               IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 132A16

                               Filed 18 August 2017

STATE OF NORTH CAROLINA

             v.

CALVIN SHERWOOD WATTS


      Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, ___ N.C. App. ___, 783 S.E.2d 266 (2016), reversing judgments

entered on 31 October 2014 by Judge James Gregory Bell in Superior Court,

Columbus County, and granting defendant a new trial. After hearing oral argument

on 15 February 2017, the Court ordered the parties on 3 March 2017 to submit

supplemental briefs.   Additional issues raised in the supplemental briefs were

determined without oral argument pursuant to N.C. R. App. P. 30(f)(1).


      Joshua H. Stein, Attorney General, by Laura E. Crumpler, Special Deputy
      Attorney General, for the State-appellant.

      John Keating Wiles for defendant-appellee.


      PER CURIAM.


      In October 2014, defendant Calvin Sherwood Watts was tried in the Superior

Court in Columbus County on one count of first-degree rape, three counts of first-

degree sexual offense with a child, and one count of kidnapping. The charges arose

from defendant’s alleged sexual assault on an eleven-year-old girl to whom defendant
                                   STATE V. WATTS

                                   Opinion of the Court



was like a “grandpa.” Before presenting the case to the jury, the State filed a notice

of its intent to offer evidence pursuant to Rule of Evidence 404(b). See N.C.G.S. § 8C-

1, Rule 404(b) (2015) (“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.”).      A proposed State’s witness planned to testify that

defendant had forced his way into her apartment and raped her in 2003. Those

alleged events resulted in the return of indictments for rape and for breaking or

entering against defendant, but those charges were dismissed in 2005. Defendant

filed a pretrial motion in limine seeking to prevent the admission of Rule 404(b)

evidence in the present case.


      Following arguments on the Rule 404(b) motions and a voir dire hearing, the

trial court ruled that the challenged evidence was admissible under Rule 404(b) to

show opportunity and plan, thereby permitting the witness to testify before the jury

over defense counsel’s repeated objections.        At the conclusion of the witness’s

testimony, defense counsel “move[d] to strike the testimony . . . and ask[ed] for an

instruction and in the alternative ask[ed] for a mistrial.” The trial court denied

defendant’s motions and did not give the requested instruction to the jury. At the

conclusion of the State’s case-in-chief, the trial court dismissed the charge of first-

degree rape and allowed the case to go forward on the lesser included offense of

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                                       STATE V. WATTS

                                      Opinion of the Court



attempted first-degree rape. The jury ultimately returned guilty verdicts on all four

charges against defendant that were submitted to the jury.


       Defendant asserts that his motion “for an instruction” was clearly a request for

a limiting instruction regarding the Rule 404(b) evidence that had just been

presented by the State’s witness. The State, in contrast, contends that defendant’s

request was unclear and that he has thus waived the issue on appeal. We conclude

that, viewed in context,1 defense counsel’s motion, while not as explicitly worded as

would be the better practice, nonetheless was plainly a request for a Rule 404(b)

limiting instruction. See N.C. R. App. P. 10(a)(1) (“In order to preserve an issue for

appellate review, a party must have presented to the trial court a timely request,

objection, or motion, stating the specific grounds for the ruling the party desired the

court to make if the specific grounds were not apparent from the context.” (emphasis

added)).


       Our General Statutes provide that “[w]hen evidence which is admissible . . .

for one purpose but not admissible . . . for another purpose is admitted, the court,

upon request, shall restrict the evidence to its proper scope and instruct the jury

accordingly.” N.C.G.S. § 8C-1, Rule 105 (2015) (emphasis added). “Failure to give



       1 Specifically, the motion followed the State’s notice of intent to introduce Rule 404(b)
evidence from its witness, defendant’s motion in limine to exclude that evidence, the
arguments of counsel and the voir dire hearing on the issue, and defense counsel’s repeated
objections to the witness’s testimony.

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                                  Opinion of the Court



the requested instruction must be held prejudicial error for which [a] defendant is

entitled to a new trial.” State v. Norkett, 269 N.C. 679, 681, 153 S.E.2d 362, 363

(1967); cf. State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991) (failure to give a

limiting instruction not requested by a defendant is not reviewable on appeal); State

v. Jones, 322 N.C. 406, 368 S.E.2d 844 (1988) (same). Accordingly, because defendant

was prejudiced by the trial court’s failure to give the requested limiting instruction,

we affirm, as modified herein, the opinion of the Court of Appeals that reversed

defendant’s convictions and remanded the matter to the trial court for a new trial.


      MODIFIED IN PART AND AFFIRMED.




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