¶1concurring in part and dissenting in part.
¶2I concur in the majority’s conclusion that the state presented sufficient evidence to survive defendant’s motion to dismiss. I also agree that the underlying evidence of neglect, proffered by two lay witnesses for the limited purpose of showing defendant’s knowledge of the level of care she was required to provide to the victim, was properly admitted. Nevertheless, I dissent from the majority’s holding that the trial court did not commit prejudicial error when it allowed these same two lay witnesses to state repeatedly that they had “substantiated a case of neglect” against defendant.
¶3Under N.C.G.S. § 8C-1, Rule 704, witnesses may offer an opinion that embraces an ultimate issue decided by the trier of fact. Neither a lay witness, nor even an expert witness, however, may suggest to the jury that a legal standard has been satisfied or otherwise testify to a legal conclusion. See HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C. 578, 587, 403 S.E.2d 483, 489 (1991); see also State v. Smith, 310 N.C. 108, 114, 310 S.E.2d 320, 324 (1984). In HAJMM this Court stated:
From the Rules of Evidence, the advisory committee’s notes, case law, and commentaries, we discern two overriding reasons for excluding testimony which suggests whether legal conclusions should be drawn or whether legal standards are satisfied. The first is that such testimony invades not the province of the jury but “the province of the court to determine the applicable law and to instruct the jury as to that law.” F.A.A. v. Landy, 705 F.2d 624, 632 (2d Cir.), cert. denied, 464 U.S. 895, 78 L. Ed. 2d 232 (1983). It is for the court to explain to the jury the given legal *385standard or conclusion at issue and how it should be determined. To permit the expert to make this determination usurps the function of the judge. The second reason is that an expert is in no better position to conclude whether a legal standard has been satisfied or a legal conclusion should be drawn than is a jury which has been properly instructed on the standard or conclusion.
¶4HAJMM, 328 N.C. at 587, 403 S.E.2d at 489; see generally 1 Kenneth S. Broun, Brandis and Broun On North Carolina Evidence §§ 182, 190 (5th ed. 1998).
¶5In the present case, the two lay witnesses were permitted to testify repeatedly at trial that DSS had “substantiated a case of neglect” against defendant. As District Attorney McFadyen correctly explained to the trial court, “The central issue in both of these charges is neglect . . . between April 1994 and October 1995.” (Emphasis added.) In essence, the issue before the jury was whether defendant’s alleged neglect led to the victim’s death.
¶6It was the trial court’s duty to explain to the jury the legal standard of criminal negligence and how it should be determined. See HAJMM, 328 N.C. at 587, 403 S.E.2d at 489. By permitting the two lay witnesses to testify repeatedly as to administrative determinations of negligence against defendant, the province of the trial court to determine the applicable law on criminal negligence, and to instruct the jury on that law, was impermissibly invaded. See id.Moreover, the lay witnesses were in no better position than the jury to determine whether defendant was negligent after presentation of the underlying facts relevant to defendant’s conduct and the trial court’s proper instruction on the law of criminal negligence. See id.
¶7The error arising from the erroneous admission of this evidence during presentation of the state’s case-in-chief was not cured by the limiting instruction given by the trial court during its charge to the jury. Whether the prejudicial effect of incompetent evidence should be deemed cured by the trial court’s instruction to disregard or give limited consideration to such evidence “depends upon the nature of the evidence and the circumstances of the particular case.” State v. Aycoth, 270 N.C. 270, 273, 154 S.E.2d 59, 61 (1967). This Court has recognized that “some transgressions are so gross and their effect so highly prejudicial that no curative instruction will suffice to remove the adverse impression from the minds of the jurors.” State v. Britt, 288 N.C. 699, 713, 220 S.E.2d 283, 292 (1975). “ ‘[I]f the evidence *386admitted is obviously prejudicial, and especially if it is emphasized by repetition or by allowing it to remain before the jury for an undue length of time, it may be too late to cure the error by withdrawal’ or cautionary instructions.” Duke Power Co. v. Winebarger, 300 N.C. 57, 67, 265 S.E.2d 227, 233 (1980) (quoting 1 Henry Brandis, Jr., Stansbury’s North Carolina Evidence § 28, at 75-76 (Brandis rev. 1973)). In such cases, this Court “will not indulge in the usual presumption that the jury followed the letter and intent of the judge’s instructions.” Id.; see Whitley v. Redden, 276 N.C. 263, 273, 171 S.E.2d 894, 901 (1970).
¶8In the present case, the record indicates that no contemporaneous curative instructions were given when the statements at issue were admitted. The trial court did, however, inform the jury during the general jury charge that the statements had been admitted solely for the purpose of demonstrating defendant’s knowledge of the level of care she was to provide to the victim. This instruction was not sufficient to disabuse the jury of the impression that an administrative agency charged, among other things, with the duty of protecting children, had twice essentially found defendant to be guilty of neglect. Moreover, this prejudicial evidence was emphasized by repetition, and it remained before the jury throughout the entire course of the proceeding, without limitation. Therefore, the trial court’s limiting instruction came too late to cure the prejudicial error.
¶9Accordingly, I respectfully dissent.