Opinion
No. COA15-1192
04-19-2016
STATE OF NORTH CAROLINA, Plaintiff, v. ROBERT STANLEY BROWN, JR., Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Lauren M. Clemmons, for the State. Daughtry Woodard Lawrence & Starling, by W. Joel Starling, Jr., for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. New Hanover County, Nos. 14 CRS 7442 - 7448 Appeal by defendant from judgments entered 8 May 2015 by Judge Phyllis M. Gorham in New Hanover County Superior Court. Heard in the Court of Appeals 7 March 2016. Attorney General Roy Cooper, by Special Deputy Attorney General Lauren M. Clemmons, for the State. Daughtry Woodard Lawrence & Starling, by W. Joel Starling, Jr., for defendant-appellant. ZACHARY, Judge.
Robert Brown, Jr., (defendant) appeals from judgments entered upon his convictions of twelve counts of second-degree sexual exploitation of a minor and four counts of third-degree sexual exploitation of a minor. On appeal, defendant argues that the trial court's instructions to the jury deprived him of the right to a unanimous verdict, and that the trial court erred by admitting certain testimony and by denying his motion to suppress evidence obtained pursuant to the issuance of administrative subpoenas. We conclude that defendant's right to a unanimous verdict was not violated, that the trial court did not commit reversible error by admitting the challenged testimony, and that defendant failed to preserve the denial of his suppression motion for appellate review.
I. Background
On 28 October 2013, the New Hanover County Grand Jury indicted defendant in File No. 13 CRS 54888 for three counts of second-degree sexual exploitation of a minor. On 6 October 2014, the New Hanover County Grand Jury indicted defendant in Files Nos. 14 CRS 7442 - 7448 for twelve counts of second-degree sexual exploitation of a minor, and thirteen counts of third-degree sexual exploitation of a minor. The State filed a motion to join all offenses for trial on 20 January 2015. Defendant did not object to the joinder of charges.
On 28 April 2015, defendant filed a motion to suppress evidence obtained as a result of the issuance of administrative subpoenas by the North Carolina State Bureau of Investigation ("the SBI"). Defendant asserted that N.C. Gen. Stat. § 15A-298 (2012) did not give the SBI authority to issue administrative subpoenas, and that evidence acquired pursuant to such subpoenas was obtained in violation of defendant's rights under the United States and North Carolina Constitutions.
The charges against defendant came on for trial at the 4 May 2015 criminal session of Superior Court for New Hanover County. Prior to trial, the State dismissed all charges in File No. 13 CRS 54888, and dismissed nine of the thirteen counts of third-degree sexual exploitation of a minor that were charged in the other indictments. Defendant was tried for four counts of third-degree sexual exploitation of a minor and twelve counts of second-degree sexual exploitation of a minor.
The trial court conducted a pretrial hearing on defendant's suppression motion. Although defendant's written motion had alleged the violation of his constitutional rights, defendant did not pursue this theory before the trial court. Instead, defendant argued that evidence obtained as a result of the administrative subpoenas issued by the SBI should be suppressed pursuant to N.C. Gen. Stat. § 15A-974 (2014). This statute provides for the exclusion of evidence "obtained as a result of a substantial violation" of the North Carolina statutes governing criminal procedure, unless the party who committed the violation "acted under the objectively reasonable, good faith belief that the actions were lawful."
At the time the administrative subpoenas were issued, N.C. Gen. Stat. § 15A-298 provided that "[p]ursuant to rules issued by the Attorney General, the Director of the [SBI] or the Director's designee may issue an administrative subpoena to a communications common carrier or an electronic communications service to compel production of business records" under appropriate circumstances. Defendant argued that the statute's inclusion of the phrase "pursuant to rules issued by the Attorney General" deprived the SBI of the authority to issue administrative subpoenas unless the Attorney General had formally adopted rules in compliance with the statutory procedures governing the adoption of rules by State agencies under the North Carolina Administrative Procedure Act (APA).
At the hearing on defendant's suppression motion, the State offered evidence tending to show that in February 2011 the SBI was contacted by the National Center for Missing and Exploited Children, a non-governmental agency, which reported that it had been contacted by America Online (AOL), an internet service provider, regarding the transmission of child pornography. The SBI issued an administrative subpoena for AOL, seeking the name of the person associated with the email address involved in the alleged possession of child pornography. The SBI also issued an administrative subpoena for Time Warner, Inc., seeking the internet protocol, or IP address, of the computer that had engaged in the transmission of pornography. Neither AOL nor Time Warner lodged any objection to the subpoenas. AOL reported to the SBI that the account belonged to an individual named Robert Stanley Brown, and Time Warner reported that the IP address of the computer indicated that it was located at the business address of Harrelson Mechanical, in Wilmington. The SBI provided this information to the Wilmington Police Department, which conducted an investigation.
Following the pretrial hearing, the trial court denied defendant's suppression motion. The evidence offered by the State at trial may be summarized as follows: Wilmington Police Detective Robert Benton testified that he worked with the Internet Crimes Against Children Task Force to investigate cases involving child pornography. In March 2011, he received information from the SBI regarding the possible transmission of child pornography. The SBI information indicated that the images originated from a computer located at Harrelson Mechanical, and that the user identification associated with the email account for this computer was "uncwrsb2."
On 23 March 2011, Detective Benton and Wilmington Police Detective Kevin Smith went to Harrelson Mechanical, where they spoke with defendant. Detective Benton asked defendant about the email account "uncwrsb2," and defendant admitted that he previously had an AOL account with that user name. Defendant also admitted that he had downloaded child pornography onto his cell phone and that he had pornographic images on his home computer. Defendant agreed to follow the law enforcement officers to his home and to give them his home computer. At his home, defendant signed a form permitting Detective Benton to take possession of his computer, which Detective Benton placed into evidence at the Wilmington Police Department. Detective Smith, who had accompanied Detective Benton to Harrelson Mechanical, testified without objection to the following conversation with defendant:
Q. And what, if anything, did Mr. Brown tell you at Harrelson Mechanical that day about downloading child pornography?
A. He admitted to it and he -- he said he knew it was wrong. He told us he was trying to get help with this -- with this issue, but he -- he told us that he had downloaded images of naked children and had masturbated to them.
FBI Special Agent Richard J. Novelli, Jr., testified as an expert in computer forensics. In 2012, Agent Novelli conducted a forensic examination of an exact duplicate of the hard drive on defendant's computer. Agent Novelli used software that enabled him to retrieve deleted files, and to search the hard drive for instances of a particular word. Agent Novelli conducted searches for files or images that included words or phrases that Agent Novelli had frequently encountered in child pornography investigations, such as "Lolita." Agent Novelli identified more than 4000 instances or "hits" on the term Lolita in defendant's computer, and more than 1800 hits for "pthc," which Agent Novelli testified was an abbreviation for "preteen hardcore." There were also files on defendant's computer with names indicative of child pornography, including files pertaining to sexual assault or to sexual activity between adults and young children. Some of these files had been downloaded directly from another person's computer, using software facilitating a process called peer-to-peer sharing. During Agent Novelli's direct testimony, the State introduced, without objection from defendant, the sixteen specific images that were the basis of the charges against defendant. The State rested after offering the testimony of Agent Novelli, but subsequently reopened its case briefly, for the purpose of having Detective Benton identify defendant. Additional details concerning the State's evidence are discussed as relevant to the issues raised on appeal.
Defendant did not present evidence. On 7 May 2015, the jury returned verdicts finding defendant guilty of four counts of third-degree sexual exploitation of a minor and twelve counts of second-degree sexual exploitation of a minor. The trial court imposed three consecutive sentences of twenty to thirty-three months imprisonment, and ordered defendant to register as a sex offender for a period of thirty years after his release from imprisonment. Defendant gave oral notice of appeal in open court.
II. Right to a Unanimous Verdict
Defendant argues first that the trial court's instructions to the jury deprived him of his right under the United States and North Carolina Constitutions to a unanimous verdict, because the trial court failed to match each of the sixteen photos to a specific charge against defendant, and failed to instruct the jury that it could not return a unanimous verdict unless all twelve jurors agreed that a given photo established defendant's guilt of a particular charge. This argument lacks merit.
Defendant did not object to the trial court's jury instructions at trial. However, "[w]hile the failure to raise a constitutional issue at trial generally waives that issue for appeal, where the error violates the right to a unanimous jury verdict under Article I, Section 24, it is preserved for appeal without any action by counsel." State v. Wilson, 363 N.C. 478, 484, 681 S.E.2d 325, 330 (2009) (citing State v. Nelson, 341 N.C. 695, 700, 462 S.E.2d 225, 227 (1995), and State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985)).
In this case, defendant was convicted of twelve counts of second-degree sexual exploitation of a minor and four counts of third-degree sexual exploitation of a minor. N.C. Gen. Stat. § 14-190.17(a) (2014) provides in relevant part that a "person commits the offense of second degree sexual exploitation of a minor if, knowing the character or content of the material, he records or . . . duplicates material that contains a visual representation of a minor engaged in sexual activity[.]" N.C. Gen. Stat. § 14-190.17A(a) (2014) provides that a "person commits the offense of third degree sexual exploitation of a minor if, knowing the character or content of the material, he possesses material that contains a visual representation of a minor engaging in sexual activity."
Thus, third-degree sexual exploitation of a minor criminalizes the simple possession of images depicting a minor engaged in sexual activity, while in the present case, defendant was prosecuted for second-degree sexual exploitation of a minor upon the theory that, in addition to possession of the image, defendant had duplicated, or downloaded, the image. As a result, the jury had two factual issues to determine with regard to each of the sixteen images upon which defendant's convictions were based: (1) whether the image depicted a minor engaged in sexual activity; and (2) if so, whether the State had offered evidence establishing beyond a reasonable doubt that defendant either had possessed the image (third-degree sexual exploitation of a minor), or had possessed and duplicated the image (second-degree sexual exploitation of a minor).
Defendant concedes that the trial court instructed the jury that its verdicts must be unanimous, but argues that the trial court was also required to instruct the jurors that "all twelve had to agree that the same image must support the verdict for each count." A "unanimous" verdict is one in which the jurors are "all in agreement." Oxford Encyclopedic English Dictionary 1563 (Judy Pearsall & Bill Trumble, eds., 2nd ed. 1995). We conclude that defendant's proposed instruction is nothing more than an unnecessary elaboration upon the definition of "unanimous." Defendant did not request such an instruction, and does not identify any evidence that the jury was confused about the meaning of the commonly used word "unanimous."
Moreover, the instant case did not present the potential for jury confusion that might occur if a witness testifies about a greater number of criminal incidents than the number of charges against the defendant, or where a single element of an offense may be established by proof of any of several different acts. In this case, defendant was charged with sixteen counts of exploitation of a minor, and the charges were supported by the sixteen photographs, making the jury's task relatively straightforward. "There is no risk of a lack of unanimity where the defendant was charged with and convicted of the same number of offenses, and the evidence supported that number of offenses." State v. Brewer, 171 N.C. App. 686, 693, 615 S.E.2d 360, 364 (2005) (citing State v. Wiggins, 161 N.C. App. 583, 593, 589 S.E.2d 402, 409 (2003)). We conclude that defendant is not entitled to relief on the basis of this argument.
III. Testimony of Agent Novelli
Defendant argues next that the trial court "committed reversible error [by] allowing [Agent] Novelli to testify that certain images were 'lascivious.' " This argument is without merit.
As discussed above, on direct examination Agent Novelli testified generally that he had examined defendant's computer to determine whether it contained files or images depicting a minor engaged in sexual activity. The prosecutor did not question Agent Novelli about the criteria he used to select the images that he saved for use in the investigation, or about the distinctions among various types of inappropriate images, such as pornography, erotica, or lascivious images. However, on cross-examination, defense counsel questioned Agent Novelli extensively about the agent's selection criteria for images with evidentiary value, and asked Agent Novelli what meaning the agent assigned to terms such as "child erotica." Agent Novelli explained that "I don't get into kind of defining what's pornography and what's pornography A, but I -- I do select photos that generally have some -- some suggestive pose or a various state of undress, whatever it may be." When defense counsel inquired further as to whether Agent Novelli employed "statutory definitions" in selecting photos for further review, Agent Novelli testified that he "leave[s] it up to the court" to make such determinations.
On redirect examination, Agent Novelli testified that he used software that enabled him to sort photos into bookmarked groups and to give each group a different label. Agent Novelli was asked, without objection, about his criteria for determining if a photo depicted child erotica or sexual activity. Agent Novelli testified that he used bookmarks to save photos for further use by law enforcement officers, and that he had saved over 900 photos under the bookmark "child erotica." When Agent Novelli was asked about the number of photos grouped under the bookmark "lascivious exhibition of a child," defendant objected on the grounds that Agent Novelli could not testify as to the legal definition of the term "lascivious." In response, the prosecutor asked Agent Novelli:
PROSECUTOR: So, I -- we're not talking about the legal definition, we're just -- I'm just asking you, did you make a bookmarked -- or images on his -- on the defendant's computer that you've bookmarked as lascivious exhibition of a minor?Defendant did not object to this exchange. When Agent Novelli then testified that he had bookmarked more than forty images under the title "lascivious exhibition of a child" and approximately thirty images as "child pornography," defendant objected only to Agent Novelli's use of a document to refresh his recollection as to the number of images in the category "child pornography." Furthermore, on re-cross-examination, it was defense counsel, rather than the prosecutor, who asked Agent Novelli for his "own definition of lascivious" and for the criteria Agent Novelli used to classify an image as child erotica.
AGENT NOVELLI: I made a bookmark which I named lascivious exhibition of a minor.
Regarding testimony elicited by defendant, N.C. Gen. Stat. § 15A- 1443(c) (2014) provides that a "defendant is not prejudiced by . . . error resulting from his own conduct." "Additionally, '[s]tatements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law[.]' " State v. Steen, 226 N.C. App. 568, 575, 739 S.E.2d 869, 875 (2013) (quoting State v. Gobal, 186 N.C. App. 308, 319, 651 S.E.2d 279, 287 (2007), aff'd per curiam, 362 N.C. 342, 661 S.E.2d 732 (2008)). Regarding testimony elicited by the prosecutor, N.C.R. App. P. 10(a)(1) (2014) provides in relevant part that to preserve an issue for appellate review, a party "must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make" and that it "is also necessary for the complaining party to obtain a ruling upon the party's request, objection, or motion." Although N.C.R. App. P. 10(a)(4) provides that in criminal cases an error that is not preserved "nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error[,]" appellate review is not available where the defendant fails to allege plain error. See State v. Ray, 364 N.C. 272, 277-78, 697 S.E.2d 319, 322 (2010). In the present case, we have carefully reviewed the transcript of defendant's trial, and conclude that to the extent that Agent Novelli testified concerning the meaning he attributed to terms such as "lascivious," defendant either directly elicited the testimony or failed to object to its admission and does not assert plain error on appeal. Defendant is not entitled to relief on the basis of this argument.
IV. Denial of Defendant's Suppression Motion
Defendant next argues that the trial court erred by denying his motion to suppress evidence obtained as a result of the administrative subpoenas issued by the SBI to AOL and Time Warner. In his motion, defendant sought the suppression of both (1) the information obtained as a direct result of these subpoenas, such as defendant's name, email address, and the IP address of his computer, and (2) the evidence derived from the law enforcement officers' interview of defendant and from the examination of defendant's computer. At trial, however, defendant did not object to the introduction of evidence on these subjects. Defendant failed to object to Detective Benton's testimony that he had received information from the SBI which led him to interview defendant at Harrelson Mechanical, or to Detective Benton's testimony about defendant's email identification. Nor did defendant object to the testimony of Detectives Benton and Smith concerning their interview of defendant, defendant's admissions, or defendant's consent to allow the law enforcement officers to take possession of defendant's computer. In addition, defendant failed to object to the introduction into evidence of the specific photos upon which the charges against him were based.
To preserve an issue for appeal, the defendant must make an objection at the point during the trial when the State attempts to introduce the evidence. A defendant cannot rely on his pretrial motion to suppress to preserve an issue for appeal. His objection must be renewed at trial. [Defendant's] failure to object at trial waived his right to have this issue reviewed on appeal.State v. Golphin, 352 N.C. 364, 463, 533 S.E.2d 168, 232 (2000) (citation omitted), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 149 L. Ed. 2d 305 (2001). We conclude that, by failing to object to the introduction of the evidence that his motion sought to exclude, defendant failed to preserve this issue for appellate review.
"[A]n issue that was not preserved by objection noted at trial . . . nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C. R. App. P. 10(a)(4) (2014). However, because "defendant failed to specifically and distinctly allege plain error in his brief, he waived his right to have this issue reviewed under that standard. See N.C.R. App. P. 10(a)(4)[.]" State v. Joyner, ___ N.C. App. ___, ___, 777 S.E.2d 332, 335 (2015) (citing State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012)). Accordingly, defendant has failed to preserve for review, even for plain error, the denial of his suppression motion.
Finally, defendant argues that he received ineffective assistance from his trial counsel. "[W]hen this Court reviews ineffective assistance of counsel claims on direct appeal and determines that they have been brought prematurely, we dismiss those claims without prejudice, allowing defendant to bring them pursuant to a subsequent motion for appropriate relief in the trial court." State v. Thompson, 359 N.C. 77, 123, 604 S.E.2d 850, 881 (2004) (citing State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001)). In this case, we determine that defendant's claim of ineffective assistance of counsel should be dismissed without prejudice to his right to file a motion for appropriate relief.
For the reasons discussed above, we conclude that defendant had a fair trial, free of reversible error.
NO ERROR.
Chief Judge McGEE and Judge STROUD concur.
Report per Rule 30(e).