{ "id": 4103077, "name": "STATE OF NORTH CAROLINA v. WALTER HAYES GRAHAM", "name_abbreviation": "State v. Graham", "decision_date": "2012-10-16", "docket_number": "No. COA12-258", "first_page": "150", "last_page": "159", "citations": [ { "type": "official", "cite": "223 N.C. App. 150" } ], "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": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "56" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "550 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "201", "parenthetical": "inter-nal quotation marks and citations omitted" }, { "page": "271" }, { "page": "202" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 267", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433790 ], "year": 2001, "pin_cites": [ { "page": "271", "parenthetical": "inter-nal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0267-01" ] }, { "cite": "531 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "448", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "352 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685078 ], "year": 2000, "pin_cites": [ { "page": "193", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0158-01" ] }, { "cite": "726 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2012, "pin_cites": [ { "page": "158-59" }, { "page": "159" } ], "opinion_index": 0 }, { "cite": "304 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "152" } ], "opinion_index": 0 }, { "cite": "308 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4705131 ], "year": 1983, "pin_cites": [ { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0549-01" ] }, { "cite": "132 P.3d 833", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 3237503 ], "year": 2006, "pin_cites": [ { "page": "844", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ariz/212/0389-01" ] }, { "cite": "177 L. Ed. 2d 1123", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12455840, 12455841, 12455842, 12455843, 12455844, 12455845, 12455846, 12455839 ], "weight": 2, "year": 2010, "opinion_index": 0, "case_paths": [ "/l-ed-2d/177/1123-02", "/l-ed-2d/177/1123-03", "/l-ed-2d/177/1123-04", "/l-ed-2d/177/1123-05", "/l-ed-2d/177/1123-06", "/l-ed-2d/177/1123-07", "/l-ed-2d/177/1123-08", "/l-ed-2d/177/1123-01" ] }, { "cite": "130 S. Ct. 2250", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 12449208, 3641704 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "2263" } ], "opinion_index": 0, "case_paths": [ "/l-ed-2d/176/1098-01", "/us/560/0370-01" ] }, { "cite": "739 So.2d 1046", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11587058 ], "year": 1999, "pin_cites": [ { "page": "1053", "parenthetical": "finding that religious references may be a factor which makes a confession involuntary" } ], "opinion_index": 0, "case_paths": [ "/so2d/739/1046-01" ] }, { "cite": "277 Cal. Rptr. 327", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1991, "pin_cites": [ { "page": "337", "parenthetical": "finding use of a suspect's religious beliefs to obtain a confession rendered a confession involuntary" } ], "opinion_index": 0 }, { "cite": "226 Cal. App. 3d 914", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2334621 ], "year": 1991, "pin_cites": [ { "page": "935", "parenthetical": "finding use of a suspect's religious beliefs to obtain a confession rendered a confession involuntary" } ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/226/0914-01" ] }, { "cite": "610 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "783" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 367", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470165 ], "year": 2005, "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0367-01" ] }, { "cite": "558 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "471" } ], "opinion_index": 0 }, { "cite": "355 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220002 ], "year": 2002, "pin_cites": [ { "page": "84" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0073-01" ] }, { "cite": "701 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2010, "pin_cites": [ { "page": "274", "parenthetical": "citations omitted" }, { "parenthetical": "citations omitted" }, { "parenthetical": "citations omitted" }, { "page": "274", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "207 N.C. App. 645", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4179454 ], "year": 2010, "pin_cites": [ { "page": "647", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/207/0645-01" ] }, { "cite": "212 S.E.2d 92", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "100" } ], "opinion_index": 0 }, { "cite": "286 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568818 ], "year": 1975, "pin_cites": [ { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0442-01" ] }, { "cite": "543 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "826", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135584 ], "year": 2001, "pin_cites": [ { "page": "336", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0332-01" ] }, { "cite": "698 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "364 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "688 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "785", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4175275 ], "year": 2010, "pin_cites": [ { "page": "465", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/202/0457-01" ] }, { "cite": "582 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "667", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 143", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954473 ], "year": 2003, "pin_cites": [ { "page": "147", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0143-01" ] }, { "cite": "570 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "484" } ], "opinion_index": 0 }, { "cite": "356 N.C. 178", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511396 ], "year": 2002, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0178-01" ] }, { "cite": "303 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "806-07" }, { "page": "806-07" }, { "page": "806-07" } ], "opinion_index": 0 }, { "cite": "308 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710863 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "740-41" }, { "page": "740-41" }, { "page": "740-41" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0736-01" ] } ], "analysis": { "cardinality": 960, "char_count": 21039, "ocr_confidence": 0.749, "pagerank": { "raw": 4.621887471290392e-08, "percentile": 0.2898626522241258 }, "sha256": "8c505d233934b86acb8ec03711b13429e590bc34799e149c5f5b718a7b358d6a", "simhash": "1:270b472a55c90d5e", "word_count": 3390 }, "last_updated": "2023-07-14T18:08:05.693184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCGEE and THIGPEN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WALTER HAYES GRAHAM" ], "opinions": [ { "text": "BEASLEY, Judge.\nWalter Hayes Graham (Defendant) appeals from judgment entered on his conviction for one count of taking indecent liberties with a child, one count of simple assault for acts committed upon a juvenile, and two counts of first-degree sexual offense for acts committed upon a child. For the following reasons, we find no error.\nOn 27 March 2009, two twelve-year-old boys, J.C. and B.L. spent the night at Defendant\u2019s house. Defendant was a youth basketball coach and intended to take the boys to a basketball game the following morning. This was J.C.\u2019s second time spending the night at Defendant\u2019s house; B.L. had spent the night numerous times over the past year or two. Defendant slept on the floor between the two boys that night.\nAround midnight, J.C.\u2019s mother awoke to J.C. banging on the door of their home wearing nothing but his underwear and holding his other belongings. J.C. told his mother that before he had fallen asleep, Defendant pulled him close, reached under his boxer shorts, touched him \u201con his private area\u201d twice and licked his ear. J.C. got up, collected his belongings from the back room, and went to the bathroom. He turned the faucet on, pretending that he was washing his hands, then jumped out of the window. J.C. took his bike from the backyard and rode straight home.\nJ.C.\u2019s mother immediately called 911. Before police arrived, Defendant appeared in his truck with B.L. J.C.\u2019s mother informed Defendant that she had called the police and told B.L. to come in the house. Defendant left and B.L. entered the house, whereupon he immediately started to cry. J.C.\u2019s mother called B.L.\u2019s parents to inform them of Defendant\u2019s actions and they picked him up.\nThat same night, J.C. went to the emergency room. J.C. told a nurse of Defendant\u2019s actions. J.C. was examined by a doctor and a swab sample was taken from his ear for DNA evidence, which later indicated that Defendant could not be eliminated as the source of the other previously identified DNA. B.L. eventually disclosed, upon medical examination, that Defendant had engaged in sexual acts with him, specifically that Defendant touched his \u201cwiener\u201d with his hand and his mouth, and on more than one occasion, had \u201cput his wiener in his back private where he pooped\u201d.\nPrior to trial, Defendant made a Motion to Suppress his confession and a motion in limine to prohibit any reference to prior bad acts of Defendant, specifically a previous investigation in Michigan, each of which the trial court denied. Defendant did not object to the admission of the confession at trial.\nDefendant\u2019s trial began on 9 May 2011. Defendant testified on his own behalf, denying any inappropriate behavior. The jury convicted Defendant on all counts.\nDefendant first argues that the trial court erred by allowing the emergency room doctor who examined B.L. to testify as to B.L.\u2019s credibility. We disagree.\nWhere a defendant failed to object to the admission of evidence at trial, on appeal, the admission will be reviewed for plain error. State v. Black, 308 N.C. 736, 740-41, 303 S.E.2d 804, 806-07 (1983). The error must be \u201cso basic, prejudicial, and lacking in its elements that justice was not done.\u201d State v. Prevatte, 356 N.C. 178, 258, 570 S.E.2d 440, 484 (2002). Plain error review places \u201cthe burden ... on the defendant to show that absent the error the jury probably would have reached a different verdict.\u201d State v. Bellamy, 159 N.C. App. 143, 147, 582 S.E.2d 663, 667 (2003)(internal quotation marks and citations omitted).\nWe reject Defendant\u2019s argument that the emergency room doctor\u2019s testimony as to B.L.\u2019s credibility is plain error, as the evidence that Defendant now objects to was elicited on his own cross-examination of the expert witness. \u201cStatements 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.\u201d State v. Fraley, 202 N.C. App. 457, 465, 688 S.E.2d 778, 785, disc. review denied, 364 N.C. 243, 698 S.E.2d 660 (2010)(citations omitted). Here, Defendant both elicited the testimony and failed to object to its admission. As such, Defendant may not claim plain error resulted from this testimony.\nDefendant next argues that the trial court erred by admitting Defendant\u2019s confession into evidence because it was involuntary and that his repeated denial of his guilt shows his will not to confess was eventually overborne. We disagree.\n\u201cIt is well established that the standard of review in evaluating a trial court\u2019s ruling on a motion to suppress is that the trial court\u2019s findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.\u201d State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001)(internal quotation marks and citations omitted). The trial court\u2019s conclusions of law from those facts are fully reviewable where the issue has been preserved for appeal. See State v. Pruitt, 286 N.C. 442, 454, 212 S.E.2d 92, 100 (1975). Without such preservation, we review the trial court\u2019s conclusions of law for plain error. See Black, 308 N.C. at 740-41, 303 S.E.2d at 806-07.\nIt is clear that a confession involuntarily obtained is a violation of a defendant\u2019s due process rights under the Fourteenth Amendment. State v. Bordeaux, 207 N.C. App. 645, 647, 701 S.E.2d 272, 274 (2010)(citations omitted). Rather, a defendant must freely choose to make a confession, voluntarily and with understanding. Id. (citations omitted). In determining whether a confession was voluntary, we review the totality of the circumstances. Id. (citations omitted). Courts consider several factors, including\nwhether defendant was in custody, whether he was deceived, whether his Miranda rights were honored, whether he was held incommunicado, the length of the interrogation, whether there were physical threats or shows of violence, whether promises were made to obtain the confession, the familiarity of the declarant with the criminal justice system, and the mental condition of the declarant.\nId. at 648, 701 S.E.2d at 274 (internal quotation marks omitted).\nDetectives Clark and Baggerly of the Concord Police Department were assigned to the case. On 7 April 2009, Detective Clark went to Defendant\u2019s home. Detective Clark knew Defendant from working security at the gym where Defendant coached; they initially met in 2005 or 2006. After briefly speaking with Defendant about his knowledge of the complaint, Detective Clark asked Defendant to come to the police station to answer some questions. Defendant agreed and voluntarily drove himself to the station. At the station, Defendant was not given Miranda warnings and agreed to provide a DNA sample.\nHere, there is sufficient evidence on the record to support the trial court\u2019s findings, and thus we are bound by them. The trial court found that Defendant was not in custody, as he came to the station voluntarily, he was not restrained, he was informed of his right to leave at any time, he was informed he was not under arrest, and he was informed that he would be going home after the interview, which he did. Consequently, the trial court found the interview did not require Miranda warnings. The trial court also found that the Defendant was \u201ccoherent,\u201d not \u201csleepy,\u201d not \u201cintoxicated or impaired,\u201d Defendant \u201cunderstood all of the questions,\u201d \u201cis obviously intelligent,\u201d and \u201cgave reasonable answers to the questions presented.\u201d The record also clearly supports the finding that the interview lasted \u201cexactly one hour.\u201d All of these findings support the conclusion that the confession was voluntary. Nonetheless, Defendant raises six circumstances which he claims show the involuntary nature of his confession and we address each below.\nFirst, Defendant contends that he was given a false hope of leniency if he was to confess and that additional charges would stem from continued investigation of other children.\nDefendant points to the officers\u2019 offers to \u201chelp\u201d Defendant \u201cdeal with\u201d his \u201cproblem.\u201d Our Supreme Court has held \u201can improper inducement must promise relief from the criminal charge to which the confession relates, and not merely provide the defendant with a collateral advantage.\u201d State v. Gainey, 355 N.C. 73, 84, 558 S.E.2d 463, 471 (2002). Further, this Court has previously found a confession voluntary where there is no indication that specific preferential treatment will be given for cooperation, but the defendant is merely told that he could \u201chelp himself out by cooperating\u201d and that cooperation would be relayed to the district attorney and the court. State v. Houston, 169 N.C. App. 367, 374, 610 S.E.2d 777, 783 (2005).\nSimilarly, here, there was no direct promise to Defendant that he would receive a lesser or no charge should he confess. Several times throughout the confession, the officers told Defendant, as Detective Clark testified, that they could not make him any promises as to the outcome, but could only inform the District Attorney that he cooperated. Defendant\u2019s assignment of error is overruled.\nDefendant next contends that the involuntary nature of the confession is evidenced by Detective Clark\u2019s reliance on his friendship with Defendant and their shared racial background. Defendant refers to a statement by Detective Clark in which he appealed to Defendant, \u201cbrother to brother\u201d, to tell the truth. The trial court did not make specific findings on this point. It did find that Detective Clark knew Defendant from various community athletic events. Defendant fails to show that the Detective\u2019s inference as to Defendant\u2019s race was coercive. This argument is overruled.\nDetective Clark also repeatedly referred to Defendant as his friend and relied on this friendship to encourage truthfulness. Immediately prior to Defendant\u2019s admission that he touched J.C., Detective Clark stated:\nBut I can say, hey, look, yeah, this is my friend. Yeah, he made a mistake. Yeah, he said this happened, whatever, and I\u2019m right here on the side of him. Or I\u2019m going to have to stand on the other side of the fence with everybody else, one of the two.\nDefendant replied \u201cI don\u2019t want you to stand on the other side of the fence. I\u2019ve been knowing you for years.\u201d Defendant then asked what he needed to do and Detective Clark told him he should tell what happened; to this, Defendant replied \u201cI did touch him.\u201d The mere reference to a friendship alone is not enough to constitute plain error, especially where that friendship lacks intimacy such as here where Detective Clark did not even know Defendant\u2019s real name. This argument is overruled.\nDefendant contends that Detective Baggerly\u2019s questions regarding whether he went to church or believed in God renders his confession involuntary. We disagree.\nDefendant argues that Detective Baggerly established Defendant\u2019s belief in God and then asked \u201cYou can sit here and look me in the eye knowing that you believe in God and tell me that you didn\u2019t do anything wrong that night?\u201d In support of his argument, Defendant cites two cases in which courts found a confession involuntary on the ground of invocation of religious beliefs. People v. Montano, 226 Cal. App. 3d 914, 935, 277 Cal. Rptr. 327, 337 (1991)(finding use of a suspect\u2019s religious beliefs to obtain a confession rendered a confession involuntary); Carley v. State, 739 So.2d 1046, 1053 (Miss. App. 1999)(finding that religious references may be a factor which makes a confession involuntary). However, we do not find these cases analogous to this case.\nThe United States Supreme Court has held that questioning a suspect with regard to his or her religious beliefs does not necessarily make a subsequent confession involuntary. Berghuis v. Thompkins, 130 S. Ct. 2250, 2263, 176 L. Ed. 2d 1098, reh\u2019g denied,_U.S._, 177 L. Ed. 2d 1123 (2010). Instead, the Supreme Court held that the totality of the circumstances should inform the determination of voluntariness. Id. We are also inclined to follow the logic of other state courts holding that \u201c[a]ppeals to religion do not render confessions involuntary unless they lead to the suspect\u2019s will being overborne.\u201d State v. Newell, 132 P.3d 833, 844 (Ariz. 2006)(citations omitted). Here, there is no indication that Defendant\u2019s will was affected by this line of questioning, as it was brief, did not directly elicit his admission, and there is no indication of a change in his demeanor.\nDefendant lastly argues that his confession was involuntarily obtained through deception, as evidenced by the detectives telling Defendant that he failed the polygraph and that the DNA test incriminated him.\nWhile Defendant is correct that our Supreme Court has held that police deception is relevant to a consideration of voluntariness, it has also held that such deception is not dispositive where a confession is otherwise voluntary. State v. Jackson, 308 N.C. 549, 582, 304 S.E.2d 134, 152 (1983). \u201cFalse statements by officers concerning evidence, as contrasted with threats or promises, have been tolerated in confession cases generally, because such statements do not affect the reliability of the confession.\u201d Id. Defendant\u2019s argument is overruled.\nLastly, Defendant argues, the trial court erred in allowing Defendant\u2019s statement that he was investigated in Michigan for similar sexual misconduct decades prior to this investigation and that, in addition to J.C. and B.L., Defendant admitted to touching five to ten other boys. We disagree.\nOur Supreme Court has recently clarified the standard of review for questions relating to evidence admitted under Rules 404(b) and 403 of the North Carolina Rules of Evidence. See State v. Beckelheimer,_N.C._, 726 S.E.2d 156, 158-59 (2012).\nWhen the trial court has made findings of fact and conclusions of law to support its 404(b) ruling ... we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b). We then review the trial court\u2019s Rule 403 determination for abuse of discretion.\nId. at_, 726 S.E.2d at 159. While we recognize these clear standards, we need not apply them in this case. First, with regard to the Michigan investigation, Defendant\u2019s argument is moot. Second, Defendant\u2019s argument as to the admission of touching five to ten other boys is reviewed under plain error due to Defendant\u2019s failure to object.\nWhile the trial court denied Defendant\u2019s motion in limine to suppress the evidence of the prior investigation in Michigan, the jury only became aware of this admission during the cross-examination of Defendant. \u201c[E]vidence which would otherwise be inadmissible may be permissible on cross-examination to correct inaccuracies or misleading omissions in the defendant\u2019s testimony or to dispel favorable inferences arising therefrom.\u201d State v. Braxton, 352 N.C. 158, 193, 531 S.E.2d 428, 448 (2000) (internal quotation marks omitted). On direct examination, Defendant stated that he had \u201cnever been in trouble before\u201d and that he had no interaction with any type of police outside of his association with Detective Clark and playing community basketball with officers. These two statements \u201copened the door\u201d for the State to inquire as to the Michigan investigation. It was not error to allow this evidence.\nDefendant did not object during trial or in his motion in limine to the admission of his statement that he touched five to ten other boys. As such, we review for plain error. Black, 308 N.C. at 740-41, 303 S.E.2d at 806-07.\n\u201cNorth Carolina\u2019s appellate courts have been markedly liberal in admitting evidence of similar sex offenses by a defendant for the purposes now enumerated in Rule 404(b), such as establishing the defendant\u2019s identity as the perpetrator of the crime charged.\u201d State v. Bidgood, 144 N.C. App. 267, 271, 550 S.E.2d 198, 201 (2001)(inter-nal quotation marks and citations omitted). Where evidence is admitted under Rule 404(b), it must establish similarity of facts and have a \u201ctemporal proximity\u201d to the crime charged. Id. at 271, 550 S.E.2d at 202. Evidence meeting the above requirements may still be excluded if it is more prejudicial than probative. N.C. Gen. Stat. \u00a78C-1, Rule 403 (2011). Such exclusion is left to the trial court\u2019s discretion. State v. Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 56 (1990).\nHere, Defendant\u2019s statement that he touched five to ten other boys is an admission under Rule 801(d)(A) and Rule 404(b) for the purpose of showing Defendant\u2019s identity as the perpetrator and his intent. The facts are similar to those sub judice, as Defendant was charged with touching both J.C. and B.L., who were both young boys at the time. Defendant himself connects the acts as a continuous pattern in his confession, stating \u201cI have a problem with touching young boys, and I have had this problem since I was young.\u201d There is nothing in the record to suggest that the trial court abused its discretion in allowing this evidence under Rule 403. We therefore find no error.\nNo Error.\nJudges MCGEE and THIGPEN concur.\n. To protect the privacy of the minor children, their initials \u00e1re used in this opinion.", "type": "majority", "author": "BEASLEY, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WALTER HAYES GRAHAM\nNo. COA12-258\n(Filed 16 October 2012)\n1. Appeal and Error \u2014 plain error \u2014 testimony elicited by defendant\nThere was no plain error in a prosecution arising from the sexual abuse of a child in the admission of an emergency room doctor\u2019s testimony about the victim\u2019s credibility. Defendant both elicited the testimony and failed to object to its admission and may not claim plain error.\n2. Confessions and Incriminating Statements \u2014 voluntariness\u2014 no plain error\nThere was no plain error in the trial court\u2019s findings and conclusions concerning the voluntariness of defendant\u2019s confession where the court found that defendant was not in custody and Miranda warnings were not required; that defendant was coherent, unimpaired, and gave reasonable answers to the questions; and that the interview lasted one hour.\n3. Confessions and Incriminating Statements \u2014 voluntariness\u2014 false hope of leniency\nThere was no plain error in the admission of defendant\u2019s confession even though defendant contended that the confession was involuntary because he was induced to confess by false hope of leniency. There was no direct promise to defendant that he would receive a lesser charge or no charge should he confess.\n4. Confessions and Incriminating Statements \u2014 voluntariness\u2014 friendship with officer \u2014 shared racial background\nThere was no plain error in the admission of a confession that defendant contended was involuntary in that it was induced by a shared racial background and friendship with an officer. Defendant did not show that the officer\u2019s reference to race was coercive and a mere reference to friendship is not enough to show plain error, especially where the friendship lacked intimacy.\n5. Confessions and Incriminating Statements \u2014 voluntariness\u2014 questions about religious belief\nThere was no plain error in the admission of a confession which defendant contended was involuntary in that it was induced by questions regarding whether defendant went to church or believed in God. There was no indication that defendant\u2019s will was affected, the line of questioning was brief and did not directly elicit defendant\u2019s admission, and there was no indication of a change in defendant\u2019s demeanor.\n6. Confessions and Incriminating Statements \u2014 voluntariness\u2014 deception \u2014 no plain error\nThere was no plain error in the admission of defendant\u2019s confession even though he contended that it was involuntary in that it was obtained through deceptive statements regarding the polygraph and DNA. Deception is not dispositive where the confession is otherwise voluntary; such statements generally do not affect the reliability of the confession.\n7. Evidence \u2014 prior misconduct \u2014 door opened on direct examination\nIn a prosecution for sexual offenses against a child, defendant\u2019s statements on direct examination opened the door for the State to inquire on cross-examination about a prior Michigan investigation for similar misconduct.\n8. Confessions and Incriminating Statements \u2014 admission\u2014 statement of other misconduct \u2014 intent and identity \u2014 not unduly prejudicial\nDefendant\u2019s statement in a prosecution arising from sexual offenses against a child that he touched five to ten other boys was an admission under N.C.G.S. \u00a7 8C-1, Rules 801(d)(A) and 404(b) for the purpose of showing defendant\u2019s identity as the perpetrator and his intent. There was nothing in the record suggesting that the trial court abused its discretion in allowing this evidence under N.C.G.S. \u00a7 8C-1, Rule 403.\nAppeal by Defendant from judgment entered 13 May 2011 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 28 August 2012.\nAttorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for Defendant." }, "file_name": "0150-01", "first_page_order": 160, "last_page_order": 169 }