                             NO. COA13-953

                     NORTH CAROLINA COURT OF APPEALS

                          Filed: 5 August 2014



STATE OF NORTH CAROLINA

       v.                             Alamance County
                                      No. 09 CRS 056388

EDDIE DANIEL BERRY


    Appeal by defendant from judgment entered 28 February 2013

by Judge James E. Hardin Jr. in Alamance County Superior Court.

Heard in the Court of Appeals 8 April 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Sarah Y. Meacham, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate
    Defender   Nicholas  C.   Woomer-Deters,  for  defendant-
    appellant.


    STEELMAN, Judge.


    In accepting a stipulation of the parties and giving an

instruction to the jury on how to consider the stipulation, the

trial court did not express an opinion on a question of fact to

be decided by the jury in violation of N.C. Gen. Stat. § 15A-

1222 or express an opinion as to whether a fact had been proved

in violation of N.C. Gen. Stat. § 15A-1232. Plain error review

is not applicable to appellate review of a stipulation entered
                                          - 2 -

into    by     defendant     at    trial.     The     record    does    not    provide

sufficient information for this court to rule on defendant’s

ineffective      assistance        of   counsel     claim,     and    that    claim   is

dismissed without prejudice to defendant raising the claim in a

motion for appropriate relief filed by the trial court.

                     I. Factual and Procedural Background

       Eddie D. Berry (defendant) met Annalean Rogers (Annalean)

in June of 2000. Shortly thereafter he moved into the apartment

she shared with her four children: daughters A.R. and B.R. and

sons C.R. and D.R. Defendant married Annalean on 5 July 2004 and

assumed the role of stepfather to A.R. and her siblings.

       At the time of the trial, A.R. was eighteen years old. A.R.

testified that defendant sexually assaulted her for the first

time    a     couple    of   weeks      before    defendant     and     Annalean      got

married. A.R. testified that the sexual assaults continued for

several years. The final incident occurred on 4 July 2009. After

this incident, A.R. called her uncle, Roy Rogers (Roy), and told

him    what    had     happened.     A.R.    called    the     police    and   gave    a

statement to Officer Robert Lovette (Officer Lovette) of the

Graham Police Department. On 15 February 2010, defendant was

indicted       for     taking     indecent       liberties     with     a    child.    A

superseding indictment was issued on 26 November 2012 charging
                                    - 3 -

defendant with one count of indecent liberties with a child and

one count of statutory rape.

       At trial, by stipulation of the parties, the State entered

into   evidence   a   redacted   interview    report   by   Janet   Hadler

(Hadler),   a   clinical   social   worker   who   interviewed   A.R.   Her

report contained some statements that contradicted A.R.’s trial

testimony. The report also contained the following:

            TSCC: This report should be used as only one
            source of information about the individual
            being   evaluated.   In   this   respect,   no
            decisions should be based solely on the
            information contained in this report. The
            raw and standardized scores contained in
            this report should be integrated with other
            sources of information when making decisions
            about this individual. [A.R.]’s TSCC is
            considered to be valid. . . . [A.R.]’s
            scores were in the clinically significant
            range   for  the   following   TSCC   Clinical
            Scales/Subscales: Anxiety (T-score 67), . .
            . Fantasy (T-score 68), Sexual Concerns (T-
            score 120), Sexual Preoccupation (T-score
            105), and Sexual Distress (T-score 133.)
            According to the manual, T-scores at or
            above    65    are    considered    clinically
            significant. For the SC (sexual concerns)
            scale and it’s [sic] subscales SC-P and SC-
            D, T-scores at or above 70 are considered
            clinically significant. The manual states,
            “children with especially elevated scores on
            the SC scale may have been prematurely
            sexualized or sexually traumatized. This can
            occur as a result of childhood sexual abuse,
            [sic] exposure to pornography, witnessing
            sexual acts, or, in the case of adolescents,
            sexual assault by a peer.”
                                    - 4 -

    Hadler   was    unable   to   testify   at     trial    due    to   a   family

illness.   The   parties     stipulated     that    redacted       portions     of

Hadler’s   report   be   received    as   evidence    for    the    purpose     of

corroborating A.R.’s testimony. The stipulation read as follows:

           Janet   Hadler,  licensed  clinical  social
           worker, performed a child family evaluation
           of [A.R.] in September and October of 2009.
           Ms. Hadler is unavailable due to family
           illness. The parties have stipulated that
           the portion of her report of her interview
           with [A.R.] may be entered into evidence
           without her presence. This evidence may be
           considered for the purpose of corroboration
           of the witness, [A.R.].

    During a conference with counsel outside of the presence of

the jury, the trial judge indicated that he would allow the

report to be entered into evidence as State’s Exhibit 6 pursuant

to the agreed upon stipulation, which would be marked as State’s

Exhibit 7. The trial judge further indicated that:

           I'll then give a limiting instruction that
           is   consistent  with   pattern   instruction
           101.41 out of the civil pattern instructions
           regarding     stipulations     which     will
           essentially say that the State of North
           Carolina and the defendant have agreed or
           stipulated that certain facts shall be
           accepted by you [members of the jury] as
           true without further proof. Those facts have
           been stated in the record as it relates to
           stipulation as described in State's Exhibit
           7 since the parties have so agreed. You will
           take these facts as true for the purpose of
           this case.
                                      - 5 -

    The State’s attorney and defendant’s trial counsel assented

to this instruction, and made no objection.

    In the presence of the jury, the State’s attorney read the

agreed-upon     stipulation     to     the     jury     and   moved,   without

objection, to enter State’s Exhibits 6 and 7 into evidence. The

State’s   attorney   then     moved    to     publish    copies   of   Hadler’s

redacted report to the jury. The trial judge, before allowing

the redacted report to be published to the jury, instructed the

jury as follows:

           Now,   before   we    proceed, ladies   and
           gentlemen, I want to make sure that you
           understand that the State of North Carolina
           and the defendant have agreed or stipulated
           that certain facts shall be accepted by you
           as true without further proof.

           The agreed facts in this case relate to what
           is marked as State's Exhibit 7 and now
           received   as  a   stipulation   and    State's
           Exhibit   6,   portions    of   an    interview
           conducted   by   the   relevant    parties   as
           described.

           Since the parties have so agreed, you are to
           take these facts as true for the purposes of
           this case.

    On    26   February   2013,   the    jury    returned     guilty   verdicts

against defendant for one count of taking indecent liberties

with a minor and one count of statutory rape; he was sentenced

to 336 to 415 months active imprisonment.

    Defendant appeals.
                                        - 6 -

                II. Stipulation and Limiting Instruction

      In his first argument, defendant contends that the trial

court erred by instructing the jury to accept as true a redacted

interview report by a licensed social worker that was entered

into evidence by the State. We disagree.

                            A. Standard of Review

      A trial judge’s expression of opinion on a question of fact

violates the statutory mandates of N.C. Gen. Stat. §§ 15A-1222

and   1232,    and   therefore     is   preserved   for     de   novo   appellate

review as a matter of law. See State v. Young, 324 N.C. 489,

494, 380 S.E.2d 94, 97 (1989).

                                   B. Analysis

      The parties advised the trial judge that they had agreed to

the following stipulation:

              Janet Hadler, a licensed clinical social
              worker, performed a child family evaluation
              of [A.R.] in September and October of 2009.
              Ms. Hadler is unavailable due to family
              illness. The parties have stipulated that a
              portion of her report of her interview with
              [A.R.] may be entered into evidence without
              her   presence.   This   evidence  may   be
              considered for the purpose of corroboration
              of the witness, [A.R.]


      This    stipulation    was    read    verbatim   to    the   jury   by   Mr.

Thompson, the Assistant District Attorney prosecuting the case.

Mr. Thompson then clarified, “That stipulation, Your Honor, is
                                       - 7 -

State’s Exhibit 7. The actual portion of the evidence we’re

introducing is State’s Exhibit 6.”                 Judge Hardin     then gave a

limiting instruction to the jury which stated that, “The agreed

facts in this case relate to what is marked as State’s Exhibit 7

and   now   received    as     a    stipulation     and   State’s    Exhibit    6,

portions of an interview conducted by the relevant parties as

described. Since the parties have so agreed, you are to take

these facts as true for the purpose of this case.”

       “A stipulation is a judicial admission and ordinarily is

binding on the parties who make it.” State v. Murchinson, 18

N.C. App. 194, 197, 196 S.E.2d 540, 541 (1973) (citing Farmer v.

Ferris, 260 N.C. 619, 133 S.E.2d 492 (1963)).

      On appeal, defendant argues that the limiting instruction

given by the trial judge violated N.C. Gen Stat. § 15A-1222

because it constituted “an opinion in the presence of the jury

on any question of fact to be decided by the jury.” Defendant

argues that the wording of the instruction and the fact that the

jury was handed only Exhibit 6 (the interview report) after the

stipulation    was     read,       rather   than    Exhibit   6     and   7   (the

stipulation), that the jury could have reasonably interpreted

the instruction to mean they should take the facts of Hadler’s

redacted report as true, resulting in a prejudicial error to

defendant.
                                            - 8 -

      The      stipulation,        as     read   to     the   jury,    stated      that    the

redacted       report     “may       be     considered         for     the    purpose       of

corroboration of the witness, [A.R.].” The trial judge then gave

his   limiting        instruction.         The    redacted        report     was   admitted

pursuant to the stipulation that it may be used for purposes of

corroboration. There is no indication whatsoever that the trial

judge expressed an opinion on any question of fact to be decided

by the jury in violation of N.C. Gen. Stat. § 15A-1222 or as to

whether a fact had been proved in violation of N.C. Gen. Stat. §

15A-1232.       The     information             contained      in      Exhibit      7,     the

stipulation, was to be accepted by the jury as true without

further     proof.      The    information         in     Exhibit      6,    the   redacted

report, was to be used for the purposes of corroboration of

A.R.’s testimony. There was no question of fact for the trial

judge     to    express       an    opinion,        with      regard    to    either       the

stipulation or the redacted report.

      “In determining whether the trial judge has expressed an

impermissible opinion in its instructions to the jury, ‘[t]he

charge    of    the    court       must    be    read    as   a   whole,     in    the    same

connected way that the judge is supposed to have intended it and

the jury to have considered it.’” State v. Smith, 160 N.C. App.

107, 120, 584 S.E.2d 830, 838 (2003) (quoting State v. Lee, 277

N.C. 205, 214, 176 S.E.2d 765, 770 (1970)). As long as the jury
                                  - 9 -

instructions, viewed in context, present the law “fairly and

clearly to the jury, the fact that some expressions, standing

alone, might be considered erroneous will afford no ground for

reversal.” 160 N.C. App. at 120, 584 S.E.2d at 839. We hold that

these principles apply not only to the final jury charge, but

also to limiting instructions given by the court during trial.

    The parties clearly stated that the stipulation was Exhibit

7 and that the interview referenced therein was Exhibit 6. When

reading the stipulation, Mr. Thompson stated, “That stipulation,

Your Honor, is State’s Exhibit 7. The actual portion of the

evidence we’re introducing is State’s Exhibit 6.” Judge Hardin

then stated, “I want to make sure that you understand that the

State   of   North   Carolina   and   the   defendant   have   agreed   or

stipulated that certain facts shall be accepted by you as true

without further proof.” (emphasis added) This makes it clear

that the facts to be accepted as true were those contained in

the stipulation (Exhibit 7).

    “[U]nless it is apparent that such infraction of the rules

might reasonably have had a prejudicial effect on the result of

the trial, the error will be considered harmless.”              State v.

Green, 129 N.C. App. 539, 545, 500 S.E.2d 452, 456 (1998) aff'd,

350 N.C. 59, 510 S.E.2d 375 (1999) (citing State v. Larrimore,

340 N.C. 119, 154-55, 456 S.E.2d 789, 808 (1995)). There is no
                                        - 10 -

reason to believe that the stipulation or limiting instruction

had a prejudicial effect on the result of the trial.

    Judge Hardin did not express any opinion to the jury in his

instructions      concerning      the    stipulation.       Judge   Hardin     simply

instructed the jury as to the parties’ stipulation. Nothing in

his instructions to the jury indicated any personal opinion as

to the facts of the case.

    The        dissent       acknowledges      that     a     “totality       of   the

circumstances” test should be used to determine whether a trial

court    has    made    an   improper    expression      of   opinion.     State   v.

Mucci,    163    N.C.    App.    615,   620,     594   S.E.2d    411,   415    (2004)

(quoting State v. Anthony, 354 N.C. 372, 402, 555 S.E.2d 557,

578 (2001). However, it then proceeds to parse the language used

by Judge Hardin to support its conclusions.

    The trial court did not express opinion in his limiting

instruction to the jury, and taken as a whole, the instructions

did not prejudice defendant.

    This argument is without merit.

                         III. Admissibility of Report

    In his second argument, defendant contends that the trial

court    committed       plain   error    by     admitting      Hadler’s   redacted

report into evidence. We disagree.

                              A. Standard of Review
                                  - 11 -

             For error to constitute plain error, a
             defendant    must     demonstrate    that    a
             fundamental error occurred at trial. See
             Odom, 307 N.C. at 660, 300 S.E.2d at 378. 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.” See
             id. (citations and quotation marks omitted);
             see also Walker, 316 N.C. at 39, 340 S.E.2d
             at 83 (stating “that absent the error the
             jury probably would have reached a different
             verdict” and concluding that although the
             evidentiary error affected a fundamental
             right, viewed in light of the entire record,
             the error was not plain error). Moreover,
             because plain error is to be “applied
             cautiously and only in the exceptional
             case,” Odom, 307 N.C. at 660, 300 S.E.2d at
             378, the error will often be one that
             “seriously affect[s] the fairness, integrity
             or    public     reputation     of    judicial
             proceedings,” Odom, 307 N.C. at 660, 300
             S.E.2d at 378 (quoting McCaskill, 676 F.2d
             at 1002).

State   v.   Lawrence,   365   N.C.   506,   518,   723   S.E.2d   326,   334

(2012).

                                B. Analysis

    Defendant’s      trial     counsel   made   no    objection     to    the

information contained in the report at trial and stipulated to

the admission of the redacted report into evidence. However,

even in the face of his trial stipulation, defendant argues on

appeal that the admission of Hadler’s redacted report is still

reviewable under plain error.
                                      - 12 -

     Generally,     plain     error    analysis    applies       only    to     jury

instructions and evidentiary matters. State v. Atkins, 349 N.C.

62, 81, 505 S.E.2d 97, 109 (1998). We have been unable to find

any case law supporting the proposition that evidence received

pursuant to a stipulation may be reviewed under plain error. See

State v. Marlow, ___ N.C. App. ___, 747 S.E.2d 741, 745 (2013)

(finding that “while the law is clear on when our courts are

permitted    to   use   the   plain   error    analysis,    it   is     not    clear

whether      stipulations     fall      within    the      purview      of      such

parameters.”), appeal dismissed, ___ N.C. ___, 752 S.E.2d 493

(2013).

     “Plain error review is appropriate when a defendant fails

to preserve the issue for appeal by properly objecting to the

admission of evidence at trial.” State v. Perkins, 154 N.C. App.

148, 152, 571 S.E.2d 645, 648 (2002) (citing State v. Rourke,

143 N.C. App. 672, 675, 548 S.E.2d 188, 190 (2001)).

     A stipulation is a judicial admission, voluntarily made by

the parties to admit evidence at trial. In the instant case,

defendant entered into a written stipulation with the State. It

would   be   indefensible     to   allow   a   defendant    to   enter        into   a

stipulation and then to challenge the evidence admitted pursuant

to the stipulation on appeal. The essence of plain error is the

failure of a defendant to object, coupled with a “fundamental
                                        - 13 -

error”   by    the    trial     court   in    allowing      the   evidence   to   be

received     even    in   the   absence     of   an   objection.    See   State   v.

Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). “Once a

stipulation is made, a party is bound by it and he may not

thereafter take an inconsistent position.” Rural Plumbing and

Heating, Inc. v. H. C. Jones Const. Co., 268 N.C. 23, 31, 149

S.E.2d 625, 631 (1966) (citing Austin v. Hopkins, 227 N.C. 638,

43 S.E.2d 849 (1947)).

       The conduct of defendant in entering into a stipulation at

trial and then seeking to repudiate it on appeal is more akin to

invited error than plain error. “[A] defendant who invites error

. . . waive[s] his right to all appellate review concerning the

invited error, including plain error review.” State v. Jones,

213 N.C. App. 59, 67, 711 S.E.2d 791, 796 (2011) (quoting State

v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001)).

Therefore, “[a]lthough defendant labels this [issue on appeal]

as ‘plain error,’ it is actually invited error because, as the

transcript reveals, defendant consented to the manner in which

the trial court gave the instructions to the jury.” State v.

Fox,   216    N.C.   App.     153,   160,    716   S.E.2d    261,   266-67   (2011)

(citing State v. Wilkinson, 344 N.C. 198, 235–36, 474 S.E.2d

375, 396 (1996)).
                                         - 14 -

       In the instant case, defendant agreed to the language of

the    stipulation      and   limiting      instruction     at    trial.   Defendant

made    no    objection       at    trial    to    the     limiting    instruction,

stipulation, or to the substance of the redacted report when it

was entered into evidence. We hold that the concept of plain

error is not applicable to stipulations entered into at trial.

       This argument is without merit.

                     IV. Ineffective Assistance of Counsel

       In his third argument, defendant contends that he received

ineffective      assistance         of   counsel    when    his    trial   attorney

stipulated to the admission of the report and failed to object

to    the    trial    court’s      instruction     regarding     the   report.   We

disagree.

                              A. Standard of Review

              To prevail on a claim of ineffective
              assistance of counsel, a defendant must
              first show that his counsel’s performance
              was   deficient   and   then   that  counsel’s
              deficient    performance     prejudiced    his
              defense.   Deficient    performance   may   be
              established   by    showing    that  counsel’s
              representation   fell    below    an objective
              standard of reasonableness. Generally, to
              establish prejudice, a defendant must show
              that there is a reasonable probability that,
              but for counsel’s unprofessional errors, the
              result of the proceeding would have been
              different. A reasonable probability is a
              probability     sufficient      to   undermine
              confidence in the outcome.
                                         - 15 -

State   v.    Allen,      360    N.C.     297,     316,    626      S.E.2d     271,       286

(citations and quotation marks omitted), cert. denied, 549 U.S.

867, 166 L. Ed. 2d 116 (2006).

                                       B. Analysis

      Generally, to establish a claim for ineffective assistance

of   counsel,      “[t]he       defendant      must     show       that     there    is    a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.

A    reasonable      probability         is    a    probability           sufficient      to

undermine confidence in the outcome.” Strickland v. Washington,

466 U.S. 668, 694, 80 L.Ed.2d 674, 698 (1984). The Supreme Court

has noted that, “Judicial scrutiny of counsel's performance must

be highly deferential. It is all too tempting for a defendant to

second-guess counsel's assistance after conviction or adverse

sentence,    and     it    is    all    too    easy    for     a    court,     examining

counsel's defense after it has proved unsuccessful, to conclude

that a particular act or omission of counsel was unreasonable.”

466 U.S. at 689, 80 L.Ed.2d at 694.

      In the present case, the record does not provide sufficient

information     to   determine         whether     trial   counsel’s        decision       to

agree to the stipulation of the report was the result of a

legitimate    trial       strategy.      The   report      that     was    entered     into

evidence      arguably          bolstered          defendant’s            position         by
                               - 16 -

demonstrating the victim’s lack of coherence in her story of the

events. Defendant’s claim of ineffective assistance of counsel

is   dismissed   without   prejudice    to   filing   a   motion   for

appropriate relief in the trial court.

     NO ERROR IN PART, DISMISSED IN PART.

     Judge BRYANT concurs.

     Judge HUNTER, Robert C. concurs in part and dissents in

     part.
                                    NO. COA13-953

                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 5 August 2014

STATE OF NORTH CAROLINA


    v.                                         Alamance County
                                               No. 09 CRS 056388
EDDIE DANIEL BERRY



    HUNTER, Robert C., Judge, concurring in part and dissenting
    in part.


    I      concur      with   the    portions        of   the   majority    opinion

regarding      plain    error   review    of    stipulations      on     appeal   and

defendant’s argument that he was denied effective assistance of

counsel.       However, because I believe that the trial court’s

instruction could have been reasonably interpreted by the jury

as a mandate to accept certain disputed facts of this case as

true, in violation of N.C. Gen. Stat. §§ 15A-1222 and 15A-1232

(2013),    I    respectfully        dissent    and    conclude    that     defendant

should be granted a new trial.

                                     Background

    Defendant was indicted for taking indecent liberties with a

child on 15 February 2010.               A superseding indictment charging

defendant with one count of indecent liberties with a child and

one count of statutory rape was issued on 26 November 2012.
                                      - 2-


       At trial, defendant’s stepdaughter, A.R., testified that

defendant sexually abused her repeatedly over a number of years,

beginning when she was either ten or eleven years old.                   By

stipulation of the parties, the State entered into evidence a

redacted interview report by Janet Hadler (“Hadler”), a clinical

social     worker    who   interviewed       A.R.   The   report   contained

numerous accusations of abuse by A.R., specifically that: (1)

defendant sexually abused A.R. and her sister beginning when

A.R. was eleven years old; (2) defendant had sexual intercourse

with A.R. and took her virginity; and (3) defendant continued to

have sex with A.R. “every time he can get away from [A.R.’s]

mother.”       The    report   also   contained     Hadler’s   professional

opinion as to these accusations, which appeared as follows:

            [A.R.]’s TSCC1 is considered to be valid. . .
            . [A.R.]’s scores were in the clinically
            significant range for the following TSCC
            Clinical Scales/Subscales: Anxiety (T-score
            67), . . . Fantasy (T-score 68), Sexual
            Concerns (T-score 120), Sexual Preoccupation
            (T-score 105), and Sexual Distress (T-score
            133.) According to the manual, T-scores at
            or   above  65   are   considered  clinically
            significant. For the SC (sexual concerns)
            scale and it’s [sic] subscales SC-P and SC-
            D, T-scores at or above 70 are considered
            clinically significant. The manual states,
            “children with especially elevated scores on
            the SC scale may have been prematurely
            sexualized or sexually traumatized. This can

1
    It is unclear from the record what “TSCC” stands for.
                                           - 3-


              occur as a result of childhood sexual abuse
              exposure to pornography, witnessing sexual
              acts, or, in the case of adolescents, sexual
              assault by a peer.”

    Hadler         was   unable    to    testify      at    trial   due    to   a   family

illness.      According to the stipulation, the parties agreed to

let redacted portions of her report come in for the purpose of

corroborating        A.R.’s       testimony.          The     stipulation       read    as

follows:

              Janet Hadler, a licensed clinical social
              worker, performed a child family evaluation
              of [A.R.] in September and October of 2009.
              Ms. Hadler is unavailable due to family
              illness. The parties have stipulated that
              the portion of her report of her interview
              with [A.R.] may be entered into evidence
              without her presence. This evidence may be
              considered for the purpose of corroboration
              of the witness,[A.R.].

While   the    jury      was   dismissed,       the    trial    judge      indicated    to

counsel    that     he    would    allow    the    report      to   be     entered     into

evidence      as    State’s     Exhibit     6     pursuant     to    the    agreed-upon

stipulation, which would be marked as State’s Exhibit 7.

    Following the bench conference, the jury returned to the

courtroom.           The       State’s     attorney         read    the     agreed-upon

stipulation to the jury and moved, without objection, to enter

State’s Exhibits 6 and 7 into evidence.                        The State’s attorney

then moved to publish copies of Hadler’s report to the jury,
                                       - 4-


whereupon     the   trial    judge,    before     granting   the   motion   to

publish, instructed the jury as follows:

            Now,   before   we    proceed, ladies   and
            gentlemen, I want to make sure that you
            understand that the State of North Carolina
            and the defendant have agreed or stipulated
            that certain facts shall be accepted by you
            as true without further proof.

            The agreed facts in this case relate to what
            is marked as State’s Exhibit 7 and now
            received   as  a   stipulation   and    State’s
            Exhibit   6,   portions    of   an    interview
            conducted   by   the   relevant    parties   as
            described.

            Since the parties have so agreed, you are to
            take these facts as true for the purposes of
            this case.

    On   26    February     2013,    the   jury   returned   guilty   verdicts

against defendant for one count of taking indecent liberties

with a child and one count of statutory rape; he was sentenced

to 336 to 415 months active imprisonment.

                                    Discussion

    Defendant argues that the trial judge failed to give a

promised limiting instruction and violated statutory mandates of

sections 15A-1222 and 15A-1232 prohibiting a trial judge from

expressing an opinion (1) as to whether or not a fact has been

proved and (2) on any question of fact to be decided by the

jury, because the judge inadvertently instructed the jury to
                                           - 5-


consider the facts contained in Hadler’s report as true.                          After

carefully reviewing the record and transcript of the trial, I

agree.     I would hold that the trial court inadvertently erred in

its jury instruction on the stipulation, and because this error

prejudiced defendant, I would order a new trial.

       Typically, in order to preserve an argument for appellate

review, a defendant must have “presented the trial court with a

timely     request,       objection       or   motion,    stating    the      specific

grounds for the ruling sought if the specific grounds are not

apparent.”        State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809,

814 (1991); see also N.C. R. App. P. 10(a)(1) (2013).                       Defendant

here     failed    to     object     to    the    trial    court’s        instruction.

However,     the    North     Carolina         Supreme    Court   has      held    that

“[w]henever a defendant alleges a trial court made an improper

statement by expressing an opinion on the evidence in violation

of N.C.G.S. §§ 15A-1222 and 15A-1232, the error is preserved for

review without objection due to the mandatory nature of these

statutory provisions.”             State v. Duke, 360 N.C. 110, 123, 623

S.E.2d 11, 20 (2005).              Defendant has made such allegations in

this     case,      and      thus,        these    arguments        are      preserved

notwithstanding defendant’s failure to object at trial.                       See id.

On appeal, the burden is on the defendant to show that he was
                                     - 6-


prejudiced by the allegedly improper remarks.                  See State v.

McNeil, 209 N.C. App. 654, 666, 707 S.E.2d 674, 683 (2011).

That is, he must show that “there is a reasonable possibility

that, had the error in question not been committed, a different

result would have been reached” by the jury.              Id.; see also N.C.

Gen. Stat. § 15A-1443(a) (2013).

      N.C. Gen. Stat. § 15A-1222 provides that a trial judge “may

not express during any stage of the trial, any opinion in the

presence of the jury on any question of fact to be decided by

the   jury.”      N.C.   Gen.    Stat.   §   15A-1232    further    states    in

relevant part that “[i]n instructing the jury, the judge shall

not express an opinion as to whether or not a fact has been

proved[.]”       Prejudicial     error   results     where   “the    jury    may

reasonably infer from the evidence before it that the trial

judge’s action intimated an opinion as to a factual issue, the

defendant’s guilt, the weight of the evidence or a witness’s

credibility[.]”        State v. Blackstock, 314 N.C. 232, 236, 333

S.E.2d    245,   248   (1985).     “Whether     a   trial    court’s   comment

constitutes an improper expression of opinion is determined by

its probable meaning to the jury, not by the judge’s motive.

Furthermore, a totality of the circumstances test is utilized

under    which   defendant   has   the   burden     of   showing   prejudice.”
                                        - 7-


State v. Mucci, 163 N.C. App. 615, 620, 594 S.E.2d 411, 415

(2004)     (alteration          in   original)        (citations      and        internal

quotation marks omitted).

    Here, while outside the presence of the jury, counsel for

defendant and the State conferred with the trial judge regarding

the stipulation.         The substance of the stipulation was that: (1)

Hadler was unavailable to testify at trial; (2) portions of her

report were to be admitted into evidence; and (3) these redacted

portions    may    be    considered    for     the    purpose    of   corroborating

A.R.’s testimony.           The trial court informed counsel that it

would instruct the jury as to this stipulation based on N.C.P.I.

Civil    101.41,        which    provides      that     juries     are      to    accept

stipulated facts as true without further proof.                       Specifically,

the trial court informed counsel that it would instruct the jury

as follows:        “[F]acts have been stated in the record as it

relates to stipulation as described in State’s Exhibit 7 since

the parties have so agreed.             You will take these facts as true

for the purpose of this case.”               However, when the jury returned

to the courtroom, the following colloquy took place:

            THE COURT: All right. The jurors are now
            present with us in the courtroom.      Mr.
            Thompson [counsel for the State], ready to
            proceed?

            MR. THOMPSON: We are, Your Honor.
                     - 8-



Your Honor, at this time the State would
make this following tender of stipulation.

Janet Hadler, a licensed clinical social
worker, performed a child family evaluation
of [A.R.] in September and October of 2009.
Ms. Hadler is unavailable due to family
illness.   The parties have stipulated that
the portion of her report of her interview
with [A.R.] may be entered into evidence
without her presence. This evidence may be
considered for the purpose of corroboration
of the witness, [A.R.]. That stipulation,
Your Honor, is State’s Exhibit 7.

The actual portion of the evidence we’re
introducing is State’s Exhibit 6. We move
to enter 6 and 7 at this time.

THE COURT: What says the defendant?

MR. MARTIN [defense counsel]: No objection.

THE COURT: All right.   Without objection
what is marked as State’s Exhibit 6 and
State’s Exhibit 7 each is admitted and
received.

MR. THOMPSON: At this time, Your Honor, we
ask to publish the copies to the jury.

THE COURT:   Now, before we proceed, ladies
and gentlemen, I want to make sure that you
understand that the State of North Carolina
and the defendant have agreed or stipulated
that certain facts shall be accepted by you
as true without further proof.

The agreed facts in this case relate to what
is marked as State’s Exhibit 7 and now
received   as  a   stipulation   and    State’s
Exhibit   6,   portions    of   an    interview
conducted   by   the   relevant    parties   as
                                          - 9-


             described.

             Since the parties have so agreed, you are to
             take these facts as true for the purposes of
             this case. The motion to publish is allowed.

             It’s my impression, ladies and gentlemen,
             you all each have a copy of State’s Exhibit
             6.   If you will read that to yourselves,
             again, without comment.    And once you’ve
             completed your review of the document, pass
             that back down to the bailiff so that we
             know that you’ve completed your examination
             of that report.

             (Whereas State’s Exhibit No. 6 was published
             to the jury.)

(Emphasis added.)

      The State argues, and the majority agrees, that the trial

court did not violate sections 15A-1222 or 15A-1232 because it

did   not    instruct      the   jury   to     read    Hadler’s     report    as    true.

Rather, the statement that “the agreed facts in this case relate

to . . . State’s Exhibit 6” merely indicated that the actual

stipulation in State’s Exhibit 7 related to the admissibility of

State’s Exhibit 6.

      However,       on     appeal,     this     Court       is    to   consider     the

instruction’s “probable meaning to the jury” under the totality

of the circumstances.            Mucci, 163 N.C. App. at 620, 594 S.E.2d

at    415.     The        attendant     circumstances        and    wording    of     the

instruction     leads       me   to   conclude        that   the   jury   could     have
                                   -10-


reasonably interpreted the trial court’s statement as requiring

the jury members to accept Hadler’s report as true, in clear,

but inadvertent, violation of sections 15A-1222 and 15A-1232.

      First, the trial court told the jury that “[t]he agreed

facts in this case relate to what is marked as State’s Exhibit 7

and   now   received   as   a   stipulation   and   State’s   Exhibit   6,

portions of an interview conducted by the relevant parties as

described.”    (Emphasis added.)     The use of the conjunctive “and”

in this instruction unavoidably combined both exhibits under the

umbrella of what the “agreed facts . . . relate to,” even though

the trial judge told counsel during the bench conference that he

would only instruct the jury that “facts have been stated in the

record as it relates to stipulation as described in State’s

Exhibit 7 since the parties have so agreed.         You will take these

facts as true for the purpose of this case.”            Thus, the trial

court’s instruction to the jury differed materially from the

instruction it promised counsel it was going to make while the

jury was outside the courtroom, indicating that the reference to

State’s Exhibit 6 was unplanned and inadvertent.

      Furthermore, the trial court failed to clarify that the

redacted portions of Hadler’s report were not to be considered

for substantive purposes at all.          Despite the agreement made
                                 -11-


between counsel outside the presence of the jury that the report

would only be admitted for corroborative purposes, the trial

court   never   specifically   instructed,   either   before    or   after

publishing the document to the jury, that there were limits on

the admissibility of Hadler’s report.         The stipulation itself

provided only that Hadler’s report “may be considered for the

purpose of corroboration of the witness, [A.R.].”               (Emphasis

added.)   The jury was never instructed at any point of the trial

that it may not consider the report as substantive evidence of

defendant’s guilt.      During the jury charge, the trial court

instructed the jury that:

           Evidence has been received tending         to show
           that at an earlier time a witness           made a
           statement which may be consistent           or may
           conflict with the testimony of the         witness
           at this trial.

           You must not consider such earlier statement
           as evidence of the truth of what was said at
           that earlier time because it was not made
           under oath at this trial.

           If you believe that the earlier statement
           was made and that it is consistent or does
           conflict with the testimony of the witness
           at this trial, then you may consider this
           and   all  other   facts  and   circumstances
           bearing upon the witness’ truthfulness in
           deciding   whether   you  will   believe   or
           disbelieve the testimony of the witness.
                                         -12-


(Emphasis added.)         Thus, the trial court failed to specify that

Hadler’s report, which included not only statements from A.R.

but   also      Hadler’s       professional         opinion      on     the     clinical

significance      of     those        statements,        was    only        admitted     to

corroborate A.R.’s testimony and was not to be considered for

any other purpose.         See State v. McMillan, 55 N.C. App. 25, 30,

284 S.E.2d 526, 530 (1981) (finding error where the trial court

instructed on prior statements of “a witness” but failed to

specify   the     limit    on     admissibility          related      solely     to     the

specific witness’s statements).               Accordingly, the trial court’s

instruction     to     “take    these    facts      as    true,”      with    the     facts

“relating to” both the stipulation and Hadler’s report, was more

amenable to being interpreted as invitation to read Hadler’s

report as true given the lack of specific limiting instructions

on that exhibit.

      Second,    only     Hadler’s       report,     and       not    the    stipulation

itself,   was    published       to    the   jury    immediately        following       the

trial court’s ambiguous instruction.                     I believe that the jury

could have reasonably inferred that what was being published to

them was the subject of the instruction; or in other words, that

Hadler’s report was the document that the jury members were to

read as true.        This conclusion is especially availing given that
                                        -13-


the trial court said “you are to take these facts as true for

the    purposes    of   this    case”       immediately    after    saying     “[t]he

agreed facts in this case relate to . . . State’s Exhibit 6,

portions of an interview conducted by the relevant parties as

described,”      just   before      publishing      State’s   Exhibit     6    to   the

jury, and without any clarification regarding the stipulation

that   Hadler’s     report     “may    be    considered    for     the   purpose     of

corroboration[.]”       (Emphasis added.)

       Based on the totality of the circumstances, Mucci, 163 N.C.

App. at 620, 594 S.E.2d at 415, I would hold that the challenged

instruction could have been reasonably interpreted by the jury

as requiring them to read Hadler’s report as true.                        In giving

this instruction, the trial court both bolstered the credibility

of the prosecuting witness, A.R., and afforded undue evidentiary

weight    to    Hadler’s     conclusions       in   the   report    regarding       the

clinical       significance    of     A.R.’s    “T-scores.”        Each   of    which

constitutes prejudicial error.               See Blackstock, 314 N.C. at 236,

333 S.E.2d at 248 (“[I]n a criminal case it is only when the

jury may reasonably infer from the evidence before it that the

trial judge’s action intimated an opinion as to a factual issue,

the defendant’s guilt, the weight of the evidence or a witness’s

credibility that prejudicial error results.”).
                                          -14-


       Therefore,      while      it     is     clear      that     this     error     was

inadvertent, the jury may have reasonably believed that they

were    instructed     to    read   the       statements     in     Hadler’s   redacted

report    as   true,    in     which     case       the    trial    court    inherently

intimated an opinion as to the weight of this evidence, and

prejudicial error resulted.               See Blackstock, 314 N.C. at 236,

333 S.E.2d at 248.

                                       Conclusion

       Based on the foregoing, I would hold that the trial judge

inadvertently    erred       by   giving       an    instruction      constituting      an

impermissible    expression         of    judicial        opinion    in    violation    of

sections 15A-1222 and 15A-1232.                     Because this error bolstered

the credibility of the prosecuting witness and afforded undue

weight to a report admitted solely for corroborative purposes, I

would    conclude    that     defendant        was    prejudiced      by    this   error,

requiring a new trial.
