{ "id": 4114740, "name": "STATE OF NORTH CAROLINA v. HENRY TYRONE RANDOLPH", "name_abbreviation": "State v. Randolph", "decision_date": "2012-12-18", "docket_number": "No. COA12-688", "first_page": "521", "last_page": "536", "citations": [ { "type": "official", "cite": "224 N.C. App. 521" } ], "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": "623 S.E.2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634569, 12634570 ], "year": 2005, "pin_cites": [ { "page": "29-30" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0011-01", "/se2d/623/0011-02" ] }, { "cite": "617 S.E.2d 81", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633814 ], "year": 2005, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0081-01" ] }, { "cite": "663 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641537 ], "year": 2008, "pin_cites": [ { "page": "456", "parenthetical": "\"A defendant who does not object to jury instructions at trial will be subject to a plain error standard of review on appeal.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/663/0453-01" ] }, { "cite": "648 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639124 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0819-01" ] }, { "cite": "729 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "700", "parenthetical": "\"Pursuant to N.C. Gen. Stat. \u00a7 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" } ], "opinion_index": 0 }, { "cite": "570 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "761-62" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 546", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250832 ], "year": 2002, "pin_cites": [ { "page": "562-63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0546-01" ] }, { "cite": "360 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788006 ], "year": 2005, "pin_cites": [ { "page": "138-39" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0110-01" ] }, { "cite": "554 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "416" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9377955 ], "year": 2001, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0069-01" ] }, { "cite": "707 S.E.2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "707-08", "parenthetical": "quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "172 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321196 ], "year": 2005, "pin_cites": [ { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0649-01" ] }, { "cite": "723 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "334" } ], "opinion_index": 0 }, { "cite": "281 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "163" } ], "opinion_index": 0 }, { "cite": "303 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575112 ], "year": 1981, "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0666-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "417 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "331 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498402 ], "year": 1992, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0537-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "651" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "65-66" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "705 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "397" } ], "opinion_index": 0 }, { "cite": "208 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4181110 ], "year": 2010, "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/nc-app/208/0541-01" ] }, { "cite": "558 S.E.2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "152" } ], "opinion_index": 0 }, { "cite": "355 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219986 ], "year": 2002, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0001-01" ] }, { "cite": "283 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "551" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 413", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522860 ], "year": 1981, "pin_cites": [ { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/nc-app/54/0413-01" ] }, { "cite": "431 U.S. 145", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1639 ], "year": 1977, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/us/431/0145-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "378-79" }, { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "191 N.C. App. 796", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160197 ], "year": 2008, "pin_cites": [ { "page": "798", "parenthetical": "\"A defendant who does not object to jury instructions at trial will be subject to a plain error standard of review on appeal.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0796-01" ] }, { "cite": "711 S.E.2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "796", "parenthetical": "observing that a defendant may not request a new trial on the basis of error he causes or joins in causing" } ], "opinion_index": 0 }, { "cite": "611 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "815", "parenthetical": "citing N.C. R. Evid. 801(d)" } ], "opinion_index": 0 }, { "cite": "359 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799490 ], "year": 2005, "pin_cites": [ { "page": "354", "parenthetical": "citing N.C. R. Evid. 801(d)" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0328-01" ] }, { "cite": "713 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "199" }, { "page": "199" } ], "opinion_index": 0 }, { "cite": "361 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738504 ], "year": 2007, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0550-01" ] }, { "cite": "152 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1967, "pin_cites": [ { "page": "137", "parenthetical": "quotation marks and citations omitted" } ], "opinion_index": 0 }, { "cite": "269 N.C. 135", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562097 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0135-01" ] } ], "analysis": { "cardinality": 1254, "char_count": 36155, "ocr_confidence": 0.735, "pagerank": { "raw": 4.853825275609296e-08, "percentile": 0.3041144483713143 }, "sha256": "b64030203950e7473c48371632da408d7cb6fb58a4e03f2f974318b1b6cda05d", "simhash": "1:a37ff078466515f7", "word_count": 5765 }, "last_updated": "2023-07-14T22:14:41.206072+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C. and CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA v. HENRY TYRONE RANDOLPH" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nHenry Tyrone Randolph (\u201cDefendant\u201d) appeals from judgment entered after a jury convicted him of second-degree sexual offense. Defendant contends he is entitled to a new trial because the trial court erred in: (1) admitting evidence concerning a writing the State inaccurately characterized as Defendant\u2019s \u201cstatement\u201d; (2) failing to provide the jury with a limiting instruction concerning the proper use of the substantive portions of this \u201cstatement\u201d the State used to cross-examine Defendant; (3) denying Defendant\u2019s motion to dismiss the charge against him in light of the State\u2019s failure to put on sufficient evidence of a requisite \u201csexual act\u201d; (4) instructing the jury on a theory of \u201csexual act\u201d not supported by the evidence; (5) admitting certain past \u201cbad acts\u201d evidence; and (6) admitting improper opinion evidence. We find no prejudicial error.\nI. Factual and Procedural History\nOn 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.\nThe State\u2019s evidence tended to show the following. In the mid-1990s, Defendant met Robin Sheffield (\u201cSheffield\u201d) and Dionne Vann (\u201cVann\u201d). Both women were Defendant\u2019s contemporaries and recent mothers. Sheffield\u2019s daughter was named Tanya and Vann\u2019s daughter was named Barbara. Defendant formed friendships with both women and their children. Defendant\u2019s friendship with Sheffield included a long off-and-on sexual relationship.\nFor 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\u2019s home. With Sheffield\u2019s consent, Tanya spent almost every weekend at Defendant\u2019s house. Sheffield testified Defendant had a paternal -relationship with Tanya, and that she thought he was the type of person that \u201cevery parent would want in their child\u2019s life.\u201d Barbara testified Defendant was a friend of her mother, and that she viewed him as a father figure. At least one of the girls referred to Defendant as \u201cUncle Ty.\u201d\nIn 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\u2019s house, and laid down on Defendant\u2019s bed. Barbara testified that Defendant then laid down next to her, touched her above her clothes around her vaginal area, pulled her underwear down, \u201cput two fingers inside of [her]\u201d against her will, got next to her, and \u201cstarted licking all over [her] and stuff.\u201d After the incident, Barbara sent Defendant a text message on 17 September 2010 from her job which read: \u201cSorry to tell you I have to tell my mom what happened because ever since that night I\u2019ve been irritated and I got a discharge. I got to go to the doctor, [sic]\u201d Defendant responded by texting \u201cDo What?\u201d and \u201cCall me?\u201d. When Barbara did not respond, Defendant went to Barbara\u2019s 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.\nSheffield testified that after she learned of Barbara\u2019s allegations, she asked her daughter Tanya if Defendant had ever touched her inappropriately. Tanya initially said that Defendant had not touched her. 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\u2019s house, and a second time on 10 September 2010 when she woke up naked with vaginal bleeding after falling asleep at Defendant\u2019s house.\nGoldsboro 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 \u201cnot yet\u201d been appointed to represent him. Defendant did sign a pre-printed Miranda waiver.\nFollowing 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 \u201cchange[d] things\u201d and \u201cturned what he said inside out,\u201d and refused to sign. At 9:21 a.m., Defendant said he was tired of answering questions and \u201cclearly indicated to [Investigator Bethea] . . . he . . . didn\u2019t want to answer any more questions.\u201d However, Investigator Bethea \u201ckept asking [Defendant] questions\u201d and \u201ckept telling [Defendant] \u2018[i]f you got something that you need to tell me, you need to tell me.\u2019 \u201d Defendant responded to Investigator Bethea\u2019s further interrogation by repeatedly examining his arrest warrants, nervously worrying about prison time, and orally responding to Investigator Bethea\u2019s questions. Investigator Bethea hand wrote more notes 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 \u201csign\u201d the writing, but did initial various places on the writing \u201cjust for [Investigator Bethea\u2019s] satisfaction.\u201d\nBefore 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\u2019s case-in-chief, in anticipation of the State calling Investigator Bethea to testify.\nAt 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 \u201cstatement\u201d he made, signed, or adopted. During the motion to suppress hearing, the trial court observed that Investigator Bethea \u201c[n]ever represented that he was trying to capture [Defendant\u2019s comments] word for word,\u201d that the written instrument unlikely \u201ccapture [d] everything that was said in the course of\u2019 the interrogation, and that the court was \u201chaving trouble with [the State\u2019s argument] that the statement is somehow a verbatim transcript.\u201d'The trial court found that Defendant \u201cdid not sign any statement that ultimately was written out. Whatever statements were written out were not ... in his handwriting. He did put some initials on [Investigator Bethea\u2019s notes] but they were sporadic and it doesn\u2019t seem to be any sort of rhyme or reason to them; they\u2019re just sort of sporadic here and there.\u201d The trial court also found that Defendant\u2019s \u201cno\u201d answer on the rights form \u201csuggests] that [Defendant] did not understand that he had been charged with criminal offenses.\u201d\nAt the end of the hearing, the trial court orally granted Defendant\u2019s motion to suppress in part. The court suppressed the State\u2019s evidence regarding comments Defendant made to Investigator Bethea after 9:21 a.m., including the written instrument prepared by Investigator Bethea, on the grounds that:\n[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\u2019s opinion, should not have been, and those statements should not be used against the defendant because they would violate the defendant\u2019s constitutional rights.\nHowever, the trial court ruled that the State\u2019s evidence regarding comments Defendant made between 8:57 a.m. and 9:21 a.m. were admissible.\nInvestigator Bethea testified immediately after the trial court\u2019s ruling. He was the last witness called by the State. At the close of the State\u2019s 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.\nDefendant testified at trial, repeatedly denied he ever inappropriately touched Barbara or Tanya, and suggested both girls were fabricating stories because he was ending or had ended his sexual relationship with Tanya\u2019s mother Sheffield. On cross-examination and without objection, the prosecutor marked the writing Investigator Bethea made during the 20 September 2010 interrogation as State\u2019s Exhibit 11, characterized the writing as \u201c[Defendant's statement,\u201d questioned Defendant about his \u201cstatement,\u201d and had Defendant read his \u201cstatement\u201d to the jury twice.\nThe jury found Defendant guilty of second-degree sexual offense involving Barbara, but not guilty of the two counts related to the alleged touching of Tanya. On 13 October 2011, the trial court sentenced Defendant to 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.\nII. Jurisdiction\nAs Defendant appeals from the final judgment of a superior court, an appeal lies of right to this Court pursuant to N.C. Gen. Stat. \u00a7 7A-27(b) (2011).\nIII. Analysis\nDefendant raises six issues on appeal, which we address in turn.\nA. Improper Use and Characterization of Defendant\u2019s \u201cStatement\u201d\nDefendant first argues that he is entitled to a new trial because evidence \u201cof and about\u201d a written instrument prepared by Investigator Bethea was improperly admitted at trial. We disagree.\nAs noted above, Defendant brought a Motion to Suppress before trial, seeking to exclude \u201cany and all\u201d evidence regarding statements he made to Investigator Bethea on the morning of 20 September 2010. Defendant moved to suppress on both Miranda grounds and on the basis that the written instrument prepared by Investigator Bethea was \u201cnot the statement of the defendant.\u201d At trial, the court granted Defendant\u2019s motion in part, on constitutional 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.\nDefendant raises two arguments with respect to evidence of his purported \u201cstatement\u201d being introduced at trial. First, Defendant contends that the substance of'Investigator Bethea\u2019s testimony regarding Defendant\u2019s 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.\n1. Direct Examination of Investigator Bethea\nWith respect to Defendant\u2019s argument regarding the substance of Investigator Bethea\u2019s testimony, the State contends we should review for plain error, because \u201c[t]he Motion to Suppress the introduction of Defendant\u2019s statement was not enough to preserve [the] objection ... once the evidence was introduced without objection.\u201d The State argues \u201cDefendant was required to object to testimony regarding the statement,\u201d and failed to do so. We disagree with the State that Defendant has failed to preserve his argument.\nThe North Carolina Rules of Evidence provide that a Defendant seeking to preserve an issue for appeal \u201cneed not renew an objection\u201d once the trial court has \u201cmade a definitive ruling on the record.\u201d N.C. R. Evid. 103(a)(2). However, our Supreme Court has recognized that \u201c[t]here is a direct conflict between this evidentiary rule and [the North Carolina Rules of Appellate Procedure], which this Court has consistently interpreted to provide that a trial court\u2019s 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.\u201d 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 \u201c \u2018the exclusive authority to make rules of procedure and practice for the Appellate Division,\u2019 \u201d any conflict must be resolved in favor of the Appellate Rules and the case law interpreting them. Id. (quoting N.C. Const, art. IV, \u00a7 13, cl. 2).\nNevertheless, 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 \u201cany and all\u201d evidence of \u201cstatements made by the defendant.\u201d Defendant renewed this motion at the start of trial, but agreed at the request of the trial court to defer hearing on the matter until the issue arose. Defendant renewed his objection to the evidence when the trial court convened a voir dire of Investigator Bethea at trial, and once again stated the basis for his objection. At the conclusion of voir dire, the trial court ruled on Defendant\u2019s Motion to Suppress. The State then immediately called Investigator Bethea to testify before the jury, where testimony which formed part of the basis of Defendant\u2019s Motion to Suppress was elicited. Although Defendant did not object again during Investigator Bethea\u2019s testimony, he did object in anticipation of this challenged testimony. Thus under these facts, where Defendant filed a proper pre-trial motion to suppress on which ruling was deferred until trial, we hold Defendant has preserved this issue for appeal where his objection at trial prompted the court to hold a hearing addressing the merits of the pretrial motion. Therefore, we review for prejudicial error. Under a prejudicial error analysis, \u201c[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.\u201d State v. Stanley, _ N.C. App. _, _, 713 S.E.2d 196, 199 (2011).\nImmediately following the court\u2019s ruling on Defendant\u2019s motion to suppress, the State called Investigator Bethea. Defendant objects on appeal to the following portion of Investigator Bethea\u2019s testimony:\nQ. What did you do when you got to the police department?\nA. 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.\nQ. What did you do after that?\nA. Well, once I \u2014 we went over the form, he decided \u2014 he made the decision to talk to me. And\u2014\nQ. What did he say?\nA. We discussed what he \u2014 what he had said in the first part of our interview.\nQ. And what did he say in the first part of your interview?\nA. He stated that she had told him she had a discharge from her vaginal area.\nQ. Who is \u201cshe\u201d?\nA. [Barbara]. He arrived at work to talk to her about it and asked her what was the deal. She didn\u2019t 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, \u201cBeside me.\u201d 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.\nQ. Did the defendant say anything at all about how he came to know that the defendant \u2014 that\u2014did the defendant say how he knew that [Barbara] had on panties and a sports bra under her shorts and T-shirt?\nA. We had been in conversation, and all he did was just come out and I, you know \u2014 I was asking questions and he would answer. And these \u2014 this is all he said. He didn\u2019t say anything else.\nQ. Okay. What did you do when you concluded taking the defendant\u2019s statement?\nA. Are you talking about at that point in time or \u2014 \u2022\nQ. At the end of your interview.A. At the end of our interview? I escorted him back to the jail.\nDefendant asserts this testimony should have been excluded under the rationale of Walker, 269 N.C. 135, 152 S.E.2d 133.\nIn Walker, our Supreme Court held:\nIf 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.\n269 N.C. at 139, 152 S.E.2d at 137 (quotation marks and citations omitted). Thus, Walker stands for the proposition that 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 \u201cdefendant\u2019s own statement is admissible when offered against him at trial as an exception to the hearsay rule.\u201d State v. Chapman, 359 N.C. 328, 354, 611 S.E.2d 794, 815 (2005) (citing N.C. R. Evid. 801(d)).\nHere, 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\u2019s case-in-chief however, no written manifestation of Defendant\u2019s comments prior to 9:21 a.m. was introduced or read to the jury. Therefore, Walker does not bar Investigator Bethea\u2019s testimony regarding Defendant\u2019s oral statements made prior to 9:21 a.m., and Defendant\u2019s argument is overruled.\nWe also disagree with Defendant that the two isolated references to his \u201cstatement,\u201d made during Investigator Bethea\u2019s testimony constituted prejudicial error when viewed in light of the later testimony elicited from Defendant discussed below.\n2. Cross Examination of Defendant\nDefendant 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\u2019s \u201cstatement.\u201d\nOn direct examination, defense counsel elicited testimony from Defendant regarding his interaction with Investigator Bethea, including both a denial that he had given any \u201cstatement,\u201d as well as testimony specifically addressing, and denying, several of the inculpatory portions of the written instrument. Accordingly, Defendant may not argue on appeal that introduction of the substance of the written instrument on cross-examination to impeach Defendant constituted error. 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 only to arguing that the prosecution\u2019s characterization of the written instrument as \u201cDefendant\u2019s statement\u201d was improper.\nAssuming but in no way deciding that it was error for the trial court to allow the State to characterize the written instrument as Defendant\u2019s \u201cstatement,\u201d we cannot conclude that \u201ca different result would have been reached at trial\u201d absent such characterization. Stanley, _ N.C. App. at _, 713 S.E.2d at 199. Defendant has not demonstrated that the State\u2019s characterization of the written instrument as \u201cDefendant\u2019s statement\u201d caused the jury to accept it as such. To the contrary, the record reveals Defendant took the stand, denied that he had acquiesced to any \u201cstatement,\u201d and denied specific admissions contained in the purported \u201cstatement.\u201d The State subsequently attempted to impeach Defendant\u2019s testimony. This ultimately presented the jury with the question of whether Defendant was credible in his denial. Defendant has not met his burden of demonstrating prejudice.\nB. Failure to Provide a Limiting Instruction\nDefendant next argues that the trial court erred by failing to give a limiting instruction during the jury charge regarding the State\u2019s use of Defendant\u2019s Miranda inadmissible comments on cross-examination. Specifically, Defendant contends the trial court failed to instruct the jury that this evidence \u201cwas 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.\u201d We disagree.\nPreliminarily, we note that Defendant did not object to the jury instruction at trial; therefore this argument is subject to plain error review. See State v. Oakman, 191 N.C. App. 796, 798, 663 S.E.2d 453, 456 (2008) (\u201cA defendant who does not object to jury instructions at trial will be subject to a plain error standard of review on appeal.\u201d). \u201cIn deciding whether a defect in the jury instruction constitutes \u2018plain error\u2019, the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury\u2019s finding of guilt.\u201d State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983). However, \u201ceven when the \u2018plain error\u2019 rule is applied, \u2018[i]t 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.\u2019 \u201d Id. at 660-61, 300 S.E.2d at 378 (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977))(alteration in original).\nThe court charged the jury on the State\u2019s use of the evidence in question using the language of N.C.P.I.-Crim. 105.21, entitled \u201cFalse, Contradictory, or Conflicting Statements of Defendant\u201d:\nThe 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.\nThis 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 \u201cdivert suspicion,\u201d and (3) standing alone, any prior inconsistent statement of Defendant was insufficient to establish guilt.\nIt is speculative as to whether the jury took this charge to mean it could consider Defendant\u2019s prior comments to Investigator Bethea as substantive evidence of guilt. Defendant on appeal does not direct us to the alternate language the trial court should have used. To the extent Defendant argues that the charge given did not properly instruct the jury as to the limited purpose for which the evidence could be considered, we note that a \u201ctrial court [does] not err in . . . fail[ing] to restrict the purpose of the cross-examination for impeachment only\u201d when \u201ccounsel [does] not request such an instruction.\u201d Gillespie v. Draughn, 54 N.C. App. 413, 416, 283 S.E.2d 548, 551 (1981).\nIn general, the choice of jury instructions is a \u201cmatter within the trial court\u2019s discretion and will not be overturned absent a showing of abuse of discretion.\u201d 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\u2019s decision was not in error, much less plain error.\nC. Insufficient Evidence of \u201cSexual Act\u2019TInstructing on Theory Unsupported by Evidence\nDefendant 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 \u201csexual act\u201d on the part of Defendant. Defendant\u2019s argument is without merit.\nWe review a trial court\u2019s denial of a.motion to dismiss de novo. 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 court must determine whether there is \u201csubstantial evidence\u201d of (1) the essential elements of the offense charged, and (2) the defendant\u2019s 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 \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion,\u201d and is a question of law for the trial court. State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). In evaluating a defendant\u2019s motion, the trial court must view the evidence in the light most favorable to the State and give the State \u201cthe benefit of all reasonable inferences\u201d to be drawn from the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).\nDefendant was convicted of second-degree sexual offense pursuant to N.C. Gen. Stat. \u00a7 14-27.5(a)(l) (2011), an essential element of which is \u201cengage[ment] in a sexual act with another person.\u201d N.C. Gen. Stat. \u00a7 14-27.1(4) (2011) defines \u201csexual act\u201d as including \u201ccunnilingus\u201d or \u201cthe penetration... by any object into the genital... opening of another person\u2019s body.\u201d Cunnilingus is \u201cthe slightest touching by the lips or tongue of another to any part of [a] woman\u2019s genitalia.\u201d State v. Ludlum, 303 N.C. 666, 674, 281 S.E.2d 159, 163 (1981).\nHere, Defendant argues that there was insufficient evidence of both cunnilingus and penetration. However, the record reflects sufficient evidence of both acts, particularly when providing the State the \u201cbenefit of all reasonable inferences.\u201d\nBarbara testified as follows:\nQ. What happened then?\nA. 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\u2019t.\nQ. Did you have on underpants at that time?\nA. Yes, ma\u2019am.\nQ. Did he pull those down, too?\nA. Yes, ma\u2019am.\nBarbara then testified that Defendant said he \u201cwanted to please [her] like a woman should be pleased,\u201d \u201cgot between [her] legs\u201d and \u201cstarted licking all over [her] and stuff,\u201d and this went on for about five minutes. Barbara also stated that Defendant immediately expressed remorse over what he had done. She also explained that she \u201cwas having [vaginal] discharge from [Defendant].\u201d The State introduced, without objection from Defendant, a lengthy and detailed statement Barbara made to police which was consistent with the account of the events she gave at trial. We disagree with Defendant that the evidence presented, viewed in totality and taken in the light most favorable to the State, warranted dismissal of the charge against him. Defendant\u2019s motion to dismiss was properly denied.\nAccordingly, Defendant\u2019s argument that the trial court erred by \u201cinstruct[ing] the jury on a theory of \u2018sexual act\u2019 not supported by the evidence,\u201d is also without merit.\nD. Admission of \u201cOther Crimes\u201d Evidence\nDefendant additionally argues that the trial court erred in admitting via testimony four pieces of \u201cother crimes\u201d .evidence which were inadmissible under N.C. R. Evid. 401-404 and 802. Specifically, Defendant contends admission of the following was improper: (1) Barbara\u2019s testimony that a woman named Cathy Smith had told her that Smith had \u201cwalked in on [Defendant] molesting another fourteen-year-old girl,\u201d (2) testimony from Vann to the same effect, (3) Tanya\u2019s 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 \u201cjust got out of jail.\u201d\nDefendant did not object to any of this testimony at trial, and 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).\nWith regard to Barbara and Vann\u2019s testimony about Defendant\u2019s alleged molestation of another girl, we note that Defendant elicited this testimony on cross-examination of the State\u2019s witnesses, and made no motion to strike this testimony. This Court has recognized that \u201c[statements 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 See State v. Carter, _ N.C. App. _, __, 707 S.E.2d 700, 707-08 (2011) (quotation marks and citation omitted). \u201cThus, a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review.\u201d State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001). Accordingly, Defendant\u2019s argument insofar as it pertains to these statements is overruled.\nMoreover, we cannot say that introduction of the remaining two pieces of evidence, that Defendant had threatened to kill Tanya\u2019s mother and grandmother, and that he had \u201cjust got out of jail,\u201d although likely not helpful to Defendant\u2019s case, were so prejudicial as to have \u201c \u2018tilted the scales\u2019 and caused the jury to reach its verdict.\u201d State v. Duke, 360 N.C. 110, 138-39, 623 S.E.2d 11, 29-30 (2005). Defendant\u2019s argument to the contrary is overruled.\nE. Inadmissible Opinion Evidence\nDefendant lastly argues that the trial court erred in \u201cadmitt[ing] the State\u2019s inadmissible opinion evidence [that] Defendant had in fact sexually abused [Barbara].\u201d This argument is without merit.\nAt trial, Investigator Bethea testified for the State that on 20 September 2010 he \u201cthought [he] had enough [evidence] at that point in time\u201d to arrest Defendant for sex crimes and that on that on the same day both Vann and Sheffield told him that \u201ca sexual assault had occurred over a period of time.\u201d Vann also testified for the State that another woman named Ann Herring told her after September 2010 that \u201cshe knew that [Defendant] had did this because of the questions that [Defendant] had asked her\u201d and that \u201c[Defendant had done what he was accused of.\u201d Defendant argues this testimony was impermissible opinion evidence that should have been excluded.\nHowever, an officer may give testimony regarding his perception and experience conducting a sexual assault investigation. See, e.g., State v. O\u2019Hanlon, 153 N.C. App. 546, 562-63, 570 S.E.2d 751, 761-62 (2002). Upon review of the record, it is clear that Investigator Bethea was merely providing a narrative of his investigation. His testimony was not being offered as expert or lay testimony probative on the issue of Defendant\u2019s guilt. Vann\u2019s hearsay testimony recounting a third party\u2019s assertion that \u201cshe knew that [Defendant] had did this because of the questions that [Defendant] had asked her\u201d does not, standing alone, amount to plain error. This is especially true in light of the context in which it was elicited \u2014 as a response to a question about how the investigation began. Defendant\u2019s argument to the contrary is overruled.\nIV. Conclusion\nFor the foregoing reasons, we find\nNO PREJUDICIAL ERROR IN PART; NO ERROR IN PART.\nJudges HUNTER, Robert C. and CALABRIA concur.\n. Pseudonyms are used to protect the minors\u2019 identities.\n. 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) (\u201cPursuant to N.C. Gen. Stat. \u00a7 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.\u201d (citations and quotation marks omitted)).", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." } ], "attorneys": [ "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." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. HENRY TYRONE RANDOLPH\nNo. COA12-688\nFiled 18 December 2012\n1. Evidence \u2014 defendant\u2019s oral and written statements\u2014 admissible \u2014 no plain error\nDefendant was not entitled to a new trial in a second-degree sexual offense case because evidence \u201cof and about\u201d a written instrument prepared by a police investigator was not improperly admitted at trial. Defendant\u2019s oral statements made to the investigator were admissible, and 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\u2019s \u201cstatement,\u201d a different result would not have been reached at trial absent such characterization.\n2. Sexual Offenses \u2014 jury instructions \u2014 use of defendant\u2019s comments \u2014 within trial court\u2019s discretion\nThe trial court did not err in a second-degree sexual offense case by failing to give a limiting instruction during the jury charge regarding the State\u2019s use of defendant\u2019s Miranda-inadmissible comments on cross-examination. This argument was subject to plain error review as defendant did not object to the jury instruction at trial and the instruction on the State\u2019s use of the evidence in question that the trial court elected to give was within its discretion.\n3. Sexual Offenses \u2014 sufficient evidence \u2014 sexual act\nThe trial court did not err by denying defendant\u2019s motion to dismiss a second-degree sexual offense charge because the State presented insufficient evidence of a requisite \u201csexual act\u201d on the part of defendant.\n4. Evidence \u2014 second-degree sexual offense \u2014 testimony\u2014 other crimes \u2014 invited error \u2014 not prejudicial\nThe trial court did not commit plain error in a second-degree sexual offense case by admitting via testimony evidence regarding other crimes. The admission of some of the evidence was invited error and the introduction of the remaining evidence was not so prejudicial as to have tilted the scales and caused the jury to reach its verdict.\n5. Evidence \u2014 second-degree sexual offense \u2014 opinion evidence\u2014 narrative of investigation\nThe trial court did not err in a second-degree sexual offense case by admitting the State\u2019s opinion evidence that defendant had in fact sexually abused the victim. The police investigator\u2019s testimony was merely a narrative of his investigation and was not being offered as expert or lay testimony probative on the issue of defendant\u2019s guilt.\nAppeal 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.\nAttorney General Roy Cooper, by Assistant Attorney General John P. Barkley, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant." }, "file_name": "0521-01", "first_page_order": 531, "last_page_order": 546 }