An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. 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.

NO. COA13-1207

NORTH CAROLINA COURT OF APPEALS

Filed: 19 August 2014

STATE OF NORTH CAROLINA

v.

Clay County

Nos. 10 CRS 188, 190

RUSSELL EDWARD MURRAY

Appeal by defendant from judgment entered 28 February 2013 

by Judge James U. Downs in Clay County Superior Court. Heard in 

the Court of Appeals 18 February 2014.

Attorney General Roy Cooper, by Special Deputy Attorney 

General Lauren M. Clemmons, for the State.

Law Office of Glenn Gerding, by Glenn Gerding, for 

Defendant.

ERVIN, Judge.

Defendant Russell Edward Murray appeals from a judgment

entered based upon his convictions for first degree sexual 

offense and taking indecent liberties with a child. On appeal, 

Defendant contends that the trial court committed plain or 

prejudicial error by allowing the State to elicit evidence on 

cross-examination concerning the presence of a hidden camera 

system, a videotape depicting a “young man” masturbating, and
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drug paraphernalia and marijuana in his residence at the time 

that it was searched by investigating officers. After careful 

consideration of Defendant’s challenges to the trial court’s 

judgment in light of the record and the applicable law, we 

conclude that the trial court’s judgment should remain 

undisturbed.

I. Factual Background

A. Substantive Facts

1. State’s Evidence

T.M.’s mother and Defendant’s brother married when Todd was 

five or six years old.

1 Defendant’s brother raised Todd and “was 

a father” to him. Moreover, Defendant’s parents were “the only 

grandparents [that Todd] knew.”

During part of the time that Todd’s mother and Defendant’s 

brother were married, Todd lived next door to Defendant and saw 

Defendant more than once a week at the family home. In

addition, Todd began visiting Defendant at his home when Todd 

reached eight or nine years of age. Todd looked up to Defendant

because he “never really had a father” and because Defendant was 

a law enforcement officer.

 

1T.M. , who was a minor at the time of the events in 

question, will be referred to as Todd, a pseudonym used 

throughout the remainder of this opinion for ease of reading and 

to protect T.M.’s privacy.
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In the interval between June 2001 and August 2002, when

Todd was ten years old, Todd stayed overnight with Defendant at 

his residence for the first time. The weather was warm outside. 

On that occasion, Defendant showed Todd a pair of night vision 

goggles that exhibited a red light. As he was going to sleep on 

the couch that evening, Todd saw the red light shining from 

Defendant’s bedroom and waved.

After Todd went to sleep, he woke up to discover that 

Defendant was rubbing his stomach with his hand. As a result of 

the fact that Defendant’s conduct startled him, Todd slapped 

Defendant’s hand away. After saying, “okay, goodnight,”

Defendant left.

During the same year, Todd had another overnight visit with 

Defendant at Defendant’s residence. On that occasion, Defendant 

and Todd went to Walmart, where they purchased an off-road 

racing computer game. Upon returning to Defendant’s residence, 

the two of them played the game together while sitting on the 

couch. After several hours had passed, Defendant suggested that 

Todd call his mother and seek permission to stay at Defendant’s 

residence that night. After Todd successfully obtained 

permission to spend the night at Defendant’s residence, the two 

of them got ready for bed. At Defendant’s suggestion, Todd 
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slept in the bed with Defendant. Todd wore pants and a shirt to 

bed.

At some point during the night, Todd woke up, discovered 

that his pants had been lowered to knee level, and realized that

Defendant was performing oral sex on him and rubbing the inside 

of his leg with his hand. After Todd had awakened, Defendant

rolled over on his back and attempted to pull Todd on top of 

him. Todd pushed Defendant away rather than acquiescing in this 

conduct. Todd never pulled his pants back up because he was 

afraid of moving and stared at the ceiling for the remainder of 

the night because he could not go back to sleep. The following 

day, Defendant took Todd home.

In the immediate aftermath of these episodes, Todd was too 

scared to tell his mother. Todd did not tell anyone about 

Defendant’s conduct even after his initial fear wore off because 

he did not think that anyone would believe him given Defendant’s 

employment with the Clay County Sheriff’s Office. After he 

reached 16 or 17 years of age, Todd told his girlfriend what 

Defendant had done. However, Todd still did not make an 

official report of Defendant’s activities because he did not 

want to tear “what little bit of family [he] had apart.” In 

fact, Todd occasionally visited Defendant’s home in order to use 
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Defendant’s internet connection for the purpose of furthering 

his interest and involvement in motorcycle racing.

After Todd reached the age of 18, he went to Defendant’s 

residence to use the computer. As he checked his e-mail, Todd 

felt an itch in his groin and scratched it. At that point, 

Defendant, who was standing behind Todd, began rubbing his 

shoulders and told Todd that, “[i]f [he] need[ed] any help with 

that [he could] come back here in the bedroom,” a statement that 

Todd understood as a suggestion that the two of them have sexual 

contact. In view of the fact that he felt sickened by this 

statement, Todd left Defendant’s residence. At the time of 

Todd’s departure, Defendant was lying down in the bedroom. The 

conduct in which Defendant engaged on this occasion rekindled 

memories of Defendant’s earlier actions, which Todd realized had 

occurred when he was between 10 and 12 years old.

After leaving Defendant’s residence, Todd went to his 

mother’s place of employment and asked her to come outside and

speak with him. During their conversation, Todd told his mother

about the comments that Defendant had made earlier that day and 

that Defendant had previously performed oral sex on him.

On the same date, Jim Carter, Todd’s mother’s boss, spoke 

with Todd. According to Mr. Carter, Todd was hyperventilating 

and looked extremely upset at the time of their conversation. 
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During their conversation, Todd told Mr. Carter that Defendant 

had performed oral sex on him on an occasion when Todd had spent 

the night at Defendant’s house. As a result of this discussion, 

Mr. Carter was under the impression that the incident that Todd 

had described had occurred when Todd was a child.

Four or five days later, Todd spoke with law enforcement

officers in Towns County, Georgia, whom he contacted because he 

felt that his assertions about Defendant’s conduct would be 

“swept under the rug” by the Clay County Sheriff’s Office given 

that Defendant’s brother was employed by that agency at the 

time. The Georgia authorities referred Todd to the State Bureau 

of Investigation, at which point Special Agent Grayson Edwards 

was assigned responsibility for investigating Todd’s 

allegations.

After speaking with Special Agent Edwards, Todd 

participated in and recorded two conversations with Defendant. 

The first of these two conversations occurred over the telephone 

and began when Todd called Defendant and attempted to talk to 

him. Defendant, however, stated that he was sick, said that he

did not want to talk over the phone, and suggested that Todd 

visit his residence when Defendant felt better.

The second conversation between the two men occurred inperson at Defendant’s residence. While he talked to Defendant, 
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Todd falsely claimed that his biological father had died in an 

attempt to arouse Defendant’s sympathies. During their 

conversation, Todd confronted Defendant about Defendant having

“suck[ed his] penis.” In response, Defendant stated that he was 

sorry and had changed and asked Todd to forgive him. In 

addition, Defendant said that he understood why Todd was upset 

because the same thing had happened to him when he was younger. 

Defendant did not, however, appear to be upset or angry during 

their conversation.

On 2 September 2009, investigating officers executed a 

warrant authorizing a search of Defendant’s home. During the 

search, the investigating officers found a hidden camera in 

Defendant’s office and seized a videotape from the dresser 

drawer in Defendant’s bedroom depicting a young man 

masturbating. In addition, Defendant gave investigating 

officers a marijuana pipe and an eighth of an ounce of marijuana

that were located in his bedroom and admitted that it was 

illegal for him to possess these items.

2. Defendant’s Evidence

In the summer of 2004, when Todd was 12 or 13 years old, he 

stayed overnight at Defendant’s residence for the first time. 

As a result of the fact that he was working two full-time law 

enforcement jobs from 2001 to 2003, Defendant would not have 
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assumed the responsibility of having children stay with him

overnight during that time.

At the time of his first overnight visit, Todd slept on the 

couch while Defendant slept in his bedroom. Defendant did not 

own any night vision goggles at the time of Todd’s first 

overnight visit. During the night, Todd began thrashing around 

and hollering, so Defendant shook him in an attempt to get him 

to wake up. After waking up and rolling over, Todd went back to 

sleep.

Later that year, Todd spent a second night at Defendant’s 

house. After Defendant purchased an off-road racing video game 

for Todd at Walmart, the two of them played the game together 

for twenty to thirty minutes before Defendant asked Todd to play 

by himself. As he continued to play the video game, Todd 

started to fall asleep on the couch. In view of the fact that 

it was winter, Defendant was concerned that Todd would be cold

if he slept on the couch. Given that there was a plug-in 

electric heater in the bedroom, Defendant told Todd to sleep 

with Defendant there. Todd thrashed about throughout the night

and kept Defendant awake. After taking Todd on a motorcycle 

ride the following day, Defendant took Todd home. Todd spent 

another night at Defendant’s house during the following spring 

or summer.
-9-

At the time that Todd stopped by to use his computer, 

Defendant was in his bedroom since, as the result of a 

diminution in his income, the only furniture contained in his 

residence was located in his bedroom and office. After Todd had 

been using the computer for ten or fifteen minutes, Defendant 

decided to talk with him. As he entered the office, Defendant 

grabbed the back of the high-backed chair in which Todd was 

sitting, looked down, and saw that Todd was viewing pornographic 

images on the computer screen and masturbating. Upon making 

that observation, Defendant said, “damn, son, the least you 

could do is learn how to close the door,” and returned to his 

bedroom. Shortly thereafter, Todd left Defendant’s residence.

As a result of the fact that he was sick, Defendant barely 

remembered his recorded conversations with Todd. A few days 

before these conversations occurred, Defendant began suffering 

from an inner ear infection, a sinus infection, a throat 

infection, and a fever; remained sick for eight to ten days; and 

did not fully recover for several additional weeks. As a 

result, Defendant did not answer the phone until Todd had called

him three or four times and believed that the conversation that 

they had on that occasion related to the encounter that had

occurred while Todd was using Defendant’s computer.
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At the time of the second recorded conversation, Todd came 

to Defendant’s residence while on a set of metal crutches. 

Although Todd claimed to have been injured in a motorcycle 

accident, Defendant doubted the veracity of Todd’s claim given 

that he moved his feet around and, at one point, crossed his 

legs. In addition, Defendant noted that Todd would not make eye 

contact with him and was fidgeting. Finally, Todd told 

Defendant that his biological father had died, an assertion that 

Defendant knew to be untrue. As a result, Defendant believed 

Todd was under the influence of drugs at the time of the second 

recorded conversation.

In attempting to explain certain of the statements that he

had made during the second recorded conversation, Defendant 

asserted that he had not actually been asking for forgiveness or

admitting that Todd’s claims were true. Instead, Defendant 

claimed that he was using a recognized law enforcement 

interviewing technique in which the officer attempted to keep 

the individual with whom he or she was dealing calm in an effort

to prevent a problematic situation from escalating. Defendant

denied having ever put his mouth on Todd’s penis or having

touched Todd in any way for the purposes of obtaining sexual 

gratification.

B. Procedural History
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On 13 September 2010, the Clay County grand jury returned 

bills of indictment charging Defendant with two counts of taking

indecent liberties with a child and one count of first degree 

sexual offense. On 23 January 2013, the State filed a notice 

alleging that it would attempt to establish as an aggravating 

factor that Defendant had taken “advantage of a position of 

trust or confidence” at the time that he committed the offenses 

with which he had been charged.

The charges against Defendant came on for trial before the 

trial court and a jury at the 25 February 2013 criminal session 

of the Clay County Superior Court. On 27 February 2013, the 

jury returned verdicts convicting Defendant of first degree 

sexual offense and one count of taking indecent liberties with a 

child and acquitting Defendant of the second count of taking

indecent liberties with a child. On the following day, the jury 

returned a verdict finding that Defendant had taken advantage of 

a position of trust or confidence at the time that he committed 

the offenses that he had been convicted of committing.

At the conclusion of the ensuing sentencing hearing, the 

trial court found that the aggravating factor that the jury had 

determined to exist outweighed any mitigating factors and that 

Defendant should be sentenced in the aggravated range. In light 

of this determination, the trial court consolidated Defendant’s 
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convictions for judgment and sentenced him to a term of 260 to 

321 months imprisonment. Defendant noted an appeal to this 

Court from the trial court’s judgment.

II. Substantive Legal Analysis

A. Video Camera and Videotape

In his first challenge to the trial court’s judgment, 

Defendant contends that the trial court committed plain error by 

allowing the prosecutor to question him about the fact that a

video camera and a videotape labelled “About a Boy” that 

depicted a man masturbating had been discovered in his 

residence. According to Defendant, the evidence in question was 

irrelevant, constituted inadmissible character evidence, and 

possessed an unfairly prejudicial effect that substantially 

outweighed its probative value. Defendant is not entitled to 

relief from the trial court’s judgment on the basis of this 

contention.

1. Standard of Review

As Defendant candidly acknowledges, he did not object to 

the admission of the evidence to which this argument is directed 

at trial. For that reason, his challenge to the trial court’s 

decision to allow the admission of the evidence in question is 

only reviewable for plain error. State v. Moore, 366 N.C. 100, 

105-06, 726 S.E.2d 168, 173 (2012).
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“[T]he plain error rule . . . is always to 

be applied cautiously and only in the 

exceptional case where, after reviewing the 

entire record, it can be said the claimed 

error is a ‘fundamental error, something so 

basic, so prejudicial, so lacking in its 

elements that justice cannot have been 

done,’ or ‘where [the error] is grave error 

which amounts to a denial of a fundamental 

right of the accused,’ or the error has 

‘resulted in a miscarriage of justice or in 

the denial to appellant of a fair trial’ or 

where the error is such as to ‘seriously 

affect the fairness, integrity or public 

reputation of judicial proceedings’ or where 

it can be fairly said ‘the instructional 

mistake has a probable impact on the jury’s 

finding that the defendant was guilty.’”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)

(alterations and omissions in original) (quoting United States 

v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 

U.S. 1018, 103 S. Ct. 381, 74 L. Ed. 2d 513 (1982)). We will 

now review Defendant’s challenge to the admission of the 

evidence that a video camera and a videotape depicting a young 

man masturbating was found in his residence at the time that it 

was searched by investigating officers utilizing the plain error 

standard of review.

2. Plain Error

In his brief, Defendant argues that the trial court 

committed plain error by allowing the admission of the 

challenged evidence on the grounds that it was irrelevant, that 

it constituted inadmissible “other bad act” evidence that had no 
-14-

relevance to any issue other than Defendant’s character, and 

that the danger of unfair prejudice resulting from the admission 

of the challenged evidence substantially outweighed any 

probative value that the challenged evidence might have 

possessed. The State, on the other hand, argues that the 

challenged evidence was admissible for the purpose of attacking

the credibility of Defendant’s testimony on the theory that, in 

the event that Defendant’s account of what had happened on the 

date that Todd reported Defendant’s alleged conduct to his 

mother and Mr. Carter were true, there should have been a 

videotape of Todd’s conduct in Defendant’s possession. However, 

we need not resolve the issue of whether the trial court erred 

by admitting the challenged evidence given our conclusion that 

we are unable to say that it is reasonably probable that the 

outcome at Defendant’s trial would have been different had the 

trial court, acting on its own motion, precluded the State from 

presenting the challenged evidence before the jury.

Admittedly, Defendant took the stand, denied the 

accusations that Todd had made against him, and presented 

evidence that he was a peaceful and honest individual. On the 

other hand, Todd’s testimony was detailed and generally 

consistent with the testimony of the other witnesses. In 

addition, his strong emotional reaction at the time that he 
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disclosed his accusations against Defendant to his mother and 

Mr. Carter would likely have been understood by the jury as 

supportive of his credibility. The record does not appear to 

contain any evidence tending to explain why Todd would make a 

false accusation against Defendant. Most importantly, however, 

Defendant made a number of statements during his recorded 

conversations with Todd that were tantamount to an admission 

that Todd’s accusations were true. As a result, we do not 

believe that any error committed by the trial court in allowing 

the admission of evidence that a video camera and a videotape 

depicting a young man masturbating were found in Defendant’s 

residence when it was searched by investigating officers rose to 

the level of plain error.

The conclusion that we reach with respect to this issue is

consistent with the decisions that have been reached in other 

reported opinions of this court addressing similar factual 

situations. As far as we have been able to ascertain from an 

examination of the authorities cited in the parties’ briefs and 

discovered in our own research, this Court has never found that 

the admission of evidence tending to show that a defendant 

possessed pornography, hidden camera equipment, or similar items 

constituted plain error.2 On the other hand, this Court has held 

 

2Although the admission of evidence that the defendant 
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that the admission of similar evidence did not rise to the level 

of plain error in State v. Delsanto, 172 N.C. App. 42, 52-53, 

615 S.E.2d 870, 876-77 (2005) (holding that the erroneous 

admission of evidence “that defendant possessed pornographic 

magazines and women’s underwear” did not “amount[] to plain 

error” given the absence of any “indication that the error had 

any impact on the jury’s finding of guilt”), and State v. 

Doisey, 138 N.C. App. 620, 625-27, 532 S.E.2d 240, 244-45

(holding that the erroneous admission of evidence that the 

defendant had positioned a video camera in the family bathroom 

and had made videotapes of family members, including himself, in 

that room did not constitute plain error given that the alleged 

victim testified concerning the abuse that she claimed to have 

suffered at the defendant’s hands and made corroborative 

statements to her mother and another individual), disc. review 

denied, 352 N.C. 678, 545 S.E.2d 434 (2000), cert. denied, 531 

U.S. 1177, 121 S. Ct. 1153, 148 L. Ed. 2d 1015 (2001). In 

addition, we held in State v. Smith, 152 N.C. App. 514, 519-24,

568 S.E.2d 289, 293-95, disc. review denied, 356 N.C. 623, 575 

 

possessed pornographic videotapes was held to constitute 

prejudicial error in State v. Bush, 164 N.C. App. 254, 261-64,

595 S.E.2d 715, 719-21 (2004), given that “[t]he jury 

specifically requested that [the boxes containing the videos] be 

sent into the jury room,” we do not believe that Bush has any 

bearing on the proper resolution of this case given the 

differences between prejudicial and plain error.
-17-

S.E.2d 757 (2002), that the erroneous admission of evidence that 

the defendant possessed pornographic magazines and videos did 

“not [even] rise to the level of prejudicial error” given that 

the State presented the alleged victim’s testimony concerning 

the acts that the defendant committed against her, the testimony 

of the alleged victim’s mother to the effect that something 

untoward had occurred on the date of the alleged abuse, the 

testimony of an expert witness to the effect that the victim 

suffered from post-traumatic stress disorder after the date upon 

which the defendant allegedly abused her, and the testimony of 

two co-workers to the effect that the defendant had made 

sexually suggestive comments about the alleged victim. As a 

result, given our determination that Defendant has not 

established that there is a reasonable probability that the 

outcome at his trial would have been different in the event that 

the challenged evidence had not been admitted and the 

consistency of that determination with our prior decisions 

concerning similar issues, we hold that Defendant is not 

entitled to relief from the trial court’s judgment on the basis 

of the admission of evidence concerning the camera and videotape 

found in his residence when it was searched by investigating 

officers.

B. Drug Paraphernalia and Marijuana
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Secondly, Defendant contends that the trial court erred by 

allowing the admission of evidence that a marijuana pipe and

eight ounces of marijuana were present in Defendant’s residence 

at the time that it was searched by investigating officers. 

According to Defendant, his objection to the challenged evidence 

should have been sustained on the grounds that it was 

irrelevant, represented inadmissible “other bad act” evidence, 

and constituted impermissible cross-examination concerning

specific instances of misconduct. We do not believe that 

Defendant is entitled to relief from the trial court’s judgment

on the basis of this argument.

In their briefs, the parties have engaged in a thorough 

discussion of the admissibility of the challenged evidence, with 

Defendant contending that the evidence in question was 

irrelevant, constituted inadmissible bad character evidence, and 

had no bearing on the credibility of his claim of innocence 

while the State contends that the evidence in question was 

admissible to rebut what it claims was Defendant’s attempt to 

establish that he was a law abiding person. Assuming, without 

in any way deciding, that the trial court erred by overruling 

Defendant’s objection to the admission of the challenged 

evidence, we are not persuaded that Defendant has shown that 

there is a “reasonable possibility that, had the error in 
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question not been committed, a different result would have been 

reached at the trial out of which the appeal arises.” N.C. Gen. 

Stat. § 15A-1443(a).

In attempting to establish that the admission of the 

challenged evidence was prejudicial, Defendant directs our 

attention to a number of decisions in which we have held the 

admission of similar evidence to constitute prejudicial error. 

For example, in State v. Wilson, we granted the defendant a new 

trial on the basis of the trial court’s decision to allow the 

prosecutor to “question[] defendant about her prior use of 

cocaine and marijuana,” stating that “it is difficult to hold 

such an admission harmless” “[w]hen a case turns on the 

credibility of the witnesses,” and noting that “the State’s case 

consisted primarily of the testimony of young children” who 

“testified to events occurring approximately three years before 

trial when they were only three or four years old” coupled with

the “corroborating testimony from their parents” and “scant 

physical evidence.” 118 N.C. App. 616, 619-21, 456 S.E.2d 870, 

872-74 (1995) (citing State v. Rowland, 89 N.C. App. 372, 383, 

366 S.E.2d 550, 556, disc. review improvidently granted, 322 

N.C. 619, 374 S.E.2d 116 (1988)). Similarly, in Rowland, we 

granted the defendant a new trial based upon the trial court’s 

decision to allow the prosecutor to question the defendant about 
-20-

the extent to which he had a “drug problem” and had received 

treatment for his “addiction” given that “[t]he State’s case 

would stand or fall” based on the credibility of the prosecuting 

witness’ uncorroborated testimony, which the defendant disputed 

when he took the stand. 89 N.C. App. at 380-84, 366 S.E.2d 555-

56. On the other hand, the Supreme Court has held the admission 

of evidence that the defendant “enjoyed” smoking marijuana to 

constitute harmless error given that “[o]verwhelming evidence of 

defendant’s guilt was presented by the [S]tate and buttressed by 

defendant’s own testimony.” State v. Clark, 324 N.C. 146, 167-

68, 377 S.E.2d 54, 67 (1989) (citing State v. Gardner, 316 N.C. 

605, 614, 342 S.E.2d 872, 878 (1986)). Thus, our prejudice 

determination must rest, ultimately, upon an analysis of the 

relative strength of the evidentiary showings by the State and 

Defendant at trial.

Although we acknowledge that the issue is a relatively

close one, we are simply not persuaded that any error committed 

by the trial court in overruling Defendant’s objection to the 

testimony concerning his possession of a marijuana pipe and a 

small amount of marijuana was a prejudicial one. Unlike the 

cases upon which Defendant relies in support of his attempt to 

establish prejudice, this case was not a simple swearing match 

between Todd and Defendant. Instead, Defendant made a number of 
-21-

significant admissions during a recorded conversation between 

himself and Todd that was conducted at the request of 

investigating officers. Moreover, Todd’s emotional state at the 

time that he accused Defendant of sexually abusing him in 

conversations with his mother and with Mr. Clark provides 

additional support for the veracity of his accusations. In 

addition, the alleged victim in this case, unlike the alleged 

victims in Wilson, was not testifying to something that had 

allegedly occurred when he was little more than an infant. 

Finally, we are not persuaded that evidence that a former law 

enforcement officer possessed a marijuana pipe and a small 

amount of marijuana had the same adverse impact upon Defendant’s 

chances for a more favorable outcome at trial that resulted from 

the admission of evidence of cocaine and marijuana use at issue 

in Wilson and the cocaine addiction at issue in Rowland. As a 

result, for all of these reasons, we conclude that Defendant has 

failed to establish that there is a “reasonable possibility” 

that the outcome at his trial would have been different in the 

event that the trial court had sustained his objection to the 

admission of evidence that he had a marijuana pipe and a small 

amount of marijuana in his residence at the time that it was 

searched by investigating officers.

III. Conclusion
-22-

Thus, for the reasons set forth above, we conclude that 

neither of Defendant’s challenges to the trial court’s judgment 

have merit. As a result, the trial court’s judgment should, and 

hereby does, remain undisturbed.

NO PREJUDICIAL ERROR.

Judges McGEE and STEELMAN concur.

Report per Rule 30(e).