An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 C a r o l i n a R u l e s o f A p p e l l a t e P r o c e d u r e .

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 14

- 1102 Filed: 3 March 2015 STATE OF NORTH CAROLINA

v. Wilkes County No s . 10 CRS 1087

- 89, 52859 MICHAEL LEE SHEETS

Appeal by defendant from judgment entered 23 May 2014 by Judge William Z. Wood, Jr. in Wilkes County Superior Court. Heard in the Court of Appeals 3 February 2015

.
Roy Cooper, Attorney General, by Jennifer T. Harrod, Assistant Attorney General, for the State. Staples Hughes , Appellate Defender, by James R. Grant, Assistant Appellate Defender, for defendant

- appellant.

TYSON , Judge.
Michael Lee Sheets (“Defendant”) appeals from convictions of two counts of first degree sex offense with a child, two counts of crime against nature, and one count of indecent liberties with a child. We find no error in Defendant’s convictions or the judgments entered thereon

. I. Factual BackgroundS TATE V
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- On 8 November 2010, a grand jury indicted Defendant on two counts of first degree sex offense with a child, two counts of crime against nature, one count of indecent liberties with a child, and one count of disseminating obscenity to a minor under the age of thirteen. The State’s evidence tended to show that in 2009, J.P., age eight, lived with her mother , Rosalind Elmore (“Ms. Elmore”) and Defendant, her mother’s boyfriend. One day, Defendant told J.P. that “if [she] didn’t do what he wanted [her] to do that he would lie and tell [her] mom . . . things that weren’t true, which [she] knew would either hurt [her mo m ] or hurt [her].” J. P. testified Defendant made her perform oral sex on him on several occasions. She also testified Defendant touched her che st and put his mouth on her genitals. At trial, J.P. testified Defen dant would enter her name into a “Google” image search. J.P.’s true given name is “rather unusual” and is t he same as that of a pornograph ic actress. Defendant would show J.P. the search results of images of a nude blonde woma n. Defendant also made J.P. watch pornography on the computer. On 2 August 2010, Defendant and Ms. Elmore ended their relationship and Defendant moved out of Ms. Elmore’s house. That evening, J.P. told a relative , whom she called “Aunt Christina , ” about Defendant’s behavior and actions

. After talking to J.P., Aunt Christina informed J.P.’s parents. Her family subsequently filed a report with the Wilkes County Sheriff’s Office.S TATE V
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- On 10 August 2010, J. P.’s father took her to Brenner Children’s Hospital in Winston

- Salem, North Carolina. Elizabeth Goodman (“Ms. Goodman”), a sexual assault nurse examiner, interviewed J.P. J.P. told Ms. Goodman about Defendant’s conduct , explaining “[she] got harassed” an d “[b]ad stuff happened to [her]

. ” On 9 September 2010, J.P. was seen at Brenner Children’s Hospital by Dr. Sara Sinal (“Dr. Sinal”), a pediatrician with the child abuse team. Dr. Sinal’s examination of J.P. showed no physic al signs of sexual abuse. Thi s result was consistent with Defendant’s actions as J.P. had described them. SBI Special Agent Alan Flora (“Agent Flora”) testified that he had replicated Defendant’s Google image search of J.P.’s name. Prior to his testimony, Defendant renewed a pre

- tri al motion in limine objecting to Agent Flora’s anticipated testimony. After a lengthy voir dire of Agent Flora, and over Defendant’s objection, the trial court permitted Agent Flora to testify about the results of his Google image search. Agent Flora tes tified he perf ormed the Google image search of J.P.’s name on his state

issued computer and the search returned “ numerous images of a nude blonde female

. ” Defendant testified on his own behalf. He denied engaging in any inappropriate behavior with J.P. He could not offer an explanation for J.P.’s allegations that he had sexually abused her. At the close of the State’s evidence, upon Defendant’s motion, th e trial court dismissed the dissemination of obscenity to a minor charge. On 23 Ma y 2014, the jury returned verdicts finding Defendant guilty on the remaining charges.S TATE V
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- The trial court arrested judgment on the crime against nature convictions and consolid ated one of the sex offense convictions with the indecent liberties conviction. Defendant was sentenced to two concurrent active terms of 192

- 240 months imprisonment. Defendant gave notice of appeal in open court. II. Issues Defendant argues the trial co urt erred by (1) closing the courtroom to bystanders without making the necessary findings to support closure; and (2) admitting evidence of the Google image search performed by Agent Flora . In his brief, Defendant also argued the trial court erred by ref erring to J.P. as “the victim” in the jury charge. Defendant conce ded this issue at oral argument, in light of our Supreme Court’s holding in State v. Walston , __ N.C. __, 766 S.E.2d 312 (2014) (holding trial court’s use of the word “victim” in pattern ju ry instructions was not error). III. Analysis A. Courtroom Closure Defendant asserts his federal and state constitutional right s to a public trial

w ere violated by the trial court’s decision to close the courtroom during J.P.’s testimony . He argues the trial court failed to make the requisite findings to support closure. We disagree. 1. Standard of Review Defendant failed to object to the State’s motion to exclude bystanders from the courtroom during J.P.’s testimony. Defendant has failed to preserve this issue forS TATE V
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- appellate review. “Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.” State v. Lloyd , 354 N.C. 76, 86

- 87 , 552 S.E.2d 596, 607 (2001) (citation omi tted).

2. Rule 2 of the North Carolina Rules of Appellate Procedure Nevertheless, Defendant asks this Court to invoke Rule 2 of the Appellate Rules of Procedure to review the merits of his argument. Under Rule 2, this Court may suspend the rules in orde r “[t]o prevent manifest injustice to a party, or to expedite decision in the public interest.” N.C.R. App. P. 2 (2013). Our Supreme Court has addressed the appropriateness of invoking Rule 2 on many occasions. “Rule 2 relates to the residual power of our appellate courts to consider, in exceptional circumstances, significant issues of impo rtance in the public interest or to prevent injustice which appears manifest to the Court and only in such instances.” State v. Hart , 361 N.C. 309, 315

- 16, 644 S.E.2d 20 1, 205 (2007) (citations and quotation marks omitted). “[T]he exercise of Rule 2 was intended to be limited to occasions in which a fundamental purpose of the appellate rules is at stake, which will necessarily be rare occasions.” Id . at 316, 644 S.E.2d a t 205 (citations and internal quotation marks omitted). Nothing in either the record or either party’s brief demonstrates “exception al circumstances” sufficient to justify suspending or varying the rules in order to prevent “manifest injustice” to Defendan t. Id . at 315, 644 S.E.2d at 205.S TATE V
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- Pursuant to N.C. Gen. Stat. § 15

- 166, “[i]n the trial of cases for rape or sex offense . . . the trial judge may, during the taking of the testimony of the prosecutrix, exclude from the courtroom all persons except the off icers of the court, the defendant and those engaged in the trial of the case.” N.C. Gen. Stat. § 15

- 166 (2013). The general rule is that

[i]n clearing the courtroom, the trial court must determine if the party seeking closure has advanced an overriding i nterest that is likely to be prejudiced, order closure no broader than necessary to protect that interest, consider reasonable alternatives to closing the procedure, and make findings adequate to support the closure. State v. Jenkins , 115 N.C. App. 520, 5 25, 445 S.E.2d 622, 625 (citation omitted) , temp. stay allowed , 336 N.C. 784, 447 S.E.2d 435, disc. review denied , 337 N.C. 804, 4 49 S.E.2d 752 (1994) ; s ee also Waller v. Georgia , 467 U.S. 39, 48, 81 L.Ed.2d 31, 39 (1984). This Court has held that “where defendant consents to the closure, the trial court is not required to make specific findings of fact.” State v. Starner , 152 N.C. App. 150, 154, 566 S.E.2d 814, 817 , cert. denied , 356 N.C. 311, 571 S.E.2d 209 (2002). Cf. Waller , 467 U.S. at 48, 81 L.Ed. at 39 (requiring the trial court to make closure no broader than necessary, consider alternatives, and make findings of fact to support closure where closure ordered over defendant’s objection ). The State moved to exclude bystanders from the courtroom during J.P.’s testimony pursuant to N.C. Gen. Stat. § 15

- 166. When the trial court inquired as toS TATE V
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- defense counsel’s position on this matter, Defendant’s attorney responded, “I don’t wish to be heard on that either, Your Honor.” After defen se counsel acquiesced to the State’s motion, the trial court granted the motion and engaged in the following colloquy with the State:

MS. POSEY: Yes. Okay. And I believe Your Honor needs to make specific findings of fact that I have outlined in the motio n, that I have advanced an overriding interest for the victim to be able to testify, that closure is no broader than necessary to protect that interest, and that the Court has considered reasonable alternatives to closing the procedure. THE COURT: Sure. I will so find. The trial court later entered a written order , which included the Waller factors above and exclude d bystanders from the courtroom during J.P.’s testimony. In light of Defendant’s consent to the closure of the courtroom, we exercise our d iscretionary authority and decline to invoke Rule 2. This argument is dismissed.

B. Agent Flora’s Google Image Search Defendant asserts the trial court erred by admitting Agent Flora’s testimony regarding the Google image results from the search he performed

. He argues this testimony was speculative, irrelevant, and unfairly prejudicial

. 1. Standard of Review “Whether evidence is relevant is a question of law, thus we review the trial court’s admission of the evidence de novo .” State v. Kirby , 206 N.C. App. 446, 456, 697 S.E.2d 496, 503 (2010) (citation omitted). However, whether to exclude evidence is aS TATE V
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- decision within the trial court’s discretion. State v. Peterson , 361 N.C. 587, 602, 652 S.E.2d 216, 227 (2007) (citation omitted) , cert. den ied , 552 U.S. 1271, 170 L.Ed.2d 377 (2008). Thus, “ a trial court’s ruling will be reversed on appeal only upon a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision.” Kirby at 457, 697 S.E.2d at 503 (cita tion and internal quotation marks omitted). 2. Analysis Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C.R. Evid. 401. Relevant evidence may be excluded under Rule 403 “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” N.C.R. Evid. 403. Defendant argues Agen t Fl ora’s testimony was speculative and irrelevant because of the potential differences between conducting the search on the SBI’s computer as compared with Defendant’s computer at a different date and time

. Agent Flora’s testimony was introduced at tria l to corroborate J.P.’s allegation that Defendant had showed her images of a n ude blonde woma n, which were the results returned from a Google image search of J.P.’s name. Agent Flora did not intend for his Google image search to be an exact replication of Defendant’s alleged Google image search. Rather, Agent Flora performed the Google image search of theS TATE V
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- same “rather unusual” name shared by both J.P. and the pornographic actress in an effort to corroborate J.P.’s allegations by establishing that this information was available on the Internet. “An individual piece of evidence need not conclusively establish a fact to be of some probative value. It need only support a logical inference of the fact’s existence.” State v. Payne , 328 N.C. 377, 401, 402 S.E.2d 582, 596 (1991)

. Agent Flora’s Google image search , which returned the same results as J.P. had alleged and testified to , was relevant because it directly corroborated J.P.’s testimony. Defendant asserts even if Agent Flora’s testimony w as relevant, it should have been excluded under Rule 403 as unfairly prejudicial

. N.C.R. Evid. 403. Defendant
argues that jurors generally assign extraordinarily high probative value to expert opinions and “the trial court’s admission of this wholly specu lative evidence from an expert in computer forensic examination risked misleading the jury about the strength of that evidence.” We disagree. “[I]t is defendant’s burden to show prejudice from the admission of evidence.” State v. Oliver , 210 N.C. App. 6 09, 615 , 709 S.E.2d 503, 508 (citation omitted), disc. review denied , 365 N.C. 206, 710 S.E.2d 37 (2011). In order to show prejudice, Defendant must show that “a different result likely would have ensued had the evidence been excluded. ” Id . (citation and quotation marks omitted). On cross

- examination, defense counsel elicited an explanation from Agent Flora that his Google image search was not identical to the search J.P. described

. Agent Flora testified that a “safe search” filter would affect search results byS TATE V
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- eliminating explicit content and Google search results change with the passage of time. Agent Flora testified to the search he performed and its limitations , such as the fa ct that certain factors could have caused different search results on his
compu ter versus Defendant’s computer

. The jury was provided a balanced view of the appropriate weight to give Agent Flora’s testimony. Defendant has failed to show any prejudicia l error by the trial court in allowing this testimony. Defendant’s argument is overruled. Conclusion Defendant received a fair trial free from prejudicial error s he preserved and argued

. We find no error in Defendant’s convictions or the trial court’s j udgment. NO ERROR

. Judge s ELMORE and DAVIS concur. Report per Rule 30(e).