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They were using flashlights to see because the power in the house had been turned off. home, and while they were there he had her bend over onto the couch and he had anal intercourse." Melissa responded to Nora that this "was a very strong allegation, that if she wasn't being completely honest that she would put her father, [Defendant], into a serious situation, that he could go to jail." Melissa further stated that Nora "needed to be completely honest." Nora responded that "she was being honest and truthful and she understood what could happen." Melissa informed Nora's uncle about the incident, and he told his wife, Tammy — Defendant's sister — who had served as a "mother figure" to Nora, Emma, and Mia. Between me and my dad." Leslie responded "No" but then wrote, "Sexually? "[U]nder Rule 404(b), evidence of prior sex acts may have some relevance to the question of [the] defendant's guilt of the crime charged if it tends to show a relevant state of mind such as intent, motive, plan, or opportunity." State v. The facts giving rise to this appeal are briefly discussed in our opinion dismissing Defendant's direct appeal from his convictions. One evening in August of 2008, Nora's sisters were at their grandmother's trailer while she and Defendant were alone in their house moving boxes into their van. The single-wide trailer required a substantial amount of painting and cleaning so Defendant and the girls spent the majority of the summer working on it. In order to show deficiency, he was required to demonstrate that Casterline's failure to assert plain error fell below an objective standard of reasonableness for an appellate attorney. 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. Rule 404(b) provides, in pertinent part, as follows: (b) Other crimes, wrongs, or acts. Nora testified that on 25 July 2009 all of the family members were cleaning the trailer and she was painting the living room. To establish prejudice, he was required to show a reasonable probability existed that this Court would have found on direct appeal both that (1) the admission of the testimony of Melissa and Tony under Rule 404(b) constituted error; and (2) the error in admitting this evidence was so prejudicial that it rose to the level of plain error. 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. — Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. LEXIS 1071 (unpublished) (hereinafter "Mills I"), disc. Between 19, Defendant and Nora's mother had two daughters of their own ("Emma" and "Mia"), who were half-sisters to Nora. E.2d 475, 477 (1987) (citations and quotation marks omitted). E.2d at 201 (citation and quotation marks omitted). We do not require that the similarities rise to the level of the unique and bizarre." Beckelheimer, 366 N. Furthermore, the incidents with both Tony and Nora occurred in a family residence. After the woman gave birth to her daughter ("Nora"), Defendant treated Nora as his own daughter despite the fact that he was not Nora's biological father. With regard to the similarity requirement, "[p]rior acts are sufficiently similar if there are some unusual facts present in both crimes that would indicate that the same person committed them. Tony was also related to Defendant and was close in age to Nora at the time of the incident described. For some 404(b) purposes, remoteness in time is critical to the relevance of the evidence for those purposes; but for other purposes, remoteness may not be as important.
Emma testified that she was able to see Defendant and Nora painting and never witnessed any sexual contact between them. "To show prejudice in the context of appellate representation, a petitioner must establish a reasonable probability he would have prevailed on his appeal but for his counsel's unreasonable failure to raise an issue." State v.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. At some point that evening, Defendant told Nora to come inside the house and "to go onto the couch." Defendant instructed Nora to "stick [her] bottom up in the air and he pulled [her] pants down." She testified that he then had anal intercourse with her. ." Nora ultimately told Melissa that she and Defendant had gone "to move some furniture out of the . Nora's grandmother also learned about the incident around this same time. " Leslie testified that Nora "just kind of gave me the eye." That same day, Nora told Leslie that "something had happened" between her and Defendant.
Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. 4 Appeal by defendant from order entered 13 September 2016 by Judge Marvin P. Later that night, Nora used her grandmother's cell phone to text Defendant's adult niece ("Melissa") that she "needed to tell [Melissa] something, but she was afraid to . When her grandmother asked if the incident had actually occurred, Nora "[t]old [her] grandma it didn't [happen]." On two to three occasions over the next ten days, Tammy asked Nora about the "rumors that something had happened between her and her dad." During these conversations, Nora "would either not say anything or say, no, it didn't happen, or I don't want to talk about it." In November or December 2008, Nora was sitting in church with another one of Defendant's adult nieces, Leslie, when Nora wrote on a piece of paper, "Did you hear what happened to me? Nora did not provide specific details to Leslie and stated that she did not want to involve law enforcement.
Jaquins and Browning each interviewed Nora separately, and Browning conducted a medical examination of Nora.
Nora informed both Jaquins and Browning that the first time "her dad had had her have sex with him" was "at their old house." She said this incident had occurred "last year or the year before that" and that he had "told her to go in there and put her butt up towards the ceiling, then he came in there and stuck his penis in her butt." She recounted that the second time it happened "they were over at the trailer" and he "started touching her on her breasts and her butt" and then "told [her] to stick [her] butt up in the air, and he stuck his penis in [her] butt again." She stated that the first incident occurred on the couch in the family's living room and that the second incident occurred when her sisters were outside painting the trailer.