An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
Clay County v. 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 -2- 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.
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- 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 -4- 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 -5- 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. -6- 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 in-
person at Defendant’s residence. While he talked to Defendant, -7- 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 -8- 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. -10- 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 -11- 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 -12- 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). -13- “[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 -15- 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
2 Although the admission of evidence that the defendant -16- 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 -18- 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 -19- 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).