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They each stated that it was a hot day and that the windows of the trailer were open as was the front door of the trailer.
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.
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 State presented evidence at Defendant's trial tending to establish the following facts: Defendant began dating a woman in 1995 who was pregnant. E.2d at 875 (citation and quotation marks omitted). Similarity We first address whether the acts described in the testimony of Melissa and Tony were sufficiently similar to the incidents alleged by Nora such that their testimony met the similarity requirement of Rule 404(b). Second, with regard to Tony, both his and Nora's testimony described similar acts of forcible anal intercourse. Remoteness [in time] for purposes of 404(b) must be considered in light of the specific facts of each case and the purposes for which the evidence is being offered.
However, we have set out the relevant facts in more detail below. Both girls were related to Defendant, and the incidents each occurred in a familial residence. [R]emoteness in time may be significant when the evidence of the prior crime is introduced to show that both crimes arose out of a common scheme or plan; but remoteness is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident.
She stated that at some point during that afternoon Defendant instructed Emma and Mia to go outside. Because the MAR Order only addressed the prejudice prong of the test for ineffective assistance of counsel, we begin our analysis by determining whether the trial court erred in concluding that Defendant had failed to show prejudice under Strickland. Prejudice Prong of Strickland Test In order to determine whether Defendant established prejudice, we must decide whether there is a reasonable probability that the result of Defendant's first appeal would have been different had Casterline asserted plain error in his appellate brief. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
Defendant then told Nora to come to the kitchen and then directed her to "get down on [her] knees" and "pull [her] pants down." She testified that Defendant had anal intercourse with her while she was crying on the kitchen floor. "In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error." N. Afterward, Nora put her pants back on, walked outside, and sat on the front steps with her sisters, who had been playing outside on the porch.