An unpublished opinion of the North Carolina Court of Appeals does not constitute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 STA T E OF NORTH CAROLINA

v. Clay County No s . 10 CRS 188, 190
RUSSELL EDWARD MURRAY

Appeal by d efendant 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 Edwa rd 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 allowi ng the State to elicit evidence on

cross - examination concerning the presence of a hidden camera system, a videotape depicting a “young man” masturbating , and- 2

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drug paraphe rnalia and marijuana in his residence at the time that it was searched by investigating officers
. After careful consideration of Defendant’s challenge s 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 ra ised 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 bec ause Defendant was

a law enforcement officer.

1 T.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.- 3

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In the interval between June 2001 an d 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 p air 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 , ”
De fendant left
. During the same year, Todd had another overnight visit with Defendant at D efendant’s residence
. On that occasion, Defendant and Todd went to Walm art , 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 an d seek permission to stay at Defendant’s residence that night
. After Todd successfully obtained permission to spen d the night at Defendant’s residence , the two of them got ready for bed. At Defendant’s suggestion, Todd- 4
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slept in the bed with Defendant . T odd 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 To dd 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 t his 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
. T he following day, Defen dant 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 any one would believe him given Defendant’s empl oyment with the Clay County Sheriff’s Office
. After he reached 16 or 17 years of age , Todd told his girlfrien d what Defendant had done
. Howe ver , 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 Defen dant’s home in order to use- 5
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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 p oint, 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 sexu al
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 l ying down in the bedroom. The conduct in which Defendant engaged on this occasion rekindled memorie s of Defendant’s earlier actions , which Todd realized had occurred when he wa s between 10 and 12 years old. After leaving Defendant’s residence , Tod d went to his mother’s place of employment a nd asked her to come outsid e and speak with him. During their conversation, Todd told his mother about the comments that De fendant had made earlier that day and that Defendant had previou sly performed oral sex on him. On the same date , Ji m Carter, Todd’s mother’s boss, spoke with Todd
. According to Mr. Carter, Todd was hyperventilating and looked extremel y upset at the time of their conversation
.- 6

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During their conversation , Todd told Mr. Carter that Defendan t 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 officer s in Towns County, Georgia , whom he contacte d 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 Defen dant’s brother was employed by that agency at the time
. The Georgia authorities referred Todd to the State B ureau of Investigation, at which point Special Agent Grayson Edwards was assigned responsibility for inv estigating Todd’s allegations. After speaking with Special Agent Edwards , Todd participated in and recorded two conversations with Defendant
. The first of these two conversation s 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 res idence when Defendant felt better. The second conversation between the two men occurred in

person at Defendant’s residence
. While he talked to Defendant,- 7
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Todd falsely claimed that his biological father had died in an attempt to arouse Defendant’s sympathi es. D uring 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 the ir conversation. On 2 September 2009, investigating officer s execute d 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 video tape from the dresser drawer in Defendant’s bedroom depicting a young man masturbati ng . In addition , Def endant gave investigating officers a marijuana pipe and an eight h 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 20 04, 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 ful l

- time law enforcement jobs from 2001 to 2003 , Defendant would not have- 8

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assumed the responsibility of havi ng 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 Defendan t’s house
. After Defendant purchased an off

- road racing v ideo game for Todd at Walm art , 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 a slee p 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 Def end ant 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 t he following spring

or summer.- 9

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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, Defend ant decide d to talk with him
. As he en tered 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, “d amn, son, the l east you could d o is learn how to close the door, ” and returned to his bedroom. Shortly thereaf ter, Todd left Defendant’s residence
. As a result of the fact that he was sick , Defendant bare ly

remem bered his recorded conversations with Todd
. A few days before these conversations occurred , Defendant began suffering from an inner ear infection, a sinus infec tion, a throat infection , and a fever ; remained sick for eigh t to ten days ; and did not fully recover for several additional weeks
. As a result , Defendant did not answer the phone until T odd had call ed him three or four t imes and believed that the conversation that they had on that occasion related to the encounter that had

occu rred while Todd was using Defendant’s computer.- 10

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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 th e 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
To d d was under the influence of drugs at the time of the second recorded conversation
. In attempting to explain certain of the sta tements that he had made during the seco nd recorded conversation, D efendant 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 offi cer attempted to keep the individual wi th whom he or she was dealing c a l m 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 obt aining sexual gratification. B. Procedural History- 11

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On 13 September 2010, the Clay Count y grand jury returned bills of indictment charging Defendant with two counts of taking indecent liberties with a child and one count of first de gree sexual offense
. On 23 January 2013, the State fil ed a notice alleging tha t it would attempt to establish as an aggravatin g 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 char ged. 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, t he 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, t he jury returned a verdict finding that D efendant had taken advantage of a position of trust or confidence at the time t hat he committed the offenses that he had been convicted of committing
. At the conclusion of the ensuing sentencing hearing, t he trial court found that the aggravating factor that the jury had de termined to exist outweighed any mi tigating factors and that Defendant should be sentenced in the aggravated range
. In light of this determination, the trial court consolidated Defendant’s- 12

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convictions for judgment and sentenced him to a term of 260 to 321 months imprisonment
. Def endant 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 quest ion 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
conte ntion. 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 evi dence in question is only reviewable for plain error. State v. Moore , 366 N.C. 100, 105

- 06, 726 S.E.2d 168, 173 (2012).- 13

- “[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire rec ord, 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 o f 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’ o r where it can be fairly said ‘ the instructional mistake has a probable impac t on the jury’s finding th at 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 (4 th 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 admiss ion of t he 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 inves tigating 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 grou nds that it was irrelevant, that it constituted inadmissible “other bad act” evidence that had no- 14

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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 v alue 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 th eory 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 video tape of Todd’s conduct in Defendant’s possession. However, we need not resolve the issue of whe ther 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, pre cluded 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 t he other witnesses . In addition, his strong emotional reaction at the time that he- 15

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disclosed his accusations against Defendant to his mother and Mr. Carter would likely have bee n understood by the jury as supportiv e 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 du ring 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 evid ence that a video camera and a vi deotape 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 decision s 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 h as 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

2 Although the admission of evidence that the defendant- 16

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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 pl ain 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, inc luding 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 betwee n prejudicial and plain error.- 17

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

u ntoward had occu rred 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 ef fect that the defendant had made sexually suggestive comments abou t 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 be en 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 judgme nt on the basis of t he admission of evide nce concerning the camera and videotape found in his residence when it was search ed by investigating officers. B. Drug Paraphernalia and Mar ijuana- 18

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Secondly, Defendant contends that the trial court erred by allowing the admission of evi dence 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 ina dmissible “other bad act” ev idence , and constituted im permissible 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 c redibility 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 persuade d that Defendant has shown that there is a “reasonable possibility that, had the error in- 19

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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 “test ified to events occurring approximately three years before trial when they were o nly three or four years old” coupled with the “corroborating test imony 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 t he defendant a new tria l based upon the trial court’s decision to allow the prosecutor to question the defendant about- 20

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the extent to which he had a “drug problem” and had received treatment for his “addictio n” given that “[t]he State’s case would stand or fall” based on the cred ibility 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 “enjo yed” 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 Sta te 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 preju dicial one. Unlike the cases upon which Defendant relies in support of his attempt to establish preju dice, this case was not a simple swearing match betwee n Todd and Defendant. Instead, Defendant made a number of- 21

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significant admissions d uring 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 littl e more than an infant. Finally, we ar e 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 ev idence 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 hi s 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 off icers. III. Conclusion- 22

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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).