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11-Sep-2020 04:49

She also stated that in the summer of 2009 Defendant asked her sisters to go outside and then told her to "kneel down, pull her pants down, and in her words at that time, the same thing happened again that happened before." On 3 August 2009, Nora met with Michael Jaquins, the director of the South Mountain Children and Family Services Center (the "Gingerbread House") — a child advocacy center located near Burke and Mc Dowell Counties. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

She also met with Elizabeth Browning, a sexual assault nurse who worked at the Gingerbread House. 2d 674 (1984), "a defendant must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced Deficient performance may be established by showing that counsel's representation fell below an objective standard of reasonableness.

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The 2009 Incident In the summer of 2009, Defendant and the three girls moved from his mother's trailer into another trailer (the "single-wide trailer") that had previously been occupied by Defendant's adult nephew ("Tony"). Thus, in order to prevail on his MAR, Defendant was required to demonstrate both deficiency and prejudice in connection with his ineffective assistance of counsel claim. For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. E.2d at 334 (internal citations, quotation marks, and brackets omitted). Admission of Testimony of Melissa and Tony Under Rule 404(b) In order to determine whether Defendant could have successfully asserted plain error in his direct appeal, we must first determine whether the introduction of the Rule 404(b) evidence constituted error at all. Because we conclude that Defendant has made a sufficient showing of both deficient performance by his appellate counsel and actual prejudice suffered by him as a result, we reverse. Each incident — based on the testimony of Nora — is summarized below. The 2008 Incident In the summer of 2008, Defendant's house was in foreclosure, and he decided his family would move in with his mother in her trailer in Marion, North Carolina. Our Supreme Court has held, however, that "[t]hough it is a rule of inclusion, Rule 404(b) is still constrained by the requirements of similarity and temporal proximity." State v.

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