the “confirmatory” testing. As to Deitz’s
confirmatory testing, Lewallen testified as follows:
[Lewallen]: For the blood, no substances were found present in the blood sample. In the urine sample, 7- aminoclonazepam was detected.
[Lewallen]: That is a biological metabolite or breakdown product of Clonazepam[,] which is a Benzodiazepine.
This quoted testimony formed the basis of defendant’s Confrontation Clause
argument on appeal and is the testimony which we assume without deciding violated
the Confrontation Clause.
¶ 47 As to the “initial” or “preliminary” testing, though, Lewallen testified as
follows:
[Prosecutor]: Okay. What opinion did you form about that initial screening test?
THE COURT: Overruled. STATE V. PABON
[Lewallen]: For the blood it was negative for all 12 assays. For the urine we had a positive indication for Amphetamine and Methylenedioxyamphetamine and for Benzodiazepines.
Although defendant objected to this testimony at trial, this was not the testimony
upon which defendant based his Confrontation Clause argument on appeal and is not
part of any assumed error.
¶ 48 Accordingly, based on Lewallen’s testimony regarding the initial testing, even
in the absence of his subsequent testimony regarding the confirmatory testing, there
was still competent evidence before the jury of the presence of Clonazepam in Forero’s
urine sample. Therefore, Dr. Lykissa’s testimony regarding the “synergistic effect” of
the combination of both Clonazepam and Cyclobenzaprine in drug-facilitated sexual
assaults would still have been grounded in the evidence.
¶ 49 Next, the State has demonstrated that even in the absence of any of Lewallen’s
testimony regarding the presence of Clonazepam in Forero’s urine sample, the jury
would still have had ample evidence of Cyclobenzaprine in Forero’s hair sample
through Dr. Lykissa’s testimony. Although defendant correctly notes that the State
emphasized the synergistic effect of the combination of the two drugs, Dr. Lykissa
also testified about the potential impact of Cyclobenzaprine alone. Specifically, Dr.
Lykissa noted that Cyclobenzaprine is a “muscle relaxant,” “it floods the brain with
serotonin[,]” “it can numb you to death,” it “is notorious,” its effects would be
heightened by the ingestion of caffeine, and “[i]t’s in the same family of Amitriptyline, STATE V. PABON
[which] has been known for a lot of overdoses out there.”
¶ 50 This evidence, even in the absence of Lewallen’s testimony regarding
Clonazepam and the synergistic effects, still support the State’s evidence of Forero’s
symptoms on 4 January 2017—namely dizziness, rapid decline of motor skills,
confusion, drowsiness, memory loss, and a generally dreamlike state. Notably, these
symptoms were not established by Lewallen’s testimony, or even by Lykissa’s, but by
the testimony of those who observed them firsthand: Forero’s mother, the sexual
assault nurse examiner, the Denny’s waitress, the Denny’s surveillance video, and,
of course, Forero herself. The ample evidence of the presence of Cyclobenzaprine in
Forero’s hair sample, the known effects of Cyclobenzaprine, and the evidence of
Forero’s symptoms strongly supported the State’s case of drug-facilitated sexual
assault. Accordingly, the State has demonstrated that even without Lewallen’s
testimony, any reasonable jury would likely have reached the same conclusion based
on the other evidence.
¶ 51 Moreover, even setting aside the assumedly improper Lewallen testimony
would neither disturb nor undermine the other overwhelming evidence of defendant’s
guilt. The jury was presented with extensive testimony from eighteen witnesses
supporting the State’s theory of defendant’s actions, filling nearly one thousand
transcript pages. The State also submitted 146 exhibits for the jury’s consideration.
¶ 52 Of course, sheer volume is not dispositive; the State has also demonstrated STATE V. PABON
that Forero’s testimony was extensive, detailed, and consistent, revealing numerous
indications of drug-facilitated sexual assault. Further, her testimony was
corroborated by that of Forero’s mother and the Denny’s waitress, who directly
witnessed her appearance, behavior, speech, and demeanor on 4 January 2017. Next,
a procession of highly trained and experienced medical, forensic, and law enforcement
professionals further supported Forero’s claims, including Montminy (the sexual
assault nurse examiner), Norquist (the rape kit examiner), Dr. Lykissa, Detective
Danielle Helms (Matthews Police Department), Lieutenant Kevin Pfister (Cabarrus
County Sheriff’s Office), and Detective Sergeant April Samples (Cabarrus County
Sheriff’s Office), among several others. Finally, the State’s exhibits were also potent
and corroborative, particularly the Denny’s surveillance video, Dr. Lykissa’s report,
the rape kit evidence, and the DNA evidence. In considering this overwhelming
evidence against defendant, we conclude that the State met its burden of
demonstrating that, even assuming that the admission of the Lewallen testimony
was erroneous, “the minds of an average jury would not have found the [remaining]
evidence less persuasive had the [erroneous] evidence . . . been excluded.” Watson,
281 N.C. at 233. As such, any Confrontation Clause error was harmless beyond a
reasonable doubt.
¶ 53 Defendant’s attempts to undermine the State’s demonstration of no prejudice
are unavailing. Specifically, defendant asserts that “[t]he prejudice . . . is manifest as STATE V. PABON
th[e] improperly admitted evidence was crucial to the State’s case.” Defendant
contends that because the State emphasized the “synergistic effects” of combining
Clonazepam and Cyclobenzaprine, “it is obvious that without Lewallen’s inadmissible
testimony . . . , the State would have been hard pressed to prove its case.”
¶ 54 We cannot agree. As noted above: (1) other portions of Lewallen’s testimony
also established his opinion that Clonazepam was detected in Forero’s urine sample;
(2) Lykissa’s testimony independently established the presence of another drug
common in drug-facilitated sexual assaults in Forero’s hair sample; and (3) the State
presented other overwhelming testimony and evidence tending to prove defendant’s
guilt.
¶ 55 Defendant presented eight witnesses and thirteen exhibits to support his claim
that he and Forero had a romantic relationship and had engaged in consensual sexual
activity short of intercourse. In response to the overwhelming evidence of Forero’s
incapacitation, defendant suggested that Forero may have had a virus, but then
conceded that he “did not [know] at the time.” Defendant’s evidence did not address
Montminy’s finding of vaginal injuries consistent with penetration from a penis, did
not undermine Dr. Lykissa’s forensic report, and did not provide an alternative
explanation as to why Forero might have had Cyclobenzaprine in her system when
she was not taking any medications at the time.
¶ 56 To be clear, defendant, like all criminal defendants, enjoyed a presumption of STATE V. PABON
innocence until proven guilty by the State beyond a reasonable doubt, and therefore
was not required to put forth any testimony or evidence whatsoever. Likewise, the
burden of demonstrating a lack of prejudice beyond a reasonable doubt upon a
constitutional error lies with the State, and defendant was not required to
affirmatively demonstrate prejudice on this issue. But the State’s voluminous and
comprehensive evidence of defendant’s guilt amply satisfies its burden.
¶ 57 As shown through its verdict, this evidence persuaded the jury beyond a
reasonable doubt that defendant committed the second-degree forcible rape and first-
degree kidnapping of Forero on 4 January 2017. Although the assumedly erroneous
Lewallen testimony confirmed the presence of Clonazepam in Forero’s urine sample
and emphasized the potential “synergistic effects” of the combination of Clonazepam
and Cyclobenzaprine, its admission does not require a new trial, in light of the
overwhelming nature of the remaining evidence. Accordingly, we modify and affirm
the holding of the Court of Appeals finding no prejudicial error on this issue.
B. Rule 404(b): Evidence of Prior Bad Acts
¶ 58 Second, we consider defendant’s Rule 404(b) claim.
When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling, . . . we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b).
State v. Beckelheimer, 366 N.C. 127, 130 (2012). STATE V. PABON
¶ 59 Rule 404(b) of the North Carolina Rules of Evidence establishes that:
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.
N.C.G.S. § 8C-1, Rule 404(b) (2021).
¶ 60 Generally, Rule 404 acts as a gatekeeper against “character evidence”:
evidence of a defendant’s character—as illustrated through either direct testimony or
evidence of prior bad acts—admitted “for the purpose of proving that he acted in
conformity therewith on a particular occasion.” N.C.G.S. § 8C-1, Rule 404(a). It has
long been observed that character evidence “is objectionable not because it has no
appreciable probative value but because it has too much. The natural and inevitable
tendency of the tribunal—whether judge or jury—is to give excessive weight to the
vicious record of crime thus exhibited and either to allow it to bear too strongly on
the present charge or to take the proof of it as justifying a condemnation, irrespective
of the accused’s guilt of the present charge.” John Henry Wigmore, Evidence § 58.2
(Peter Tillers ed. 1983). Accordingly, Rule 404(b) evidence “should be carefully
scrutinized in order to adequately safeguard against the improper introduction of
character evidence against the accused.” State v. Al-Bayyinah, 356 N.C. 150, 154
(2002).
¶ 61 This important protective role notwithstanding, this Court has repeatedly held STATE V. PABON
that “Rule 404(b) state[s] a clear general rule of inclusion.” State v. Coffey, 326 N.C.
268, 278–79 (1990); see Al-Bayyinah, 356 N.C. at 153–54 (quoting Coffey for this same
proposition). That is, relevant evidence of past crimes, wrongs, or acts by a defendant
are generally admissible for any one or more of the purposes enumerated in Rule
404(b)’s non-exhaustive list, “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.” Coffey, 326 N.C. at 279
(emphasis in original); see Beckelheimer, 366 N.C. at 130 (noting that “[Rule 404(b)’s]
list ‘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’ ” (quoting
State v. White, 340 N.C. 264, 284 (1995))).
¶ 62 Rule 404(b) has particular salience in trials for sexual offenses. On the one
hand, “this Court has been markedly liberal in admitting evidence of similar sex
offenses by a defendant.” State v. Bagley, 321 N.C. 201, 207 (1987) (quoting State v.
Cotton, 318 N.C. 663, 666 (1987)). On the other hand, though, the high potency of
prior sex offense testimony brings a correspondingly high risk of improper sway upon
the jury’s determination. See State v. Gray, 210 N.C. App. 493, 521 (2011) (noting
that “[t]he improper admission of a prior sexual assault by a defendant tends to
bolster an alleged victim’s testimony that an assault occurred and that the defendant
was the perpetrator, since such evidence informs the jury that the defendant has STATE V. PABON
committed sexual assault in the past.”); State v. McClain, 240 N.C. 171, 174 (1954)
(noting that “[p]roof that a defendant has been guilty of another crime equally
heinous prompts to a ready acceptance and belief in the prosecution’s theory that he
is guilty of the crime charged. Its effect is to predispose the mind of the juror to believe
the [defendant is] guilty, and thus effectually to strip him of the presumption of
innocence.”).
¶ 63 In order to navigate this terrain, this Court has looked toward the useful
guidance of twin north stars: similarity and temporal proximity. See Al-Bayyinah,
356 N.C. at 154 (“To effectuate these important evidentiary safeguards, the rule of
inclusion described in Coffey is constrained by the requirements of similarity and
temporal proximity.”). Regarding the first, prior acts are considered sufficiently
similar under Rule 404(b) “ ‘if there are some unusual facts present in both crimes’
that would indicate that the same person committed them.” Beckelheimer, 366 N.C.
at 131 (quoting State v. Stager, 329 N.C. 278, 304 (1991)). While these similarities
must be specific enough to distinguish the acts from any generalized commission of
the crime, “[w]e do not require that [they] ‘rise to the level of the unique and bizarre.”
Beckelheimer, 366 N.C. at 131 (quoting State v. Green, 321 N.C. 594, 604, cert. denied,
488 U.S. 900 (1988)). Regarding the second, while a greater lapse in time between the
prior and present acts generally indicate a weaker case for admissibility under Rule
404(b), see, e.g., Jones, 322 N.C. at 586, 591 (holding that admission of Rule 404(b) STATE V. PABON
testimony of a prior sexual assault that took place “some seven years before in much
the same manner as the [allegations] in the case sub judice” was “prejudicial to the
defendant’s fundamental right to a fair trial on the charges for which he was indicted
because the prior acts were too remote in time”), “remoteness for purposes of 404(b)
must be considered in light of the specific facts of each case[,] . . . [and t]he purpose
underlying the evidence also affects the analysis.” Beckelheimer, 366 N.C. at 132
(cleaned up).
¶ 64 Finally, if an appellate court reviewing a trial court’s Rule 404(b) ruling
determines in accordance with these guiding principles that the admission of the Rule
404(b) testimony was erroneous, it must then determine whether that error was
prejudicial. See Scott, 331 N.C. at 46 (engaging in prejudice analysis after finding
Rule 404(b) error). In accordance with N.C.G.S. § 15A-1443(a), “[t]he test for
prejudicial error is whether there is a reasonable possibility that, had the error not
been committed, a different result would have been reached at trial.” Id. “The burden
of showing such prejudice . . . is upon the defendant.” N.C.G.S. § 15A-1443(a).
Notably, while for the reasons noted above there is a “high potential for prejudice
inherent in the introduction of evidence of prior [sex] offenses,” such evidence is not
prejudicial per se. Scott, 331 N.C. at 46 (emphasis added).
¶ 65 Here, as in the Confrontation Clause analysis above, we assume without
deciding that the Samonds and Weyersberg testimony was erroneously admitted STATE V. PABON
under Rule 404(b). However, because we conclude that this assumed error was not
prejudicial, we modify and affirm the ruling Court of Appeals finding no prejudicial
error on this issue.
¶ 66 In determining whether a Rule 404(b) error creates “a reasonable possibility
that, had the error not been committed, a different result would have been reached
at trial[,]” the burden of demonstrating prejudice lies with defendant. Id.; see
N.C.G.S. § 15A-1443(a). Here, after careful consideration, we conclude that defendant
has failed to demonstrate a reasonable possibility that the jury would have reached
a different verdict if the Samonds and Weyersberg testimony had been excluded at
trial.
¶ 67 In his arguments regarding Rule 404(b) prejudice, defendant asserted that
“[t]here was not overwhelming evidence of [d]efendant’s guilt.” “Rather,” defendant
claimed, “this case boiled down to” a credibility contest: “the credibility of the
prosecuting witness . . . versus the credibility of [d]efendant.” “Given th[is] lack of
overwhelming evidence and the central importance of the credibility of [d]efendant
versus the credibility of [Forero],” defendant argued, “the erroneous admission of the
prior bad acts evidence . . . was highly prejudicial.”
¶ 68 We cannot agree. In a simple “credibility contest,” there is little or no physical
or corroborating evidence of the incident in question, leaving the competing stories of
the two internal participants and whom to believe as the only real question for the STATE V. PABON
factfinder. In such an instance, any evidence of prior acts that tends to bolster or
undermine the credibility of one of the primary participants may be particularly
influential in the ultimate outcome. See, e.g., Scott, 331 N.C. at 46 (determining that
the erroneous admission of testimony regarding a prior sexual assault allegation was
prejudicial when the “[b]oth the State’s evidence and the defendant’s were
corroborated to some extent by the testimony of other witnesses”).
¶ 69 That is plainly not the case here. Although defendant and Forero did present
two contrasting stories about the events of 4 January 2017, Forero’s version of the
events was then corroborated by extensive supporting external testimony and
evidence. As discussed in more detail above, this corroborating evidence included:
Camejo and Harold-Strod’s testimony regarding Forero’s apparent incapacitation;
surveillance video footage demonstrating this incapacitation; Montminy’s testimony
regarding Forero’s description of the alleged rape during the sexual assault
examination; Montminy’s testimony regarding Forero’s vaginal injury consistent
with penetration by a penis; subsequent DNA testing of the rape kit; Detective
Helms’s testimony regarding her interview with Forero and subsequent
investigation; Lieutenant Pfister’s testimony regarding his review of the evidence and
investigation of the scene of the alleged crime; Detective Samples’ testimony
regarding the investigation process; and Dr. Lykissa’s testimony regarding the
presence of a drug common in drug-facilitated sexual assaults in Forero’s hair sample, STATE V. PABON
among other testimony and evidence. We see this case not as simply a “credibility
contest,” but as one with overwhelming evidence of defendant’s guilt.
¶ 70 It is within the context of this overwhelming evidence that we must consider
the relative impact of the Samonds and Weyersberg testimony alleging past sexual
assault. By the time Samonds and Weyersberg shared their allegations with the jury,
Dr. Lykissa, Montminy, Camejo, Norquist, Detective Helms, Harold-Strod, and
Lieutenant Pfister, among others, had already corroborated Forero’s testimony, with
additional supporting testimony to come later. Under these circumstances, we cannot
conclude that a reasonable possibility exists that the jury would have reached a
different verdict but for the assumedly erroneous admission of the Samonds and
Weyersberg testimony. Accordingly, defendant has failed to meet his burden of
showing prejudice, and we modify and affirm the holding of the Court of Appeals
finding no prejudicial error on this issue.
III. Conclusion
¶ 71 Assuming without deciding that the trial court’s admission of the Lewallen
testimony violated defendant’s rights under the Confrontation Clause and that the
Samonds and Weyersberg testimony violated Rule 404(b) of North Carolina Rules of
Evidence, we nevertheless conclude that these assumed errors were not prejudicial.
Regarding the Lewallen testimony, the State has met its burden under N.C.G.S. §
15A-1443(b) of demonstrating that the assumed Confrontation Clause error was STATE V. PABON
harmless beyond a reasonable doubt. As for the Samonds and Weyersberg testimony,
defendant has failed to meet his burden under N.C.G.S. § 15A-1443(a) of
demonstrating that there is a reasonable possibility that had the assumed Rule
404(b) error not been committed, a different result would have been reached at trial.
Accordingly, we modify and affirm the holding of the Court of Appeals finding no
prejudicial error on these issues.
MODIFIED AND AFFIRMED.
Justice BERGER did not participate in the consideration or decision of this
case. Chief Justice NEWBY concurring.
¶ 72 I concur in the portion of the majority’s opinion holding that defendant was not
prejudiced by the alleged errors in this case. I do not, however, join the portions of
the majority opinion that discuss defendant’s arguments regarding the trial court’s
alleged error under the Confrontation Clause of the Sixth Amendment and N.C.G.S.
§ 8C–1, Rule 404(b). We have assumed without deciding that the trial court erred.
Thus, discussion of the merits of these arguments is unnecessary. Tr. of Rowan Tech.
Coll. v. J. Hyatt Hammond Assocs., Inc., 313 N.C. 230, 242, 328 S.E.2d 274, 281
(1985). Accordingly, I concur.