State v. Randolph

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NO. COA12-688 NORTH CAROLINA COURT OF APPEALS Filed: 18 December 2012 STATE OF NORTH CAROLINA v. Wayne County No. 10 CRS 54859 HENRY TYRONE RANDOLPH Appeal by defendant from judgment entered 13 October 2011 by Judge Jack W. Jenkins in Wayne County Superior Court. Heard in the Court of Appeals 24 October 2012. Attorney General Roy Cooper, by Assistant Attorney General John P. Barkley, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant. HUNTER, JR., Robert N., Judge. Henry Tyrone Randolph ( Defendant ) appeals from judgment entered after offense. because a jury Defendant the concerning a trial convicted contends court writing the he erred State him is of second-degree entitled in: (1) to a admitting inaccurately sexual new trial evidence characterized as Defendant s statement ; (2) failing to provide the jury with a limiting instruction concerning the proper use of the -2substantive portions cross-examine of this Defendant; (3) statement denying the State to motion Defendant s used to dismiss the charge against him in light of the State s failure to put on sufficient evidence of a requisite sexual act ; (4) instructing the jury on a theory of sexual act not supported by the evidence; (5) admitting certain past bad acts evidence; and (6) admitting improper opinion evidence. We find no prejudicial error. I. Factual and Procedural History On 1 November 2010, the Wayne County Grand Jury indicted Defendant for one count of first-degree forcible sexual offense, one count of taking indecent liberties with a minor, and one count of lewd and lascivious act with a minor. Defendant pled not guilty to all three counts, and the charges came on for trial at the 10 October 2011 Special Criminal Session of Wayne County Superior Court. The State s evidence tended to show the following. mid-1990s, Dionne Defendant Vann contemporaries met ( Vann ). and recent Robin Sheffield Both mothers. women ( Sheffield ) were Sheffield s and Defendant s daughter named Tanya and Vann s daughter was named Barbara.1 1 In the Pseudonyms are used to protect the minors identities. was Defendant -3formed friendships with both women and their children. Defendant s friendship with Sheffield included a long off-and-on sexual relationship. For a decade or more, Defendant, Sheffield, Vann, and their two daughters were close friends. Defendant often baby sat Barbara and Tanya when they were very young. He spent time and money on the girls, and counseled them as a surrogate father as they grew older. Both girls occasionally spent the night at Defendant s home. With Sheffield s consent, Tanya spent almost every weekend at Defendant s house. Sheffield testified Defendant had a paternal relationship with Tanya, and that she thought he was the type of person that every parent would want in their friend figure. child s of her life. mother, Barbara and that testified she viewed Defendant him as a was a father At least one of the girls referred to Defendant as Uncle Ty. In 2010 Barbara, then age 16, accused Defendant of sexually abusing her. She testified that on 4 September 2010 she played basketball with Defendant, went to Defendant s house, and laid down on Defendant s bed. Barbara testified that Defendant then laid down next to her, touched her above her clothes around her vaginal area, pulled her underwear down, put two fingers inside -4of [her] against her will, got next licking all over [her] and stuff. to her, and started After the incident, Barbara sent Defendant a text message on 17 September 2010 from her job which read: Sorry to tell you I have to tell my mom what happened because ever since that night I ve been irritated and I got a discharge. I got to go to the doctor. [sic] responded by texting Do What? and Call me? . Defendant When Barbara did not respond, Defendant went to Barbara s workplace, asked Barbara about her text, and then left. Barbara then called Vann from work, was taken to the Goldsboro police station, and gave a statement to police in which she accused Defendant of having touched her inappropriately. Sheffield testified that after she learned of Barbara s allegations, she asked her daughter Tanya if Defendant had ever touched her inappropriately. Defendant had not touched her. Tanya initially said that She later recanted and told Sheffield that she had been touched by Defendant on two separate occasions, the first on 8 May 2010 when he touched her on her breast and vaginal area while she was sleeping on a couch in Defendant s house, and a second time on 10 September 2010 when she woke up naked with vaginal bleeding after falling asleep at Defendant s house. -5Goldsboro police arrested Defendant on 18 September 2010 and incarcerated Defendant in the county jail later that day. At some point, Defendant requested to speak with Investigator Doug Bethea. Defendant remained in jail during the next two days until the morning of 20 September 2010. That morning, Investigator Bethea went to the jail, retrieved Defendant, and brought him to the police station for interrogation. There, Investigator Bethea showed Defendant a written waiver of rights form. Defendant wrote on the rights form that he did not understand he had been charged with criminal offenses, and that an attorney had not yet been appointed to represent him. Defendant did sign a pre-printed Miranda waiver. Following this exchange, Investigator Bethea started questioning Defendant in the interrogation room at 8:57 a.m. After several minutes of interrogation, Investigator Bethea began writing on a piece of paper and then asked Defendant to sign the written instrument. However, Defendant said he was afraid Investigator Bethea had change[d] things and turned what he said inside out, and refused to sign. At 9:21 a.m., Defendant said he was tired of answering questions and clearly indicated to [Investigator Bethea] . . . he . . . didn t want to answer any more questions. However, Investigator Bethea kept -6asking [Defendant] questions and kept telling [Defendant] [i]f you got something that you need to tell me, you need to tell me. Defendant responded to Investigator Bethea s further interrogation by repeatedly examining his arrest warrants, nervously worrying about prison time, and orally responding to Investigator Bethea s questions. more notes Investigator Bethea hand wrote as the interrogation progressed. At about 11:00 a.m., Investigator Bethea once again asked Defendant to sign the writing he had produced. Defendant refused to sign the writing, but did initial various places on the writing just for [Investigator Bethea s] satisfaction. Before trial, Defendant filed a motion seeking to suppress any and all evidence of post-arrest comments he allegedly made to Investigator Bethea on the morning of 20 September 2010, including the writing prepared by Investigator Bethea. Defendant renewed his motion at the start of trial, but the court deferred ruling at that time. The motion was heard near the end of the State s case-in-chief, in anticipation of the State calling Investigator Bethea to testify. At that hearing, Defendant argued the evidence was inadmissible because it was obtained in violation of his Miranda rights. He further argued that there was no evidence of any -7 statement he made, signed, or adopted. suppress Bethea hearing, [n]ever [Defendant s the trial court represented comments] that word observed he for During the motion to was that Investigator trying word, that to capture the written instrument unlikely capture[d] everything that was said in the course of the interrogation, and that the court was having trouble with [the somehow a verbatim Defendant did written out. State s argument] transcript. not sign any that the statement is The trial court found that statement that ultimately was Whatever statements were written out were not . . . in his handwriting. He did put some initials on [Investigator Bethea s notes] but they were sporadic and it doesn t seem to be any sort sporadic of rhyme here and Defendant s no or reason there. answer on to them; they re The trial court the rights form just also sort of found that suggest[s] that [Defendant] did not understand that he had been charged with criminal offenses. At the end of the hearing, the trial court orally granted Defendant s motion to suppress in part.2 2 The court suppressed Because the only two witnesses to testify at the hearing (Investigator Bethea and arresting Officer Chris Irby) presented uncontroverted testimony, the trial court was not required to enter a written order in the matter. See State v. Braswell, __ N.C. App. __, __, 729 S.E.2d 697, 700 (2012) ( Pursuant to N.C. -8the State s Investigator evidence Bethea regarding after 9:21 comments a.m., Defendant including made the to written instrument prepared by Investigator Bethea, on the grounds that: [t]he defendant did give an indication that he was tired of answering questions at or about 9:21, and thereafter additional statements were taken, which, in the Court s opinion, should not have been, and those statements should not be used against the defendant because they would violate the defendant s constitutional rights. However, the trial court ruled that the State s evidence regarding comments Defendant made between 8:57 a.m. and 9:21 a.m. were admissible. Investigator Bethea testified immediately after the trial court s ruling. He was the last witness called by the State. At the close of the State s evidence, the trial court dismissed the first-degree sexual offense charge for insufficient evidence but determined there was sufficient evidence of the lesser included offense of second-degree sexual offense to proceed on that charge. Gen. Stat. § 15A 977(f) (2011), the trial judge must set forth in the record his findings of facts and conclusions of law. This statute has been interpreted as mandating a written order unless (1) the trial court provides its rationale from the bench, and (2) there are no material conflicts in the evidence at the suppression hearing. (citations and quotation marks omitted)). -9Defendant inappropriately testified touched at trial, Barbara girls were fabricating stories or repeatedly Tanya, because and he was denied he ever suggested both ending or had ended his sexual relationship with Tanya s mother Sheffield. On cross-examination and without objection, the prosecutor marked the writing Investigator Bethea made during the 20 September 2010 interrogation as State s Exhibit 11, characterized the writing as [D]efendant s statement, questioned Defendant about his statement, and had Defendant read his statement to the jury twice. The jury found Defendant offense involving Barbara, guilty of trial court sentenced sexual but not guilty of the two counts related to the alleged touching of Tanya. the second-degree Defendant to On 13 October 2011, 83 months minimum imprisonment, and subjected Defendant to lifetime sex offender registration and satellite-based monitoring orders. Defendant gave oral notice of appeal in open court. II. Jurisdiction As Defendant appeals from the final judgment of a superior court, an appeal lies of right to this Court pursuant to N.C. Gen. Stat. § 7A 27(b) (2011). -10III. Analysis Defendant raises six issues on appeal, which we address in turn. A. Improper Use and Characterization of Defendant s Statement Defendant first argues that he is entitled to a new trial because evidence of and about a written instrument prepared by Investigator Bethea was improperly admitted at trial. We disagree. As before noted trial, regarding above, Defendant seeking statements to he exclude made morning of 20 September 2010. both Miranda instrument statement grounds prepared of Defendant s the motion and by brought to any on to Suppress all and Investigator the basis Investigator part, Motion evidence Bethea on the Defendant moved to suppress on defendant. in a At on that Bethea trial, the constitutional the was written not court the granted grounds, and suppressed all evidence concerning statements made by Defendant after 9:21 a.m., including the written instrument. The trial court did not suppress evidence related to oral statements made by Defendant prior to 9:21 a.m. Defendant raises two arguments with respect to evidence of his purported statement being introduced at trial. First, -11Defendant contends that the substance of Investigator Bethea s testimony regarding Defendant s comments made prior to 9:21 a.m., which the trial court deemed admissible, should have been excluded under the rationale of State v. Walker, 269 N.C. 135, 152 S.E.2d 133 (1967). Second, Defendant objects to the use and introduction of the written instrument prepared by Investigator Bethea during his cross-examination. 1. Direct Examination of Investigator Bethea With respect to Defendant s argument regarding the substance of Investigator Bethea s testimony, the State contends we should Suppress review the for plain introduction error, of because Defendant s [t]he Motion to statement was not enough to preserve [the] objection . . . once the evidence was introduced without objection. The State argues Defendant was required to object to testimony regarding the statement, and failed to do so. We disagree with the State that Defendant has failed to preserve his argument. The North Carolina Rules of Evidence provide that a Defendant seeking to preserve an issue for appeal need not renew an objection once the trial court has made a definitive ruling on the record. N.C. R. Evid. 103(a)(2). However, our Supreme Court has recognized that [t]here is a direct conflict -12between this evidentiary rule and [the North Carolina Rules of Appellate Procedure], which this Court has consistently interpreted to provide that a trial court s evidentiary ruling on a pretrial motion is not sufficient to preserve the issue of admissibility for appeal unless a defendant renews the objection during trial. State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007). Because the North Carolina Constitution vests in our Supreme Court the exclusive authority to make rules of procedure and practice for the Appellate Division, any conflict must be resolved in favor of the Appellate Rules and the case law interpreting them. Id. (quoting N.C. Const. art. IV, § 13, cl. 2). Nevertheless, even under our precedent requiring renewal of an objection at trial, Defendant has preserved this argument for appeal. Defendant filed a written pre-trial motion to suppress evidence in which he moved to suppress any and all evidence of statements made by the defendant. Defendant renewed this motion at the start of trial, but agreed at the request of the trial arose. trial court to defer hearing on the matter until the issue Defendant renewed his objection to the evidence when the court convened a voir dire of Investigator Bethea trial, and once again stated the basis for his objection. at At -13the conclusion Defendant s of Motion voir to dire, the Suppress. trial The court State then ruled on immediately called Investigator Bethea to testify before the jury, where testimony which formed part of the basis of Defendant s Motion to Suppress was elicited. Although Defendant did not object again during Investigator Bethea s testimony, he did object in anticipation of this challenged testimony. facts, where suppress on Defendant which Defendant has objection at filed ruling proper was issue pre-trial deferred this preserved trial a prompted the Thus under these until for court trial, to for prejudicial error. Under a to hold we hold where appeal addressing the merits of the pre-trial motion. review motion his a hearing Therefore, we prejudicial error analysis, [t]his Court considers whether there was a reasonable possibility that, had the error in question not been committed, a different result would have been reached at trial. State v. Stanley, __ N.C. App. __, __, 713 S.E.2d 196, 199 (2011). Immediately motion to Defendant following suppress, objects on the the court s State appeal called to the ruling on Defendant s Investigator following portion Investigator Bethea s testimony: Q. What did you do police department? when you got to Bethea. the of -14A. I took him in, had him have a seat in the interview room number 1. I asked him did he want anything to drink and did you need any snacks. I told him where the bathrooms were. Once we got in there, I read him his Fifth and Sixth amendment rights. Q. What did you do after that? A. Well, once I we went over the form, he decided he made the decision to talk to me. And Q. What did he say? A. We discussed what he what he had said in the first part of our interview. Q. And what did he say in the first part of your interview? A. He stated that she had told him she had a discharge from her vaginal area. Q. Who is she ? A. [Barbara]. He arrived at work to talk to her about it and asked her what was the deal. She didn t know where it had come from. Stated that on Friday she, being [Barbara], was over at his house. She took a shower and came and laid on the bed beside him. He said, Beside me. She had on shorts, panties, sports bra, and a T-shirt. He said, I laid my arm across her body while she was on the phone. I asked her was she going to get off the phone. I turned the other way, away from her. Q. Did the defendant say anything at all about how he came to know that the defendant that did the defendant say how he knew that [Barbara] had on panties and a sports -15bra under her shorts and T-shirt? A. We had been in conversation, and all he did was just come out and I, you know I was asking questions and he would answer. And these this is all he said. He didn t say anything else. Q. Okay. What did you do when you concluded taking the defendant s statement? A. Are you talking about at that point in time or Q. At the end of your interview. A. At the end of our interview? I escorted him back to the jail. Defendant asserts this testimony should have been excluded under the rationale of Walker, 269 N.C. 135, 152 S.E.2d 133. In Walker, our Supreme Court held: If a statement purporting to be a confession is given by accused, and is reduced to writing by another person, before the written instrument will be deemed admissible as the written confession of accused, he must in some manner have indicated his acquiescence in the correctness of the writing itself. If the transcribed statement is not read by or to accused, and is not signed by accused, or in some other manner approved, or its correctness acknowledged, the instrument is not legally, or per se, the confession of accused; and it is not admissible in evidence as the written confession of accused. 269 N.C. at 139, citations omitted). 152 S.E.2d at 137 (quotation marks and Thus, Walker stands for the proposition -16that the State may not introduce evidence of a written confession unless that written statement bears certain indicia of voluntariness and accuracy. However, so long as oral statements are not obtained in violation of the constitutional protections against self-incrimination or due process, a defendant s own statement is admissible when offered against him at trial as an exception to the hearsay rule. State v. Chapman, 359 N.C. 328, 354, 611 S.E.2d 794, 815 (2005) (citing N.C. R. Evid. 801(d)). Here, Investigator Bethea merely testified as what Defendant told him prior to 9:21 a.m. on 20 September 2010. The trial court held that statements made by Defendant prior to 9:21 a.m. were not constitutionally inadmissible, and Defendant does not argue differently on appeal. As explained below, the State was permitted to use the constitutionally suppressed evidence on cross-examination of Defendant to impeach his testimony. During the State s case-in-chief however, no written manifestation of Defendant s comments prior to 9:21 a.m. was introduced or read to the jury. Therefore, Bethea s testimony Walker does not bar Investigator regarding Defendant s oral statements prior to 9:21 a.m., and Defendant s argument is overruled. made -17We also disagree with Defendant that the two isolated references to his statement, made during Investigator Bethea s testimony constituted prejudicial error when viewed in light of the later testimony elicited from Defendant discussed below. 2. Cross Examination of Defendant Defendant next argues that under the holding of Walker, it was improper for the State, during cross-examination, to introduce and characterize the written instrument prepared by Investigator Bethea as Defendant s statement. On direct examination, defense counsel elicited testimony from Defendant Bethea, regarding including both his a interaction denial that with he Investigator had given any statement, as well as testimony specifically addressing, and denying, several instrument. introduction of the inculpatory portions of the written Accordingly, Defendant may not argue on appeal that of the substance of the written instrument cross-examination to impeach Defendant constituted error. on See State v. Jones, __ N.C. App. __, __, 711 S.E.2d 791, 796 (2011) (observing that a defendant may not request a new trial on the basis of error he causes or joins in causing). Defendant could have avoided any discussion of the written instrument entirely by simply declining to testify. Therefore, Defendant is limited -18only to arguing that the prosecution s characterization of the written instrument as Defendant s statement was improper. Assuming but in no way deciding that it was error for the trial court to allow the State to characterize the written instrument as Defendant s statement, we cannot conclude that a different result would have been reached at trial absent such characterization. at 199. Defendant characterization statement Stanley, __ N.C. App. at __, 713 S.E.2d caused of has the the not demonstrated written jury to that instrument accept it as as the State s Defendant s such. To the contrary, the record reveals Defendant took the stand, denied that he had acquiesced to any statement, and denied specific admissions contained in the purported statement. The State subsequently attempted to impeach Defendant s testimony. ultimately presented the jury with Defendant was credible in his denial. the question of This whether Defendant has not met his burden of demonstrating prejudice. B. Failure to Provide a Limiting Instruction Defendant next argues that the trial court erred by failing to give a limiting instruction during the jury charge regarding the State s use of Defendant s Miranda inadmissible comments on cross-examination. Specifically, Defendant contends the trial -19court failed to instruct the jury that this evidence was admissible for only one limited purpose, that it could not be considered as substantive evidence of guilt, and that it could only be considered as non-substantive impeachment evidence. We disagree. Preliminarily, we note that Defendant did not object to the jury instruction at trial; therefore this argument is subject to plain error review. 798, 663 S.E.2d See State v. Oakman, 191 N.C. App. 796, 453, 456 (2008) ( A defendant who does not object to jury instructions at trial will be subject to a plain error standard of review on appeal. ). In deciding whether a defect in the jury instruction constitutes plain error , the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury s finding of guilt. 375, 378 79 (1983). is applied, [i]t State v. Odom, 307 N.C. 655, 661, 300 S.E.2d However, even when the plain error rule is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court. Id. at 660 61, 300 S.E.2d at 378 (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977))(alteration in original). -20The court charged the jury on the State s use of the evidence in question using the language of N.C.P.I. Crim. 105.21, entitled False, Contradictory, or Conflicting Statements of Defendant : The State contends and the defendant denies that the defendant made false, contradictory, or conflicting statements. If you find that the defendant made such statements, they may be considered by you as a circumstance tending to reflect the mental process of a person possessed of a guilty conscience, seeking to divert suspicion or to exculpate the concern, and you should consider that evidence along with all the other believable evidence in this case. However, if you find that the defendant made such statements, they do not create a presumption of guilt, and such evidence standing alone is not sufficient to establish guilt. This instruction explained to the jury that: (1) the State and Defendant disputed whether Defendant made prior inconsistent statements to Investigator Bethea, (2) if the jury believed that Defendant made such statements, that they could consider them as evidence of an effort by Defendant to divert suspicion, and (3) standing alone, any prior inconsistent statement of Defendant was insufficient to establish guilt. It is speculative as to whether the jury took this charge to mean it could consider Defendant s prior comments Investigator Bethea as substantive evidence of guilt. to Defendant -21on appeal does not direct us to the alternate language the trial court should have used. charge given did not To the extent Defendant argues that the properly instruct the jury as to the limited purpose for which the evidence could be considered, we note that a trial court [does] not err in . . . fail[ing] to restrict the purpose of the cross-examination for impeachment only when counsel [does] not request such an instruction. Gillespie v. Draughn, 54 N.C. App. 413, 416, 283 S.E.2d 548, 551 (1981). In general, the choice of jury instructions is a matter within the trial court s discretion and will not be overturned absent a showing of abuse of discretion. State v. Nicholson, 355 N.C. 1, 66, 558 S.E.2d 109, 152 (2002). The instruction the trial court elected to give was within its discretion. We hold the court s decision was not in error, much less plain error. C. Insufficient Evidence of Sexual Act /Instructing on Theory Unsupported by Evidence Defendant next asserts that the trial court erred by denying his motion to dismiss the second-degree sexual offense charge because the State presented insufficient evidence of a requisite sexual act on the part of Defendant. Defendant s argument is without merit. We review a trial court s denial of a motion to dismiss de -22novo. State v. Chillo, 208 N.C. App. 541, 545, 705 S.E.2d 394, 397 (2010). When a defendant makes a motion to dismiss, the trial must court determine whether there is substantial evidence of (1) the essential elements of the offense charged, and (2) the defendant s being the perpetrator of the offense. State v. Earnhardt, 307 N.C. 62, 65 66, 296 S.E.2d 649, 651 (1982). Substantial evidence is such relevant evidence as a reasonable mind conclusion, and might is a accept as question of adequate law for to the support trial a court. State v. Smith, 300 N.C. 71, 78 79, 265 S.E.2d 164, 169 (1980). In evaluating a defendant s motion, the trial court must view the evidence in the light most favorable to the State and give the State the benefit of all reasonable inferences to be drawn from the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). Defendant was convicted of second-degree sexual offense pursuant to N.C. Gen. Stat. § 14-27.5(a)(1) (2011), an essential element of which is engage[ment] in a sexual act with another person. N.C. Gen. Stat. § 14-27.1(4) (2011) defines sexual act as including cunnilingus or the penetration . . . by any object into the genital . . . opening of another person s body. Cunnilingus is the slightest touching by the lips or tongue of -23another to any part of [a] woman s genitalia. State v. Ludlum, 303 N.C. 666, 674, 281 S.E.2d 159, 163 (1981). Here, Defendant argues that there was insufficient evidence of both reflects cunnilingus sufficient and penetration. evidence of both However, acts, the record particularly when providing the State the benefit of all reasonable inferences. Barbara testified as follows: Q. What happened then? A. He had grabbed my shorts and tried to pull them down. I had one side of them and he kept trying to pull my shorts down. And he got them down. He put two fingers inside of me. And I grabbed his hand, tried to move but he wouldn t. Q. Did you have on underpants at that time? A. Yes, ma am. Q. Did he pull those down, too? A. Yes, ma am. Barbara then testified that Defendant said he wanted to please [her] like a woman should be pleased, got between [her] legs and started licking all over [her] and stuff, and this went on for about that Defendant immediately expressed remorse over what he had done. She also explained five that [Defendant]. minutes. she The was State Barbara having also stated [vaginal] introduced, without discharge objection from from -24Defendant, a lengthy and detailed statement Barbara made to police which was consistent with the account of the events she gave at trial. presented, favorable viewed to against him. the We disagree with Defendant that the evidence in totality State, and warranted taken in dismissal the of light the most charge Defendant s motion to dismiss was properly denied. Accordingly, Defendant s argument that the trial court erred by instruct[ing] the jury on a theory of sexual act not supported by the evidence, is also without merit. D. Admission of Other Crimes Evidence Defendant additionally argues that the trial court erred in admitting via testimony four pieces of other crimes evidence which were inadmissible under N.C. R. Evid. 401 404 and 802. Specifically, Defendant contends admission of the following was improper: (1) Barbara s testimony that a woman named Cathy Smith had told her that Smith had walked in on [Defendant] molesting another fourteen-year-old girl, (2) testimony from Vann to the same effect, (3) Tanya s repeated testimony that Defendant had threatened to kill her mother and grandmother, and (4) testimony from Defendant the State eliciting on cross-examination that he had just got out of jail. Defendant did not object to any of this testimony at trial, -25and thus bears the burden of demonstrating plain error. See State v. Lawrence, __ N.C. __, __, 723 S.E.2d 326, 334 (2012). This Court does not analyze errors cumulatively to determine whether plain error is present. State v. Bellamy, 172 N.C. App. 649, 662, 617 S.E.2d 81, 90 (2005). With regard to Barbara and Vann s testimony about Defendant s alleged molestation of another girl, we note that Defendant elicited this testimony on cross-examination of the State s witnesses, and made no motion to strike this testimony. This Court defendant has on recognized that cross-examination [s]tatements are, even if elicited error, by a invited error, by which a defendant cannot be prejudiced as a matter of law. See State v. Carter, __ N.C. App. __, __, 707 S.E.2d 700, 707 08 (2011) (quotation marks and citation omitted). defendant who invites error has waived his right Thus, a to all appellate review concerning the invited error, including plain error review. State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001). Accordingly, Defendant s argument insofar as it pertains to these statements is overruled. Moreover, we cannot say that introduction of the remaining two pieces of evidence, that Defendant had threatened to kill Tanya s mother and grandmother, and that he had just got out of -26jail, although likely not helpful to Defendant s case, were so prejudicial as to have tilted the scales and caused the jury to reach its verdict. State v. Duke, 360 N.C. 110, 138 39, 623 S.E.2d 11, 29-30 (2005). Defendant s argument to the contrary is overruled. E. Inadmissible Opinion Evidence Defendant lastly argues that the trial court erred in admitt[ing] the State s inadmissible opinion evidence [that] Defendant had in fact sexually abused [Barbara]. This argument is without merit. At trial, Investigator Bethea testified for the State that on 20 September 2010 he thought [he] had enough [evidence] at that point in time to arrest Defendant for sex crimes and that on that on the same day both Vann and Sheffield told him that a sexual assault had occurred over a period of time. Vann also testified for the State that another woman named Ann Herring told her after September 2010 that she knew that [Defendant] had did this because of the questions that [Defendant] had asked her and that [D]efendant had done what he was accused of. Defendant argues this testimony was impermissible opinion evidence that should have been excluded. However, an officer may give testimony regarding his -27perception and investigation. experience conducting a sexual assault See, e.g., State v. O Hanlon, 153 N.C. App. 546, 562 63, 570 S.E.2d record, it is 751, clear 761 62 that (2002). Upon Investigator providing a narrative of his investigation. review Bethea of was the merely His testimony was not being offered as expert or lay testimony probative on the issue of Defendant s guilt. Vann s hearsay testimony recounting a third party s assertion that she knew that [Defendant] had did this because of the questions that [Defendant] had asked her does not, standing alone, amount to plain error. This is especially it true in light of the context in which was elicited as a response to a question about how the investigation began. Defendant s argument to the contrary is overruled. IV. Conclusion For the foregoing reasons, we find NO PREJUDICIAL ERROR IN PART; NO ERROR IN PART. Judges HUNTER, Robert C. and CALABRIA concur.

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