State v. Young

IN THE SUPREME COURT OF NORTH CAROLINA

No. 124PA14
(Filed 21 August 2015)

STATE OF NORTH CAROLINA

v.

JASON LYNN YOUNG

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 756 S.E.2d 768 (2014), vacating a judgment

entered on 5 March 2012 by Judge Donald W. Stephens in Superior Court, Wake

County, and remanding for a new trial. Heard in the Supreme Court on 19 May 2015.

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

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

ERVIN, Justice.

Defendant Jason Lynn Young was convicted of the first-degree murder of his

wife, Michelle Fisher Young. A unanimous panel of the Court of Appeals vacated

defendant’s conviction and ordered a new trial. We now reverse the Court of Appeals’

decision and remand this case to the Court of Appeals for consideration of defendant’s

remaining challenges to the trial court’s judgment.
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Opinion of the Court

I. Factual Background

A. Substantive Facts

1. State’s Evidence

a. Youngs’ Marital Difficulties

As of 2 November 2006, the Youngs had been married for slightly more than

three years. The Youngs’ friends assumed that their courtship, which had been less

than idyllic, resulted in marriage solely because Ms. Young became pregnant. The

Youngs’ relationship was described as “volatile,” with the couple tending to argue in

public over relatively petty matters. Ms. Young’s sister, Meredith Fisher, thought

that defendant was irresponsible and treated Ms. Young poorly. Although Meredith

Fisher told Ms. Young that she should leave defendant, Ms. Young made no effort to

divorce her husband. On one occasion, defendant told a friend that he was afraid

that, if he and Ms. Young divorced, Ms. Young would leave the Raleigh area and move

to New York with their two-and-one-half-year-old daughter, Emily.1

Among the sources of conflict which the Youngs experienced was the role

played by Ms. Young’s mother, Linda Fisher, who visited the Youngs for extended

periods of time, wanted to move to North Carolina so that she could spend more time

with her daughter and granddaughter, and offered to renovate the Youngs’ house so

that she could live there. Although Ms. Young wanted to have her mother’s

1 “Emily” is a pseudonym used throughout this opinion to protect the identity of the
Youngs’ daughter.

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assistance with the family cooking, cleaning, and child care responsibilities,

defendant was adamantly opposed to sharing a residence with Linda Fisher.

On 12 September 2006, defendant sent an e-mail to an address that had been

used by his former fiancée, Genevieve Cargol. During their engagement, defendant

had engaged in acts of domestic violence against Ms. Cargol, including an incident in

which he forcibly removed the engagement ring that he had given her. Although he

had not had any contact with her for a couple of years, defendant professed his love

for Ms. Cargol in the 12 September 2006 e-mail while indicating that he did not

intend to act on his feelings.

At the end of September 2006, defendant began communicating on a regular

basis with Michelle Money, who was one of Ms. Young’s college sorority sisters and

who believed that her husband was being unfaithful to her. On 7 October 2006,

defendant mailed an anniversary card to Ms. Young from Orlando, Florida, where he

had gone to spend time with Ms. Money. Defendant had sexual intercourse with Ms.

Money during his visit to her in Orlando and informed a friend that he had fallen in

love with Ms. Money. In the thirty days prior to 2 and 3 November 2006, defendant

and Ms. Money exchanged over 400 calls and text messages.

About ten days prior to Ms. Young’s death, defendant had sexual intercourse

with Carol Ann Sowerby, another family friend, in the Youngs’ residence. Ms. Young

was out of town at the time that this incident occurred. On that occasion, defendant

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Opinion of the Court

took Ms. Sowerby’s wedding ring from her and pretended to swallow it. However,

defendant returned Ms. Sowerby’s ring on the following day.

The Youngs e-mailed each other on 24 October 2006 about the extent to which

they should undergo marriage counseling. Although defendant reiterated his

willingness to attend counseling sessions, he reminded Ms. Young that the two of

them had agreed that she would obtain individual counselling first. During a session

with a therapist on 27 October 2006, Ms. Young stated that she was upset that

defendant waited until the end of the weekend before doing his household chores,

that their childless friends had more money than the Youngs did, that defendant

wanted their relationship to be more sexual in nature, and that defendant drank at

tailgate parties. On the other hand, Ms. Young told the therapist that her current

pregnancy was planned.

About three weeks prior to Ms. Young’s death, defendant told a friend after

having had an argument with his wife that “he was done.” On 27 October 2006,

defendant stated in the presence of both Ms. Young and Meredith Fisher that “all of

this would just, you know, go away if you’d let me have a girl on the side.” Although

Ms. Young did not claim to have been physically abused by her husband, the therapist

concluded that Ms. Young had experienced verbal abuse. Ms. Young told Meredith

Fisher that defendant had thrown a remote control device at her on 1 November 2006.

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Opinion of the Court

b. Events Occurring on 2-3 November 2006

i. Events Involving Ms. Young

As a result of the fact that defendant was scheduled to conduct a sales call in

Clintwood, Virginia, at 10:00 a.m. on Friday, 3 November 2006, Ms. Young made

plans to spend the evening of 2 November 2006 with her friend Shelly Schaad, whose

husband was also expected to be out of town on the evening in question. When Ms.

Schaad arrived at the Youngs’ residence at approximately 6:30 p.m. on 2 November

2006, she was surprised to discover that defendant was still at home. Although he

was invited to stay and dine with Ms. Schaad and Ms. Young, defendant declined this

invitation and indicated that he planned to eat at a Cracker Barrel while en route to

Galax, Virginia, where he intended to spend the night before continuing on to

Clintwood in the morning.

After Ms. Schaad and Ms. Young ate dinner, they bathed Emily, diapered her,

and dressed her in her pajamas. During this process, Ms. Young told Ms. Schaad

that she and defendant had been arguing about plans for the upcoming holidays.

Although Ms. Young wanted Linda Fisher to stay with the family from Thanksgiving

through Christmas, defendant was opposed to such a lengthy visit. While Ms. Schaad

and Ms. Young watched Grey’s Anatomy, defendant made one of the seven calls that

he placed to the house that evening.

In view of the fact that she had an “eerie feeling” that the house was being

watched, Ms. Schaad asked Ms. Young to walk her to her car when she left the

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Opinion of the Court

Youngs’ residence between 10:00 and 10:30 p.m. According to Terry Tiller, a

newspaper delivery person, certain interior, exterior, and driveway lights were on

and a light-colored SUV was positioned in the yard or on the street in front of the

Youngs’ residence when she passed it between 3:30 and 4:00 a.m. on 3 November

2006.

ii. Events Involving Defendant

After buying gas in Raleigh at 7:30 p.m. on 2 November 2006, defendant called

his mother, Pat Young. During this conversation, defendant discussed his business

trip, his plans for the Thanksgiving holiday, and certain items of furniture that his

mother planned to give him. Among other things, defendant told Pat Young that he

would check with Ms. Young to see if he could spend Friday night at his mother’s

residence in Brevard in order to pick up the furniture that Pat Young planned to give

him before leaving for Raleigh early Saturday morning.

After purchasing dinner at a Cracker Barrel restaurant in Greensboro at 9:25

p.m., defendant traveled in his white Ford Explorer to Hillsville, Virginia, where he

checked into a Hampton Inn at 10:54 p.m. According to surveillance camera footage

taken at both the Hampton Inn and the Cracker Barrel, defendant was wearing a

light shirt, jeans, and brown slip-on shoes. Although defendant entered his hotel

room using a key card at 10:56 p.m., he never used that key card again. Just before

midnight, hotel surveillance cameras showed defendant at the front desk and as he

walked down a hallway leading to both the stairs providing access to the upper floors

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Opinion of the Court

and to an exit door on the western end of the hotel. At that time, defendant was

wearing a darker-colored shirt with a light-colored horizontal stripe across the chest.

No further images of defendant appear on surveillance footage taken at the hotel

during the remainder of the night of 2 to 3 November 2006.

Keith Hicks, an employee of the Hillsville Hampton Inn, slid checkout receipts

under the doors leading to occupied guest rooms between 3:00 and 5:00 a.m. on 3

November 2006. At approximately the same time, Mr. Hicks hung copies of the

weekend edition of USA Today on the door handles of the same rooms. After taking

advantage of the Hampton Inn’s express checkout service, defendant left the hotel on

3 November 2006 without going to the front desk. As a result of the fact that he did

not check out in person, the Hampton Inn had no record of the actual time at which

defendant left the premises. However, defendant did call his mother at 7:40 a.m. on

3 November, with this call having been made using a cell tower near Wytheville,

Virginia. Defendant arrived about thirty minutes late for his 10:00 a.m. sales call.

iii. Defendant’s Testimony at the First Trial

In his testimony at the first trial, which the State introduced into evidence at

the second trial, defendant denied having killed his wife, having been present when

she was killed, or having any knowledge of who had killed her. Although defendant

admitted that he had not been a good husband, he claimed that he loved his wife,

wanted their marriage to work, and was ecstatic that his wife had become pregnant

with a boy before her death. Defendant did not believe that he and Ms. Young argued

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Opinion of the Court

more than other couples. Instead, defendant thought that the only difference between

the Youngs and other couples was that the Youngs argued more in public. Defendant

denied having ever assaulted his wife.

In November 2006, defendant had obtained a new job selling electronic health

records software. After his employer set up the Clintwood sales call for relatively

early on the morning of 3 November 2006, defendant decided to stay overnight at a

hotel between Raleigh and Clintwood instead of attempting to make the entire drive

that morning. Upon checking in at the Hillsville Hampton Inn on the night of 2

November, defendant called both his wife and Ms. Money. As a result of the fact that

he was nervous about the sales call that he was scheduled to make the following

morning, defendant decided to review the demonstration software that he intended

to use during that meeting. However, when he began the review process, defendant

discovered that he had left his laptop charger in his car.

Upon making this determination, defendant left the door to his room unlatched

and walked downstairs to the exit nearest to the place where he had parked. In view

of the fact that the exit door would not open from the exterior without a key card and

the fact that he had left his key card in his room, defendant broke a stick off of a

nearby shrub and stuck it in the door while he went to retrieve his charger. After

returning to his room and reviewing the materials for the upcoming sales meeting,

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Opinion of the Court

defendant decided to obtain a copy of USA Today and smoke a cigar.2 As a result,

defendant left his room without fully closing the door for a second time, got a copy of

USA Today from the desk clerk, walked down a hallway to the exit door, stuck

another stick in the door, and went outside to smoke his cigar. Once he had finished

his cigar, defendant re-entered the hotel, returned to his room, and went to sleep.

Defendant claimed that he had been late to his sales call in Clintwood on the following

morning because he had gotten lost.

iv. Testimony of Ms. Calhoun

The Four Brothers BP in King, North Carolina, a service station located at an

exit along the most direct route between Raleigh and Hillsville, was the only location

at which gasoline could be purchased at that exit in the early morning hours of 3

November 2006.3 According to Gracie Calhoun, an employee at the Four Brothers BP

station, a man drove a white SUV to the farthest pump at approximately 5:00 to 5:30

a.m. on 3 November 2006 and made repeated efforts to pump gas. After the man

entered the store and cursed her because the pumps were not operational, Ms.

Calhoun told the prospective customer that, at that time of day, customers must

provide money or identification before the gasoline pumps would be activated. At

2A number of witnesses testified that defendant did not smoke and hated smoking.
However, a humidor was found in the Youngs’ house after Ms. Young’s death and a credit
card owned by Ms. Young was used to purchase cigars in 2004.

3An investigating officer made the trip from Hillsville to Raleigh in a Ford Explorer
during a time when traffic was light in two hours and twenty-five minutes.

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Opinion of the Court

that point, the man, whom Ms. Calhoun identified from a photograph presented to

her by investigating officers and in open court as defendant,4 threw twenty dollars in

cash at her, returned to the pump at which his vehicle was parked, and pumped

fifteen dollars’ worth of gasoline into his vehicle before driving off without collecting

his change. According to receipts obtained by investigating officers, a fifteen dollar

gasoline purchase was made at the Four Brothers BP station at 5:27 a.m. on 3

November 2006 and a twenty dollar gasoline purchase was made at the Four Brothers

BP station some nine minutes later.

v. Hampton Inn Security Cameras

Early on 3 November 2006, Mr. Hicks discovered that the first floor emergency

door that led from the western stairwell to the exterior of the hotel and that is

ordinarily locked between 11:00 p.m. and 6:00 a.m. had been propped open with a

small red rock that had been obtained from a nearby landscaping bed. After removing

the rock, Mr. Hicks shut the door. Upon returning to the front desk, at which still

images from the ten surveillance cameras utilized in the hotel could be observed on a

rotating basis, Mr. Hicks noticed that the camera in the stairwell associated with the

door that had been propped open was not working and returned to that stairwell to

investigate the situation. At that point, Mr. Hicks noticed that the camera had been

4 In her trial testimony, Ms. Calhoun claimed to have been face-to-face with the man
in the store and to have gotten a good look at him. On cross-examination, Ms. Calhoun
acknowledged that she had been hit by a truck when she was six years old and sustained a
brain injury for which she continued to collect disability benefits and which had left her with
lasting memory problems.

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Opinion of the Court

unplugged, with the last image shown on that camera having been made at 11:19:59

p.m. on 2 November 2006. No images were made on the camera in question from

11:20:13 p.m. on 2 November 2006 until Elmer Goad, a Hampton Inn maintenance

employee, plugged it back in at 5:50 a.m. on 3 November 2006. However, the camera

in question did not remain fully operational for long, since someone pointed it toward

the ceiling between 6:34 and 6:35 a.m.

c. Discovery of Ms. Young’s Body

Meredith Fisher arrived at the Youngs’ residence at around 1:00 p.m. on 3

November 2006 in response to a request from defendant, who had left a voice mail on

her cell phone asking her to go the house to pick up the printouts relating to an eBay

search for Coach purses that defendant had conducted before leaving on his sales trip

so that Ms. Young would not find them. According to Meredith Fisher, defendant

claimed that he had been thinking of surprising his wife with a purse as a belated

anniversary present.

After arriving at the house, Meredith Fisher entered the residence through the

unlocked garage and went into the kitchen. As she walked upstairs in the direction

of the home office, Meredith Fisher saw what looked like red hair dye in the bathroom

that Emily normally used. Meredith Fisher saw more of the red substance on the

upstairs landing and in the master bedroom. Once Meredith Fisher had seen her

sister’s body on the floor of the master bedroom, she realized that the red substance

that she had observed at various locations throughout the house was blood.

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As Meredith Fisher called 911, Emily, who was not wearing a diaper, emerged

from under the covers on the bed in the master bedroom. Emily repeatedly asked

that she be given band-aids on the grounds that Ms. Young had “boo-boos

everywhere.”5 In response to an inquiry posed by the 911 operator about the extent

to which Ms. Young had “personal problems,” Meredith Fisher replied, “Um not

really. You know her and her husband fight a little bit, but nothing too ridiculous.”

A paramedic who came to the Youngs’ residence in response to Meredith

Fisher’s call confirmed that Ms. Young had been dead for some time. In addition, the

paramedic checked Emily and determined that she was calm, had not sustained any

injuries, and was not dehydrated. As a result of the fact that Emily was clean except

for the presence of dried blood on her toenails and the bottom and seat of her pajama

pants, an officer asked Meredith Fisher if she had cleaned Emily and received a

negative answer.

d. Investigative Discoveries

A large amount of dried blood was found around Ms. Young’s body, which was

discolored, cold, and stiff. In addition, blood spattering appeared on the walls of the

master bedroom. According to Dr. Thomas Clark, who performed the autopsy on her

body, Ms. Young died from blunt force trauma to her head. Although he did not

5After returning to day care following Ms. Young’s death, Emily was observed striking
two dolls against each other. When asked what she was doing, Emily said that the “mommy
doll” was being “spanked” for biting and was covered with “red stuff” and “boo-boos.”

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express any opinion concerning the time at which Ms. Young had died, Dr. Clark did

state that Ms. Young had sustained at least thirty blows, the most serious of which

had probably been inflicted with a heavy blunt object featuring a rounded surface

that caused crescent-shaped skull fractures. In addition, Dr. Clark found signs that

Ms. Young had been subjected to manual strangulation. Although Ms. Young had

sustained a broken jaw, skull fracturing, brain hemorrhaging, lacerations, abrasions,

and dislodged teeth, there was no evidence that she had been the victim of a sexual

assault. Ms. Young was approximately twenty weeks pregnant with a son at the time

of her death.

Emily’s bloody footprints were visible on the floor of the master bedroom, her

bathroom, and the second floor landing. In addition, blood smears at the level of a

child’s height were present in Emily’s bathroom. The only blood found outside of the

second floor of the Youngs’ home appeared on the doorknob leading from the kitchen

to the garage, with the DNA markers present in this bloodstain being consistent with

Ms. Young’s DNA.

Although defendant’s DNA and fingerprints were present in the bedroom, none

of his fingerprints were blood-stained. At the time that he was examined by officers

of the Wake County Sheriff’s Office on 7 November 2006, defendant did not have any

cuts, bruises, or other injuries to his hands or body aside from a bruised and broken

toenail. In addition, investigating officers failed to find any evidence of blood in or on

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defendant’s vehicle, defendant’s clothes, or the hotel room in which defendant stayed

on 2 November 2006.

According to Agent Michael Smith of the Federal Bureau of Investigation,

Agent Andy Parker of the Raleigh/Wake City-County Bureau of Identification, and

Special Agent Karen Morrow of the State Bureau of Investigation, bloody footwear

impressions made by two distinct shoe types appeared on pillows found near Ms.

Young. One of these two sets of footprints was consistent with the impressions that

would be made by size twelve Hush Puppy Orbital, Sealy, and Belleville shoes, all of

which have the same outsole design. The other set of impressions was made by a

shoe type consistent with a size ten Air Fit or Franklin athletic shoe. According to

Special Agent Morrow and Special Agent Greg Tart of the SBI, defendant had

purchased a pair of size twelve Hush Puppy Orbitals on 4 July 2005, which defendant

claimed had been donated to Goodwill. The State never produced a pair of shoes that

matched either of these sets of impressions, although investigating officers recovered

two pairs of brown shoes from defendant’s vehicle on 3 November 2006.6

A careful examination of the Youngs’ residence indicated that there were no

signs that entry had been forced or that the house had been ransacked. However,

investigating officers determined that two drawers had been removed from a jewelry

6 A checkout receipt from the Hillsville Hampton Inn and a copy of the weekend
edition of USA Today were recovered from defendant’s Ford Explorer on 3 November 2006
as well.

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box in the master bedroom. DNA testing performed on the jewelry box revealed the

presence of four markers that were not consistent with either of the Youngs’ DNA.

According to Meredith Fisher, Ms. Young “didn’t really have a lot of fancy jewelry”

with the exception of her wedding and engagement rings, which she rarely removed

and did not keep in the jewelry box. Neither of the rings that Meredith Fisher

mentioned was found on Ms. Young’s body or ever recovered.

According to Agent Beth Whitney of the CCBI, Internet searches for purses

were made on the Youngs’ computer between 7:05 p.m. and 7:23 p.m. on 2 November

2006. Although three fingerprints were lifted from the eBay printouts generated as

a result of these searches, only one of them was defendant’s, with the other two

fingerprints remaining unidentified at the time of trial. In addition, investigating

officers determined that someone had checked defendant’s personal e-mail account

and that MapQuest inquiries for directions between Raleigh and Clintwood had been

made on the Youngs’ computer on the evening of 2 November 2006 as well. Agent

Whitney also discovered that, at some undetermined time, Internet searches

concerning the “anatomy of a knockout,” “head trauma blackout,” “head blow

knockout,” and “head trauma” had been conducted on the Youngs’ computer, which

defendant explained as having been related to an accident that he had witnessed.

Finally, an examination of defendant’s laptop computer revealed no indication that

that machine had been used for any work-related purpose on the night of 2 to 3

November 2006.

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2. Defendant’s Evidence

On the afternoon of 3 November 2006, Linda Fisher called Pat Young and told

her that Ms. Young was dead. At that time, defendant was driving from Virginia to

Pat Young’s residence in Brevard. After defendant’s arrival in Brevard, his

stepfather told defendant of Ms. Young’s death. Upon receiving this information,

defendant sank to the ground in disbelief. In addition, defendant sobbed after

Meredith Fisher told him that Ms. Young’s death had been a homicide.

Shortly after his arrival in Brevard, defendant and various members of his

family left for Raleigh in defendant’s Explorer, from which defendant’s luggage had

not been removed. As he traveled to Raleigh, defendant received calls from friends

who told him that investigating officers had been asking Meredith Fisher and others

if the Youngs had been having marital problems and suggested that he refrain from

talking to investigating officers before consulting an attorney. In accordance with

advice that he received from his counsel, defendant never answered any questions

posed by investigating officers or discussed Ms. Young’s death with friends or family

members.

A newspaper delivery person drove by the Youngs’ home at approximately 3:50

a.m. on 3 November 2006 without noticing anything unusual. Cynthia Beaver

noticed that the house and driveway lights were on and that a light-colored “soccer-

mom car” in which a white male was seated in the driver’s seat and another person,

who was possibly female, was seated in the passenger seat, was positioned at the edge

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of the driveway associated with the Youngs’ residence when she drove by at

approximately 5:20 to 5:30 a.m. on the same date. When Fay Hinsley drove past the

Youngs’ house at approximately 6:15 a.m. on 3 November 2006, she observed an

empty SUV positioned at the edge of the driveway. Although she testified that the

car she had seen was not on Birchleaf Drive, on which the Youngs’ residence was

located, Ms. Hinsley insisted that she had seen the car at the Youngs’ house.

B. Procedural History

On 14 December 2009, the Wake County Grand Jury returned a bill of

indictment charging defendant with murdering Ms. Young. The charge against

defendant came on for trial before the trial court and a jury at the 31 May 2011

criminal session of the Superior Court, Wake County. On 27 June 2011, the trial

court declared a mistrial after the jury announced that it could not reach a unanimous

verdict.

The charge against defendant came on for trial a second time at the 17 January

2012 session of the Superior Court, Wake County, before the trial court and a jury.

On 5 March 2012, the jury returned a verdict convicting defendant of first-degree

murder. Based upon the jury’s verdict, the trial court entered a judgment sentencing

defendant to a term of life imprisonment without parole. Defendant noted an appeal

to the Court of Appeals from the trial court’s judgment.

Before the Court of Appeals, defendant argued that the trial court had

committed prejudicial error by allowing the admission of evidence concerning a

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complaint that had been filed and default judgments that had been entered in a

wrongful death and declaratory judgment action that had been brought against him

by Linda Fisher as executrix of Ms. Young’s estate and a complaint that had been

filed in an action in which Linda Fisher and Meredith Fisher sought to obtain custody

of Emily from defendant. State v. Young, __ N.C. App. __, __, 756 S.E.2d 768, 778

(2014). On 1 April 2014, the Court of Appeals filed an opinion holding that the trial

court had committed prejudicial error by admitting evidence concerning the

complaint and default judgments in the wrongful death and declaratory judgment

action and the complaint in the child custody case on the grounds that the admission

of the challenged evidence violated N.C.G.S. § 1-149, and N.C.G.S. § 8C-1, Rule 403.

Id. at __, __, 756 S.E.2d at 782-84. We now reverse the Court of Appeals’ decision and

remand this case to the Court of Appeals for consideration of defendant’s remaining

challenges to the trial court’s judgment.

II. Legal Analysis

A. Relevant Factual Information

1. Wrongful Death Action

At the second trial, the State was allowed to introduce evidence concerning a

civil action that had been filed against defendant. On 29 October 2008, Linda Fisher,

acting in her capacity as the executrix of Ms. Young’s estate, filed a complaint seeking

a damage recovery from defendant for wrongful death and a declaration that

defendant was disqualified from receiving any monetary benefit as the result of Ms.

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Young’s death pursuant to the provisions of Chapter 31A of the General Statutes.

After defendant failed to file an answer or other responsive pleading, the estate

sought the entry of default judgments against defendant. The estate’s motion for the

entry of a default judgment in the declaratory judgment action was heard before the

trial court on 5 December 2008, at which point the trial court reviewed the record and

certain affidavits that had been submitted in support of the estate’s request for a

declaratory judgment and entered a judgment determining that defendant had

“unlawfully killed” Ms. Young, and was a “slayer” as that term is used in N.C.G.S. §

31A-3(3)d. Subsequently, Judge W. Osmond Smith, III, entered a default judgment

in the wrongful death action awarding damages in excess of fifteen million dollars to

Ms. Young’s estate.

At trial, the State called Lorrin Freeman, who served as Clerk of Superior

Court for Wake County at that time, for the purpose of testifying concerning the

wrongful death and declaratory judgment action.7 At that point, defendant’s trial

counsel objected “to the entire line of questioning about the wrongful death case.”

Defense counsel added: “And we would cite basically Rule 403, that we believe that

to the extent [that it’s] probative of anything that the danger of confusing, misleading,

undue prejudice to the defendant substantially outweighs the probative value, and

7 At the time that the State made reference to evidence concerning the wrongful death
and declaratory judgment action in its opening statement, defendant’s trial counsel objected
to the prosecutor’s argument. After initially sustaining defendant’s objection, the trial court
allowed the prosecutor to argue that defendant “allowed a civil judgment to be entered
against him.”

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don’t wish to be heard further.” In response, the trial court ruled that the fact that a

wrongful death and declaratory judgment action had been filed and that defendant,

the primary beneficiary under Ms. Young’s policy of life insurance,

elected to be defaulted and in response to the wrongful
death action and permitted by law for the Court to enter a
judgment disqualifying him from benefiting from the death
of Michelle Young may be a factor, that is, might be
relevant to any number of matters that the jury has
already heard and will hear and are considering, and so I
do believe it’s relevant and I do believe that the probative
value outweighs any prejudicial effect.

After making this ruling, the trial court indicated that it would instruct the jury about

“the law relating to a civil action and a civil judgment,” “the obligation of the

defendant named to answer,” and the law allowing entry of a default judgment in the

event that a defendant failed to file an answer or other responsive pleading.

After the prosecutor asked Ms. Freeman whether a civil action had been filed

against defendant by Linda Fisher on behalf of Ms. Young’s estate, defendant lodged

another objection. After overruling the objection, the trial court outlined the

procedures utilized in civil actions, advised the jury that judgment could be entered

in the plaintiff’s favor in the event that the defendant failed to respond to the

plaintiff’s complaint, explained to the jury that allegations made in a civil complaint

are deemed to have been admitted when no responsive pleading is filed “whether

actually true or not,” and instructed the jury that the entry of a “civil judgment is not

a determination of guilt by any court that the named defendant has committed any

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criminal offense.” Following the delivery of these instructions, which the trial court

indicated would be supplemented at the conclusion of the trial, Ms. Freeman

explained the nature of a wrongful death action and an action pursuant to N.C.G.S.

§ 31A-3(3)d; read the allegation contained in the complaint to the effect that, “[i]n the

early morning hours of November 3rd, 2006 Jason Young brutally murdered Michelle

Young at their residence”; reported that defendant never filed an answer or other

responsive pleading in the wrongful death and declaratory judgment action; stated

that a hearing at which Ms. Young’s estate intended to seek the entry of a default

judgment in the declaratory judgment action pursuant to N.C.G.S. § 31A-3(3)d was

noticed for 5 December 2008; confirmed that this notice of hearing had been served

on defendant and Roger Smith, Jr., an attorney with whom defendant had consulted

during the investigation of Ms. Young’s death; indicated that various items of

evidence were presented for the trial court’s consideration; and, over a renewed

objection, testified that the trial court had entered a default judgment in the

declaratory judgment action finding that defendant had “unlawfully killed [Ms.

Young] . . . within the definition of [s]layer in the civil law.” At a later time, Ms.

Freeman testified, Judge Smith entered a default judgment in the wrongful death

action in which he awarded Ms. Young’s estate “[o]ver $15 million.”8

8Similarly, Michael Schilawski, who represented Linda Fisher and Meredith Fisher
in the child custody action, testified, without objection, that the trial court stated in its
declaratory ruling judgment that defendant “quote, [w]illfully and unlawfully killed,
unquote, [Ms. Young], and as a result of that judgment the defendant is barred from collecting

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Opinion of the Court

On cross-examination, Ms. Freeman testified that the attorneys representing

Ms. Young’s estate in the wrongful death and declaratory judgment action filed

affidavits in support of the estate’s motion for the entry of a default judgment,

described the items that those attorneys examined during their investigation into the

validity of the claims that the estate had asserted against defendant, and stated the

amount of money that the estate and its attorneys had obtained as a result of the

entry of these default judgments. On redirect examination, Ms. Freeman testified

that an autopsy report concerning the cause of Ms. Young’s death was contained in

the file relating to the wrongful death and declaratory judgment action and that the

affidavit executed by one of the attorneys who represented Ms. Young’s estate in those

proceedings had asserted that, “in his opinion . . . [defendant] brutally murdered [Ms.]

Young at their residence.”

At the conclusion of the trial, the trial court delivered additional instructions

to the jury concerning the manner in which they should consider the evidence that

they had heard concerning the wrongful death and declaratory judgment action.

More specifically, the trial court instructed the jury that:

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

any insurance proceeds payable on [Ms. Young’s] life or from inheriting any property from
[Ms. Young’s] estate.”

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Opinion of the Court

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 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.

Neither party lodged any objection to this portion of the trial court’s instructions to

the jury concerning the evidence relating to the wrongful death and declaratory

judgment action.

2. Child Custody Action

On 17 December 2008, Linda Fisher and Meredith Fisher filed a complaint

seeking the entry of an order awarding them custody of Emily after defendant had

denied their requests for access to his daughter. In their complaint, Linda Fisher and

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Opinion of the Court

Meredith Fisher alleged that defendant had “brutally murdered” Ms. Young and that,

“[u]pon information and belief, [Emily] was in the residence at the time [defendant]

murdered her mother.” In their prayer for relief, Linda Fisher and Meredith Fisher

requested that defendant be subject to discovery and submit to a psychological

evaluation. After the filing of this custody action, defendant entered into a consent

judgment with Linda Fisher and Meredith Fisher pursuant to which the parties

agreed that Meredith Fisher would have primary physical custody of Emily and that

no discovery or psychological examination of defendant would be conducted.

The child custody action initially came to the jury’s attention during the cross-

examination of Meredith Fisher, when defendant’s trial counsel asked her about the

filing of the child custody complaint and the request that defendant be subject to a

psychological examination. After the State, without objection, sought and obtained

the admission of the child custody complaint into evidence, Mr. Schilawski testified,

also without objection, that Linda Fisher and Meredith Fisher had alleged in the child

custody complaint that, “[i]n the early morning hours of November 3rd, 2006 the

defendant brutally murdered [Ms. Young] at their residence” at a time when Ms.

Young “was pregnant with defendant’s son” and, upon information and belief, when

Emily “was in the residence.” After defendant filed a motion seeking a change of

venue, the parties entered into negotiations resulting in the entry of a consent

judgment under which “primary physical custody was awarded to Meredith Fisher”

after the completion of a transitional process, the parties “waive[d] the right to

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Opinion of the Court

conduct discovery with respect to each other,” and defendant was absolved from any

responsibility for submitting to a psychological evaluation.

B. Admissibility of the Challenged Evidence

The Court of Appeals held that the trial court erred by allowing the admission

of evidence concerning the wrongful death and declaratory judgment complaint and

default judgments and the child custody complaint on the grounds that the trial

court’s decision contravened N.C.G.S. § 1-149 and N.C.G.S. § 8C-1, Rule 403. We do

not, however, believe that defendant properly preserved his challenge to the

admission of any of the challenged evidence on the basis of N.C.G.S. § 1-149 for

purposes of appellate review. In addition, we do not believe that defendant properly

preserved his challenge to the admission of evidence concerning the child custody

complaint for purposes of appellate review on any grounds. Finally, we conclude that

defendant’s challenge to the admission of evidence concerning the wrongful death and

declaratory judgment complaint and judgments as violative of N.C.G.S. § 8C-1, Rule

403 lacks merit. As a result, the Court of Appeals’ decision must be reversed and this

case remanded to the Court of Appeals for consideration of defendant’s remaining

challenges to the trial court’s judgment.

1. N.C.G.S. § 1-149

In seeking relief from the Court of Appeals’ decision, the State contends that

the Court of Appeals erred by determining that defendant was entitled to a new trial

on the grounds that the admission of evidence concerning the wrongful death and

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Opinion of the Court

declaratory judgment action and the child custody action violated N.C.G.S. § 1-149.

Among other things, the State contends that defendant failed to properly preserve

his challenge to the admission of this evidence for purposes of appellate review on the

grounds that, as defendant appears to acknowledge, no objection to the admission of

the challenged evidence as violative of N.C.G.S. § 1-149 was asserted in the trial

court. As a result, the first issue that we must address is the extent, if any, to which

defendant’s failure to object to the admission of the challenged evidence in reliance

upon N.C.G.S. § 1-149 in the court below precludes us from reaching the merits of

defendant’s claim. N.C. R. App. P. 10(a)(1) (“In order to preserve an issue for

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

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

court to make if the specific grounds were not apparent from the context” and

“obtain[ed] a ruling upon the party’s request, objection, or motion.”).

N.C.G.S. § 1-149 provides, in pertinent part, that “[n]o pleading can be used in

a criminal prosecution against the party as proof of a fact admitted or alleged in it.”

N.C.G.S. § 1-149 (2013). Although the literal language of N.C.G.S. § 1-149 relates

solely to the contents of pleadings, this Court has reviewed the admissibility of any

evidence relating to civil pleadings or judgments utilizing the standard set out in

N.C.G.S. § 1-149 rather than limiting the applicability of N.C.G.S. § 1-149 to the

contents of such documents. See State v. Wilson, 217 N.C. 123, 126-27, 7 S.E.2d 11,

12-13 (1940) (excluding evidence concerning both a pleading and an order in a civil

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case); State v. Dula, 204 N.C. 535, 536-37, 168 S.E. 836, 836-37 (1933) (excluding

evidence concerning the contents of a civil pleading and a civil judgment). As a result,

N.C.G.S. § 1-149 requires the exclusion of any evidence relating to the allegations

and determinations made in the course of civil litigation “as proof of a fact admitted

or alleged in it.” N.C.G.S. § 1-149.

According to the Court of Appeals, the fact that defendant did not object to the

admission of evidence concerning the complaint filed and default judgments entered

in the wrongful death and declaratory judgment action and the complaint filed in the

child custody action on the basis of N.C.G.S. § 1-149 at trial does not preclude

consideration of defendant’s challenge to the admission of this evidence as violative

of N.C.G.S. § 1-149 on the merits despite the absence of a contemporaneous objection

in the trial court given that the admission of the challenged evidence involved judicial

“act[ion] contrary to a statutory mandate.” State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d

652, 659 (1985); see also State v. McCall, 289 N.C. 570, 576, 223 S.E.2d 334, 337 (1976)

(stating that “[w]hen . . . evidence rendered incompetent by statute was admitted, it

became the duty of the trial judge to exclude the testimony, and his failure to do so

must be held reversible error whether exception was noted or not” (quoting State v.

Porter, 272 N.C. 463, 468, 158 S.E.2d 626, 630 (1968))). After careful consideration,

however, we hold that the legal principle upon which the Court of Appeals relied in

reaching the merits of the claim that defendant has asserted on the basis of N.C.G.S.

§ 1-149 does not apply in this instance.

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Opinion of the Court

As an initial matter, we note that the extent to which the admission of evidence

related to civil actions in criminal proceedings is subject to appellate review despite

the failure of the defendant to object under N.C.G.S. § 1-149 was addressed by this

Court, albeit in dictum, in State v. Stephenson, 218 N.C. 258, 10 S.E.2d 819 (1940).

In Stephenson, the defendant was convicted of insurance fraud after he burned his

tobacco packhouse for the purpose of collecting insurance proceeds. Id. at 259, 262,

10 S.E.2d at 820, 822. The State, without objection, introduced the verified complaint

that the defendant had filed against his insurance company for the purpose of

obtaining a recovery under his fire insurance policy. Id. at 261, 10 S.E.2d at 821.

After hearing closing arguments and receiving the trial court’s instructions, the jury

took the verified complaint to the jury room for use during its deliberations. Id. at

262-63, 10 S.E.2d at 822. On appeal, the defendant challenged the jury’s use of the

complaint during its deliberations without raising any objection based upon the fact

that the document in question had been admitted into evidence. Id. at 263, 10 S.E.2d

at 822. After quoting from what is now N.C.G.S. § 1-149, this Court stated that,

“[t]hough the complaint was admitted in evidence, without objection, which

amounted to waiver of objection thereto, it was not permissible for the jury to take it

into the jury room without the consent of defendant or of his counsel.” Id. at 265, 10

S.E.2d at 824 (emphasis added) (internal citations omitted). As a result, this Court

has clearly indicated that a failure to object to the admission of evidence that

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Opinion of the Court

allegedly violates N.C.G.S. § 1-149 results in a waiver of the right to challenge the

admission of that evidence on appeal.

A careful comparison of the statutory provisions that this Court has treated as

“mandatory” with the language contained in N.C.G.S. § 1-149 establishes that our

dictum in Stephenson reflected a correct understanding of the applicable law. For

example, the statutory provision held to be mandatory in Ashe provided that, “[i]f the

jury, after retiring for deliberation requests a review of certain testimony or other

evidence, the jurors must be conducted to the courtroom,” at which point “[t]he judge

in his discretion, after notice to the prosecutor and defendant, may direct that

requested parts of the testimony be read to the jury and may permit the jury to

reexamine in open court the requested materials admitted into evidence.” 314 N.C.

at 33-34, 331 S.E.2d at 656 (quoting N.C.G.S. § 15A-1233(a) (emphases added)).

Similar language appears in other statutory provisions that this Court has treated as

“mandatory.” See, e.g., State v. Davis, 364 N.C. 297, 302, 698 S.E.2d 65, 68 (2010)

(“Unless the conduct is covered under some other provision of law providing greater

punishment, the following classifications apply to the offenses set forth in this section:

. . . (2) Felony death by vehicle is a Class E felony. . . . (4) Felony serious injury by

vehicle is a Class F felony.” (quoting N.C.G.S. § 20-141.4(b) (2009) (emphasis added)));

State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989) (citing N.C.G.S. § 15A-

1222 (“The 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.” (emphasis

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Opinion of the Court

added)), and id. § 15A-1232 (“In instructing the jury, the judge shall not express an

opinion as to whether or not a fact has been proved . . . .” (emphasis added))); McCall,

289 N.C. at 575, 223 S.E.2d at 337 (stating that N.C.G.S. § 8-57 provided that

“defendant’s wife was not a competent witness to testify against him, and her failure

to testify for him could not be used to his prejudice”). As a result, the statutory

provisions that this Court has treated as “mandatory” either include language that

requires the trial court to act in a very specific manner or renders certain types of

evidence inadmissible for any purpose whatsoever.

The language contained in N.C.G.S. § 1-149 cannot be deemed “mandatory” as

that term is used in Ashe and similar cases. As a result, N.C.G.S. § 1-149 does not

render civil pleadings and judgments invariably inadmissible as a matter of law in

every criminal case in the same way that compelled spousal testimony concerning

areas outside the statutorily specified exceptions is rendered inadmissible by the

current version of N.C.G.S. § 8-57. On the contrary, a trial court required to evaluate

the validity of an objection lodged in reliance upon N.C.G.S. § 1-149 must determine

whether there is a permissible purpose for which the evidence in question can be

admitted, with the ultimate issue being whether the evidence is relevant for some

purpose other than proving the same facts found, admitted, or alleged in the civil

proceeding in question.

The necessity for the trial court to conduct such an inquiry is repeatedly noted

in this Court’s jurisprudence concerning N.C.S.G. § 1-149. On the one hand, this

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Opinion of the Court

Court has precluded the admission of evidence concerning the allegations and

admissions contained in civil pleadings. In Dula, in which the defendant was charged

with embezzling monies that he had collected from the sale of thirteen pianos, 204

N.C. at 535, 168 S.E. at 836, the State offered into evidence the complaint, answer,

verdict, and judgment from a civil action in which the piano company had successfully

sued the defendant under a consignment contract for the purpose of recovering the

amount that the defendant had collected for selling the pianos in question, id. at 536,

168 S.E. at 836. As we noted in our opinion, the State offered this evidence for the

purpose of showing that the defendant had received the pianos and sold them without

delivering the sales proceeds to the company from which he had procured them, a set

of facts that provided the basis for the embezzlement charge that had been lodged

against the defendant. Id. at 536, 168 S.E. at 836. Although the evidence in question

was admitted in the trial court, we overturned the defendant’s conviction on the

grounds that the evidence concerning the civil filings and orders had been unlawfully

admitted during the criminal trial for the purpose of proving the same facts that were

alleged or admitted in the related civil matter. Id. at 536, 168 S.E. at 836-37.

Similarly, we held in Wilson that evidence concerning the contents of certain civil

pleadings was not admissible at the defendant’s embezzlement trial given that the

challenged evidence was offered for the purpose of proving that, as guardian of an

estate, the defendant had improperly made loans to himself and mismanaged funds.

217 N.C. at 126-27, 7 S.E.2d at 13. As a result, our decisions construing N.C.G.S. §

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Opinion of the Court

1-149 clearly prohibit the admission of civil pleadings or judgments for the purpose

of proving the facts alleged, admitted, or found in those documents.

On the other hand, in State v. McNair, 226 N.C. 462, 38 S.E.2d 514 (1946), we

recognized that a party’s decision to seek the admission of a civil judgment in a

criminal case does “not necessarily use the pleading as proof of any fact therein

alleged,” id. at 464, 38 S.E.2d at 516, and stated that the admissibility of a civil

pleading in a criminal trial hinges on the purpose for which the challenged evidence

is offered, id. at 463-64, 38 S.E.2d at 516. In upholding the trial court’s decision to

permit the prosecutor to cross-examine the defendant concerning a civil suit in which

the defendant had claimed to be the owner of a vehicle that he was alleged to have

stolen, this Court stated that:

The solicitor announced that the object of the cross-
examination relative to the complaint in the civil action,
was “to impeach the witness or to contradict him,” and not
to prove any of the facts alleged therein, as they were at
variance with the theory of the State’s case. The purpose
of the solicitor was to use the allegations of the complaint
in the civil action, not “as proof of a fact admitted or alleged
in it,” but to show that the defendant had made two
contradictory statements about the matter, neither of
which was correct.

Id. at 463-64, 38 S.E.2d at 516. Similarly, in State v. Phillips, 227 N.C. 277, 279, 41

S.E.2d 766, 767 (1947), we held that evidence concerning an annulment action

brought against the defendant by his second wife, which had been offered for the

purpose of proving that he had a motive to kill his first wife rather than to prove that

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Opinion of the Court

he was a party to a bigamous marriage, was properly admitted. Thus, this Court has

clearly allowed the admission of evidence concerning the contents of criminal

pleadings for purposes other than showing the truth of the allegations and

admissions contained in those documents.

As a result, given the fact that N.C.G.S. § 1-149 does not contain any

mandatory language and given that the prior decisions of this Court do not treat

evidence concerning the allegations, admissions, and findings contained in civil

pleadings and judgments as invariably inadmissible in criminal cases, we hold that

N.C.G.S. § 1-149 is not a “mandatory” statute the violation of which is cognizable on

appeal despite the absence of an objection in the trial court. The same logic upon

which the Court of Appeals relied in reaching a contrary result would necessarily

result in treating most of the provisions of the North Carolina Rules of Evidence as

“mandatory,” a result that would be contrary to the manner in which this Court has

treated evidentiary arguments that were not supported by an objection lodged at trial

for most of its history. As a result, since defendant did not object to the admission of

evidence concerning the wrongful death and declaratory judgment complaint and

default judgments on the basis of N.C.G.S. § 1-149, he is not entitled to challenge the

admission of this evidence as violative of that statutory provision on appeal. The

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Opinion of the Court

same is true of his challenge to the admission of evidence concerning the child custody

complaint. The Court of Appeals erred in reaching a contrary conclusion.9

2. N.C.G.S. § 8C-1, Rule 403

Secondly, the State contends that the Court of Appeals erred by holding that

the trial court abused its discretion in overruling defendant’s objection to exclude

evidence of the civil suits under N.C.G.S. § 8C-1, Rule 403.10 According to the State,

9 After awarding defendant a new trial, the Court of Appeals dismissed defendant’s
pending motion for appropriate relief as moot. After this Court granted the State’s
discretionary review petition and assumed jurisdiction over this case, defendant filed a
motion for appropriate relief with this Court in which he has asked us to consider his
ineffective assistance of counsel claim on the merits in the event that we were to reverse the
decision of the Court of Appeals. In addition, the State has also effectively requested us to
consider defendant’s ineffective assistance of counsel claim on the merits by addressing and
deciding the issue of whether evidence related to the civil actions was admitted for an
improper purpose under N.C.G.S. § 1-149 even if we find that defendant failed to properly
preserve that issue for purposes of appellate review. We decline the parties’ invitation to
directly or indirectly address defendant’s claim for ineffective assistance of counsel at this
time. As we have noted elsewhere in this opinion, the effect of our decision to reverse the
Court of Appeals’ decision in this case is to resuscitate the motion for appropriate relief that
defendant filed in that court, a development that renders it unnecessary for us to address
and decide the issues that defendant has sought to raise in the essentially identical motion
for appropriate relief that he has filed with this Court. Having discussed how N.C.G.S. § 1-
149 should be construed in the course of deciding whether defendant had properly preserved
the claim that he has advanced in reliance upon that statute for purposes of appellate review,
we believe that we have given the lower courts sufficient guidance concerning the manner in
which any remaining issues relating to N.C.G.S. § 1-149 should be decided. As a result, we
decline to further address the merits of the claim that defendant has advanced in reliance
upon N.C.G.S. § 1-149 at this time and dismiss the motion for appropriate relief that
defendant has filed with this Court without prejudice to his right to pursue the similar motion
for appropriate relief that will be before the Court of Appeals on remand.

10In his brief, defendant points out that, in addition to explicitly objecting to the
admission of evidence concerning his response to the wrongful death and declaratory
judgment action pursuant to N.C.G.S. § 8C-1, Rule 403, he also lodged one or more objections
for which no grounds were stated at one point during Ms. Freeman’s testimony. Based upon

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Opinion of the Court

the Court of Appeals misapplied the applicable standard of review by essentially

reweighing the factors that supported and militated against the admission of the

challenged evidence rather than determining whether the trial court’s decision to

admit the challenged evidence lacked any reasoned basis. Once again, we find the

State’s argument persuasive.11

“Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” N.C.G.S. § 8C-1, Rule 403 (2013). “This

determination is within the sound discretion of the trial court, and the trial court’s

ruling should not be overturned on appeal unless the ruling was ‘manifestly

that fact, defendant appears to suggest that he is entitled to challenge the admission of the
evidence in question on relevance and hearsay grounds as well as on the basis of N.C.G.S. §
8C-1, Rule 403. However, given that a “general objection, if overruled is no good, unless on
the face of the evidence, there is no purpose whatever for which it could have been
admissible,” State v. Ward, 301 N.C. 469, 477, 272 S.E.2d 84, 89 (1980) (quoting 1 Stansbury’s
North Carolina Evidence § 27, at 72 (Brandis rev. 1973)), and given that the challenged
evidence, as is explained in more detail below, is not inadmissible for all purposes,
defendant’s relevance and hearsay arguments are not properly before us.

11As an aside, we note that, despite the Court of Appeals’ determination that the
admission of evidence concerning both of the civil actions discussed in the text of this opinion
violated N.C.G.S. § 8C-1, Rule 403, defendant never actually objected to admission of
evidence of the child custody complaint and consent judgment on any grounds at trial. In
view of that fact, the Court of Appeals lacked the authority to consider the validity of
defendant’s challenge to the admission of evidence concerning the child custody proceeding
under N.C.G.S. § 8C-1, Rule 403, on the merits. As a result, the only issue that is properly
before us under N.C.G.S. § 8C-1, Rule 403, is the extent to which the trial court erred by
allowing the admission of evidence relating to defendant’s response to the wrongful death
and declaratory judgment action.

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Opinion of the Court

unsupported by reason or [was] so arbitrary that it could not have been the result of

a reasoned decision.’ ” State v. Hyde, 352 N.C. 37, 55, 530 S.E.2d 281, 293 (2000)

(alteration in original) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523,

527 (1988)), cert. denied, 531 U.S. 1114, 121 S. Ct. 862, 148 L. Ed. 2d 775 (2001).

Thus, the ultimate issue raised by defendant’s challenge to the admission of evidence

concerning his response to the wrongful death and declaratory judgment action is

whether the trial court’s decision to allow the admission of the challenged evidence

was so arbitrary that it could not have resulted from the making of a reasoned

decision.

The Court of Appeals held that the trial court abused its discretion by allowing

the admission of the challenged evidence for two basic reasons. Young, __ N.C. App.

at __, 756 S.E.2d at 783. As an initial matter, the Court of Appeals held that the

substantial prejudice resulting from the introduction of this evidence “irreparably

diminished” defendant’s presumption of innocence and “vastly outweighed [its]

probative value.” Id. at __, 756 S.E.2d at 783. We do not find this logic convincing.

As a general proposition, appellate decisions holding that a trial court

erroneously failed to sustain an objection lodged pursuant to N.C.G.S. § 8C-1, Rule

403, tend to rest on determinations that the admission of the evidence in question

served little or no purpose other than to inflame the passions of the jury. See, e.g.,

Hennis, 323 N.C. at 283, 286-87, 372 S.E.2d at 526, 531 (finding prejudicial error in

a trial court decision to allow the admission of thirty-five gruesome photographs

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Opinion of the Court

depicting the decayed bodies of murder victims displayed on a screen positioned

immediately over the defendant’s head and distributed one at a time to the jury over

the course of an hour); State v. Kimbrell, 320 N.C. 762, 768-69, 360 S.E.2d 691, 694-

95 (1987) (holding that the trial court committed prejudicial error by admitting

evidence that the defendant engaged in “devil worship” because the evidence “had

little or no probative value and can only have been [used] to arouse the passion and

prejudice of the jury”). For that reason, one of the ultimate questions raised by the

argument that defendant has advanced in reliance upon N.C.G.S. § 8C-1, Rule 403,

in challenging the trial court’s decision to admit evidence concerning the complaint

filed and default judgments entered in the wrongful death and declaratory judgment

action is whether the evidence in question had any significant probative value or,

alternatively, whether the sole effect of the challenged evidence was to unfairly

prejudice the defendant in the eyes of the jury.

A careful review of the record demonstrates that the evidence relating to the

wrongful death and declaratory judgment action had at least some material probative

value for the purpose of challenging the validity of defendant’s alibi defense.

Evidence has “probative value” if it “tends to prove or disprove a point in issue.”

Probative Evidence, Black’s Law Dictionary (8th ed. 2004). As a result, the extent to

which evidence does or does not have probative value depends upon the extent to

which a reasonable mind would be more or less influenced by the introduction of the

evidence in question in determining whether a disputed fact did or did not exist.

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Opinion of the Court

This Court has repeatedly upheld the admission of evidence concerning a

defendant’s actions after the commission of a crime on the theory that such evidence

was relevant to the issue of whether the defendant committed the crime in question.

See State v. McDougald, 336 N.C. 451, 457, 444 S.E.2d 211, 215 (1994) (finding that

the probative value of evidence to the effect that the defendant had escaped from jail

before trial was not substantially outweighed by the danger of unfair prejudice on the

grounds that the challenged evidence “tended to show the defendant’s consciousness

of his guilt”); State v. Stager, 329 N.C. 278, 321-22, 406 S.E.2d 876, 900-01 (1991)

(upholding the admission of evidence to the effect that, among other things, the

defendant exhibited a calm demeanor on the morning of her husband’s death and that

the defendant had disposed of some of her husband’s personal effects the day after

his funeral). In other words, there is no blanket rule prohibiting the admission of

evidence concerning a defendant’s conduct after the commission of a crime as long as

that evidence has a tendency to shed light on the issue of whether the defendant

committed the crime for which he is standing trial. As a result, in order to evaluate

the validity of defendant’s argument in reliance upon N.C.G.S. § 8C-1, Rule 403, we

need not do any more than determine whether that evidence had probative value

without being overly concerned about the temporal relationship between the events

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Opinion of the Court

described in the evidence in question and the date upon which the crime charged was

allegedly committed.12

The strategy employed by the State in defendant’s second trial included an

attempt to demonstrate that the alibi evidence that defendant presented at the first

trial was false. As part of that process, the State attempted to demonstrate that

defendant had attempted to “sandbag” the prosecution by waiting until after he had

heard the State’s evidence before offering up his own version of what had happened,

thereby gaining for himself the opportunity to provide an explanation for all of the

incriminating evidence that the State had amassed against him. The admission of

evidence that, at a substantial economic cost, defendant allowed the entry of a default

judgment against himself in the wrongful death and declaratory judgment action

rather than offering up a defense and subjecting his account of the events of 2 and 3

November 2006 to scrutiny by others, including agents of the State, in that proceeding

did tend to bolster the validity of the State’s attack upon the credibility of defendant’s

alibi. As a result, we are unable to say that the evidence concerning defendant’s

response to the wrongful death and declaratory judgment action that the trial court

12 The extent to which evidence has probative value and the extent to which evidence
may be admitted for a particular purpose are two different, albeit related, questions. As a
result, even if, as defendant vigorously contends, the State intended for the jury to draw an
inference that is forbidden by N.C.G.S. § 1-149 based upon the introduction of evidence
concerning defendant’s response to the wrongful death and declaratory judgment action, the
proper manner in which to address that problem would have been for defendant to have
lodged an appropriate objection and to either obtain a favorable ruling with respect to that
issue or to properly preserve that issue for purposes of appellate review.

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Opinion of the Court

admitted at defendant’s second trial had no probative value in light of the fact that

the credibility of a defendant’s account of what happened is always of significant

interest to jurors.13

We recognize that the admission of evidence that defendant failed to respond

to the allegations advanced against him in the wrongful death and declaratory

judgment action posed a significant risk of unfair prejudice to defendant. This risk

of unfair prejudice was heightened by the fact that the trial court had heard the

estate’s motion for the entry of a default judgment in the declaratory judgment action

and found that defendant had “unlawfully” killed Ms. Young. In recognition of this

risk, the trial court explicitly instructed the jury concerning the manner in which civil

cases are heard and decided, the effect that a failure to respond has on the civil

plaintiff’s ability to obtain the requested relief, and the fact that “[t]he entry of a civil

judgment is not a determination of guilt by any court that the named defendant has

committed any criminal offense.”14 As a result of the fact that the jury is presumed

13The fact that the State advanced a similar argument at the first trial without
attempting to introduce the challenged evidence has no bearing on the extent to which the
State was entitled to take a different tack on retrial.

14Although the trial court did not, as defendant notes, instruct the jury that the
evidence concerning the wrongful death and declaratory judgment action was admitted for
the sole purpose of attacking the credibility of defendant’s claim of alibi, “[t]he admission of
evidence, competent for a restricted purpose, will not be held error in the absence of a request
by defendant for a limiting instruction.” State v. Chandler, 324 N.C. 172, 182, 376 S.E.2d
728, 735 (1989) (citation omitted). As a result of the fact that defendant’s trial counsel never
requested the trial court to instruct the jury concerning the purposes for which the jury was
entitled to consider the evidence concerning the wrongful death and declaratory judgment
action or objected to the instructions that the trial court, acting ex mero motu, decided to

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to have followed the trial court’s instructions, State v. Tirado, 358 N.C. 551, 581, 599

S.E.2d 515, 535 (2004) (citation omitted), cert. denied. 544 U.S. 909, 125 S. Ct. 1600,

161 L. Ed. 2d 285 (2005), the record reflects that the trial court took action that is

presumed to have been effective to protect defendant against the exact harm about

which he expresses concern.

Although the members of this Court might well have reached a different result

from the trial court after balancing the probative value of the evidence concerning

defendant’s failure to respond to the wrongful death and declaratory judgment action

against the risk of unfair prejudice associated with the admission of that evidence,

the applicable standard of review requires us to simply determine whether the trial

court could have made a reasoned decision to allow the admission of the evidence in

question. State v. Locklear, 363 N.C. 438, 449, 681 S.E.2d 293, 302-03 (2009) (stating

that, “[i]n our review, we consider not whether we might disagree” with the trial court

but whether “the trial court’s actions are fairly supported by the record” (quoting

State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008))). In view of the fact

that the evidence concerning defendant’s response to the wrongful death and

declaratory judgment action had material probative value and the fact that the trial

court recognized and made a serious attempt to address the risk of unfair prejudice

that would inevitably flow from the admission of that evidence, we cannot conclude

deliver concerning that subject, defendant is not entitled to complain that the prejudicial
effect of the challenged evidence was compounded by the trial court’s failure to instruct the
jury concerning the purposes for which the challenged evidence could properly be considered.

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that the trial court erred in determining that the risk of unfair prejudice resulting

from the introduction of the challenged evidence did not substantially outweigh its

probative value.

In awarding defendant a new trial, the Court of Appeals relied upon this

Court’s decision in State v. Scott, 331 N.C. 39, 43, 413 S.E.2d 787, 789 (1992), for the

proposition that, “[w]hen the intrinsic nature of the 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.” Young, __

N.C. App. at __, 756 S.E.2d at 783 (second alteration in original) (quoting Scott, 331

N.C. at 43, 413 S.E.2d at 789). In Scott, this Court concluded that the admission of

evidence of a prior alleged offense for which the defendant “had been tried and

acquitted” in an earlier trial constituted an abuse of discretion “as a matter of law”

on the grounds that the probative value of the evidence in question depended on the

extent to which the defendant had actually committed the prior alleged offense and

that the fact that he had been found not guilty of having committed that offense

deprived the evidence in question of any probative value, 331 N.C. at 42, 413 S.E.2d

at 788, on the theory that the defendant’s acquittal meant that he “has been ‘set free

or judicially discharged from an accusation; released from . . . a charge or suspicion

of guilt,’ ” id. at 43, 413 S.E.2d at 789 (quoting State v. Marley, 321 N.C. 415, 424,

364 S.E.2d 133, 138 (1988) (alterations in original)). The probative value of the

evidence at issue in this case, unlike that of the evidence at issue in Scott, was not

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undercut by the existence of a prior judicial determination that the accusation lodged

against the defendant in the related matter had no merit. As a result, the Court of

Appeals’ reliance upon Scott was misplaced.

The second justification advanced by the Court of Appeals in support of its

decision to hold that the trial court had abused its discretion by allowing the

admission of evidence concerning defendant’s response to the wrongful death and

declaratory judgment action was that the trial court admitted the challenged

evidence while subject to a misapprehension of law. Young, __ N.C. App. at __, 756

S.E.2d at 783. According to well-established North Carolina law, “[w]here a ruling is

based upon a misapprehension of the applicable law, the cause will be remanded in

order that the matter may be considered in its true legal light.” Nationwide Mut. Ins.

Co. v. Chantos, 298 N.C. 246, 252, 258 S.E.2d 334, 338 (1979) (citation omitted). In

support of this determination, the Court of Appeals held that the trial court had an

obligation, even in the absence of an objection, to conduct an inquiry for the purpose

of determining whether the admission of the challenged evidence would violate

N.C.G.S. § 1-149 and had failed to do so. Young, __ N.C. App. at __, 756 S.E.2d at

783. As we have already noted, however, N.C.G.S. § 1-149 does not require the trial

court to act in the absence of an objection from one or the other party. In view of the

fact that neither party to this case directed the trial court’s attention to N.C.G.S. § 1-

149 at the time that the challenged evidence was admitted, the trial court was not

obligated to consider the potential applicability of N.C.G.S. § 1-149 at the risk of being

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reversed on appeal in the absence of a showing of plain error.15 As a result, given

that the Court of Appeals erred by holding that the trial court violated N.C.G.S. § 8C-

1, Rule 403, by admitting evidence concerning defendant’s response to the wrongful

death and declaratory judgment action, defendant is not entitled to relief from the

trial court’s judgment on the basis of the admission of that evidence.

III. Conclusion

Thus, for the reasons set forth above, we conclude that the Court of Appeals

erred by awarding defendant a new trial based upon the admission of evidence

concerning defendant’s response to the wrongful death and declaratory judgment

action and the child custody action that were filed against him by members of Ms.

Young’s family.16 As a result, the Court of Appeals’ decision should be, and hereby

is, reversed, and this case should be, and hereby is, remanded to the Court of Appeals

for consideration of defendant’s remaining challenges to the trial court’s judgment,

including the issues raised by the motion for appropriate relief that defendant filed

before the Court of Appeals.

REVERSED AND REMANDED.

15 Although defendant alludes at one point in his brief to the possibility that the
admission of the challenged evidence constituted plain error, the Court of Appeals did not
decide this case on plain error grounds and defendant has failed to advance any detailed
“plain error”-based argument in his brief before this Court.

16 The remaining issues addressed by the Court of Appeals are not before this Court,
so the Court of Appeals’ decision with respect to these issues remains undisturbed.

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