State v. Reber

900 S.E.2d 781

STATE of North Carolina

v.Joshua David REBER

No. 138A23

Supreme Court of North Carolina.

Filed May 23, 2024

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 289 N.C. App. 66, 887 S.E.2d 487 (2023), reversing a judgment entered on 9 August 2021 by Judge Forrest D. Bridges in Superior Court, Ashe County, and remanding the case. Heard in the Supreme Court on 13 February 2024.

Joshua H. Stein, Attorney General, by Sherri Homer Lawrence, Special Deputy Attorney General, for the State-appellant.

Daniel M. Blau, for defendant-appellee.

DIETZ, Justice.

Defendant Joshua Reber appeals his convictions for raping and sexually abusing a young child. A divided panel of the Court of Appeals held that the trial court committed plain error by admitting certain evidence from the State’s cross-examination of Reber and erred by failing to intervene on its own initiative when the State made improper remarks during closing argument.

As explained below, the Court of Appeals majority did not properly apply the exacting standards of review for these unpreserved issues. Applying those standards, Reber failed to satisfy the prejudice prong of plain error review and failed to show that the State’s remarks were so grossly improper that they compelled the trial court to intervene ex mero motu. We therefore reverse the decision of the Court of Appeals and remand for consideration of Reber’s remaining arguments.

Facts and Procedural History

In 2015, eleven-year-old K.W.¹ became close with a boy from school that she considered her boyfriend. This relationship made K.W. feel guilty because she worried she was "cheating on him." For several years, Reber, a friend of K.W.’s family, had been taking K.W. to isolated locations, such as a deer blind in the woods near her house, and sexually abusing her.

Ultimately, K.W. confided in her schoolage boyfriend, who insisted that she tell her mother about Reber’s abuse. K.W.’s mother contacted law enforcement, who immediately began an investigation. The State later charged Reber with multiple counts of rape of a child and sexual offense with a child. The case went to trial in 2021.

At trial, K.W. recounted in excruciating detail how, beginning when she was eight years old, Reber took her into the woods without telling her family, often late at night, where he sexually abused her.

Reber took the stand in his own defense and acknowledged taking K.W. into the woods alone at night without telling anyone. But he denied that he ever raped or sexually abused K.W. During his testimony, Reber described normal sexual relationships he had with adult women, including a woman named Danielle. He explained that his romantic relationship with Danielle started in the fall of 2015, and before that, Danielle was "just a friend."

On cross-examination, the prosecutor pursued a series of questions that were based on Reber’s testimony about his relationship with Danielle. The prosecutor first asked about text messages recovered from Reber’s phone during the time period when he claimed Danielle was "just a friend."

In the first series of text messages, Reber told Danielle that he remembered seeing her bare breasts when they had a previous romantic encounter. After Danielle stated that she did not remember that event, Reber replied, "You did get drunk pretty fast." Reber did not object to this question and answer.

Later in the questioning, the prosecutor asked Reber about another text exchange with Danielle. These text messages concerned Reber’s attempts to find a place to have sex with Danielle.

In the messages, Reber expressed concern about getting a motel room to have sex be- cause he would need to take his daughter with him, and she might tell his grandparents that he was having sex. Reber’s grandparents had strong religious beliefs and insisted that he not engage in sexual activity outside of marriage.

In the text exchange with Danielle, Reber acknowledged that if they went to a hotel to have sex, he could ask his daughter not to say anything to his grandparents. The prosecutor then asked Reber, "So you would encourage a child, if asked, not to tell on you?" Reber responded, "Well, on that set of circumstance[s], yes." Reber also did not object to this line of questioning.

The prosecutor also established without objection that Reber had sex with a number of women using a method that Reber referred to as the "pull-out" method, during which he did not use a condom or any form of contraception.

During closing argument, the prosecutor made two statements that referenced Reber’s testimony described above. The first statement referenced Reber’s sexual history with Danielle:

Danielle, a woman who when he was developing a friendship, his first sexual encounter with her involved taking her boobs out of her shirt and having intercourse with her and you’ve seen the text messages to show that she was too drunk to even remember it to even remember taking her shirt off.

The second statement regarded Reber’s use of the "pull-out" method of contraception during sexual intercourse:

An eight- to 11-year-old child having sex with a man 16 years her senior who by his own testimony is sleeping with other women in this community with no protection. You think about that. You think about an eight- or nine-year-old walking around pregnant. You think about an eight or nine-year-old poking around with herpes or gonorrhea or syphilis or Aids [sic].

Reber did not object to these statements during closing argument.

The jury found Reber guilty of four counts of rape of a child and six counts of sex offense with a child. The trial court sentenced Reber to two consecutive terms of 300 to 420 months in prison.

Reber appealed and argued that it was plain error to admit the cross-examination testimony described above. Reber also argued that it was reversible error to permit the prosecutor to make the statements during closing argument that are quoted above.

A divided Court of Appeals reversed Reber’s convictions and ordered a new trial. State v. Reber, 289 N.C. App. 66, 83, 887 S.E.2d 487 (2023). The majority held that the introduction of the challenged evidence on cross-examination amounted to plain error and that the prosecutor’s statements during closing argument were so grossly improper that the trial court should have intervened on its own initiative. Id. at 74, 82, 887 S.E.2d 487. The dissent asserted that "even assuming" there were evidentiary errors, Reber could not meet the prejudice prong of plain error review because he failed to show "that the jury’s verdict probably would have been different had the jury not heard this testimony." Id. at 83–84, 887 S.E.2d 487 (Dillon, J., dissenting). The dissent also concluded that the statements during closing argument were not grossly improper and therefore not reversible error. Id.

The State filed a timely notice of appeal based on the dissent. See N.C.G.S. § 7A-30(2) (2023).

Analysis

I. Evidentiary challenges

[1] We begin with the Court of Appeals’ analysis of Reber’s evidentiary challenges. Reber’s appeal from the admission of his cross-examination testimony turns on the application of a standard of review known as "plain error." Ordinarily, to preserve an issue for appellate review, a litigant must raise the issue and secure a ruling from the trial court. N.C. R. App. P. 10(a)(1). For evidentiary and instructional errors, this typically requires the party challenging the evidence or jury instruction to make a timely objection. Id. Without an objection, that error is deemed unpreserved, and the issue is therefore waived on appeal. State v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326 (2012).

[2] This preservation rule serves crucial functions in our justice system. First, and most obviously, it promotes the efficiency of a justice system with limited resources. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375 (1983). When a party alerts the trial court of a potential error, the court can correct it. For example, with an evidentiary objection, the trial court can refuse to admit the evidence or offer a limiting instruction to the jury. If the error is not identified until after the trial, the only option is to set aside the judgment and order a new trial. See id. This is an incredibly costly alternative.

[3] Second, this preservation rule reduces the risk of "gamesmanship" in the appellate process. State v. Bursell, 372 N.C. 196, 199, 827 S.E.2d 302 (2019). As noted above, when there is a reversible evidentiary or instructional error in a criminal trial, the remedy on appeal is to vacate the judgment and remand for a new trial. A preservation requirement "prevents parties from allowing evidence to be introduced or other things to happen during a trial as a matter of trial strategy and then assigning error to them if the strategy does not work." Id. (cleaned up).

Despite the important functions of this preservation rule, its application can be harsh. There will be times when the lack of preservation means the trial court committed a reversible error but the aggrieved party cannot raise that error on appeal.

[4] Plain error exists for the rare cases where the harshness of this preservation rule vastly outweighs its benefits. When we first recognized the rule in Odom, we emphasized that it was available only in extraordinary cases. 307 N.C. at 660, 300 S.E.2d 375. We explained that it should be "applied cautiously and only in the exceptional case," that it is reserved for "grave error which amounts to a denial of a fundamental right of the accused," and that it focuses on error that has "resulted in a miscarriage of justice" or the denial of a "fair trial." Lawrence, 365 N.C. at 516-17, 723 S.E.2d 326 (quoting Odom, 307 N.C. at 660, 300 S.E.2d 375),

[5, 6] When we issued our "doctrinal statement" on plain error in Lawrence, we incorporated these principles into a three-factor test: First, the defendant must show that a fundamental error occurred...