State v. Williams

754 S.E.2d 418

STATE of North Carolina

v.Jason Russell WILLIAMS, Defendant.

No. COA12–1128.

Court of Appeals of North Carolina.

Jan. 21, 2014.

Appeal by defendant from judgments entered 9 May 2011 by Judge Claire V. Hill in Robeson County Superior Court. Heard in the Court of Appeals 9 April 2013.

Roy Cooper, Attorney General, by Sherri Horner Lawrence, Assistant Attorney General, for the State.

Staples Hughes, Appellate Defender, by David W. Andrews, Assistant Appellate Defender, for defendant-appellant.

DAVIS, Judge.

Jason Russell Williams (“Defendant”) appeals from his convictions for 102 counts of second-degree sexual exploitation of a minor and 25 counts of third-degree sexual exploitation of a minor. On appeal, Defendant asserts that the trial court (1) erroneously instructed the jury on two alternate theories of guilt where one theory was not supported by the evidence in 79 of the 102 counts of second-degree sexual exploitation of a minor; (2) incorrectly entered judgment on 25 counts of third-degree sexual exploitation of a minor despite a lack of intent by the General Assembly to punish criminal defendants for both receiving and possessing the same images; (3) violated his right to a public trial by closing the courtroom for a portion of the trial; (4) improperly admitted lay opinion testimony from law enforcement officers that images on a compact disc depicted minors engaged in sexual activity; and (5) improperly admitted testimony under Rule 404(b) that Defendant placed a webcam in a minor's bedroom, touched her inappropriately, and videotaped her. After careful review, we find no prejudicial error.

Factual Background

The State's evidence tended to establish the following facts: Defendant lived in Robeson County next door to Corey and Tabitha,¹ siblings who were 15 and 16 years old at the time of the underlying events. In April 2002, Corey told his school counselors that Defendant had given him a compact disc (“CD”) containing pornographic images. Corey's stepfather viewed the images and determined that, in his opinion, the pictures included images depicting adults engaging in sexual activity and images depicting persons under the age of 18 who were “unclothed.” During this same time period, Tabitha informed her stepfather that Defendant had installed a webcam in her bedroom when he came over to work on her computer.

Tabitha and Corey's stepfather called the Robeson County Sheriff's Office, and on 31 May 2002, Detective Howard Branch (“Detective Branch”) of the Sheriff's Office came to their home to collect the CD and to inspect and photograph the webcam in Tabitha's bedroom. Detective Branch contacted Special Agent Charles Lee Newcomb (“Special Agent Newcomb”) of the State Bureau of Investigation (“SBI”) to assist him in opening the files on the CD. Detective Branch testified that after several attempts, Special Agent Newcomb was able to open and view the files, which contained images of both minors and adults engaging in sexual activity.

On 11 July 2002, law enforcement officers executed a warrant to search Defendant's home, and Special Agent Newcomb seized four computer towers from four desktop-style computers. Special Agent Newcomb testified that while the officers were searching Defendant's residence, he spoke to Defendant, and Defendant admitted that there was both adult and child pornography on his computers. Special Agent Newcomb further related that Defendant had admitted attempting to install a webcam in Tabitha's room but had stated that he did not have a receiver for the webcam. During their conversation, Defendant also acknowledged that he gave Corey the CD containing the pornographic images.

Defendant was indicted and charged with 2 counts of disseminating obscene material to a minor under the age of 16, 114 counts of second-degree sexual exploitation of a minor, and 60 counts of third-degree sexual exploitation of a minor. Prior to trial, the State elected not to proceed on 9 counts of second-degree sexual exploitation of a minor and 35 counts of third-degree sexual exploitation of a minor. A jury trial was held during the May 2011 Criminal Session of Robeson County Superior Court.

At trial, SBI Special Agent Jonathan Lee Dilday (“Special Agent Dilday”) testified regarding each image that formed the basis of a count of sexual exploitation of a minor. Each image was shown to the jury, and Special Agent Dilday testified as to when the file was created, the specific computer(s) on which the file was located, the file's name, and—for some of the images—when the file had last been accessed. Many of the images had file titles that described the specific sexual act portrayed in the image in graphic and explicit terms and labeled the subjects as “underage,” “preteens,” or “kiddies.” By order of the trial court, the courtroom was closed during Special Agent Dilday's testimony—the portion of the trial when the images were presented to the jury. The courtroom was open for every other portion of the trial.

Defendant testified at trial in his own defense. He stated that he repaired computers and removed computer viruses for a living and would often have 20 to 40 different clients at a time. He also testified that he was involved in multi-player computer gaming and would both invite people to his home to play videogames and go to other locations to play videogames and share files. Defendant further stated that he would let friends and other persons come to his home and use his high-speed Internet connection.

At the close of all the evidence, the trial court dismissed the two counts of disseminating obscene material to a minor and three of the counts of second-degree sexual exploitation. The jury returned guilty verdicts on all remaining charges. The trial court sentenced Defendant to five consecutive presumptive-range terms of 13 to 16 months imprisonment. The trial court then suspended three of the sentences and ordered Defendant to be placed on supervised probation for 36 months upon his release from incarceration. The trial court also ordered Defendant to register as a sex offender for 30 years. Defendant gave notice of appeal in open court.

On 7 August 2013, this Court entered an order remanding this matter to the trial court to conduct a hearing and make findings of fact and conclusions of law regarding the temporary closure of the courtroom in accordance with Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 2216–17, 81 L.Ed.2d 31, 39 (1984), as interpreted by this Court in State v. Rollins, –––N.C.App. ––––, ––––, 729 S.E.2d 73, 77–79 (2012). Defendant's appeal was held in abeyance pending this Court's receipt of the trial court's order containing these new findings.

A hearing was held by the trial court on 9 September 2013. On 27 September 2013, the trial court entered an order containing findings of fact and conclusions of law as directed by this Court.

Analysis

I. Jury Instructions

Defendant first argues that the trial court erroneously instructed the jury on second-degree sexual exploitation of a minor. Pursuant to N.C. Gen.Stat. § 14–190.17, a person commits second-degree sexual exploitation of a minor when, knowing the nature or content of the material, he

(1) Records, photographs, films, develops, or duplicates material that contains a visual representation of a minor engaged in sexual activity; or

(2) Distributes, transports, exhibits, receives, sells, purchases, exchanges, or solicits material that contains a visual representation of a minor engaged in sexual activity.

N.C. Gen.Stat. § 190.17(a)(1)-(2) (2011).

Here, the trial court instructed the jury on two alternative theories of guilt: (1) exploitationof a minor by duplicating material that contained a visual representation of a minor engaged in sexual activity; and (2) exploitation of a minor by receiving material that contained a visual representation of a minor engaged in sexual activity. Defendant's specific argument on appeal is that the trial court committed reversible error in its instructions because the duplication theory of guilt was supported by the evidence in only some of the counts.

Defendant correctly notes that “[w]here the trial court instructs on alternative theories, one of which is not supported by the evidence, and it cannot be discerned from the record upon which theory the jury relied in arriving at its verdict, the error entitles the defendant to a new trial.” State v. O'Rourke, 114 N.C.App. 435, 442, 442 S.E.2d 137, 140 (1994); see State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987) (“resolv [ing] the ambiguity in favor of the defendant” and ordering new trial where one alternate theory of guilt was erroneous and one was properly submitted).

Defendant asserts that he is entitled to a new trial on 79 of the 102 counts of second-degree sexual exploitation of a minor. He contends that the evidence presented at trial was sufficient to support the duplication theory for only the 23 images that were found in two or more locations on Defendant's computers. Because the remaining 79 images or videos were discovered in only one location, Defendant argues that the duplication theory of guilt was unsupported by the evidence offered by the State for the 79 counts predicated on those images.

At trial, Special Agent Dilday testified regarding the process that occurs when an image is downloaded from a file sharing website or other Internet source. He explained that “when you download something from the [I]nternet, you are making a copy of the file ... from the location where it is stored on the [I]nternet down to the local machine that you are working on.” When further questioned as to whether it was accurate to say that two copies of the downloaded material exist once a download is successfully completed, he replied affirmatively. The State contends that this evidence sufficiently supported an instruction on duplication for all counts of second-degree sexual exploitation because Defend...