                                NO. COA13-586

                     NORTH CAROLINA COURT OF APPEALS

                             Filed: 1 April 2014


STATE OF NORTH CAROLINA

    v.                                   Wake County
                                         No. 09 CRS 19207
JASON LYNN YOUNG



    Appeal by Defendant from judgment entered 5 March 2012 by

Judge Donald W. Stephens in Wake County Superior Court.                     Heard

in the Court of Appeals 12 December 2013.


    Attorney General Roy Cooper, by Special Deputy Attorney
    General Robert C. Montgomery, Assistant Attorney General
    Amy Kunstling Irene, and Assistant Attorney General Daniel
    P. O’Brien, for the State.

    Appellate  Defender Staples  S.  Hughes, by  Assistant
    Appellate Defender Barbara S. Blackman, for defendant-
    appellant.

    HUNTER, JR., Robert N., Judge.


    Jason    Lynn    Young   (“Defendant”)   appeals          a    jury   verdict

finding him guilty of first-degree murder of his wife, Michelle

Fisher   Young   (“Michelle”).     Defendant     argues       that    the   trial

court erred by admitting evidence of the entry of a default

judgment    in   a   wrongful   death   action   and      a       child   custody

complaint against Defendant in his subsequent criminal trial.

We agree, vacate the judgment, and remand for a new trial.
                                       -2-
                       I. Facts & Procedural History

         The Wake County Grand Jury indicted Defendant for first-

degree murder on 14 December 2009.                Defendant’s case was tried

in Wake County Superior Court on 31 May 2011 with Judge Donald

W. Stephens presiding.         On 27 June 2011, a mistrial was declared

when the jury deadlocked eight to four to acquit Defendant.

         Defendant’s retrial began at the 17 January 2012 session of

Wake County Superior Court, with Judge Stephens again presiding.

On 5 March 2012, the jury found Defendant guilty of first-degree

murder     and   sentenced    Defendant      to   life    imprisonment       without

parole.       Notice   of    appeal   was     given      in   open   court.        The

testimony presented at trial tended to show the following facts.

                              A. State’s Evidence

         Michelle   Young    was   found    at    her    home   by    her    sister,

Meredith Fisher (“Meredith”), around 1:00 p.m. on 3 November

2006.      Meredith found Michelle after Defendant called Meredith,

asking her to retrieve some printouts of eBay searches for Coach

purses.      Defendant was out of town on a business trip and left a

voicemail for Meredith stating his plan to purchase these purses

as   a    belated   anniversary     present.        Defendant        did    not   want

Michelle to find out beforehand.
                                        -3-
      Meredith complied with Defendant’s requests and entered the

Youngs’ home through the garage door, which was broken, and then

through     the   unlocked      kitchen     door   to    the   home’s     mudroom.

Meredith noticed her sister’s car was in the garage and that her

keys and purse were visible near the kitchen counter.                          After

entering,    Meredith    called       out   Michelle’s     name   and     heard   no

response.     Meredith heard the Youngs’ dog, “Mr. G.,” whimpering,

but she did not see him.         The house was cold.

      As Meredith ascended the home’s stairs, she saw what she

thought was dark red hair dye at the top of the staircase in the

bathroom of the Youngs’ two-and-a-half-year-old daughter, Emily.1

Meredith first thought that Emily had smeared hair dye around

the home and that Michelle would be angry about the mess.                       When

Meredith reached the top of the stairs and looked to the left,

she   saw   Michelle    lying    on   the     floor,    surrounded   by    a   large

amount of blood.

      Meredith called 911, and as she did, Meredith said “[Emily]

lifted up the covers and just kind of stared at me and I just

kind of stared back at her and then she just kind of got on me

and clung to me as I called 911.”                      During the call,        Emily

continually asked for band-aids and said that her mother “has

1
  The pseudonym “Emily” is used to protect the identity of the
child involved in this case.
                                        -4-
boo-boos   everywhere.”           The   911   operator         asked   Meredith    if

Michelle had any personal problems, to which Meredith replied

“[u]m not really. You know her and her husband fight a little

bit, but nothing too ridiculous.”                Meredith also told the 911

operator that her “niece is very smart for her age” and that she

thought Emily was saying “there was somebody                      in the house.”

Paramedics and the Wake County Sheriff’s Office responded to

Meredith’s call.

      Emily was not injured and appeared “clean” when Meredith

arrived, except for some dried blood on Emily’s toenails and on

the bottom of her pajama pants.            Meredith said she did not clean

Emily.     Emily    was   wearing       fleece    pajamas,       was   not    wearing

underpants    or   footwear,      and   did   not      urinate    or   defecate   on

herself or the bed.          Emily clung to Meredith’s hip until they

both were taken away by emergency personnel.                      Later, Meredith

called her mother Linda Fisher (“Linda”) in New York to tell her

of   Michelle’s    passing    and   later     told     Defendant’s      mother    Pat

Young (“Pat”) of Michelle’s death.

      Sheriff’s officers found Michelle with a large amount of

coagulated,    dried      blood     around       her    body     and   with    blood

splattering against the walls of her bedroom.                     Michelle’s body

was discolored, cold, and stiff.              She was not wearing shoes and
                                        -5-
was dressed in sweatpants and a zip-up sweatshirt.                        Blood was

observed on the opposite side of the bed from where Meredith

found Emily.       Defendant’s DNA and fingerprints were present in

the bedroom, although none of his fingerprints contained blood.

       Michelle    was   lying   face-down      just   outside       of   a   closet

labeled “his closet.”         A child’s doll was near Michelle’s head.

Blood was also found on the exterior of this closet, and inside

of the closet door.          The only blood found outside of the second

floor of the Youngs’ home was found on the doorknob leading from

the kitchen to the garage, and its DNA markers were consistent

with Michelle’s DNA.          No blood was found in or on Defendant’s

vehicle, his clothes, or in the hotel room where he stayed on 2

November 2006.

       The medical examiner who conducted the autopsy, Dr. Thomas

Clark   (“Dr.     Clark”),    opined    that    Michelle      experienced     blunt

force trauma to her head and body.             The trauma included a broken

jaw,    skull      fracturing,       brain      hemorrhaging,        lacerations,

abrasions, and dislodged teeth.                Dr. Clark stated that there

were likely at least thirty blows delivered to Michelle, and the

medical   examiner       testified     that    he   thought    the    blows    were

inflicted by “a heavy blunt object” with a rounded surface that

produced crescent-shaped skull fractures.                  Dr. Clark said the
                                         -6-
autopsy did not produce evidence of a sexual assault against

Michelle.      Michelle was approximately twenty weeks pregnant when

she passed away.

       Small    footprints       in    blood,    consistent       with   a   child’s

footprints, were found around the bedroom and at the top of the

stairwell      landing.        Investigators       testified      that   blood     was

smeared on the walls at a child’s level in Emily’s bathroom.

Investigators said the blood smearing could indicate that Emily

was in her bathroom with the door closed.                 Investigators did not

find blood in the sink or bathtub of either the master bathroom

or Emily’s bathroom.

       Several other pieces of evidence were presented by federal,

state, and county investigators.                 Michael Smith of the Federal

Bureau of Investigation, Andy Parker of the Wake/Raleigh City

and County Bureau of Investigation (“CCBI”), and Karen Morrow of

the State Bureau of Investigation testified at trial.                           Smith,

Parker, and Morrow testified that footwear impressions in blood

were   made    by     two   distinct    shoe    types   on     pillows   found    near

Michelle.       These       included   impressions      that    corresponded      with

size 12 Hush Puppy Orbital, Sealy, and Belleville shoes which

all had the same outsole design.                Smith, Morrow, and Parker also

testified      that    there    were    additional      impressions      made    by   a
                                           -7-
different      shoe    type,     consistent      with    a    size     10    Air    Fit       or

Franklin athletic shoe.             Karen Morrow and Greg Tart of the State

Bureau of Investigation testified that Defendant at one time

owned size 12 Hush Puppy Orbitals, which were purchased on 4

July 2005.         The State never produced shoes matching either of

the impressions.          The State also never produced a murder weapon.

      A     jewelry    box     in   the    master   bedroom          had    two     drawers

removed,     and    DNA    testing     showed     four       markers       that    did     not

include Defendant or Michelle’s DNA.                     Meredith testified that

Michelle “didn’t really have a lot of fancy jewelry” except her

wedding and engagement rings, and that she “always wore” her

wedding and engagement rings.              Michelle’s wedding and engagement

rings were both missing from her body when she was found and the

rings were not recovered.              Additional unidentified fingerprints

were found in the house.             Investigators found no signs of forced

entry.

      Printouts       from   eBay    concerning     purses       were       found     on      an

office printer with three fingerprints; one matched Defendant

and   two    others     remain      unidentified.            Forensic       analyst      Beth

Whitney of the CCBI (“Ms. Whitney”) also said Internet searches

for   purses    were      made   between    7:05    p.m.      and    7:23     p.m.       on    2

November 2006.         Ms. Whitney testified that MapQuest inquiries
                                       -8-
for    directions   between    Raleigh       and   Clintwood,      Virginia,      were

also made that evening, as well as e-mail logins to Defendant’s

personal email account.             Ms. Whitney also found that, at an

undetermined time, Internet searches were made on the Youngs’

home    computer    for   “anatomy      of     a   knockout,”       “head      trauma

blackout,” “head blow knockout,” and “head trauma.”

                     i. Evening of 2 November 2006

       Michelle’s   sorority    sister       and   close    friend,      Ms.   Shelly

Schaad (“Ms. Schaad”), arrived at the Youngs’ home around 6:30

p.m. on 2 November 2006.        Ms. Schaad arrived to have dinner and

to watch Grey’s Anatomy on television with Michelle.                     Ms. Schaad

said she was surprised Defendant was still home.                         Ms. Schaad

picked up dinner on the way to the Youngs’ house and invited

Defendant to eat.         Defendant said he planned to stop at the

Cracker Barrel in Greensboro to have dinner, drive three hours

to Galax to spend the evening, and then drive two hours the next

morning to a 10:30 meeting.           As Defendant left for the evening,

Ms. Schaad asked Defendant if he would return for the N.C. State

football game on 4 November 2006.             Defendant said it depended on

whether    his   father-in-law,       Alan    Fisher,      would   come     for   the

weekend.     Defendant expected his father-in-law to visit, and

Defendant    had    spent     the    afternoon       cleaning      the     yard    in
                                 -9-
anticipation of his arrival.       Defendant’s father-in-law called

and cancelled his visit that evening.       After he left, Defendant

called the Young residence seven times that evening.

    Michelle and Ms. Schaad had dinner, bathed Emily, diapered

her, and dressed her in pajamas.       Michelle and Ms. Schaad talked

about an argument between the Youngs over Defendant’s mother-in-

law, Linda, staying at their home for the majority of the time

between Thanksgiving and Christmas.        Defendant was upset with

the length of her potential stay.

    Ms. Schaad testified that she had an “eerie feeling” that

evening.      Ms. Schaad asked Michelle if she was scared to be

alone.     Ms. Schaad testified that Michelle

            proceeded to say, you know, Jason’s heard a
            lot of noises lately around the house, you
            know, but her thoughts were, you know, if --
            and her exact words to me, if someone’s
            going to break in and their intention is to
            kill you, then that’s what they’re going to
            do, and it was very unsettling.

Ms. Schaad said she felt like the two were being watched and

asked Michelle to walk her to her vehicle before she left that

evening.

         ii. Defendant’s Location on 2 and 3 November 2006

    Defendant purchased gasoline in Raleigh at approximately

7:30 p.m. on 2 November 2006 and then went to a Cracker Barrel
                                        -10-
restaurant in Greensboro.          Defendant called his mother Pat, who

lived in Brevard, while at the Raleigh gas station.                   Defendant

paid for his meal at the Cracker Barrel at 9:25 p.m. and checked

into a room at the Hampton Inn in Hillsville, Virginia at 10:54

p.m.     Data from the keycards used to gain access to the hotel

rooms showed that Defendant entered his room at 10:56 p.m. and

did not use his keycard to re-enter his hotel room for the

remainder of his stay.

       Security camera footage tended to show that Defendant wore

a light shirt, jeans, and brown slip-on shoes at the Cracker

Barrel and upon entering the Hampton Inn.                 Two pairs of brown

slip-on    shoes   were   found    in    Defendant’s    vehicle     when    police

later seized it on 3 November 2006.

       Defendant was also captured on video at the hotel just

before midnight at the front desk and walking down a hallway

that lead to stairs and an exit door, wearing what appeared to

be a darker colored shirt with a light-colored horizontal stripe

across    the   chest.     Defendant      was   not   shown   on   surveillance

footage for the remainder of the evening.

       The night-clerk at the Hampton Inn distributed check-out

receipts    and    hung   copies   of    the    USA   Today   on   door    handles

between 3:00 a.m. and 5:00 a.m. or later.               Both the receipt for
                                      -11-
Defendant’s stay as well as a weekend edition of the USA Today

were found in Defendant’s Ford Explorer on 3 November 2006, when

police seized it.

      Early in the morning on 3 November 2006, Hampton Inn Clerk

Mr. Keith Hicks (“Mr. Hicks”) noticed that the emergency door on

the first floor at the western end of the hotel was propped open

with a small red rock.           Mr. Hicks removed the rock and shut the

door.   Immediately next to the door was a glass door that could

only be accessed via keycard between 11:00 p.m. and 6:00 a.m.                       A

sign next to the door listed the hours the door was locked; at

all other times the glass door was unlocked.

      When Mr. Hicks returned to the front desk and reviewed the

hotel’s surveillance cameras, he noticed that the camera was

malfunctioning in the same stairwell where the door was left

ajar.   Mr. Hicks later determined that the camera was unplugged,

and   Mr.   Hicks   asked    a   maintenance      worker,    Elmer    Goad    (“Mr.

Goad”), to plug the camera in again.              Mr. Goad testified that if

someone were six feet tall, they would be able to easily reach

the   camera’s    plug.      The   last   image    from     the   camera     was   at

11:19:59 p.m. on 2 November 2006, and no images were recorded

until   5:50     a.m.   on   3   November    2006,   when     Mr.    Goad    got    a

stepladder and plugged the camera in again.
                                    -12-
     The camera worked properly from 5:50 a.m. until 6:34 a.m.,

but at 6:35 a.m., the camera was pointed at the ceiling.                    Mr.

Goad put the camera back in position and focused it on the

bottom of the stairs at 6:38 a.m.           The hotel said the camera was

never unplugged previously and that the only other time that

camera was tampered with          was several     years prior, when         some

guests snuck in and out of the exit door.                  CCBI investigator

Andy Parker performed a fingerprint analysis on the camera and

testified that the State did not find Defendant’s fingerprints

on   the     security    camera.       Investigator         Eddie    McCormick

(“Investigator McCormick”) also testified that tests conducted

by the State did not show that any fibers were transferred from

the Hampton Inn where Defendant stayed on 2 November 2006 to the

Youngs’ home at 5108 Birchleaf Drive.

     The   hotel   had   no   record   of    when      Defendant    left   on   3

November 2006.     The State’s first evidence showing his location

was from a call he made to his mother Pat around thirty miles

from the hotel near Wythville, Virginia at 7:40 a.m.                 Defendant

made several calls to his mother and others while driving to

Clintwood,     with     several    lasting       ten    seconds     or     less.

Investigator    McCormick     testified     it   was    possible    the    large

number of short calls could be from dropped phone calls, but he
                                         -13-
also      said     that     “knowing     what      I     know     about      telephonic

investigations,” the call frequency reflected a person who was

panicked.

         Defendant was thirty minutes late to his 10:00 a.m. sales

call      in    Clintwood,       Virginia.        Defendant      purchased      gas    in

Duffield at 12:06 p.m. and then left a voicemail for Meredith.

         Detective   Richard       Spivey    of    the    Wake    County       Sheriff’s

Office     (“Detective       Spivey”)    testified        that    his    deputy    drove

between        Raleigh    and    Hillsville,      Virginia       in   two    hours    and

twenty-five minutes without traffic.                     Three gas receipts were

found in Defendant’s vehicle, one from Raleigh on 2 November

2006, Duffield on 3 November 2006, and Burlington at 8:32 p.m.

on   3    November       2006.      Officers      also    canvassed      gas    stations

between        Hillsville    and    Raleigh.        Ms.    Gracie       Calhoun      (“Ms.

Calhoun”), who worked at the Four Brothers BP in King, North

Carolina, said she saw a man drive to a pump and attempt to pump

gas in the early morning hours of 3 November 2006.                          The State’s

investigators said that the Four Brothers BP was along the most

direct route between Raleigh and Hillsville and was the only gas

station open at that particular exit.

         Ms. Calhoun was shown a photograph of Defendant’s white

Ford Explorer on 5 November 2006 and asked if she saw the car on
                                            -14-
3   November    2006.         When     Ms.    Calhoun      was    shown    Defendant’s

photograph, she identified him as the vehicle’s driver.                            Ms.

Calhoun was not asked to provide a physical description prior to

seeing    Defendant’s        photo,    and    stated    that     the   Defendant   was

“just a little bit taller than me,” although Ms. Calhoun is five

feet tall and Defendant is six-foot-one.                         Ms. Calhoun stated

that she had not seen any news reports about the case when she

was asked about the vehicle.                  Ms. Calhoun said she remembered

Defendant specifically because he cursed at her, and that it

left an impression because only one other person had ever cursed

at her during her tenure at the Four Brothers BP.                         It is around

a forty to forty-five minute drive from the Hillsville Hampton

Inn to the Four Brothers BP.

       Ms. Calhoun testified that Defendant came into the store

and cursed at her because the pumps were not on, threw $20 at

her,   pumped    $15    of    gas    and     drove   off   without     returning   for

change.    Store records showed several gas and in-store purchases

between 5:00 a.m. and 5:40 a.m., including a $15 gas purchase at

5:27 a.m. and a $20 gas purchase at 5:36 a.m.

       After    the    first        trial     concluded,     Defendant’s       counsel

learned that Ms. Calhoun had received disability benefits since

she was a child.             Ms. Calhoun stated that when she was six-
                                         -15-
years-old, she was hit by a truck.                   This accident caused her

brain   to     be   dislodged     from    her   skull     and    to    fall    onto      the

street.        Doctors reinserted her brain and Ms. Calhoun stated

that she has had memory problems her entire life as a result of

the accident.

       The    State    presented    evidence      that     a    newspaper       delivery

person passed by the Youngs’ home between 3:30 a.m. and 4 a.m.

and noticed that the interior, exterior, and driveway lights

were    on,    which   she    considered        unusual    at    that       hour.        The

delivery person testified that she saw a light colored SUV in

front of the home and that a minivan was across the street.

       After    Defendant     arrived     and    learned       from    his    mother      of

Michelle’s      passing,     he   spoke    with    Meredith          over    the    phone.

Meredith told Defendant to come to her home because the Youngs’

home was a crime scene.             When speaking to Meredith, he asked

about Emily, what had happened, and seemed upset over the phone.

       Officers     began    to   question      Meredith       and    friends       of   the

Youngs about possible marital problems.                   After the questioning,

Defendant’s friends Josh Dalton and Ryan Schaad suggested he not

speak to police until he retained counsel.                     On counsel’s advice,

Defendant never answered any questions from law enforcement or

spoke about Michelle’s death with friends or family.
                                     -16-
    Defendant arrived at Meredith’s home along with his mother,

sister, and brother-in-law around 9 or 10 p.m. on 3 November

2006.       Defendant    hugged    Meredith       and     went     to   see     Emily.

Meredith said Defendant was wearing “dress pants, dress shoes, a

thermal cut crew neck shirt, a couple buttons here, and a dress

shirt over that open.”       Police arrived at the home and Defendant

refused to speak with them.         Later in the evening, Defendant and

Linda were alone in the home, watching Emily, and Linda said

Defendant told her that his lawyer said he could not talk to

anyone and that he was “going to take a hit on the house.”

                         iii. Marital Difficulties

    The State produced several witnesses who testified that the

Youngs   experienced     difficulties       in    their      marriage,    including

Meredith, Ms. Schaad, and Defendant’s friend Josh Dalton.                          Ms.

Schaad described the Youngs’ relationship as “volatile.”

    Meredith also noted marital problems between Michelle and

Defendant    and   suggested      divorce    to        Defendant    and   Michelle.

Meredith    said   the   Youngs    “would        get    in   screaming        matches.

They’d fight in public.”          Meredith testified that on 1 November

2006, Michelle told Meredith that she had fought with Defendant

and that he threw a remote at her.               Meredith averred that before
                                        -17-
her   death,     Michelle        became     “withdrawn,”      “depressed”      and

“miserable.”

      On 12 September 2006, Defendant sent an e-mail to the work

address of his former fiancée, Genevieve Cargol (“Ms. Cargol”)

professing his love for her.              Defendant and Ms. Cargol did not

have contact for several years before this e-mail, which Ms.

Cargol did not receive at the time.               Ms. Cargol testified that

Defendant      was     violent     at     several    points      during      their

relationship,        once   punching      and   breaking   Ms.    Cargol’s     car

windshield, punching a hole in a wall, and forcibly removing the

engagement ring from her finger.

      Defendant had extra-marital affairs with two other women

while married to Michelle.              Defendant communicated with one of

these women, Michelle Money (“Ms. Money”) regularly and engaged

in sexual intercourse in Orlando, Florida on 7 October 2006.

Defendant’s friend Josh Dalton stated that Defendant said “he

felt like he was in love with” Ms. Money.                  Defendant and Ms.

Money discussed meeting on 3 through 5 November 2006, although

Ms. Money said Defendant did not want to meet that weekend as he

had a business meeting as well as friends and family staying at

his home.      Defendant and Ms. Money also contacted each other

several times by phone on 2–3 November 2006.                     Ms. Money said
                                           -18-
Defendant     sounded       normal    during      the   calls    and    that     he    also

mentioned having left printouts in his office for a Coach purse

he planned to buy for Michelle.                    Defendant also had a sexual

relationship with a different woman in the Youngs’ home while

Michelle was out of town on another occasion.

      On 27 October 2006, Michelle saw a counselor by herself,

Ms.   Kimberly       Sargent.        Ms.    Sargent       testified     that     Michelle

“cried the entire session.”                Ms. Sargent said her “assessment of

the situation was that [Michelle] was being verbally abused.”

                         iv. Emily’s Statements at Daycare

      Emily    returned       to     daycare      the   Monday       after     Michelle’s

death.        The    State    introduced       testimony        of   Emily’s     daycare

teacher,      Brooke      Bass     (“Ms.    Bass”).        Defendant         objected    to

admitting this testimony and was overruled.

      Ms. Bass testified that Emily kept to herself more than

usual that week.           Ms. Bass said Emily asked for a “mommy” doll

and was given a bucket of dolls to play with.                            Ms. Bass saw

Emily    select      a    female   doll    with    long    brown     hair     that    Emily

called the “mommy doll,” and a second female doll with short

hair.     Ms. Bass stated that Emily began hitting the two dolls

together.           Another      daycare    teacher,      Ashley      Palmatier       (“Ms.

Palmatier”) asked Emily what she was doing and said Emily hit
                                        -19-
the dolls together         and said “mommy’s getting a spanking for

biting.”      Emily then laid the doll face-down on a dollhouse bed,

saying “mommy had boo-boos all over, mommy has red stuff all

over.”       Emily’s teachers told police what she said at daycare.

Ms. Bass testified that Emily did not return to the daycare

after these statements were made.                   These statements were not

introduced at Defendant’s first trial.

                       v. Introduction of Civil Suits

      Evidence    of     two   separate     civil    suits      was    introduced       at

Defendant’s second trial over Defendant’s objection.                          The State

introduced      evidence   showing      Linda,      on   behalf       of    the    estate,

filed    a    wrongful    death    action    and     a    request      for     a   slayer

declaration against Defendant on 29 October 2008.                          Defendant did

not respond to the suit, and on 5 December 2008, Judge Stephens

heard Plaintiff Linda’s motion for entry of a default judgment.

Judge Stephens reviewed the affidavits and entered a judgment

that Defendant “unlawfully killed” Michelle.                     Defendant was the

beneficiary of Michelle’s $4 million life insurance policy, but

did not make a claim on the policy.                      Defendant’s assets were

seized as a result of the $15 million judgment for Linda.

      After Michelle’s death, Defendant took Emily to Brevard,

and   the    Fisher    family     was   allowed     to    see   Emily        at    several
                                       -20-
visits.      Defendant   later       did    not    want    the     Fishers    to   have

contact with Emily.       Defendant refused to agree to a visitation

schedule, and the Fishers filed suit.

    The      Fishers    filed    a    child        custody       complaint    against

Defendant on 17 December 2008.                   The complaint said Defendant

“brutally murdered Michelle Marie Fisher Young . . . at their

residence.     Michelle was pregnant with [Defendant’s] son at the

time of her murder.       Upon information and belief [Emily] was in

the residence at the time [Defendant] murdered her mother.”                         The

lawsuit requested a psychological evaluation of Defendant, and

would have required discovery and depositions.                     Defendant agreed

to a consent order and transferred primary physical custody of

Emily to Meredith.       The consent order required that no discovery

or depositions be taken.

                    vi. Defendant’s Mistrial Testimony

    Defendant       testified    at    his       first    trial,    and   the      State

introduced    his    testimony   at        the    retrial.        Defendant     denied

killing his wife, denied being present when she was killed, and

denied having any knowledge of who killed Michelle.                          Defendant

said that he loved Michelle, that he did not plan to divorce

Michelle, and that he did not plan to leave Michelle for any of

the other women he had sexual relationships with.                            Defendant
                                         -21-
testified that after Emily was born, Michelle had a miscarriage.

Defendant said he and Michelle began trying to conceive another

child as soon as Michelle received medical clearance to bear

another child.      Defendant said he was “ecstatic” that he would

soon have a son.

      Defendant testified that he thought he and Michelle didn’t

fight much more than other couples, but that the couple “fought

more openly than other couples.”                 Defendant said he encouraged

his sister-in-law Meredith to mediate disputes between Michelle

and   Defendant.      Defendant         testified      that    his    disputes     with

Michelle never turned physical.                 Defendant also testified that

he had “a lot of guilt” for spending his anniversary weekend

with Ms. Money, rather than his wife Michelle, and so he planned

to purchase a Coach handbag to “make up for a lot in a big way.”

Defendant called Meredith several times to retrieve the papers

from the family printer because he “really wanted it to be a

surprise.”        Defendant       thought       that   the     gift    had    special

significance      because    it    was    a     leather       purse   for    his    and

Michelle’s third anniversary, which is commonly known as the

“leather anniversary.”

      Defendant    said     he    had    just     begun   a     new   job    with    an

electronic health records company, and a schedule was set for
                                   -22-
him to make a sales call in Clintwood, Virginia.                Defendant’s

sales call was at 10:00 a.m. on 3 November 2006, so Defendant

said he planned to “break the trip up” by staying at a hotel

about half-way between Clintwood and Raleigh.             Defendant said he

did not make a hotel reservation prior to staying at the Hampton

Inn in Hillsville.       After checking into the hotel, Defendant

said he called Michelle and Ms. Money.

    Defendant said he was nervous about the sales call, as it

was his first solo sales call.            Defendant said he wanted to

review the software on his computer and forgot his charging

cable for his computer in his car.           Defendant said he left the

hotel   room   door   slightly   ajar   so   he   could   re-enter   without

disturbing his neighbors.         As he left to go to his vehicle,

Defendant said he went out the exit door, noticed it was a type

of door which would not allow re-entry, broke off a piece of

shrubbery to prop the door, retrieved his charger and re-entered

the room.

    Defendant said he finished on his computer around 11:53

p.m. and said he wanted to smoke a cigar and catch up on some

sports news.    Defendant said he then picked up a newspaper from

the front desk, walked down the hallway, inserted a stick in the

door, went outside and smoked.            Defendant said he later re-
                                           -23-
entered    and    went   to    sleep.        Defendant     also    said    he    arrived

thirty minutes late for his appointment the next morning because

he   had   gotten      lost.        Defendant     said    he   tried     to   call     his

appointment to let them know he would be late, but that the cell

phone service was “nil to one bar.”

      After      his   sales    meeting,      Defendant        drove     south   toward

Brevard, arrived at his mother’s house, and his stepfather told

him that Michelle was dead.                Defendant said he “just broke” and

cried.     Defendant         said   some    friends      called    and   told    him    he

needed “to get a lawyer before” talking to anyone.                        Defendant’s

sister left a message for an attorney she previously employed,

and Defendant eventually met with a lawyer, who advised him to

not speak with police.

      Defendant also said he purchased a pair of brown Hush Puppy

Orbital    shoes,      and     that   they    were       donated    to    Goodwill      by

Michelle prior to 2 November 2006.                 Defendant also introduced a

photograph of himself in 2007 at Emily’s third birthday party,

showing Defendant wearing a dark pullover with a stripe on it.

Defendant also said he could not afford a lawyer for a custody

fight between Defendant and Michelle’s family.                         Defendant also

made internet searches on his home computer for head trauma and

anatomy of a knockout, which he said he made after being the
                                       -24-
“first responder” to a car accident where a person was knocked

out.

       The   State    offered   several      pieces      of   evidence      to     rebut

Defendant’s testimony.          The State noted that prior to trial,

Defendant     received    copies     of    all     the    State’s      investigative

files, which included field and interview notes.                          The State’s

analysis     of   Defendant’s      computer        activities       did     not    show

Defendant completed work-related activities on his computer that

evening.     The State produced testimony from Meredith and other

friends of the Youngs that Defendant did not like smoking and

that he disliked the smell of smoke.                  The State also introduced

evidence showing that on 2 November 2006 at 11:40 p.m. it was

cold   and    windy    where    Defendant        said    he   smoked      the     cigar.

Detective     Spivey     testified     that      no     “substantial       outerwear”

besides a suit jacket was found in Defendant’s luggage.

       The State rested its case on 24 February 2012.                       Defendant

moved to dismiss the case at that time.                  The trial court denied

Defendant’s motion, and Defendant began presenting his case on

27 February 2012.

                          B. Defendant’s Evidence

       Defendant’s     mother    Pat      said    Defendant     called       her     the

evening of 2 November 2006 and discussed bringing home a wash
                                      -25-
stand and an antique dresser when Defendant’s family visited at

Thanksgiving.     Defendant said he would call Michelle to see if

he could spend the evening at their home and pick the furniture

up, as he was nearby in southern Virginia.                Pat said Defendant

noted that he would have to leave early on Saturday to get home

for his guests who were attending the N.C. State football game.

      Defendant       was   thirty   minutes    late     to   his    meeting   at

Dickinson Hospital with Jennifer Sproles; he said he was lost

and was not able to call because of poor cell phone service.

Defendant called Pat in the morning on 3 November 2006 to tell

her he would pick up a wash stand at her home in Brevard.

Defendant introduced testimony from an AT&T analyst who said the

large number of short phone calls were consistent with dropped

phone calls.      Defendant later called Pat asking her to call

Meredith about the eBay printouts, which Pat did.

      Before Defendant arrived at her home on 3 November 2006,

Pat   received    a    call   from   Linda     stating    that      Michelle   was

deceased.   Pat decided not to tell Defendant over the phone.

When Defendant arrived at her home, Defendant’s stepfather told

Defendant of Michelle’s death, and Defendant fell to the ground

and began crying.
                                   -26-
    Defendant’s sister       Heather McCracken (“Heather”)            and his

brother-in-law, Joe McCracken (“Joe”), came to the home to see

Defendant,   who   was   pale,   crying,   and   laying   with    a   blanket

draped over himself in a recliner.          Joe drove Defendant, Pat,

and Heather in his Ford Explorer to Meredith’s home in Fuquay-

Varina.   During the ride, Defendant said he would lose his home

and that there was no way he could afford the home.              Defendant’s

luggage remained in his vehicle and Pat said nothing was removed

between his arrival in Brevard and their arrival at Meredith’s

home in Fuquay-Varina.

    Pat and Defendant’s family later packed up the Youngs’ home

two months after Michelle’s death and found a cigar humidor that

said “Quick Set” on the exterior.           Defendant previously sold

Quick Set locks.     A credit card purchase was made on a credit

card in Michelle’s name at a Tampa, Florida store called “Cigars

by Antonio.”

    Defendant introduced testimony of a newspaper deliveryman

who drove by the Youngs’ home at 5108 Birchleaf Drive around

3:50 a.m., noticed that nothing seemed unusual, and did not see

a vehicle.

    A neighbor, Cynthia Beaver (“Ms. Beaver”), testified that

she passed by the Youngs’ home between 5:20 and 5:30 a.m. and
                                       -27-
saw that the home’s lights and driveway lights were on, and that

there was a light-colored “soccer-mom car” with its lights on

and placed at the edge of the driveway.             Ms. Beaver said a white

male was in the driver’s seat and another person was in the

passenger’s seat, who may have been a female.               Another neighbor,

Fay Hinsley, said she saw an empty S.U.V. at the edge of the

driveway between 6 and 6:30 a.m.

       Unlike the first trial, Defendant did not testify at his

second trial.        Defendant rested his case on 29 February 2012.

The jury returned a unanimous verdict finding Defendant guilty

of    first-degree    murder    of   Michelle.      The    trial   court    then

entered a life without parole sentence as required by law.

                               II. Jurisdiction

       Defendant’s appeal from the superior court’s final judgment

lies of right to this Court pursuant to N.C. Gen. Stat. §§ 7A–

27(b), 15A–1444(a) (2013).

                                III. Analysis

           a. Introduction of Civil Judgment and Pleadings

       Defendant argues that introduction of a default judgment

and   complaint     in   a   wrongful     death   suit,   which    stated    that

Defendant   killed       Michelle,   is    reversible     error.     We    agree.

Defendant    also     argues    that      introducing     the   child     custody
                                        -28-
complaint into evidence against Defendant was reversible error.

We agree.2

     Introduction of the complaints and default judgment concern

whether the trial court erred by violating N.C. Gen. Stat. § 1-

149 (2013).      Introduction of this evidence is reviewed de novo.

State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989)

(holding that a violation of a statutory mandates is reviewable

de novo without objection).

     The     State   argues     that   State    v.    Ashe,    314   N.C.     28,   331

S.E.2d    652   (1985)     precludes     de    novo   review    of    these    issues

because Defendant cited only Rule 403 of the Rules of Civil

Procedure when objecting to introduction of the default judgment

and complaint.       We disagree.       Ashe recognizes that “when a trial

court acts contrary to a statutory mandate and a defendant is

prejudiced thereby, the right to appeal the court’s action is

preserved,      notwithstanding        defendant’s     failure       to   object    at

trial.”      Id.     at   39,   331    S.E.2d   at    659.      Further,      “‘where

evidence is rendered incompetent by statute, it is the duty of

the trial judge to exclude it, and his failure to do so is

reversible error, whether objection is interposed and exception

2
  Because we grant Defendant a new trial based on the trial
court’s improper admission of evidence under N.C. Gen. Stat. §
1-149, we do not address Defendant’s motion for appropriate
relief because it is moot.
                                        -29-
noted or not.’”       Christensen v. Christensen, 101 N.C. App. 47,

54–55, 398 S.E.2d 634, 638 (1990) (quoting State v. McCall, 289

N.C. 570, 577, 223 S.E.2d 334, 338 (1976)) (emphasis added),

superseded by statute as stated in Offerman v. Offerman, 137

N.C. App. 289, 527 S.E.2d 684 (2000).

    Under de novo review, we examine the case with new eyes.

“[D]e novo means fresh or anew; for a second time, and an appeal

de novo is an appeal in which the appellate court uses the trial

court’s     record    but     reviews    the    evidence    and   law    without

deference to the trial court’s rulings.”                Parker v. Glosson, 182

N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007) (quotation marks

and citations omitted).           “Under a de novo review, the court

considers    the     matter    anew     and    freely    substitutes    its   own

judgment for that of the lower tribunal.”                Craig v. New Hanover

Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354

(2009) (quotation marks and citation omitted).

    The     first     issue    concerning      admitting    evidence    of    the

default judgment may also be reviewed as an evidentiary matter

de novo, for an abuse of discretion, and under plain error.

State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986);

State v. Martinez, 212 N.C. App. 661, 664, 711 S.E.2d 787, 789
                                     -30-
(2011); State v. Johnson, 209 N.C. App. 682, 692, 706 S.E.2d

790, 797 (2011).

       “When      discretionary      rulings    are    made       under   a

misapprehension of the law, this may constitute an abuse of

discretion.”       Gailey v. Triangle Billiards & Blues Club, Inc.,

179 N.C. App. 848, 851, 635 S.E.2d 482, 484 (2006).

       Plain error is explained in State v. Lawrence, 365 N.C 506,

723 S.E.2d 326 (2012):

               For error to constitute plain error, a
               defendant    must    demonstrate    that     a
               fundamental error occurred at trial. To show
               that an error was fundamental, a defendant
               must   establish   prejudice    that,    after
               examination of the entire record, the error
               had a probable impact on the jury’s finding
               that the defendant was guilty. Moreover,
               because plain error is to be applied
               cautiously and only in the exceptional case,
               the error will often be one that seriously
               affects the fairness, integrity or public
               reputation of judicial proceedings.

Id. at 518, 723 S.E.2d at 334 (quotation marks and citations

omitted).

       N.C. Gen. Stat. § 1-149 provides that “[n]o pleading can be

used in a criminal prosecution against the party as proof of a

fact    admitted     or   alleged   in   it.”   Id.   (emphasis     added).3

Further:



3
    We note that N.C. Gen. Stat. § 1-149 was not brought to the
                                         -31-
             [A] judgment in a civil action is not
             admissible   in    a   subsequent   criminal
             prosecution   although   exactly  the   same
             questions are in dispute in both cases, for
             the reason that the parties are not the
             same, and different rules as to the weight
             of the evidence prevail.

State v. Dula, 204 N.C. 535, 536, 168 S.E. 836, 836–37 (1933)

(quotation marks and citation omitted).

      Dula     is   a     criminal     embezzlement       case      where     a    civil

complaint showing a contract for the sale of thirteen pianos was

admitted by the defendant’s answer.                  The defendant alleged in

his   answer    that      he    had   paid   the   full     price    of   the     pianos

described in the complaint and had settled the contract with

plaintiff’s agent.             Dula, 204 N.C. at 535, 168 S.E. at 836.                At

the   defendant’s         criminal      trial,     evidence       from      the    civil

pleadings was introduced to show that the pianos involved in the

civil dispute were the identical pianos at issue in the criminal

dispute, thus seeking to prove a fact from the pleadings in a

criminal case.          Id. at 536, 168 S.E. at 836.                The trial court

was   reversed      for    allowing     this     evidence    at     the   defendant’s

criminal trial.           Id. at 537, 168 S.E. at 837.                    Thus, Dula

provides an example of N.C. Gen. Stat. § 1-149 as applied and



trial court’s attention by the State or Defendant’s counsel. In
our review, we did not uncover mention of N.C. Gen. Stat. § 1-
149 in common references, such as the Trial Judges’ Bench Book.
                                          -32-
illustrates the second portion of the statute, namely that civil

judgments     and/or      pleadings   may    not   be   used   to   prove       a    fact

contained therein at a subsequent criminal trial.

       In State v. Wilson, 217 N.C. 123, 7 S.E.2d 11 (1940), our

Supreme Court recognized that reading “certain allegations of

fact contained in the complaint in a civil action against [the

defendant]” and asking the defendant “if he had not failed to

deny   them   by    any     answer”   would      infringe   upon    the   statutory

guarantee against using pleadings in “‘a criminal prosecution

against the party as proof of a fact admitted or alleged.’” Id.

at 126–27, 7 S.E.2d at 13 (quoting State v. Ray, 206 N.C. 736,

737, 175 S.E. 109, 110 (1934)).

       Wilson was also a criminal embezzlement case where a civil

court’s order finding the defendant had “made loans to himself

of his wards’ funds [and] mismanaged the funds belonging to the

estate of his wards.”             Id. at 126, 7 S.E.2d at 13.             The court

didn’t question “[t]he propriety of the action of Judge Sink in

making the orders referred to,” but did find it was “prejudicial

to the defendant on this trial, charged with a felony, to have

the    weighty     effect    of   those     statements,     opinions      and       court

orders, relative to the matter then being inquired into, laid

before the impaneled jury.”               Id. at 126, 7 S.E.2d at 12.                 The
                                         -33-
Supreme     Court   said   it    would    be    proper        to    cross-examine     the

defendant at length about his transactions as administrator of

the estate for impeachment purposes, “but it would not have been

competent for the State to offer affirmative evidence of these

collateral      matters”     unless     they    were     so    connected      with    the

indicted charge as to illuminate the question of “fraudulent

intent or to rebut special defenses.”                   Id. at 127, 7 S.E.2d at

13.

       The State cites several cases where civil pleadings and

judgments were admitted in a subsequent criminal trial.                            State

v.    Rowell,    244   N.C.     280,    93     S.E.2d    201        (1956);   State    v.

Phillips, 227 N.C. 277, 41 S.E.2d 766 (1947); State v. McNair,

226 N.C. 462, 38 S.E.2d 514 (1946); State v. Fred D. Wilson, 57

N.C. App. 444, 291 S.E.2d 830, disc. rev. denied, 306 N.C. 563,

294 S.E.2d 375 (1982).             None of these cases involve default

judgments against a defendant, wrongful death judgments against

a defendant, or non-testifying defendants.                         Additionally, these

cases involve admitting pleadings and/or judgments in a civil

case at a subsequent criminal trial for a different purpose than

as proof of a fact alleged in the criminal trial.

       In   Rowell,    the      defendant       was     charged       criminally      for

involuntary     manslaughter,      as    he     caused    his       passenger’s    death
                                          -34-
after colliding with a large truck operated by Mr. Wiley Goins.

244 N.C. at 280, 93 S.E.2d at 201.                    The decedent’s estate filed

a wrongful death action against Mr. Goins, which was pending at

the time of the defendant’s trial.                    Id.    Mr. Goins testified on

behalf of the State, and on cross-examination, the defendant’s

counsel asked Mr. Goins whether he was facing a wrongful death

suit from the decedent’s estate.                 Id.        The trial court refused

to allow Mr. Goins to be cross-examined on the pending lawsuit.

Id.     The     Supreme    Court    reversed      the       defendant’s    conviction,

holding that cross-examination of the pending civil action would

show   the    bias    of   the     witness      and    that    the   witness     had   an

interest      in     the   outcome       of     the     criminal     prosecution       of

defendant.      Id.

       In   Phillips,      the   defendant’s          relationship     with    his   wife

deteriorated when his first wife discovered that he had entered

into    a    bigamous      marriage      with    another       woman    from     Raleigh

(“second wife”).           227 N.C. at 278–79, 41 S.E.2d at 767.                       The

defendant was charged with murdering his first wife.                           Id.     The

second wife testified and the Court held that her testimony “was

a proper link in the chain of circumstances tending to show

motive.”      Id. at 279, 41 S.E.2d at 766.                   A complaint filed by

the    second      wife    to    annul    the    bigamous       marriage       was   also
                                            -35-
introduced, but the Court held that the complaint was only used

to corroborate the testimony of the second wife and that the

error was harmless.           Id.     Thus, the complaint showing a bigamous

contract of marriage was not used to show “proof of a fact

alleged” by the second wife, but was only used for corroborative

purposes.      Id.

       In McNair, the defendant was prosecuted for larceny of an

automobile.          226 N.C. at 462, 38 S.E.2d at 515.               The defendant

had    filed    a     civil   complaint       concerning     the   ownership     of   a

vehicle and then testified at his criminal trial in a contrary

manner from his complaint.                  Id. at 463–64, 38 S.E.2d at 516.

The State explicitly announced that they were introducing the

complaint      to     impeach    the       defendant’s    contrary    testimony       at

trial.        Id.     Thus, the court said “no impingement upon the

statute was intended or resulted from the cross-examination.”

Id. at 464, 28 S.E.2d at 516.

       In     Fred    D.   Wilson,      the    defendant     was    prosecuted     for

obtaining property via false pretenses in a real-estate scheme,

and    the    State    presented       several       outstanding   civil     judgments

against the defendant.              57 N.C. App. at 449–50, 291 S.E.2d at

833.     This Court distinguished the case from Dula, saying that

in     Dula    “pleadings       and    a     civil     judgment    entered     against
                                          -36-
defendant    were    erroneously      admitted       to    prove   the   same    facts

necessary     to     obtain     a     criminal       conviction      against         the

defendant.”        Id. at 450, 291 S.E.2d at 834.                  This Court held

that rather than attempting to prove the truth of the facts

underlying the civil judgment, the State was attempting to show

the defendant’s financial motive for committing his crimes in

Fred D. Wilson, as he had defaulted on several judgments due to

insufficient funds.       Id.

    This Court addresses a different set of facts than Fred D.

Wilson,   McNair,     Phillips,      and    Rowell.        Before   the     re-trial,

Defendant’s counsel learned that the State planned to introduce

evidence about the civil actions against Defendant.                      Defendant’s

counsel did not research whether this evidence was admissible,

nor did counsel move prior to trial to exclude the evidence on

any ground.        Rather, Defendant’s counsel requested discovery of

the civil attorney’s files.               The State replied that it planned

to produce all public records in the civil case, have a witness

explain     the    documents,       and    cross-examine       Defendant        if   he

testified.        The trial court held that the evidence could be

inquired into at trial, if relevant.

    During the trial, Wake County Clerk Lorrin Freeman (“Ms.

Freeman”)    testified    that      on    29     October   2008,    Linda    filed    a
                                        -37-
wrongful       death   lawsuit    against      Defendant     on    behalf     of    the

estate.      Ms. Freeman introduced Linda’s request for Defendant’s

disqualification        under     the     slayer     statute.         Ms.     Freeman

explained that a wrongful death action is a monetary claim for

relief filed against a party who is alleged to have directly

caused a decedent’s death.          The prosecutor requested Ms. Freeman

to read the sixth paragraph of the complaint aloud in court in

front of the empaneled jury, which said “[i]n the early morning

hours   of     November    3rd,    2006     Jason    Young     brutally     murdered

Michelle Young.”

    Ms. Freeman testified that the file showed no attorney on

Defendant’s behalf, and she also stated that Defendant did not

respond to the suit.         Ms. Freeman explained that by failing to

answer, Defendant’s action had “the legal implication or the

legal result of the defendant having admitted the allegations as

set forth in the complaint.”            Ms. Freeman entered a default on 2

December 2008 and thereafter, Linda moved for a default judgment

and slayer declaration.

    Judge Stephens heard the motion on 5 December 2008.                              Ms.

Freeman      testified,    over     Defendant’s       objection,       that        Judge

Stephens reviewed the evidence and attachments to the motion and

entered    a    judgment   declaring      that     Defendant      killed    Michelle.
                                             -38-
Ms. Freeman also testified that Defendant could have presented

evidence in the civil action, and Defendant levied a Rule 403

objection.

      In    sum,    Ms.    Freeman         read    aloud     a    civil    judgment       that

declared Defendant had killed his wife.                          Ms. Freeman read aloud

that Judge Stephens, the presiding judge in Defendant’s criminal

trial, entered judgment against Defendant after reviewing the

evidence.        Ms. Freeman read aloud that Defendant did not respond

to   the   complaint       and   informed          the    jury    that    his    action    was

legally     operative       as   an    admission          under     a    civil       standard.

Additionally,        the     trial         court     admitted       a     “Child       Custody

Complaint        Motion    for   Psychological            Evaluation”       into      evidence

without     any    restrictions       which        also    included       statements      that

Defendant had killed his wife Michelle.

      The State did not offer an explicit purpose at trial for

offering evidence of             the default judgment nor did the State

offer a purpose for admitting the child custody complaint.                                 The

State      now     articulates        an     impeachment          purpose       on     appeal,

asserting that the civil pleadings and judgment were used to

show Defendant’s unusual reaction to civil suits and to show

Defendant’s silence in not responding to the lawsuits cast doubt

on his subsequent testimony at his first trial.                            The State also
                                            -39-
argues the purpose of introducing the evidence contained in the

civil filings was to “show that [Defendant] had great incentives

to answer the civil matters and explain the evidence.”                               This

stated purpose demonstrates the State’s intention of introducing

these     civil      pleadings        and    judgments:    to     show       proof     of

Defendant’s guilt, in violation of N.C. Gen. Stat. § 1-149.

       Further, the State’s argument that the civil suits were

used    to   cast    doubt       on   Defendant’s     22   June       2011    testimony

concerns testimony that the State actually introduced at the

second trial. This purpose was not stated at trial, and the

impeachment       value     of    introducing      these   civil      suits     remains

unclear, as Defendant did not file a custody complaint, nor did

he   testify   at     the   second     trial.       Essentially,       the    State    is

requesting to impeach evidence it offered.

       Secondly,      the    State     cannot      articulate     a    corroborative

purpose for this evidence.             These civil complaints would only be

useful in corroborating the opinions of guilt made by Michelle’s

mother,      Linda     Fisher.          Linda’s      opinions      are       themselves

inadmissible, leaving no proper corroborative purpose.                        State v.

Kim, 318 N.C. 614, 621, 350 S.E.2d 347, 351 (1986).                             No res

judicata effect was applicable.               Dula, 204 N.C. at 536, 168 S.E.

at 837.
                                   -40-
    The jury instructions did not explicitly prohibit the jury

from using the default judgment or the child custody complaint

filed against Defendant as proof of Defendant’s guilt in the

criminal case.        The trial court ruled that the civil matters

“might be relevant to any number of matters that the jury has

already heard and will hear.”       However, the transcript shows the

trial   court   did   not   articulate    a   clear   basis   for   admitting

either item or the limited purposes for which the jury could use

these judgments:

           If a civil complaint is filed by plaintiff
           and the parties in a civil action are
           designated plaintiff, the person bringing
           the complaint, and the defendant, the person
           or entity being sued, if a civil complaint
           is filed by a plaintiff with the clerk of
           Superior Court, Lorrin Freeman and her
           office, and if a civil summons is issued by
           an officer of the court commanding the
           defendant named in the complaint to respond
           and otherwise answer to the allegations of
           the complaint within the time required by
           law and if the defendant named in the
           complaint is properly served with this
           complaint and this summons and if the
           defendant is an adult and is not otherwise
           incapacitated or in the military and if the
           defendant fails to file an answer to that
           civil complaint or otherwise respond to the
           allegations within the time required by law
           and if the plaintiff filing the complaint
           moves that the court to enter judgment in
           the plaintiff’s favor by reason of that
           failure to respond or answer, then under the
           rules of civil law in civil cases and under
           the rules of the court a judgment can be
                    -41-
entered in favor of the plaintiff bringing
the lawsuit. Both failure for the defendant
named to respond or otherwise answer the
allegations, for purposes of the civil case
that’s been filed the allegations of the
complaint under those circumstances, whether
actually true or not, which have not been
denied by the named defendant are deemed in
the civil law to have been admitted for the
purpose of allowing the plaintiff to have
judgment entered in the plaintiff’s favor.
The entry of a civil judgment is not a
determination of guilt by any court that the
named defendant has committed any criminal
offense.

. . . .

I further instruct you there is evidence
that tends to show that a civil complaint
was filed in the Civil Superior Court of
Wake County against the defendant by Linda
Fisher on behalf of the Estate of Michelle
Young and that a civil summons was issued by
the clerk of the court commanding the
defendant to answer or otherwise respond to
the allegations of that civil complaint
within the time required by law. There is
further evidence that tends to show that the
defendant was timely served with these
documents and that he did not file an answer
or otherwise respond to the complaint and
that a default judgment was entered against
him by reason of that failure.

As I previously instructed you, when a
defendant in a civil action has been
properly served with the civil summons and
the civil complaint and fails to timely
respond, upon motion of the plaintiff the
Court is authorized to enter a civil
judgment against the defaulting defendant.
For   purpose  of   the   civil   law,  the
allegations of the complaint which have not
                                       -42-
               been denied, whether actually true or not,
               are deemed to be admitted for the purpose of
               allowing the plaintiff to have a civil
               judgment entered against the defendant. The
               burden of proof in a civil case requires
               only that the plaintiff satisfy the Court or
               the jury by the greater weight of the
               evidence that the plaintiff’s claims are
               valid. This means that the plaintiff must
               prove that the facts are more likely than
               not to exist in the plaintiff’s favor. When
               there is a default, that burden of proof is
               deemed in law to be met.

               The entry of a civil default judgment is not
               a determination of guilt by the Court that
               the   named  defendant  has   committed  any
               criminal offense.

Still further, the State does not point to an instance where a

trial    court      has    attempted   to   gain     admission     of   a   default

judgment and a slayer determination in a homicide prosecution.

Defendant points our attention to In re J.S.B., 183 N.C. App.

192, 202, 644 S.E.2d 580, 586, writ denied, review denied, 361

N.C. 693, 652 S.E.2d 645 (2007), as an example where this Court

held that a voluntary manslaughter finding from a termination of

parental    rights        proceeding   could   not    be   used    if   the      State

commenced       a    subsequent    criminal        prosecution     against        that

defendant.

    Admitting        the    wrongful   death   judgment,     the    complaint       in

that case, and the complaint in the child custody case were also

abuses    of    discretion.        “When    the    intrinsic      nature    of    the
                                             -43-
evidence       itself      is     such    that    its    probative        value    is    always

necessarily outweighed by the danger of unfair prejudice, the

evidence becomes inadmissible under [Rule 403] as a matter of

law.”     State v. Scott, 331 N.C. 39, 43, 413 S.E.2d 787, 789

(1992).        Defendant’s presumption of innocence was irreparably

diminished by the admission of these civil actions.                                     This is

similar       to    the    prejudice      that    a     jury   has    when    it    learns    a

defendant is previously convicted of a charged offense.                                   State

v.   Lewis,        365     N.C.    488,    498,    724    S.E.2d      492,    499       (2012).

Criminal      judgments          are   clearly    admissible         in   slayer    actions.

Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 57, 213

S.E.2d    563,       569    (1975).        However,       as   Defendant      states,       the

converse is typically not true because admitting such evidence

creates great prejudice against the Defendant’s innocence and

increases the chance that an unreliable guilty verdict may be

rendered.          Even greater still is the prejudice to Defendant when

a juror is told that the presiding judge in the case reviewed

the evidence before the jury and entered a default judgment

against a defendant.                   The danger of unfair prejudice vastly

outweighed the probative value in this case and admission of the

evidence was abuse of discretion in Defendant’s trial.                                   It is

also     an    abuse        of    discretion       to     make   a        ruling    under     a
                                            -44-
misapprehension of the law as occurred here, where the trial

court conducted no inquiry concerning N.C. Gen. Stat. § 1-149.

      Because the trial court disregarded a statute, we hold the

trial court erred in admitting evidence of both the entry of

default      judgment       against        Defendant      and    the     child        custody

complaint against Defendant, and because entry of both items was

prejudicial to Defendant, we hold that Defendant must receive a

new trial.       Because we hold that the trial court violated § 1-

149     in   admitting      these     civil        matters,     we     do    not      address

Defendant’s          arguments        concerning          judicial          opinions       or

Defendant’s argument that insufficient evidence existed to deny

a motion to dismiss.             We continue to address the admissibility

of Emily’s statements and evidence of Defendant’s silence.                                 We

address      these    issues     because       they      are    likely      to     recur   at

Defendant’s re-trial.

               b. Admission of Emily’s Statements at Daycare

      Defendant argues that statements made by Emily to daycare

workers      that    were    admitted       via    the    workers’       testimony      were

hearsay outside the scope of any exception and/or overwhelmingly

prejudicial.          Defendant     objected        to   this    evidence        at    trial.

This issue is an evidentiary issue that is reviewed de novo.

“When    the    admissibility         of    evidence      by    the    trial       court   is
                                           -45-
preserved      for    review    by    an    objection,       we   review    the   trial

court’s decision de novo.”                Martinez, 212 N.C. App. at 664, 711

S.E.2d at 789.        “When preserved by an objection, a trial court’s

decision with regard to the admission of evidence alleged to be

hearsay is reviewed de novo.”                 Johnson, 209 N.C. App. at 692,

706 S.E.2d at 797.

      The State argues that Defendant did not preserve this issue

for   appellate      review.         We    disagree.       After   the     prosecution

advised the court outside the jury’s presence that it would put

forth   two    witnesses       that   would       relate   Emily’s    statements     at

daycare,      the    following    dialogue        occurred    between      Defendant’s

counsel and the trial court:

              THE COURT: Okay. I know you’ve objected to
              the testimony of the witness. We heard Ms.
              Palmatier Friday afternoon. I take it you
              object to this line of testimony and
              evidence in its entirety.

              [DEFENSE COUNSEL]: We would, your Honor, on
              grounds previously stated.

              THE COURT: As I understand, your position is
              that the statement of the child is hearsay
              and not otherwise admissible, as well as
              it’s not a foundation to show that the
              capacity of the child to fully understand
              and appreciate and relate her observations
              due to her age and that her conduct is also
              ambiguous.

              [DEFENSE COUNSEL]: That is correct, your
              Honor,  as  well   as  confrontation/cross-
                                     -46-
           examination grounds and due process and 403.

           THE COURT: And as I understand it, you
           object to any testimony with regard to the
           child   herself  because   you  contend   the
           testimony with regard to the child is not
           relevant to any issue in these proceedings.

           [DEFENSE COUNSEL]: That is correct.

           THE COURT: I mean, the learning and her
           schooling and observations about the folks
           at school and things like that.

           [DEFENSE      COUNSEL]:    That   is    correct,    your
           Honor.

           THE COURT: All right. Well, I do believe it
           is relevant and I have overruled your
           previous objections and your objections are
           preserved for the record and the objection
           goes to the testimony of every witness on
           this subject as I understand it.

This   portion   of    the   trial   transcript     demonstrates      the   trial

court’s granting of a line or continuing objection pursuant to

N.C. Gen. Stat. § 15A-1446(d)(10) (2013); State v. Crawford, 344

N.C. 65, 76, 472 S.E.2d 920, 927 (1996).                   While Defendant’s

counsel objected to a question on redirect asking the first

daycare worker to compare the size of the dolls to Defendant and

Michelle, this was a properly lodged objection as it exceeded

the scope of the granted line objection, although the objection

was sustained.         Defendant’s second objection when the second

daycare   worker      took   the   stand   and    began   to   relate   hearsay
                                    -47-
statements was a simple reaffirmation of the originally granted

line   objection.     Therefore    de   novo   review    of   this   issue   is

appropriate.

       The   State   presented    the   testimony   of    Emily’s      daycare

worker, Ms. Palmatier.      Ms. Palmatier testified during voir dire

that on 9 November 2006 she told a Wake County detective that

Emily hit two female dolls together with a dollhouse chair and

said, “[M]ommy’s getting a spanking for biting. . . . [M]ommy

has boo-boos all      over.”      Ms. Palmatier then testified that,

after a nap, Emily said “[Mommy] fell on the floor.                  Now she’s

on the bed with animals, animals were in the barn, they were

asleep.      There was a cow.     Daddy bought me new fruit snacks.”

The State argued that this was evidence Emily saw the murder,

and that it was probative of Defendant’s identity as she was

later found unharmed.

       Defendant’s   counsel     objected   to   this    evidence,      citing

hearsay, due process, lack of competency, relevance, and undue

prejudice.     The trial court ruled that (1) the statements met

the present sense impression, excited utterance, and residual

hearsay exceptions; (2) the evidence was relevant to determine

the killer’s identity; and (3) the evidence was more probative

than prejudicial.
                                              -48-
      The court sua sponte excluded Emily’s post-nap statements

and   granted      the   defense      a       continuing        objection    to   Emily’s

testimony.      The trial court instructed the jury that evidence

was being introduced of Emily’s observations, made when she “may

have had some memory” of Michelle’s death.                               The trial court

instructed the jury that it                   could use         Emily’s statements to

determine whether Emily witnessed a portion of the assault on

Michelle.

      Emily’s daycare teacher then testified that on 9 November

2006, Emily asked her for “the mommy doll.”                          The teacher gave

Emily a bucket of dolls.               Emily picked two dolls, one female

with long hair and one with short hair, and hit them together.

Ms. Palmatier testified that she saw Emily strike a “mommy doll”

against     another      doll   and       a     dollhouse        chair    while   saying,

“[M]ommy     has    boo-boos     all          over”       and   “[M]ommy’s    getting     a

spanking for biting. . . . [M]ommy has boo-boos all over, mommy

has red stuff all over.”

      Defendant first argues that the evidence was not relevant.

Relevant evidence is evidence that has “any tendency to make the

existence     of     any    fact      that           is    of    consequence      to    the

determination more probable or less probable than it would be

without the evidence.”          N.C. Gen. Stat. § 8C-1, Rule 401.                        “A
                                     -49-
trial   court’s    rulings     on     relevancy      are     technically       not

discretionary, though we accord them great deference on appeal.”

State v. Lane, 365 N.C. 7, 27, 707 S.E.2d 210, 223 (2011).                      We

agree with the State that the evidence clearly related to the

identity of Michelle’s assailant.             The evidence was probative

that Emily observed her mother’s assault, and that the assailant

cared for Emily in some way, as he or she left Emily unharmed

after the assault.

    Secondly,     Defendant    argues       that   the    statements    made   at

daycare were inadmissible hearsay             and do      not fit   within any

hearsay exception.       We hold the statements are hearsay, but that

they fit within the excited utterance exception pursuant to this

Court’s decisions in State v. Rogers, 109 N.C. App. 491, 501,

428 S.E.2d 220, 226, cert. denied, 334 N.C. 625, 435 S.E.2d 348

(1993), cert. denied, 511 U.S. 1008 (1994), and State v. Thomas,

119 N.C. App. 708, 712–14, 460 S.E.2d 349, 352–53, disc. review

denied, 342 N.C. 196, 463 S.E.2d 248 (1995).

    Hearsay   is    “a    statement,    other      than    one   made    by    the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.”                   N.C. Gen.

Stat. § 8C-1, Rule 801(c).          A “statement” is an oral or written
                                         -50-
assertion or “nonverbal conduct of a person . . . intended by

him as an assertion.”         N.C. Gen. Stat. § 8C-1, Rule 801(a).

    Emily’s statements consisted of striking the “mommy” doll

while   saying,   “[M]ommy’s        getting      a   spanking     for       biting”      and

“[M]ommy has boo-boos all over, mommy has red stuff all over.”

The trial court found that these were statements made by Emily,

and that they were offered for the truth of the matter asserted.

We agree, and note that the trial court also found that these

phrases spoken by Emily were to describe past events via the

words and actions of a two and a half year old child.                              The age

of Emily at the time of the statements likely meant she could

express herself in a limited way as to her observations.                              Fact-

finders   may     find       that   an    alternate         meaning         exists      when

considering the words of young children who lack the verbal

clarity often present in adults.                See, e.g., State v. Smith, 315

N.C. 76, 80, 337 S.E.2d 833, 837 (1985) (considering statements

of a young child that used figurative language to describe a sex

act).

    However,      if     a   statement     is     hearsay,       it     may    still      be

admitted if it falls within one of the exceptions to the hearsay

rule.     The   primary      exception     at    issue      in   this       case   is    the

excited   utterance      exception.        N.C.      Gen.    Stat.      §     8C-1,     Rule
                                          -51-
803(2).      For the excited utterance exception to apply, “there

must   be    (1)    a     sufficiently        startling    experience           suspending

reflective    thought       and    (2)    a    spontaneous     reaction,          not    one

resulting from reflection or fabrication.”                     Smith, 315 N.C. at

86,    337   S.E.2d        at    841.         “The     rationale     underlying          the

admissibility        of     an     excited        utterance     is        its     inherent

trustworthiness.”          State v. Guice, 141 N.C. App. 177, 200, 541

S.E.2d    474,     489    (2000),       opinion      adhered   to    as    modified       on

reconsideration, 151 N.C. App. 293, 564 S.E.2d 925 (2002).

       Excited      utterances      are       often    made    and    admitted          into

evidence because they fall within a timeframe that is close in

proximity to the startling event.                     See, e.g., id. at 201, 541

S.E.2d at 489 (finding a statement made to an officer within

“several minutes” of the defendant dragging the victim from the

home and while struggling to breathe fell within the requisite

time frame).        However, this Court has held that “the stress and

spontaneity        upon    which    the    exception      is   based       [are]     often

present for longer periods of time in young children than in

adults.”     Rogers,      109    N.C.     App.    at    501,   428   S.E.2d        at    226

(quotation marks and citation omitted); see also Smith, 315 N.C.

at 87–88, 337 S.E.2d at 841 (“This ascertainment of prolonged

stress is born of three observations.                   First, a child is apt to
                                      -52-
repress the incident.      Second, it is often unlikely that a child

will report this kind of incident to anyone but the mother.

Third, the characteristics of young children work to produce

declarations ‘free of conscious fabrication’ for a longer period

after the incident than with adults.” (citation and quotation

marks omitted)).

      Our State’s appellate courts have thus extended the length

of time that the excited utterance exception may apply.                      See

Smith, 315 N.C. at 79, 86–90, 337 S.E.2d at 836, 841–43 (four

and   five-year-olds’    statements     made    two   to    three   days   after

being sexually abused were admissible); Thomas, 119 N.C. App. at

712–14, 460 S.E.2d at 352–53 (five-year-old’s statements made

four to five days after sexual abuse were admissible); Rogers,

109   N.C.   App.   at   501,   428    S.E.2d   at    226    (five-year-old’s

statements made three days after sexual abuse admissible).

      Thus, the outer time limit at present is four to five days

from the event a child has made statements about.                    Emily was

also younger than the other children discussed above in prior

cases this Court has considered.             Emily’s statements were made

six days after her mother was killed and were made while she

played with dolls, without prompting or questioning from adults.

We hold that the attendant circumstances in this case merit
                                       -53-
application       of   the   excited   utterance    exception    and   that   the

trial     court    did   not    err    in   admitting   Emily’s    statements.

Because we hold Emily’s statements were admitted properly under

the excited utterance exception to the hearsay rule, we do not

address     whether      the   present      sense   impression    or   residual

exception apply to this case.

            c. Defendant’s Silence as Substantive Evidence

    The trial court offered the following jury instructions as

they relate to Defendant’s refusal to speak with police and his

family members:

            Ladies and gentlemen, the Fifth Amendment to
            the United States Constitution protects a
            citizen’s    right   to    refuse    to    answer
            questions of the police during a criminal
            investigation.     The    exercise     of    that
            Constitutional right may not be used as
            evidence against that citizen later at trial
            to create an inference of guilt. Therefore,
            the defendant’s decision not to answer
            questions by law enforcement officers during
            the   criminal   investigation    may    not   be
            considered against him as evidence of guilt
            to the pending charge.      However, that same
            Fifth Amendment does permit the jury to
            consider the defendant’s refusal to answer
            police questions to the extent that the
            evidence surrounding that refusal bears upon
            the    defendant’s     truthfulness     if    the
            defendant elects to testify or made a
            statement at a later time.         The evidence
            presented in this case tends to show that
            the defendant elected to testify at a prior
            trial.
                                   -54-
            Therefore, I instruct you that you may
            consider evidence of the defendant’s refusal
            to answer police questions during this
            investigation for one purpose only.   If, in
            considering the nature of that evidence, you
            believe that such evidence bears upon the
            defendant’s truthfulness as a witness at his
            prior trial, then you may consider it for
            that purpose only. Except as it relates to
            the defendant’s truthfulness, you may not
            consider the defendant’s refusal to answer
            police questions as evidence of guilt in
            this case.

            I   also  instruct   you  that  this  Fifth
            Amendment protection applies only to police
            questioning. It does not apply to questions
            asked by civilians, including friends and
            family of the defendant and friends and
            family of the victim.

      Defendant argues that the trial court committed plain error

by   instructing   the   jury   that   it   could   consider   Defendant’s

failure to speak with friends and family as substantive evidence

of guilt.   We disagree and find that the instruction was proper.

      The Fifth Amendment’s protection against self-incrimination

does not extend to questions asked by civilians.                Oregon v.

Elstad, 470 U.S. 298, 304-05 (1985) (“The Fifth Amendment, of

course, is not concerned with nontestimonial evidence.             Nor is

it concerned with moral and psychological pressures to confess

emanating from sources other than official coercion.” (citations

and quotation marks omitted) (emphasis added)).
                                       -55-
       Defendant argues that Defendant’s silence in response to

questions from non-officers should be offered for impeachment

purposes only.         Defendant cites State v. Mack, 282 N.C. 334,

339–40, 193 S.E.2d 71, 75–76 (1972), and State v. Hunt, 72 N.C.

App.    59,    61,    323    S.E.2d    490,   492    (1984),     aff’d     without

precedential value, 313 N.C. 593, 330 S.E.2d 205 (1985), for the

proposition that pre-arrest silence may only be used to impeach

a defendant’s pre-trial statement or trial testimony.                    Mack held

that “[p]rior statements of a witness which are inconsistent

with his present testimony are not admissible as substantive

evidence because of their hearsay nature.”                 282 N.C. at 339, 193

S.E.2d at 75; see also State v. Black, ___ N.C. App. ___, ___,

735 S.E.2d 195, 202 (2012) (citing Mack, 282 N.C. at 339–40, 193

S.E.2d at 75)), appeal dismissed, review denied, ___ N.C. ___,

738 S.E.2d 391 (2013).          However, Mack concerned the substantive

use of silence within the context of                 a     testifying non-party

witness making statements to a police officer.                 282 N.C. at 339,

193 S.E.2d at 75.           Hunt was affirmed without precedential value

by the North Carolina Supreme Court, 313 N.C. at 593, 330 S.E.2d

at   205,     but    also   involved   silence      with    respect   to    police

questioning.        72 N.C. App. at 61–62, 323 S.E.2d at 492.
                                         -56-
       Defendant’s friends and family asked him about Michelle’s

murder     on    several     occasions       and     Defendant      did    not         offer

statements to his friends and family about the evening’s events.

The   State     contends    that    Defendant’s       later    version      of     events

offered at his first trial were inconsistent with his earlier

silence and that the discrepancy “tend[s] to reflect the mental

processes of a person possessed of a guilty conscience seeking

to    divert    suspicion    and    to   exculpate      [himself].”             State     v.

Redfern, 246 N.C. 293, 298, 98 S.E.2d 322, 326 (1957) (holding

that conflicting statements amount to “substantive evidence of

substantial probative force, tending to show consciousness of

guilt”).        Defendant’s        silence      to   non-officers         may     provide

substantive evidence of guilt because statements or silence to

questioning from non-police officers are not granted the same

protections      under     the   Fifth     Amendment     and    are   probative          of

Defendant’s mental processes.              Thus, the evidence was proper for

substantive consideration by the jury.

       Defendant also argues that the trial court committed plain

error in offering its jury instruction.                   Defendant argues that

the    trial    court    should     have     instructed       the   jury        that    the

evidence did not create a presumption of guilt, was insufficient

alone to establish guilt, and that the evidence could not be
                                           -57-
considered       as    to     premeditation      and     deliberation.         State   v.

Myers, 309 N.C. 78, 88, 305 S.E.2d 506, 512 (1983).                            Defendant

argues    that    a     new    trial     was    required    because      the   case    was

“entirely circumstantial.”               Id.

    In Myers, the defendant objected to the instruction, the

witnesses    relied         upon    by    the    State     had   severe    credibility

issues,    and        the   trial   court       placed     an    “emphasis     upon    the

negative aspect of defendant’s statements.”                        Id.     Here, there

was minimal mention by the State that Defendant was silent to

his friends and family.                  We hold that Defendant’s pre-arrest

silence coupled with evidence that whoever killed Michelle did

so with premeditation and deliberation and the limited referral

to Defendant’s silence about the murder to friends and family

did not rise to the level of plain error having a probable

impact on the verdict.                   See Lawrence, 365 N.C. at 518, 723

S.E.2d at 334.

                                    IV. Conclusion

    The introduction into evidence of the civil complaints and

judgment was in error and violated N.C. Gen. Stat. § 1-149, as

the evidence was used to prove a fact — namely, that Defendant

had killed Michelle — Defendant is deemed to have admitted in

the wrongful death civil action and which had been alleged in
                                 -58-
the   child   custody   proceeding.     This   evidence   also   severely

impacted Defendant’s ability to receive a fair trial.            As such,

we order a

      NEW TRIAL.

      Judges STROUD and DILLON concur.
