{ "id": 4162754, "name": "STATE OF NORTH CAROLINA v. THOMAS EDWARD ANDERSON", "name_abbreviation": "State v. Anderson", "decision_date": "2008-12-16", "docket_number": "No. COA08-67", "first_page": "292", "last_page": "303", "citations": [ { "type": "official", "cite": "194 N.C. App. 292" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "656 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640286 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/656/0594-01" ] }, { "cite": "362 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640352, 12640353, 12640414, 12640415 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/656/0593-01", "/se2d/656/0593-02", "/se2d/657/0023-02", "/se2d/657/0024-01" ] }, { "cite": "593 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631211, 12631212 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/593/0083-02", "/se2d/593/0083-01" ] }, { "cite": "358 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631209, 12631211, 12631212, 12631213, 12631158, 12631159, 12631102 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/593/0081-01", "/se2d/593/0083-02", "/se2d/593/0083-01", "/se2d/593/0084-01", "/se2d/593/0395-01", "/se2d/593/0396-01", "/se2d/592/0200-02" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "652", "parenthetical": "citations omitted" }, { "page": "653" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "66", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "393 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "814" }, { "page": "814" } ], "opinion_index": 0 }, { "cite": "327 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498848 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "215" }, { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0210-01" ] }, { "cite": "426 S.E.2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "parenthetical": "\"Whether the witness qualifies as an expert is exclusively within the trial judge's discretion 'and is not to be reversed on appeal absent a complete lack of evidence to support his ruling.' \"" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "333 N.C. 347", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545059, 2550093, 2548975, 2548374, 2544791 ], "year": 1993, "pin_cites": [ { "parenthetical": "\"Whether the witness qualifies as an expert is exclusively within the trial judge's discretion 'and is not to be reversed on appeal absent a complete lack of evidence to support his ruling.' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0347-02", "/nc/333/0347-04", "/nc/333/0347-03", "/nc/333/0347-01", "/nc/333/0347-05" ] }, { "cite": "418 S.E.2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "267" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 596", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314447 ], "year": 1992, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0596-01" ] }, { "cite": "317 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1984, "pin_cites": [ { "page": "392" }, { "page": "392" }, { "page": "392" }, { "page": "392" } ], "opinion_index": 0 }, { "cite": "311 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4682939 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "388" }, { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0386-01" ] }, { "cite": "145 L. Ed. 2d 274", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "528 U.S. 941", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9531459, 9532036, 9531683, 9531419, 9531977, 9531531, 9531499, 9531631, 9531926, 9531799, 9531384, 9531739, 9531868, 9531582 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/528/0941-03", "/us/528/0941-14", "/us/528/0941-08", "/us/528/0941-02", "/us/528/0941-13", "/us/528/0941-05", "/us/528/0941-04", "/us/528/0941-07", "/us/528/0941-12", "/us/528/0941-10", "/us/528/0941-01", "/us/528/0941-09", "/us/528/0941-11", "/us/528/0941-06" ] }, { "cite": "512 S.E.2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "350 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132015 ], "year": 1999, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0109-01" ] }, { "cite": "566 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "75" } ], "opinion_index": 0 }, { "cite": "355 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220086 ], "year": 2002, "pin_cites": [ { "page": "663" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0642-01" ] }, { "cite": "657 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "658-59", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "362 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150377 ], "year": 2008, "pin_cites": [ { "page": "186", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0181-01" ] }, { "cite": "275 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "493" }, { "page": "494" } ], "opinion_index": 0 }, { "cite": "302 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565719 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "372" }, { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0370-01" ] }, { "cite": "571 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "885" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 515", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251004 ], "year": 2002, "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0515-01" ] }, { "cite": "239 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "465" } ], "opinion_index": 0 }, { "cite": "293 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567044 ], "year": 1977, "pin_cites": [ { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0702-01" ] }, { "cite": "588 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "897" }, { "page": "897", "parenthetical": "citation omitted" }, { "page": "897" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 265", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956792 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "271" }, { "page": "271" }, { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0265-01" ] }, { "cite": "111 L. Ed. 2d 777", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "497 U.S. 1021", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6268812, 6267060, 6268214, 6267352, 6267610, 6266778, 6268507, 6267902 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/497/1021-08", "/us/497/1021-02", "/us/497/1021-06", "/us/497/1021-03", "/us/497/1021-04", "/us/497/1021-01", "/us/497/1021-07", "/us/497/1021-05" ] }, { "cite": "381 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "647" }, { "page": "647", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "325 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487626 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "23" }, { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0001-01" ] }, { "cite": "565 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "626" }, { "page": "627" }, { "page": "627" } ], "opinion_index": 0 }, { "cite": "355 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219972 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "529-30" }, { "page": "529-30" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0501-01" ] } ], "analysis": { "cardinality": 1015, "char_count": 26181, "ocr_confidence": 0.75, "pagerank": { "raw": 4.5046715916883656e-08, "percentile": 0.2823407851191324 }, "sha256": "ea563f38477de80f71a7d0ce83f0b8fdd8e6c2e221d6254628742f60753d606a", "simhash": "1:0b3b4c221223ad5a", "word_count": 4237 }, "last_updated": "2023-07-14T16:50:43.594733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and JACKSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. THOMAS EDWARD ANDERSON" ], "opinions": [ { "text": "McCullough, Judge.\nFACTS\nOn 28 April 2005, Clare Anderson (\u201cClare\u201d) found a camera in an HVAC vent in her bedroom. After telling her mother, Deborah Anderson (\u201cMs. Anderson\u201d), about the camera, the two examined the camera and found a cord leading from the camera in Clare\u2019s room to a computer located in the family\u2019s computer room. The computer belonged to Thomas Edward Anderson (\u201cdefendant\u201d), Clare\u2019s stepfather. Clare and Ms. Anderson confronted defendant, and asked him if he was aware of the camera. Defendant admitted to placing the camera in the room, but argued that he had installed the camera to ensure that Clare did not get into trouble. Ms. Anderson requested defendant leave the house, and he did so a short time afterward.\nFollowing the discovery of the camera, Ms. Anderson asked a neighbor, Cheryl Christman, to remove defendant\u2019s computer. Ms. Christman removed the computer from the Anderson\u2019s home, placed it first in her trunk, and then delivered it to the Office of Special Investigations (OSI) at the local Air Force Base on 2 May 2005. Although defendant was a member of the Air Force Reserve, the officials at OSI determined that the matter should be left to the Wayne County Sheriff\u2019s Office (\u201cSheriffs Office\u201d). Accordingly, OSI turned the computer over to the Sheriff\u2019s Office. On 3 May 2005, Sergeant Tammy Odom of the Sheriff\u2019s Office interviewed Clare regarding the camera she found in her room. Defendant was later arrested for peeping at Clare.\nA short time after defendant\u2019s arrest, Agent John Rea of the State Bureau of Investigations (\u201cSBI\u201d) contacted Sergeant Odom and informed the sergeant that the SBI was investigating defendant. Defendant was being investigated because his computer had been detected sharing child pornography on the internet. On 8 June 2005, the Sheriff\u2019s Office released defendant\u2019s computer to Agent Rea to allow the SBI to further conduct their investigation. Agent Rea alerted defendant of the property he had seized and requested defendant\u2019s consent to allow the SBI to examine the contents of the hard drive of the computer in question. Defendant consented to the SBI\u2019s examination.\nOn 10 June 2005, SBI Special Agent Eric Hicks conducted a forensic preview examination on defendant\u2019s computer. On one of the computer\u2019s hard drives (\u201cdefendant\u2019s hard drive\u201d), Agent Hicks discovered approximately twenty-five movie files containing images of underage individuals engaged in sexual acts. Many of these files were given labels indicative of the explicit images they contained. Although the movie files were recovered from a single folder and had all been deleted, Agent Hicks determined that the files had previously been stored in a number of different folders on defendant\u2019s hard drive. Because the examination was only a preview, however, Agent Hicks did not attempt to determine if the files had ever been viewed.\nOn 15 June 2005, Agent Rea and Agent Kelly Moser interviewed defendant regarding the files he had been downloading online. Defendant stated that he had used file-sharing software to download movies, and that some of the files he had downloaded contained images of child pornography. Further, defendant stated that he had specifically searched for movie files containing these types of images. Eventually, defendant stated that he no longer wanted these files on his computer, so he performed a search and deleted those movie files located by the search. After this discussion, defendant began to discuss the camera his stepdaughter had found in her room. According to defendant, he put the camera in his stepdaughter\u2019s room to act as a video nanny, and did not have any inappropriate intentions.\nOn 28 November 2008, Agent Ricks attempted to perform a full forensic examination on defendant\u2019s hard drive. The examination was unsuccessful, however, as the hard drive did not work. The SBI then sent the hard drive to a private company for the purpose of recovering the data contained thereon. This too proved fruitless, and the SBI was unable to perform a full forensic examination or to determine in any more detail the contents of defendant\u2019s hard drive.\nOn 22 July 2005, defendant was convicted of misdemeanor secret peeping for his role in placing the camera in his stepdaughter\u2019s room. Defendant filed notice of appeal on that date. On 26 September 2006, defendant was indicted on ten felony counts of third-degree exploitation of a minor for the possession of the files containing child pornography. On 5 March 2007, under a superseding indictment, defendant was charged with both the original ten counts of third-degree exploitation of a minor as well as an additional ten felony counts of second-degree exploitation of a minor for receiving the aforementioned files. Defendant\u2019s appeal of his misdemeanor charge was joined with his twenty felony charges pursuant to a motion by the State, and the two matters were heard before Judge Jerry Braswell in Wayne County Superior Court. On 17 May 2007, defendant was found guilty of all the charges against him. Defendant now appeals.\nI.\nIn his first argument on appeal, defendant argues the trial court erred by joining defendant\u2019s two types of offenses for trial. We disagree.\n\u201cTwo or more offenses may be joined . . . for trial when the offenses . . . are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.\u201d N.C. Gen. Stat. \u00a7 15A-926(a) (2007). \u201cIn considering a motion to join, the trial judge must first determine if the statutory requirement of a transactional connection is met.\u201d State v. Williams, 355 N.C. 501, 529-30, 565 S.E.2d 609, 626 (2002). In making this determination, the trial judge may consider various factors including the presence of a common modus operandi and the time lapse between the offenses. Id. at 529-30, 565 S.E.2d at 627. Should the trial judge determine the offenses have the requisite transactional connection, the court must then determine if the defendant \u201ccan receive a fair hearing on each charge if the charges are tried together.\u201d State v. Huff, 325 N.C. 1, 23, 381 S.E.2d 635, 647 (1989), sentence vacated on other grounds, 497 U.S. 1021, 111 L. Ed. 2d 777 (1990). Our Supreme Court has held that\n[i]f consolidation hinders or deprives the accused of his ability to present his defense, the charges should not be consolidated. However, the trial judge\u2019s decision to consolidate for trial cases having a transactional connection is within the discretion of the trial court and, absent a showing of abuse of discretion, will not be disturbed on appeal.\nHuff, 325 N.C. at 23, 381 S.E.2d at 647 (citations omitted).\nAfter hearing the State\u2019s motion to join the two offenses for trial, the trial court found \u201cthat there appearfed] to be a common thread in that both offenses, both the felony and the misdemeanor offenses, seem[ed] to involve sexual exploitation involving young females, that a computer was used in both cases to view females.\u201d Accordingly, the trial court granted the State\u2019s motion. On appeal, defendant argues the trial court incorrectly determined that defendant\u2019s two offenses contained the requisite transactional connection for joinder.\nUpon review, we are unpersuaded by defendant\u2019s contention. Defendant exhibited a similar modus operandi in both types of crimes charged. In each instance, defendant used the same personal computer for the purpose of viewing pictures of young women. Although we note that each charge alleges defendant used the computer in a different manner, we find the use of the same tool to accomplish similar goals is sufficient to provide some evidence of a common modus operandi. See Williams, 355 N.C. at 529-30, 565 S.E.2d at 627. Further, the two types of offenses appear to have occurred during the same period of time. According to testimony proffered by defendant, he did not delete many of the illicit images he downloaded until after his stepdaughter found the camera in her room. Therefore, defendant possessed the illicit images at the same time the camera was in place to record his stepdaughter. After reviewing these factors, as well as the additional circumstances surrounding the two types of offenses, we hold the trial court was presented with sufficient evidence to support a determination that the two types of offenses shared a transactional connection. As we can find no evidence that defendant was deprived of his ability to present his defense, we hold the trial court did not abuse its discretion in consolidating the offenses for trial.\nII.\nIn his second argument on appeal, defendant argues the trial court issued his sentence in error. According to defendant, the trial court imposed a greater sentence upon defendant because he chose to proceed to trial rather than enter a guilty plea. We disagree.\n\u201cAlthough a sentence within the statutory limit will be presumed regular and valid, such a presumption is not conclusive.\u201d State v. Gantt, 161 N.C. App. 265, 271, 588 S.E.2d 893, 897 (2003), disc. review improvidently allowed, 358 N.C. 157, 593 S.E.2d 83 (2004). \u201cIf the record discloses that the court considered irrelevant and improper matter[s] in determining the severity of the sentence, the presumption of regularity is overcome, and the sentence is in violation of [the] defendant\u2019s rights.\u201d State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). \u201cA defendant has the right to plead not guilty, and \u2018he should not and cannot be punished for exercising that right.\u2019 \u201d Gantt, 161 N.C. App. at 271, 588 S.E.2d at 897 (citation omitted). \u201cWhere it can be reasonably inferred the sentence imposed on a defendant was based, even in part, on the defendant\u2019s insistence on a jury trial, the defendant is entitled to a new sentencing hearing.\u201d State v. Peterson, 154 N.C. App. 515, 517, 571 S.E.2d 883, 885 (2002).\nIn the case sub judice, the record indicates that a conference was held in the judge\u2019s chambers between defense counsel, the prosecutor, and the trial judge. When the trial resumed, the trial judge made a record entry regarding that conference. According to the trial judge, during the conference he indicated to the prosecutor and defense counsel that if the two sides were engaged in plea discussions, he would be \u201camenable to a probationary sentence.\u201d Defense counsel lodged an objection to the trial judge\u2019s comments during this conference, claiming that it could be inferred from such comments that the trial judge would be less likely to give defendant probation if he did not plead guilty. In response, the trial judge stated he had not meant to make any such implication, but rather to encourage the two sides to enter into plea negotiations.\nOn appeal, defendant again asserts that the judge\u2019s statements clearly implied that defendant would face jail time if he did not plead guilty to the charges against him. A review of the record does not support this contention. Here, defendant was given a sentence within the statutory limit for the corresponding crime. Thus, defendant must overcome the presumption of regularity. See Gantt, 161 N.C. App. at 271, 588 S.E.2d at 897. Although defendant argued at trial, and again argues on appeal, that the judge\u2019s comments clearly indicated that defendant would be sentenced more harshly if he did not plead guilty, the evidence in the record is insufficient to support such an assertion. Accordingly, we find that defendant has failed to show that it can be reasonably inferred that his sentence was based, even in part, on his insistence on a jury trial. Defendant\u2019s assignment of error is, therefore, without merit.\nIII.\nIn his third argument on appeal, defendant argues the trial court violated his right to be free from double jeopardy as guaranteed by the Constitutions of the United States and the State of North Carolina. Specifically, defendant argues the trial court erred in proceeding on Counts 11 through 20 for second-degree exploitation of a minor in defendant\u2019s indictment numbered 05CRS55290. According to defendant, these counts were identical to counts 1 through 10, respectively, for third-degree exploitation of a minor. We disagree.\nIt is well-established that when a defendant is indicted for a criminal offense he may be lawfully convicted of the offense charged therein or of any lesser offense if all the elements of the lesser offense are included within the offense charged in the indictment, and if all the elements of the lesser offense could be proved by proof of the facts alleged in the indictment. He may not, upon trial under that indictment, be lawfully convicted of any other criminal offense.\nState v. Davis, 302 N.C. 370, 372, 275 S.E.2d 491, 493 (1981). Further, \u201c[t]he constitutional prohibition against double jeopardy protects a defendant from \u2018additional punishment and successive prosecution\u2019 for the same criminal offense.\u201d State v. Sparks, 362 N.C. 181, 186, 657 S.E.2d 655, 658-59 (2008) (citations omitted).\nHere, defendant was charged with ten counts of third-degree exploitation of a minor and ten counts of second-degree exploitation of a minor. The two charges were not identical, however. The counts of third-degree exploitation were based on defendant\u2019s possession of the illicit images of minors, while the counts of second-degree exploitation were based on defendant\u2019s receipt of these images. According to defendant, because possessing these images and receiving these images amounted to the same offense, punishing defendant for both possessing and receiving the same illicit images violated his right to be free from double jeopardy. We are unpersuaded by defendant\u2019s argument.\nOur Supreme Court was previously asked to determine if possession and receipt amounted to the same act in Davis, where a defendant was charged with both, receiving and possessing stolen property. According to the Davis Court, \u201c[although at first glance possession may seem to be a component of receiving, it is really a separate and distinct act.\u201d Davis, 302 N.C. at 374, 275 S.E.2d at 494. The Davis Court went on to explain that \u201cthe unlawful receipt of stolen property is a single, specific act occurring at a specific time; possession, however, is a continuing offense beginning at the time of receipt and continuing until divestment.\u201d Id. On review of the instant case, we find the reasoning employed by our Supreme Court in Davis to be instructive. Accordingly, we hold that the acts of possession and receipt, with regard to these illicit images, amounted to separate and distinct acts. Therefore, the fact that defendant was charged and convicted of both possessing and receiving the aforementioned images did not amount to double jeopardy. Defendant\u2019s assignment of error is without merit.\nIV.\nIn his fourth argument on appeal, defendant argues the trial court erred in admitting evidence retrieved from defendant\u2019s hard drive. According to defendant, this evidence should have been suppressed because the State negligently destroyed the hard drive, and the admission of the evidence shifted the burden of proof from the State to defendant. We disagree.\nOur Supreme Court has \u201cupheld the admission of evidence subsequently lost or destroyed where the exculpatory value of tests a defendant seeks to perform on that evidence is speculative and there is no showing of bad faith or willful intent on the part of any law enforcement officer.\u201d State v. Hyatt, 355 N.C. 642, 663, 566 S.E.2d 61, 75 (2002), cert. denied, 362 N.C. 90, 656 S.E.2d 594 (2007).\nIn the case sub judice, the State presented evidence of twenty child pornography movie files that were discovered on defendant\u2019s hard drive. However, because of damage that had occurred to the hard drive, the State was unable to determine if these files had ever been viewed or copied. The damage to the hard drive also prevented defendant from performing his own tests. While we recognize that the destruction of the hard drive may have precluded defendant from performing tests on the hard drive, the value of such evidence is speculative at best. The State presented evidence at trial that defendant purposefully downloaded and watched movie files containing child pornography. Although defendant argued that he accidentally retrieved these movies as the result of a search, he admitted that he would view a movie and, if it contained child pornography, he would delete it \u201c[a]s soon as it was over.\u201d\nOn appeal, defendant fails to provide any authority for his claim that the State\u2019s introduction of this evidence amounted to a shifting of the burden of proof. Defendant\u2019s own testimony at trial indicated that even if the hard drive could be recovered, it would not show whether defendant had ever viewed the aforementioned movie files. Therefore, any exculpatory evidence that may have been on the hard drive is speculative at best. Further, defendant acknowledges that he did not put forward any evidence that the State acted in bad faith. Accordingly, we find defendant\u2019s arguments to be without merit.\nV.\nIn his fifth argument on appeal, defendant argues the trial court erred by admitting State\u2019s Exhibits 2A and 7 into evidence. According to defendant, the State failed to present a proper chain of custody for this evidence, and thus, this evidence should not have been admitted. We disagree.\nOur Supreme Court has previously examined the chain of custody requirements in North Carolina. In State v. Fleming, 350 N.C. 109, 131, 512 S.E.2d 720, 736, cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999), our Supreme Court held:\nBefore real evidence may be received into evidence, the party offering the evidence must first satisfy a two-pronged test. \u201cThe item offered must be identified as being the same object involved in the incident and it must be shown that the object has undergorie no material change.\u201d State v. Campbell, 311 N.C. 386, 388, 317 S.E.2d 391, 392 (1984). Determining the standard of certainty required to show that the item offered is the same as the item involved in the incident and that it is in an unchanged condition lies within the trial court\u2019s sound discretion. Id. at 388-89, 317 S.E.2d at 392. \u201cA detailed chain of custody need be established only when the evidence offered is not readily identifiable or is susceptible to alteration and there is reason to believe that it may have been altered.\u201d Id. at 389, 317 S.E.2d at 392. Any weak links in the chain of custody pertain only to the weight to be given to the evidence and not to its admissibility. Id.\nHere, defendant has failed to present any authority to support his claim that the State put forward an insufficient chain of custody. After reviewing defendant\u2019s claims, we hold the State presented a chain of custody sufficient to allow the\u2019 State\u2019s exhibits to be admitted at trial. See Campbell, 311 N.C. at 388, 317 S.E.2d at 392. Defendant\u2019s assignment of error is overruled.\nVI.\nIn his sixth argument on appeal, defendant argues the trial court erred by denying defendant\u2019s motion that witness Claude Lee David, Jr., be qualified as an expert. We disagree.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 702 (2007) provides that a witness must be qualified by \u201cknowledge, skill, experience, training, or education\u201d for his testimony to be admissible as expert testimony. State v. Davis, 106 N.C. App. 596, 601, 418 S.E.2d 263, 267 (1992), disc. review denied, 333 N.C. 347, 426 S.E.2d 710 (1993) (\u201cWhether the witness qualifies as an expert is exclusively within the trial judge\u2019s discretion \u2018and is not to be reversed on appeal absent a complete lack of evidence to support his ruling.\u2019 \u201d). Id. (citations omitted).\nHere, defendant presented testimony from Mr. David, an airway transportation specialist for the Federal Aviation Administration. Mr. David testified at trial that he had worked as, inter alia, a computer field service technician, a precision measurement equipment laboratory specialist, and a yard manager. Mr. David further testified that he had built several computers, including one he recently built for his 11-year-old son. When defendant moved to have Mr. David qualified as an expert in computers, a bench conference was held and defendant\u2019s motion was denied.\nOn appeal, defendant argues the trial court erroneously rejected defendant\u2019s motion to qualify Mr. David as an expert witness. After reviewing the record, we hold the trial court was presented with sufficient evidence to support its ruling. Although Mr. David testified that he had worked in several jobs involving the use of computers, and that he had built several computers, the record does not indicate that Mr. David possessed any particular expertise with regard to hard drives or the erasure of files. Therefore, we hold the trial court did not abuse its discretion in denying defendant\u2019s motion. As such, defendant\u2019s assignment of error is without merit.\nVII.\nIn his seventh argument on appeal, defendant argues the trial court erred in denying his motion to dismiss the charges due to the insufficiency of the evidence. We disagree.\nWhen a defendant challenges the sufficiency of the evidence against him, the question before this Court is \u201cwhether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.\u201d State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990).\nSubstantial evidence is \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d ... If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion to dismiss should be allowed. This is true even though the suspicion so aroused by the evidence is strong.\nState v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982) (citations omitted). In making a determination on the issue of sufficiency, this Court will consider the evidence in the light most favorable to the State. Id. at 67, 296 S.E.2d at 653.\nHere, when viewed in the light most favorable to the State, th\u00e9 evidence presented at trial was sufficient to show (1) that defendant used his computer to knowingly download and view movies of minors engaged in sexual activity and (2) that defendant placed a hidden camera in his stepdaughter\u2019s room and used the camera to observe her. Thus, we find the State presented substantial evidence of each essential element of the crimes charged, and that defendant was the perpetrator of those crimes. See Lynch, 327 N.C. at 216, 393 S.E.2d at 814. Accordingly, the trial court did not err in failing to grant defendant\u2019s motion to dismiss.\nNo error.\nJudges HUNTER and JACKSON concur.", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.", "Richard E. Jester for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. THOMAS EDWARD ANDERSON\nNo. COA08-67\n(Filed 16 December 2008)\n1. Criminal Law\u2014 consolidating charges for trial \u2014 child pornography \u2014 possessing and receiving computer files\u2014 secret peeping\nThe trial court did not abuse its discretion by consolidating for trial felony charges involving possessing and receiving computer files containing child pornography and a misdemeanor charge of secret peeping with a camera connected to defendant\u2019s computer. Although each charge alleges that defendant used the computer in a different manner, the use of the same tool to accomplish similar goals is sufficient to provide evidence of a common modus operandi. Further, the two types of offenses appear to have occurred during the same period of time.\n2. Sentencing\u2014 greater sentence for not pleading guilty \u2014 not supported by evidence\nDefendant failed to show a reasonable inference that his sentence was based, even in part, on his insistence on a jury trial. Although defendant contended that certain statements by the judge implied that defendant would face jail if he did not plead guilty, his sentence was within the statutory limit and the evidence did not support defendant\u2019s contention.\n3. Constitutional Law; Pornography\u2014 double jeopardy \u2014 possession and receipt of child pornography\nPossession and receipt are separate and distinct acts because receipt is a single, specific act while possession is a continuing offense, and this defendant\u2019s double jeopardy rights were not violated where the court proceeded on charges of second-degree exploitation of a minor for receiving computer files containing child pornography and third-degree exploitation of a minor for possessing those computer files.\n4. Evidence\u2014 information on computer \u2014 hard drive not available for examination\nThe trial court did not err in a prosecution for exploiting minors through receiving and possessing computer files containing child pornography by admitting evidence retrieved from defendant\u2019s hard drive' even though the State had negligently damaged the hard drive. Defendant did not put forth evidence that the State acted in bad faith, and. exculpatory evidence on the hard drive was speculative at best.\n5. Evidence\u2014 chain of custody \u2014 sufficiency\nThe State\u2019s chain of custody of certain exhibits was sufficient in a prosecution for exploiting minors by receiving and possessing computer files containing child pornography\n6. Witnesses\u2014 expert qualification denied \u2014 no error\nThe trial court did not err by denying defendant\u2019s motion to qualify a witness as an expert in computers where there was evidence that the witness had worked in several jobs using computers and had built several computers, but did not indicate any particular expertise with regard to hard drives or the erasure of files, the issue in this case.\n7. Pornography; Sexual Offenses\u2014 exploitation of minor\u2014 child pornography \u2014 secret peeping \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss charges of exploiting minors by receiving and possessing computer files containing child pornography and secret peeping by using a hidden camera he placed in his stepdaughter\u2019s room to observe her.\nAppeal by defendant from judgment entered 17 May 2007 by Judge Jerry Braswell in Wayne County Superior Court. Heard in the Court of Appeals 21 May 2008.\nAttorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.\nRichard E. Jester for defendant appellant." }, "file_name": "0292-01", "first_page_order": 324, "last_page_order": 335 }