NEWBY, Justice.
This case presents the question whether defendant is entitled to a new trial based upon admission of evidence to which he did not offer a timely objection at trial and which he did not contend [273] amounted to plain error on appeal. We conclude that defendant has failed to preserve for appellate review the trial court’s decision to admit into evidence a portion of his testimony regarding his history of alcohol consumption and assaultive behavior. Further, we determine that even if defendant had preserved this issue for appellate review by timely objection, he would not be entitled to a new trial because he was not prejudiced by the evidence about which he now complains. Accordingly, we reverse in part the decision of the Court of Appeals.
The State’s evidence at defendant’s trial on charges of first-degree statutory sexual offense and indecent liberties with a child tended to show the following. On 12 June 2005, seven year old L.G. and her mother attended a horseshoe tournament at defendant’s house. Upon arrival, L.G. played games with other young children in attendance. After some time spent playing games, L.G. asked her mother if she could enter defendant’s house to use the bathroom. Additionally, L.G. asked defendant whether he would allow her to enter his house to use the bathroom. Defendant acceded to L.G.’s request and, as L.G. had not previously visited defendant’s house, informed her of the bathroom’s location. L.G. then proceeded to the bathroom. While L.G. was in the bathroom attempting to pull up her clothes, and over her protests, defendant opened the bathroom door, entered, and walked toward L.G. Defendant then grabbed L.G., slammed her against a wall, lowered her clothes, covered her mouth, and digitally penetrated her vagina several times.
After the attack defendant left the bathroom and L.G. replaced her clothes. Immediately following, L.G. ran out of defendant’s house and, while crying, informed her mother of defendant’s conduct. L.G. and her mother then returned home and called the police. Later that evening, Deputy Jones and Sergeant Lewis of the Hoke County Sheriff’s Office visited L.G.’s home. The officers prepared an incident report containing L.G.’s description of the evening’s events.
Subsequently, Detective Sergeant Timothy Rugg (“Det. Rugg”) of the Hoke County Sheriff’s Office led the investigation into defendant’s interaction with L.G. Det. Rugg first interviewed L.G. on 14 June 2005. L.G. recounted to Det. Rugg the details of defendant’s conduct on the evening of 12 June 2005. L.G. explained that defendant had “hurt her” by digitally penetrating her vagina “about five times” while she was in the bathroom of his house. L.G.’s mother also spoke with Det. Rugg. Among other things, L.G.’s mother revealed that L.G. was experiencing pain when using the bathroom. Det. Rugg suggested [274] that L.G.’s mother take the child to a medical facility for immediate diagnosis and treatment, and he arranged a later appointment for L.G. to undergo a child medical exam at a specialty clinic in Fayetteville.
After speaking with Det. Rugg on 14 June 2005, L.G.’s mother took her to the pediatric emergency room of Cape Fear Valley Health System. There L.G. complained of experiencing pain while urinating. Following a urine culture, L.G. was diagnosed with and treated for a urinary tract infection (“UTI”). According to Howard Loughlin, M.D., an expert in pediatrics and child abuse pediatrics, digital manipulation of the vaginal area can cause a UTI and such a diagnosis on 14 June 2005 is consistent with vaginal area manipulation on 12 June 2005. L.G. also underwent a physical examination of her vaginal and anal areas during this emergency room visit. The physical examination revealed that while L.G.’s “[h]ymen appear[ed] open,” there were “no signs of trauma” to her vaginal and anal areas.
Two months later, on 10 August 2005, Dr. Loughlin evaluated L.G. In addition to speaking with Det. Rugg and L.G.’s mother, Dr. Loughlin interviewed L.G. L.G. recalled to Dr. Loughlin that she and her mother were visiting defendant’s house. During the visit, she needed to use the bathroom. While she was in the bathroom, defendant entered the room, “[s]lammed [her] against the wall,” and “touched [her] private,” which L.G. identified as her genital area. L.G. explained that defendant’s digital penetration of her “felt bad when he was doing it and later.” Dr. Loughlin found significant L.G.’s description of the digital penetration as painful, explaining that typically a child does not associate pain with such an act unless the child has experienced it.
Also as part of his evaluation, Dr. Loughlin reviewed L.G.’s medical records from her 14 June 2005 examination resulting in a UTI diagnosis, including the finding that L.G.’s vaginal and anal areas appeared normal and evinced no signs of trauma. Further, Dr. Loughlin physically examined L.G. and similarly found no signs of trauma. However, Dr. Loughlin explained that the absence of visible trauma to the vaginal or anal area of a digital penetration victim is “not uncommon.” Ultimately, Dr. Loughlin opined that, based on several factors, including L.G.’s description of the event as painful and the resulting UTI, L.G.’s history “was consistent with her being sexually abused.”
Following the State’s presentation of evidence, defendant testified. Defendant denied that he had any contact with L.G. However, he [275] also recounted that he followed L.G. into his house on 12 June 2005, was in his house alone with L.G., and left the house before L.G. came back outside. Further, defendant admitted that he consumed roughly twelve beers on 12 June 2005. Moving beyond the events of 12 June 2005, defendant later informed the jury that he had convictions for, inter alia, driving while impaired and assault with a deadly weapon, and he acknowledged the “strong possibility” that he has a problem with alcohol.
During a portion of the State’s cross-examination of defendant, the prosecutor focused on defendant’s alcohol consumption and his alleged “slamm[ing]” of L.G. against a wall during the encounter. Outside the presence of the jury, the prosecutor informed the trial court that, for the purpose of proving motive and intent and pursuant to Rule of Evidence 404(b), he would like to question defendant regarding his assault of a woman after he consumed alcohol on several occasions during 1990. The prosecutor explained to the court that he had learned from the victim of these prior assaults that defendant did act in an assaultive manner after consuming alcohol. During the hearing defendant objected, but the trial court allowed the State to question defendant regarding this prior conduct for the purpose of proving motive and intent. The hearing concluded and the jury returned.
Once the State’s examination of defendant resumed, the following exchange occurred:
Q. Isn’t it true that you have had problems with alcohol and assaultive behavior before?
A. No, sir.
Q. You have not had any problems where alcohol was involved and you assaulted other individuals?
A. Yes, I have had that.
Q. So, again, my question is, isn’t it true that you have had prior occurrences where alcohol has affected your assaulting other individuals?
A. No, sir.
Free access — add to your briefcase to read the full text and ask questions with AI
NEWBY, Justice.
This case presents the question whether defendant is entitled to a new trial based upon admission of evidence to which he did not offer a timely objection at trial and which he did not contend [273] amounted to plain error on appeal. We conclude that defendant has failed to preserve for appellate review the trial court’s decision to admit into evidence a portion of his testimony regarding his history of alcohol consumption and assaultive behavior. Further, we determine that even if defendant had preserved this issue for appellate review by timely objection, he would not be entitled to a new trial because he was not prejudiced by the evidence about which he now complains. Accordingly, we reverse in part the decision of the Court of Appeals.
The State’s evidence at defendant’s trial on charges of first-degree statutory sexual offense and indecent liberties with a child tended to show the following. On 12 June 2005, seven year old L.G. and her mother attended a horseshoe tournament at defendant’s house. Upon arrival, L.G. played games with other young children in attendance. After some time spent playing games, L.G. asked her mother if she could enter defendant’s house to use the bathroom. Additionally, L.G. asked defendant whether he would allow her to enter his house to use the bathroom. Defendant acceded to L.G.’s request and, as L.G. had not previously visited defendant’s house, informed her of the bathroom’s location. L.G. then proceeded to the bathroom. While L.G. was in the bathroom attempting to pull up her clothes, and over her protests, defendant opened the bathroom door, entered, and walked toward L.G. Defendant then grabbed L.G., slammed her against a wall, lowered her clothes, covered her mouth, and digitally penetrated her vagina several times.
After the attack defendant left the bathroom and L.G. replaced her clothes. Immediately following, L.G. ran out of defendant’s house and, while crying, informed her mother of defendant’s conduct. L.G. and her mother then returned home and called the police. Later that evening, Deputy Jones and Sergeant Lewis of the Hoke County Sheriff’s Office visited L.G.’s home. The officers prepared an incident report containing L.G.’s description of the evening’s events.
Subsequently, Detective Sergeant Timothy Rugg (“Det. Rugg”) of the Hoke County Sheriff’s Office led the investigation into defendant’s interaction with L.G. Det. Rugg first interviewed L.G. on 14 June 2005. L.G. recounted to Det. Rugg the details of defendant’s conduct on the evening of 12 June 2005. L.G. explained that defendant had “hurt her” by digitally penetrating her vagina “about five times” while she was in the bathroom of his house. L.G.’s mother also spoke with Det. Rugg. Among other things, L.G.’s mother revealed that L.G. was experiencing pain when using the bathroom. Det. Rugg suggested [274] that L.G.’s mother take the child to a medical facility for immediate diagnosis and treatment, and he arranged a later appointment for L.G. to undergo a child medical exam at a specialty clinic in Fayetteville.
After speaking with Det. Rugg on 14 June 2005, L.G.’s mother took her to the pediatric emergency room of Cape Fear Valley Health System. There L.G. complained of experiencing pain while urinating. Following a urine culture, L.G. was diagnosed with and treated for a urinary tract infection (“UTI”). According to Howard Loughlin, M.D., an expert in pediatrics and child abuse pediatrics, digital manipulation of the vaginal area can cause a UTI and such a diagnosis on 14 June 2005 is consistent with vaginal area manipulation on 12 June 2005. L.G. also underwent a physical examination of her vaginal and anal areas during this emergency room visit. The physical examination revealed that while L.G.’s “[h]ymen appear[ed] open,” there were “no signs of trauma” to her vaginal and anal areas.
Two months later, on 10 August 2005, Dr. Loughlin evaluated L.G. In addition to speaking with Det. Rugg and L.G.’s mother, Dr. Loughlin interviewed L.G. L.G. recalled to Dr. Loughlin that she and her mother were visiting defendant’s house. During the visit, she needed to use the bathroom. While she was in the bathroom, defendant entered the room, “[s]lammed [her] against the wall,” and “touched [her] private,” which L.G. identified as her genital area. L.G. explained that defendant’s digital penetration of her “felt bad when he was doing it and later.” Dr. Loughlin found significant L.G.’s description of the digital penetration as painful, explaining that typically a child does not associate pain with such an act unless the child has experienced it.
Also as part of his evaluation, Dr. Loughlin reviewed L.G.’s medical records from her 14 June 2005 examination resulting in a UTI diagnosis, including the finding that L.G.’s vaginal and anal areas appeared normal and evinced no signs of trauma. Further, Dr. Loughlin physically examined L.G. and similarly found no signs of trauma. However, Dr. Loughlin explained that the absence of visible trauma to the vaginal or anal area of a digital penetration victim is “not uncommon.” Ultimately, Dr. Loughlin opined that, based on several factors, including L.G.’s description of the event as painful and the resulting UTI, L.G.’s history “was consistent with her being sexually abused.”
Following the State’s presentation of evidence, defendant testified. Defendant denied that he had any contact with L.G. However, he [275] also recounted that he followed L.G. into his house on 12 June 2005, was in his house alone with L.G., and left the house before L.G. came back outside. Further, defendant admitted that he consumed roughly twelve beers on 12 June 2005. Moving beyond the events of 12 June 2005, defendant later informed the jury that he had convictions for, inter alia, driving while impaired and assault with a deadly weapon, and he acknowledged the “strong possibility” that he has a problem with alcohol.
During a portion of the State’s cross-examination of defendant, the prosecutor focused on defendant’s alcohol consumption and his alleged “slamm[ing]” of L.G. against a wall during the encounter. Outside the presence of the jury, the prosecutor informed the trial court that, for the purpose of proving motive and intent and pursuant to Rule of Evidence 404(b), he would like to question defendant regarding his assault of a woman after he consumed alcohol on several occasions during 1990. The prosecutor explained to the court that he had learned from the victim of these prior assaults that defendant did act in an assaultive manner after consuming alcohol. During the hearing defendant objected, but the trial court allowed the State to question defendant regarding this prior conduct for the purpose of proving motive and intent. The hearing concluded and the jury returned.
Once the State’s examination of defendant resumed, the following exchange occurred:
Q. Isn’t it true that you have had problems with alcohol and assaultive behavior before?
A. No, sir.
Q. You have not had any problems where alcohol was involved and you assaulted other individuals?
A. Yes, I have had that.
Q. So, again, my question is, isn’t it true that you have had prior occurrences where alcohol has affected your assaulting other individuals?
A. No, sir.
Q. So the alcohol played no part in your assaulting other individuals?
A. No, sir.
[276] Q. Did the alcohol play a part in your assaulting Ms. Brenda McPhaul back in December of 1990?
A. No, sir.
Q. Did alcohol play a part in your assaulting Ms. McPhaul with a deadly weapon in December of 1990?
A. No, sir.
Q. Did alcohol play a part in your assaulting Ms. McPhaul by pointing a gun in December of 1990?
A. No, sir.
Q. And did alcohol play a part in your assaulting Ms. McPhaul in February of 1990?
A. No, sir.
Q. The alcohol had no effect on your assaulting her during those times?
A. No, sir.
Q. But you had been drinking?
A. I can’t really say “yes” that far back.
Q. You can’t say “yes”?
A. Yeah. I can’t say “yes” to that.
Q. You can’t say “no”?
A. Can’t say “no.”
Though he objected out of the presence of the jury before this line of questioning began, defendant’s attorney did not object during the actual exchange. After the presentation of all the evidence, the jury found defendant guilty of first-degree statutory sexual offense and indecent liberties with a child. The trial court then entered judgment accordingly.
In a unanimous opinion filed on 7 July 2009, the Court of Appeals granted defendant a new trial. State v. Ray, — N.C. App. —, 678 S.E.2d 378 (2009). That court determined, inter alia, that the trial court erred by admitting into evidence defendant’s testimony regarding his assaultive behavior in 1990. Id. at —, 678 S.E.2d at 381-82. Further, the Court of Appeals concluded that defendant had demon[277] strated prejudice under N.C.G.S. § 15A-1443(a), entitling him to a new trial. Id. at-, 678 S.E.2d at 384. We allowed the State’s petition for discretionary review on the issue whether the Court of Appeals erred by granting defendant a new trial based on the admission of his testimony regarding his prior assaultive behavior.
Generally speaking, the appellate courts of this state will not review a trial court’s decision to admit evidence unless there has been a timely objection. State v. Thibodeaux, 352 N.C. 570, 581-82, 532 S.E.2d 797, 806 (2000), cert. denied, 531 U.S. 1155, 121 S. Ct. 1106, 148 L. Ed. 2d 976 (2001).1 To be timely, an objection to the admission of evidence must be made “at the time it is actually introduced at trial.” Id. at 581, 532 S.E.2d at 806 (emphasis omitted). It is insufficient to object only to the presenting party’s forecast of the evidence. Id. As such, in order to preserve for appellate review a trial court’s decision to admit testimony, “objections to [that] testimony must be contemporaneous with the time such testimony is offered into evidence” and not made only during a hearing out of the jury’s presence prior to the actual introduction of the testimony. Thibodeaux, 352 N.C. at 581-82, 532 S.E.2d at 806 (citations omitted).
In the case sub judice defendant objected to the admission of evidence regarding his 1990 assaultive behavior only during a hearing out of the jury’s presence. In other words, defendant objected to the State’s forecast of the evidence, but did not then subsequently object when the evidence was “actually introduced at trial.” Id. at 581, 532 S.E.2d at 806 (emphasis omitted). Thus, defendant failed to preserve for appellate review the trial court’s decision to admit evidence regarding his 1990 assaultive behavior. See id. Moreover, defendant lost his remaining opportunity for appellate review when he failed to argue in the Court of Appeals that the trial court’s admission of this [278] testimony amounted to plain error. 352 N.C. at 582, 532 S.E.2d at 806 (citing, inter alia, N.C. R. App. P. 10(c)(4)). Accordingly, the Court of Appeals erred by reaching the merits of defendant’s arguments on this issue. Id.
However, even if defendant had by timely objection preserved for appellate review the decision to admit this portion of his testimony, he would not be entitled to a new trial. To receive a new trial based upon a violation of the Rules of Evidence, a defendant must show that the trial court erred and that there is a “reasonable possibility” that without the error “a different result would have been reached at the trial.” N.C.G.S. § 15A-1443(a) (2009); see also State v. Mason, 317 N.C. 283, 291, 345 S.E.2d 195, 200 (1986) (“[B]efore the defendant is entitled to any relief on appeal, he must show that he was prejudiced by the [trial court’s] error.” (citing N.C.G.S. § 15A-1443(a))). Essentially, defendant árgues that the trial court erred by allowing the State to attempt to elicit his testimony regarding his 1990 assaultive behavior pursuant to Rule of Evidence 404(b). Initially we note that the trial court may not have erred in allowing the State to elicit evidence of defendant’s prior conduct under Rule 404(b) as some proof of motive and intent. However, we need not resolve that question to dispose of the case sub judice. Accordingly, we simply assume arguendo that the trial court erred by admitting this evidence and proceed to determine the impact of this evidence on the jury’s verdict.
The jury essentially failed to obtain any new information from defendant’s testimony about which he now complains. During the portion of the State’s examination at issue, the State questioned defendant about the connection between his consuming alcohol and his past assaultive behavior, specifically several assaults on Ms. Brenda McPhaul in 1990. Though defendant responded in the negative to most of the State’s questions, it appears that the most the jury learned from this exchange was that defendant has in the past made poor decisions after consuming alcohol and that he has engaged in assaultive behavior. However, prior to the portion of defendant’s testimony at issue, defendant told the jury about his past convictions for driving while impaired and assault with a deadly weapon, admissions that reflect both a prior exercise of poor judgment after using alcohol and past assaultive behavior. Thus, the jury essentially learned nothing more during the challenged exchange than it had already learned earlier in his testimony.
[279] Defendant was not prejudiced by the admission of this portion of his testimony. As the jury learned nothing new during this exchange regarding defendant’s prior conduct, there is not a “reasonable possibility” of a different outcome at trial without the admission of this testimony. This is- especially true in light of the following substantial evidence of defendant’s guilt: the victim’s trial testimony, the consistency of her trial testimony and her description of the events to Det. Rugg and Dr. Loughlin, L.G.’s characterization of defendant’s penetration of her as painful, Dr. Loughlin’s testimony that L.G.’s history was “consistent with her being sexually abused,” and the fact that L.G. contracted a UTI. As such, even assuming the challenged portion of defendant’s testimony was admitted in error, it did not prejudice him, and defendant is not entitled to a new trial.
We reverse the decision of the Court of Appeals that defendant is entitled to a new trial. The additional issues considered by the Court of Appeals are not before us, and its decisions as to those matters therefore remain undisturbed. This case is remanded to the Court of Appeals for further remand to the Superior Court, Hoke County, for further proceedings not inconsistent with this opinion.
REVERSED IN PART AND REMANDED.