State v. Williams

NO. COA12-1128

NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

STATE OF NORTH CAROLINA

v. Robeson County
Nos. 03 CRS 13758-59
JASON RUSSELL WILLIAMS 03 CRS 13761-65
Defendant 03 CRS 13767-69
03 CRS 13771-72
03 CRS 13775
03 CRS 13781
03 CRS 13783
03 CRS 13788-89
03 CRS 13804
03 CRS 13809-10
03 CRS 13842-45
03 CRS 13847
06 CRS 12128-45
06 CRS 12147-52
06 CRS 12154-59
06 CRS 12161-81
06 CRS 57806

Appeal by defendant from judgments entered 9 May 2011 by Judge

Claire V. Hill in Robeson County Superior Court. Heard in the

Court of Appeals 9 April 2013.

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

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

DAVIS, Judge.
 -2-

Jason Russell Williams (“Defendant”) appeals from his

convictions for 102 counts of second-degree sexual exploitation of

a minor and 25 counts of third-degree sexual exploitation of a

minor. On appeal, Defendant asserts that the trial court (1)

erroneously instructed the jury on two alternate theories of guilt

where one theory was not supported by the evidence in 79 of the

102 counts of second-degree sexual exploitation of a minor; (2)

incorrectly entered judgment on 25 counts of third-degree sexual

exploitation of a minor despite a lack of intent by the General

Assembly to punish criminal defendants for both receiving and

possessing the same images; (3) violated his right to a public

trial by closing the courtroom for a portion of the trial; (4)

improperly admitted lay opinion testimony from law enforcement

officers that images on a compact disc depicted minors engaged in

sexual activity; and (5) improperly admitted testimony under Rule

404(b) that Defendant placed a webcam in a minor’s bedroom, touched

her inappropriately, and videotaped her. After careful review, we

find no prejudicial error.

Factual Background

The State’s evidence tended to establish the following facts:

Defendant lived in Robeson County next door to Corey and Tabitha,1

1 “Corey” and “Tabitha” are pseudonyms used to protect the
identities of children who were minors at the time of the incidents
giving rise to Defendant’s convictions.
 -3-

siblings who were 15 and 16 years old at the time of the underlying

events. In April 2002, Corey told his school counselors that

Defendant had given him a compact disc (“CD”) containing

pornographic images. Corey’s stepfather viewed the images and

determined that, in his opinion, the pictures included images

depicting adults engaging in sexual activity and images depicting

persons under the age of 18 who were “unclothed.” During this

same time period, Tabitha informed her stepfather that Defendant

had installed a webcam in her bedroom when he came over to work on

her computer.

Tabitha and Corey’s stepfather called the Robeson County

Sheriff’s Office, and on 31 May 2002, Detective Howard Branch

(“Detective Branch”) of the Sheriff’s Office came to their home to

collect the CD and to inspect and photograph the webcam in

Tabitha’s bedroom. Detective Branch contacted Special Agent

Charles Lee Newcomb (“Special Agent Newcomb”) of the State Bureau

of Investigation (“SBI”) to assist him in opening the files on the

CD. Detective Branch testified that after several attempts,

Special Agent Newcomb was able to open and view the files, which

contained images of both minors and adults engaging in sexual

activity.

On 11 July 2002, law enforcement officers executed a warrant

to search Defendant’s home, and Special Agent Newcomb seized four

computer towers from four desktop-style computers. Special Agent
 -4-

Newcomb testified that while the officers were searching

Defendant’s residence, he spoke to Defendant, and Defendant

admitted that there was both adult and child pornography on his

computers. Special Agent Newcomb further related that Defendant

had admitted attempting to install a webcam in Tabitha’s room but

had stated that he did not have a receiver for the webcam. During

their conversation, Defendant also acknowledged that he gave Corey

the CD containing the pornographic images.

Defendant was indicted and charged with 2 counts of

disseminating obscene material to a minor under the age of 16, 114

counts of second-degree sexual exploitation of a minor, and 60

counts of third-degree sexual exploitation of a minor. Prior to

trial, the State elected not to proceed on 9 counts of second-

degree sexual exploitation of a minor and 35 counts of third-

degree sexual exploitation of a minor. A jury trial was held

during the May 2011 Criminal Session of Robeson County Superior

Court.

At trial, SBI Special Agent Jonathan Lee Dilday (“Special

Agent Dilday”) testified regarding each image that formed the basis

of a count of sexual exploitation of a minor. Each image was shown

to the jury, and Special Agent Dilday testified as to when the

file was created, the specific computer(s) on which the file was

located, the file’s name, and — for some of the images — when the

file had last been accessed. Many of the images had file titles
 -5-

that described the specific sexual act portrayed in the image in

graphic and explicit terms and labeled the subjects as “underage,”

“preteens,” or “kiddies.” By order of the trial court, the

courtroom was closed during Special Agent Dilday’s testimony — the

portion of the trial when the images were presented to the jury.

The courtroom was open for every other portion of the trial.

Defendant testified at trial in his own defense. He stated

that he repaired computers and removed computer viruses for a

living and would often have 20 to 40 different clients at a time.

He also testified that he was involved in multi-player computer

gaming and would both invite people to his home to play videogames

and go to other locations to play videogames and share files.

Defendant further stated that he would let friends and other

persons come to his home and use his high-speed Internet

connection.

At the close of all the evidence, the trial court dismissed

the two counts of disseminating obscene material to a minor and

three of the counts of second-degree sexual exploitation. The

jury returned guilty verdicts on all remaining charges. The trial

court sentenced Defendant to five consecutive presumptive-range

terms of 13 to 16 months imprisonment. The trial court then

suspended three of the sentences and ordered Defendant to be placed

on supervised probation for 36 months upon his release from

incarceration. The trial court also ordered Defendant to register
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as a sex offender for 30 years. Defendant gave notice of appeal

in open court.

On 7 August 2013, this Court entered an order remanding this

matter to the trial court to conduct a hearing and make findings

of fact and conclusions of law regarding the temporary closure of

the courtroom in accordance with Waller v. Georgia, 467 U.S. 39,

48, 81 L.Ed.2d 31, 39 (1984), as interpreted by this Court in State

v. Rollins, ___ N.C. App. ___, ___, 729 S.E.2d 73, 77-79 (2012).

Defendant’s appeal was held in abeyance pending this Court’s

receipt of the trial court’s order containing these new findings.

A hearing was held by the trial court on 9 September 2013.

On 27 September 2013, the trial court entered an order containing

findings of fact and conclusions of law as directed by this Court.

Analysis

I. Jury Instructions

Defendant first argues that the trial court erroneously

instructed the jury on second-degree sexual exploitation of a

minor. Pursuant to N.C. Gen. Stat. § 14-190.17, a person commits

second-degree sexual exploitation of a minor when, knowing the

nature or content of the material, he

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

(2) Distributes, transports, exhibits,
receives, sells, purchases, exchanges,
 -7-

or solicits material that contains a
visual representation of a minor engaged
in sexual activity.

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

Here, the trial court instructed the jury on two alternative

theories of guilt: (1) exploitation of a minor by duplicating

material that contained a visual representation of a minor engaged

in sexual activity; and (2) exploitation of a minor by receiving

material that contained a visual representation of a minor engaged

in sexual activity. Defendant’s specific argument on appeal is

that the trial court committed reversible error in its instructions

because the duplication theory of guilt was supported by the

evidence in only some of the counts.

Defendant correctly notes that “[w]here the trial court

instructs on alternative theories, one of which is not supported

by the evidence, and it cannot be discerned from the record upon

which theory the jury relied in arriving at its verdict, the error

entitles the defendant to a new trial.” State v. O’Rourke, 114

N.C. App. 435, 442, 442 S.E.2d 137, 140 (1994); see State v.

Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987)

(“resolv[ing] the ambiguity in favor of the defendant” and ordering

new trial where one alternate theory of guilt was erroneous and

one was properly submitted).

Defendant asserts that he is entitled to a new trial on 79 of

the 102 counts of second-degree sexual exploitation of a minor.
 -8-

He contends that the evidence presented at trial was sufficient to

support the duplication theory for only the 23 images that were

found in two or more locations on Defendant’s computers. Because

the remaining 79 images or videos were discovered in only one

location, Defendant argues that the duplication theory of guilt

was unsupported by the evidence offered by the State for the 79

counts predicated on those images.

At trial, Special Agent Dilday testified regarding the

process that occurs when an image is downloaded from a file sharing

website or other Internet source. He explained that “when you

download something from the [I]nternet, you are making a copy of

the file . . . from the location where it is stored on the

[I]nternet down to the local machine that you are working on.”

When further questioned as to whether it was accurate to say that

two copies of the downloaded material exist once a download is

successfully completed, he replied affirmatively. The State

contends that this evidence sufficiently supported an instruction

on duplication for all counts of second-degree sexual exploitation

because Defendant “duplicated the images when he downloaded them

from the [I]nternet and placed them on his computer because [he]

obtained a copy of the image and the original image remained in

its original location.”

Whether the act of downloading an image from the Internet

constitutes a duplication for purposes of N.C. Gen. Stat. § 14-
 -9-

190.17 appears to be an issue of first impression in North

Carolina. The Arizona Court of Appeals, however, addressed this

precise question in State v. Windsor, 224 Ariz. 103, 227 P.3d 864

(2010). Arizona’s sexual exploitation statute is virtually

identical to N.C. Gen. Stat. § 14-190.17 and prohibits

“[r]ecording, filming, photographing, developing or duplicating”

and “[d]istributing, transporting, exhibiting, receiving, selling,

purchasing, electronically transmitting, possessing or exchanging”

visual depictions of a minor engaging in sexual activity or

exploitive exhibitions. A.R.S. § 13-3553(A)(1)-(2) (2009). While

we recognize that “decisions from other jurisdictions are, of

course, not binding on the courts of this State,” we are free to

review such decisions for guidance. State v. Tucker, ___ N.C.

App. ___, ___, n.4, 743 S.E.2d 55, 61, n.4 (2013); see Skinner v.

Preferred Credit, 172 N.C. App. 407, 413, 616 S.E.2d 676, 680

(2005) (“Because this case presents an issue of first impression

in our courts, we look to other jurisdictions to review persuasive

authority that coincides with North Carolina’s law.”), aff’d, 361

N.C. 114, 638 S.E.2d 203 (2006).

In Windsor, the defendant argued that evidence of his actions

in downloading child pornography from an Internet site was

insufficient to support his convictions for sexual exploitation by

duplicating visual depictions of minors engaged in sexual conduct.

As in the present case, a witness for the State testified in
 -10-

Windsor that “downloading involves using the Internet to copy a

file from a remote computer.” Windsor, 224 Ariz. at 104, 227 P.3d

at 865.

In analyzing whether such evidence was sufficient to

constitute duplication, the Arizona Court of Appeals looked to

other courts’ interpretations of the downloading process as well

as the plain meanings of the words “download” and “duplicate.”

Id. at 105, 227 P.3d at 866. Noting that the dictionary definition

of duplicate is “to make an exact copy of,” the court concluded

that “one who downloads an image from a remote computer or computer

server has duplicated it for purposes of [the sexual exploitation

statute].” Id. The Windsor court also rejected the defendant’s

argument that downloading an image was only consistent with

“receipt or distribution of an existing image,” reasoning that the

defendant provided no explanation of “how creating an electronic

copy of an image is so significantly different from making any

other type of duplicate that it should be treated differently under

the law.” Id.

We believe that the Arizona Court of Appeals’ analysis of

this issue is well-reasoned and equally applicable here. In this

case, the evidence presented at trial indicated that the images on

Defendant’s computers were obtained from the Internet using both

a file sharing site and various Internet searches. Special Agent

Dilday testified that when an image is downloaded from either a
 -11-

file sharing website or another remote site, the original image

remains in its original location and a separate copy is created

and stored on the machine being used. As the Windsor court noted,

the dictionary definition of duplicate is “to make a copy of.”

Merriam—Webster’s Collegiate Dictionary 387 (11th ed. 2003).

It is well established that this Court’s principal aim when

interpreting statutes “is to effectuate the purpose of the

legislature in enacting the statute,” State v. Goodson, 178 N.C.

App. 557, 558, 631 S.E.2d 842, 843 (2006) (citation and quotation

marks omitted), and that “[s]tatutory interpretation properly

begins with an examination of the plain words of the statute,”

State v. Carr, 145 N.C. App. 335, 343, 549 S.E.2d 897, 902 (2001)

(citation and quotation marks omitted). Based on the evidence

presented at trial and the plain meaning of the word “duplicate,”

we conclude the trial court’s instruction on the duplication theory

of guilt was proper.

II. Legislative Intent

Defendant also contends that the trial court erred in entering

judgment on the 25 counts of third-degree sexual exploitation of

a minor because the General Assembly did not intend to punish

criminal defendants for both receiving and possessing the same

images. We first note — and Defendant acknowledges — that this

Court has already determined that convictions for both second-

degree sexual exploitation (based on receiving illicit images of
 -12-

minors) and third-degree sexual exploitation (based on possessing

those same images) do not violate the constitutional prohibition

against double jeopardy. See State v. Anderson, 194 N.C. App.

292, 298-99, 669 S.E.2d 793, 797-98 (2008), disc. review denied,

363 N.C. 130, 675 S.E.2d 659 (2009). In Anderson, we determined

that — as with receiving and possessing stolen goods — receiving

illicit images and possessing those same images are “separate and

distinct acts,” and, as such, convictions for both do not amount

to double jeopardy. Id. at 299-300, 669 S.E.2d at 798.

Defendant asserts that because Anderson only addressed the

issue of double jeopardy, the question of whether the Legislature

intended to punish criminal defendants for both receiving and

possessing the same sexually explicit images “remains unanswered.”

By likewise analogizing to the receipt and possession of stolen

goods, he contends that the General Assembly’s intent in enacting

the sexual exploitation statutes “was not to impose multiple

punishments on defendants for receiving and possessing the same

images, but instead to allow the State an option for prosecuting

defendants for possessing the images despite not being able to

prove where the images came from or who received them.” We

disagree.

In State v. Howell, 169 N.C. App. 58, 609 S.E.2d 417 (2005),

we discussed the legislative intent behind our sexual exploitation

statutes.
 -13-

Child pornography laws, such as N.C.G.S. § 14-
190.17A(a) . . . are designed to prevent the
victimization of individual children, and to
protect minors from the physiological and
psychological injuries resulting from sexual
exploitation and abuse. This Court has noted
that child pornography poses a particular
threat to the child victim because the child’s
actions are reduced to a recording [and] the
pornography may haunt him in future years,
long after the original misdeed took place.

Id. at 63, 609 S.E.2d at 420-21 (internal citations and quotation

marks omitted).

As such, we believe that the Legislature’s criminalization of

both receiving and possessing such images was not intended merely

“to provide for the State a position to which to recede when it

cannot establish the elements of” the greater offense, State v.

Perry, 305 N.C. 225, 236, 287 S.E.2d 810, 816 (1982) (citation and

quotation marks omitted), overruled on other grounds by State v.

Mumford, 364 N.C. 394, 699 S.E.2d 911 (2010), but rather to prevent

or limit two separate harms to the victims of child pornography.

See Anderson, 194 N.C. App. at 299, 669 S.E.2d at 798 (“[T]he

unlawful receipt . . . 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.”)

(citation and quotation marks omitted)); Cinema I Video, Inc. v.

Thornburg, 83 N.C. App. 544, 568-69, 351 S.E.2d 305, 320 (1986)

(“A child who was posed for a camera must go through life knowing

that the recording is circulating within the mass distribution
 -14-

system for child pornography.”) (citation omitted)), aff’d, 320

N.C. 485, 358 S.E.2d 383 (1987). We therefore overrule Defendant’s

argument.

III. Closure of the Courtroom

Defendant next argues that his constitutional right to a

public trial was violated when the trial court closed the courtroom

during the presentation of the images at issue. We disagree.

The United States Supreme Court has stated the following with

respect to a criminal defendant’s right to a public trial under

the Sixth Amendment to the United States Constitution:

The requirement of a public trial is for the
benefit of the accused; that the public may
see he is fairly dealt with and not unjustly
condemned, and that the presence of interested
spectators may keep his triers keenly alive to
a sense of their responsibility and to the
importance of their functions. In addition to
ensuring that judge and prosecutor carry out
their duties responsibly, a public trial
encourages witnesses to come forward and
discourages perjury.

Waller, 467 U.S. at 46, 81 L.Ed.2d at 38 (citations and quotation

marks omitted).

The presumption of an open and public trial, while

substantial, is not absolute and can be overcome “by an overriding

interest based on findings that closure is essential to preserve

higher values and is narrowly tailored to serve that interest.

The interest is to be articulated along with findings specific

enough that a reviewing court can determine whether the closure
 -15-

order was properly entered.” Id. at 45, 81 L.Ed.2d at 38.

When deciding whether closure of the courtroom during a trial

is appropriate, the trial court must: (1) determine whether the

party seeking the closure has advanced “an overriding interest

that is likely to be prejudiced” if the courtroom was not closed;

(2) ensure that the closure is “no broader than necessary to

protect that interest;” (3) “consider reasonable alternatives to

closing the proceeding;” and (4) “make findings adequate to support

the closure.” Id. at 48, 81 L.Ed.2d at 39. We review the trial

court’s decision de novo. See State v. Comeaux, ___ N.C. App.

___, ___, 741 S.E.2d 346, 349 (2012) (applying de novo review to

trial court’s closure of courtroom), disc. review denied, ___ N.C.

___, 739 S.E.2d 853 (2013).

Here, the State made a pretrial motion to close the courtroom

while the images at issue were shown to the jury “because of the

nature of the images . . . [and] the nature of the testimony as to

what may be depicted in the images.” The trial court granted the

State’s motion, stating

[t]he court will not be closed at any other
time[,] and it will be open to anyone except
for those witnesses that are on the — these
witnesses that I have previously named that
are on either the State or the defense witness
list. But due to the nature of these charges,
due to the nature of the photographs and that
it is a criminal offense to disseminate these
photographs and in a sense during this trial
these photographs will be disseminated; so,
the Court grants the motion to close the
 -16-

courtroom only during the time period in which
these photographs are being presented during
the trial.

The trial court subsequently made the following pertinent

supplemental findings in its 27 September 2013 order:

5. The Court finds that the State has
presented an overriding interest that is
likely to be prejudiced if the courtroom is
not closed.

6. The Court finds that there is a problem
with the proliferation of child pornography,
which is the images of children, that being
minors under the age of 18, engaged in sexual
activity.

. . .

8. The Court recognizes that both the North
Carolina Legislature and Congress have enacted
specific statutes with regards to the
proliferation and dissemination of child
pornography, to include federal acts such as
the Jacob Wetterling Act and the Adam Walsh
Act, specifically to stem child pornography by
preventing duplication and discovery in
criminal cases, prohibiting copying and
allowing the defendant to have access to these
images in a secure setting.

9. This case dealt with still images and video
images, with audio, of alleged child
pornography, children under the age of 18
being involved in sexual activity.

. . .

11. In this trial, there were over 120 counts
involving second and third degree sexual
exploitation of a minor.

12. The Court finds that there is a compelling
interest to stop the distribution and
dissemination of child pornography. In this
 -17-

case, it was disseminated to the jurors
because they had to make the finding as the
triers of fact, and it was up to the jury to
make the determination of whether or not the
defendant was guilty of second and third
degree sexual exploitation of a minor.

13. The Court also recognizes the North
Carolina Court of Appeals opinion Cinema I, 83
N.C. App. 544 (1986), and Ferber v. New York,
that pornography is a greater threat to the
victim than just the images themselves because
the actions are reduced to recordings and
photographs that can haunt them for years and
be circulated for years.

14. The Court finds that the mere fact that
the child in the video is not present in court
does not obviate the State’s interest to
prevent continued dissemination.

15. As to the second prong of the Waller test,
the Court finds that the closure of the
courtroom was no broader than necessary.

16. The Court closed the courtroom during the
testimony of Special Agent Dilday from the
State Bureau of Investigation.

17. The Court notes that there was no media
present and there were no requests by media
for any access to the courtroom.
Specifically, the Court recalls that there
were two individuals in the courtroom at the
time that the courtroom was closed and that
there was a sequestration order in effect for
both the State and the defense at the time.

18. The Court finds that the still images were
numerous and that it would not have been
judicially efficient and economical to
require the State to copy all still images,
one set of photographs for each of the 13
jurors and to have to view those individually.
It was more judicially efficient and
economical to present those images through the
ELMO [projector] on the television monitor;
 -18-

that based on the logistics of this courtroom,
the electrical outlets, that the position of
the television at the time, the monitor with
the ELMO on the prosecutor’s table, and the
computer on the prosecutor’s table, that this
was a reasonable placement of the monitor for
all the jurors to see and that the TV was in
the most centrally located position for all
the jurors to be able to see and/or hear.

19. The closure did not occur until the State
was ready to present these images and videos
to the jury, and the Court reopened the
courtroom as soon as the testimony with
regards to these images and videos concluded.
That the courtroom was closed for a few hours,
and it was not closed at any other time during
the trial of this matter. Further, the
courtroom was closed temporarily for the
limited purpose of publishing the still
photographs through the ELMO and the videos
with sound, with the sexually descriptive
titles to the jury through the testimony of
Special Agent Dilday. The Court does find
that the defense, Mr. Davis, requested his
investigator to remain in the courtroom, and
the court allowed that request. Further, the
Court finds that defendant’s attorney, Mr.
Davis, was allowed to relocate so that he
would be able to view the images as they were
being presented to the jury.

20. As to the third prong of the Waller test,
the Court finds that, based on the logistics
of the courtroom, that there were no other
reasonable alternatives to closing the
courtroom.

21. The Court finds that the State did have
the television monitor on a cart, utilized it
along with the ELMO and a laptop computer at
the prosecutor’s table. All of those had to
be in close proximity to each other, not just
because of the cord into the electrical
outlet, but also the cords linking them up
together so that these images could be
presented to the jury so that they could make
 -19-

their necessary findings with regard to the
nature of the images and videos to determine
the guilt or innocence of the defendant.

22. The Court also notes that the videos had
audio, which even though the statute
specifically does not discuss as it relates to
detailed images being disseminated, the Court
finds that the audio is a part of the video in
the dissemination of the child pornography,
and that if the spectators had been allowed to
remain, they would have also heard the audio,
which is a direct part of the video.

23. The Court does find that there were over
100 images presented to the jury, and that the
position of the television was the best
position for all jurors to have the best
ability to see and/or hear the evidence as it
was being presented.

24. The Court also notes that some of the
videos were smaller in size and did not take
up the whole screen of the television, so if
the television had been positioned further
away, as proposed by the defense, it would
have been harder for jurors in seats 1 and 8
to have seen that video.

25. The Court notes that the State has limited
resources and sometimes doesn’t always have
the necessary equipment within which to comply
with other alternatives.

26. The Court finds that the location of the
television was the most reasonable and logical
to present the images and the videos to the
jury.

27. The Court finds that all of the elements,
pursuant to Waller v. Georgia have been met to
support closure of the courtroom during the
presentation of the still images and videos
depicting child pornography, that being
children under the age of 18 engaged in sexual
activity.
 -20-

Based on its findings of fact, the trial court made the

following conclusions of law:

1. The State advanced an overriding interest
that is likely to be prejudiced if the
courtroom is not closed;

2. The closure in this case was no broader
than necessary to protect the State’s
interest;

3. The Court considered and found there were
no other reasonable alternatives to closing
the courtroom; and

4. The closure of the courtroom during the
publication of the still images and videos
with audio complied with the test set forth in
Waller v. Georgia.

Defendant challenges findings 18 and 21-26 of the trial

court’s supplemental findings of fact. He first argues that

findings 21 and 25 — which address the logistics of the audiovisual

equipment and the State’s limited resources — are not supported by

competent evidence because they were based solely upon the

prosecutor’s arguments at the 9 September 2013 hearing.

As explained above, we remanded this matter to the trial court

so that it could evaluate the propriety of the temporary closure

by applying the four-part Waller test and making the requisite

findings. In so doing, the trial court essentially reheard on 9

September 2013 the State’s pretrial motion to close the courtroom.

During the 9 September 2013 hearing, both the prosecution and

defense counsel made arguments on their respective positions as to
 -21-

whether the temporary closure was proper.

While Defendant is correct that arguments of counsel are

generally not considered substantive evidence, see State v. Tuck,

191 N.C. App. 768, 775, 664 S.E.2d 27, 31 (2008) (holding that

prosecutor’s statements were not evidence and could not support

restitution order), this Court has held that in certain pretrial

motions, “evidence at the hearing may consist of oral statements

by the attorneys in open court in support and in opposition to the

motion . . . .” State v. Chaplin, 122 N.C. App. 659, 663, 471

S.E.2d 653, 656 (1996); see State v. Pippin, 72 N.C. App. 387,

397-98, 324 S.E.2d 900, 907 (upholding trial court’s findings

regarding defendant’s speedy trial claim that were based on

counsel’s statements), disc. review denied, 313 N.C. 609, 330

S.E.3d 615 (1985).

In Pippin, we noted that the Official Commentary to N.C. Gen.

Stat. § 15A-952, a statute addressing pretrial motions,

specifically provides that “’pretrial motions . . . can be disposed

of on affidavit or representations of counsel.’” 72 N.C. App. at

397, 324 S.E.2d at 907. We believe the same is true here given

that the State’s motion to temporarily close the courtroom was a

pretrial motion. Thus, even though the 9 September 2013 hearing

took place well after the trial ended, it was simply a rehearing

of the original motion, and — for this reason — we believe that

N.C. Gen. Stat. § 15A-952 is applicable. As such, the trial court
 -22-

did not err in basing its findings that (1) the audiovisual

equipment all needed to be in close proximity; and (2) the State

had finite resources to comply with potential alternatives to a

limited closure, on the prosecutor’s arguments.

Defendant next contends that findings 23, 24, and 26 were not

supported by the evidence because the testimony of Defendant’s

trial counsel at the 9 September 2013 hearing contradicted these

findings. During the hearing, Defendant’s appellate counsel

argued that if the television monitor was oriented in a different

direction, the courtroom could remain open. Defense counsel

reasoned that if the monitor was angled differently, spectators

could be present yet unable to actually view the images while still

allowing an unobstructed view of the images by the jury. At the

9 September 2013 hearing, Defendant’s trial counsel testified that

he could see the monitor in the alternate location from each of

the jurors’ seats. Defendant thus asserts that the trial court’s

findings that the original position of the television was the most

“reasonable and logical” for the jurors’ viewing was unsupported

by the evidence. We are not persuaded.

This Court has recently explained that in an order addressing

the propriety of the temporary closure of the courtroom, “[t]he

trial court’s own observations can serve as the basis of a finding

of fact as to facts which are readily ascertainable by the trial

court’s observations of its own courtroom.” State v. Rollins, ___
 -23-

N.C. App. ___, ___, ___, S.E.2d. ___, ___ (filed Dec. 17, 2013).

Thus, the trial judge herself was in a position to determine the

relative merits of alternative locations for the television

monitor. As such, we cannot conclude that these findings were

erroneous simply because the testimony of Defendant’s trial

counsel could have supported a different conclusion. See id. at

___, ___ S.E.2d at ___ (“Although it is possible that other

findings of fact could have been made or that other conclusions

could have been drawn weighing the factors more in defendant’s

favor[, that] does not mean that the trial court erred.”).

Defendant also contends that finding 22 does not support the

temporary closure of the courtroom because the audio portions of

the videos at issue are not part of the “visual representation of

a minor engaged in sexual activity.” Defendant thus argues that

the State was not required to play the audio and, even if it did,

“the audio portions would not have exposed the spectators to child

pornography.” However, because N.C. Gen. Stat. § 14-190.13 — which

provides definitions for terms used in the statutes addressing

sexual exploitation — specifically includes “video recordings” in

its description of “material,” N.C. Gen. Stat. § 14-190.13(2)

(2011), we do not believe that the trial court erred in considering

the harm of disseminating the audio portions of the videos.

Finally, Defendant asserts that finding 18 and conclusion of

law 3 were erroneous because the trial court misapplied the third
 -24-

prong of Waller, which requires the trial court to “consider

reasonable alternatives to closing the proceeding[.]” Waller, 467

U.S. at 48, 81 L.Ed.2d at 39. Although the trial court ultimately

rejected Defendant’s proposed alternatives to temporary closure as

unreasonable because they were not judicially efficient,

economical, or the most appropriate for the jury’s viewing ability,

the trial court’s supplemental findings do indicate that it

considered these options. Waller does not require more.

We therefore conclude that the trial court’s detailed

supplemental findings of fact sufficiently demonstrate that “the

State advanced an overriding interest that was likely to be

prejudiced; that the closure of the courtroom was no broader than

necessary to protect the overriding interest; that the trial court

considered reasonable alternatives to closing the courtroom; and

that the trial court made findings adequate to support the

closure.” Comeaux, ___ N.C. App. at ___, 741 S.E.2d at 351.

Therefore, Defendant’s right to a public trial was not violated.

IV. Lay Opinion Testimony of Officers

Defendant’s fourth argument on appeal is that the trial court

erred in allowing Detective Branch and Special Agent Newcomb to

testify that some of the images found on the CD that Defendant

gave to Corey included minors engaged in sexual activity.

Defendant contends that this testimony was improper because it

expressed an opinion as to Defendant’s guilt and thereby invaded
 -25-

the province of the jury.

“[W]hether a lay witness may testify as to an opinion is

reviewed for abuse of discretion.” State v. Norman, 213 N.C. App.

114, 119, 711 S.E.2d 849, 854 (citation and quotation marks

omitted), disc. review denied, 365 N.C. 360, 718 S.E.2d 401 (2011).

An abuse of discretion occurs when the trial judge’s decision

“lacked any basis in reason or was so arbitrary that it could not

have been the result of a reasoned decision.” Williams v. Bell,

167 N.C. App. 674, 678, 606 S.E.2d 436, 439 (citation and quotation

marks omitted), disc. review denied, 359 N.C. 414, 613 S.E.2d 26

(2005).

Under Rule 701 of the North Carolina Rules of Evidence, a lay

witness may testify in the form of opinions or inferences “which

are (a) rationally based on the perception of the witness and (b)

helpful to a clear understanding of his testimony or the

determination of a fact in issue.” N.C. R. Evid. 701. It is well

established that lay witnesses may testify as to “instantaneous

conclusions of the mind as to the appearance, condition, or mental

or physical state of persons, animals, and things, derived from

observation of a variety of facts presented to the senses at one

and the same time. Such statements are usually referred to as

shorthand statements of fact.” State v. Alexander, 337 N.C. 182,

191, 446 S.E.2d 83, 88 (1994) (citation and quotation marks

omitted).
 -26-

In State v. Ligon, 206 N.C. App. 458, 464, 697 S.E.2d 481,

486 (2010), this Court addressed the admissibility of statements

by lay witnesses that photographs of a minor child were

“‘disturbing,’ ‘graphic,’ ‘of a sexual nature involving children,’

‘objectionable,’ [and] ‘concerning’ to the witness.” In Ligon,

defendant did not object to this testimony at trial, and the Court,

being “directed to no case finding prejudicial error in admitting

testimony regarding the contents of a still photograph where the

testimony was not objected to at trial,” determined that the lay

witnesses’ “reactions to the photographs [did] not rise to the

level of plain error.” Id. We did note, however, that “[a]lthough

their opinions as to what the pictures showed were based on their

perceptions of the photographs, the helpfulness of those opinions

to the jury, which was in no worse position to evaluate the

pictures, is questionable.” Id. at 462-63, 697 S.E.2d at 485

(emphasis omitted).

Here, unlike in Ligon, Defendant made timely objections to

Special Agent Newcomb’s and Detective Branch’s testimony that some

of the images were of minors engaged in sexual activity. However,

even when objected to at trial, evidentiary errors are subject to

harmless error analysis on appeal. Thus,

[t]he burden is on the party who asserts that
evidence was improperly admitted to show both
error and that he was prejudiced by its
admission. The admission of evidence which is
technically inadmissible will be treated as
 -27-

harmless unless prejudice is shown such that
a different result likely would have ensued
had the evidence been excluded.

State v. Gappins, 320 N.C. 64, 68, 357 S.E.2d 654, 657 (1987)

(internal citations omitted); see also N.C. Gen. Stat. § 15A-1443

(2011) (prejudice occurs “when there is a reasonable possibility

that, had the error in question not been committed, a different

result would have been reached . . . The burden of showing such

prejudice . . . is upon the defendant”). Furthermore, “[w]here

there exists overwhelming evidence of defendant’s guilt[,]

defendant cannot make . . . a showing [of prejudicial error] . .

. .” State v. Gayton, 185 N.C. App. 122, 125, 648 S.E.2d 275, 278

(2007) (citation and quotation marks omitted).

During Defendant’s trial, Special Agent Newcomb and Detective

Branch testified that some of the images found on the CD depicted

individuals under the age of 18 engaging in sexual activity.

However, neither specified which particular images, in their

opinion, included minors engaging in sexual activity. After this

testimony, the jurors viewed each of the images for themselves

with regard to every count of second- and third-degree sexual

exploitation of a minor and were instructed to determine whether

the image forming the basis of the count “contained a visual

representation of a minor engaged in sexual activity.” Given the

jury’s opportunity to observe each image and make an individualized

determination of the nature of the image coupled with the fact
 -28-

that the image files frequently had titles noting the subject’s

status as a minor and the sexual act depicted, Defendant cannot

establish that he was prejudiced by the admission of Special Agent

Newcomb’s and Detective Branch’s testimony. Accordingly, even

assuming, without deciding, that the admission of this testimony

was an abuse of discretion, it was not reversible error.

V. Evidence of Prior Bad Acts

Defendant’s final argument is that the trial court erred in

admitting evidence that Defendant (1) set up a webcam in Tabitha’s

room; (2) videotaped her dancing in her pajamas; and (3)

inappropriately touched Tabitha while they were riding four-

wheelers. Defendant only made objections regarding the form of

the State’s questions during this testimony and thus seeks review

of this issue under the plain error doctrine.

Rule 404(b) of the North Carolina Rules of Evidence provides

that:

Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident. . . .

N.C. R. Evid. 404(b).

It is well established that Rule 404(b) is a “general rule of

inclusion of relevant evidence of other crimes, wrongs or acts by
 -29-

a defendant, subject to but one exception requiring its exclusion

if its only probative value is to show that the defendant has the

propensity or disposition to commit an offense . . . .” State v.

Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990) (emphasis

in original). The State contends that the evidence was properly

admitted to show Defendant’s intent “to obtain electronic images

of minors of a sexual nature” and to show “the absence of mistake

or accident that the pornographic images were found on Defendant’s

hard drive.”

“In determining whether the prior acts are offered for a

proper purpose, the ultimate test of admissibility is whether the

[prior acts] are sufficiently similar and not so remote in time as

to be more probative than prejudicial under the balancing test of

. . . Rule 403.” State v. Martin, 191 N.C. App. 462, 467, 665

S.E.2d 471, 474 (2008) (citation and quotation marks omitted),

disc. review denied, ___ N.C. ___, 676 S.E.2d 49 (2009). Defendant

relies on State v. Doisey, 138 N.C. App. 620, 532 S.E.2d 240, disc.

review denied, 352 N.C. 678, 545 S.E.2d 434 (2000), cert. denied,

531 U.S. 1177, 148 L.Ed.2d 1015 (2001); State v. Hinson, 102 N.C.

App. 29, 401 S.E.2d 371, appeal dismissed and disc. review denied,

329 N.C. 273, 407 S.E.2d 846 (1991); and State v. Maxwell, 96 N.C.

App. 19, 384 S.E.2d 553 (1989), disc. review denied, 326 N.C. 53,

389 S.E.2d 83 (1990), to support his contention that the testimony

regarding these prior acts was inadmissible. We believe that
 -30-

Defendant’s reliance on these cases is misplaced.

In Doisey, this Court held that the trial court erred in

admitting evidence that the defendant placed a camcorder in the

bathroom in his prosecution for first-degree statutory sex

offense. 138 N.C. App. at 626, 532 S.E.2d at 244-45. We determined

that this evidence described “conduct dissimilar to the conduct

with which Defendant was charged,” and thus “did not tend to show

Defendant’s plan or scheme to sexually assault [the victim].” Id.

We also held, however, that the improperly admitted evidence did

not rise to the level of plain error because the defendant could

not show that in light of all the other evidence admitted, the

testimony at issue had a probable impact on the jury’s

determination of guilt. Id. at 627, 532 S.E.2d at 245.

In Hinson, we determined that evidence of the defendant’s

possession of sexual paraphernalia and books about sexual

intercourse was improperly admitted in his prosecution for first-

degree sex offense and indecent liberties with a minor. 102 N.C.

App. at 36, 401 S.E.2d at 375-76. Ultimately, we concluded that

although the evidence did not indicate proof of intent,

preparation, or a plan or scheme, its admission did not constitute

plain error in light of the overwhelming evidence of the

defendant’s guilt. Id. at 37, 401 S.E.2d at 376.

Finally, in Maxwell, this Court held that evidence that the

defendant often appeared nude in front of his children and fondled
 -31-

himself in the presence of his daughter did not show his plan or

scheme to sexually abuse his daughter and did “little more than

impermissibly inject character evidence . . . of whether [the]

defendant acted in conformity with these character traits at the

times in question.” 96 N.C. App. at 24-25, 384 S.E.2d at 557. We

determined that the erroneous admission of such evidence, combined

with the improper exclusion of the victim’s prior sexual abuse

allegations directed at her uncle, prejudiced the defendant’s

right to a fair trial.

Unlike Doisey, Hinson, and Maxwell, however, Defendant in the

present case was charged with second-degree and third-degree

sexual exploitation of a minor — offenses which implicate “visual

representation[s] of a minor engaged in sexual activity.” N.C.

Gen. Stat. § 14-190.17; 14-190.17A. We believe that installing a

webcam in Tabitha’s bedroom and videotaping her dancing in pajama

shorts and a tank top are acts similar in nature to Defendant’s

present charges of possessing and receiving or duplicating visual

representations of minors engaged in sexual activity and serve to

demonstrate Defendant’s intent to obtain sexual images of minors.

See State v. Brown, 211 N.C. App. 427, 433-34, 710 S.E.2d 265, 270

(2011) (determining that evidence of defendant’s possession of

incestuous pornography was admissible under Rule 404(b) to show

intent to commit sex offense against his daughter because “evidence

of a defendant’s incestuous pornography collection sheds light on
 -32-

that defendant’s desire to engage in an incestuous relationship,

and that desire serves as evidence of that defendant’s motive to

commit the underlying act — engaging in sexual intercourse with

[his] child — constituting the offense charged”), aff’d per curiam,

365 N.C. 465, 722 S.E.2d 508 (2012).

We also note that both the offenses for which Defendant was

charged and the prior acts of videotaping and attempting to capture

images of Tabitha by means of a webcam involved the use of

electronics to obtain sexual images of minors. This further

demonstrates the admissibility of the testimony regarding these

prior acts pursuant to Rule 404(b).

Furthermore, these prior acts are also evidence of the absence

of mistake or accident. Defendant denied any improper conduct

during his testimony at trial, claiming that he attended large-

scale file sharing events where users could share and access other

users’ files and that during these file sharing events “information

[could] be passed to [his] hard drive” without his knowledge.

Defendant also stated that when he copied customers’ hard drives

for his computer repair business, he did not know what sort of

information was on their drives. This testimony suggested that

Defendant was not aware of the images that were found on his

computers. Indeed, Defendant specifically stated that he had never

viewed child pornography on his computer and did not know it was

there. The evidence that Defendant had previously attempted to
 -33-

obtain sexual images of Tabitha, a minor, was therefore relevant

to suggest that the images of minors engaged in sexual activity

found on Defendant’s computers were not transferred or placed there

by accident or mistake.

Thus, we conclude the trial court properly determined that

the testimony regarding (1) Defendant’s installation of a webcam

in Tabitha’s room; and (2) his act of videotaping her dancing in

pajamas was admissible because it was introduced for purposes other

than merely to demonstrate Defendant’s propensity to commit a

crime.2

Conversely, Tabitha’s testimony that Defendant touched her

breasts and under her pants while they were driving a four-wheeler

does not possess the same indicia of similarity to the charged

offenses. Because Defendant did not object to this evidence at

trial, however, he bears the burden of showing that its admission

constituted plain error – meaning that the error was such that it

2 Defendant further contends that, even if it was admissible under
Rule 404(b), the evidence regarding his videotaping of Tabitha
nevertheless should have been excluded under Rule 403 as its
probative value was substantially outweighed by the danger of
unfair prejudice. However, as we explained in State v. Cunningham,
188 N.C. App. 832, 837, 656 S.E.2d 697, 700 (2008) (quoting State
v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000), cert. denied,
531 U.S. 1167, 148 L.Ed.2d 997 (2001)), “[t]he balancing test of
Rule 403 is reviewed by this [C]ourt for abuse of discretion, and
we do not apply plain error ‘to issues which fall within the realm
of the trial court's discretion.’” Accord State v. Jones, 176
N.C. App. 678, 687, 627 S.E.2d 265, 271 (2006) (refusing, based on
Steen, to review “defendant's Rule 403 argument” for plain error).
 -34-

“had a probable impact on the jury’s finding that the defendant

was guilty.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d

326, 334 (2012) (citations and quotation marks omitted).

We conclude that in light of the overwhelming evidence of

Defendant’s guilt — specifically, the voluminous testimony

concerning the images found on his computers and the explicit file

names of those images, which typically described the age of the

subjects and the sexual nature of the content — Defendant cannot

establish plain error. See State v. Stancil, 355 N.C. 266, 267,

559 S.E.2d 788, 789 (2002) (holding that inadmissible testimony

did not rise to level of plain error because “[t]he overwhelming

evidence against defendant leads us to conclude that the error

committed did not cause the jury to reach a different verdict than

it otherwise would have reached”).

Conclusion

For the reasons stated above, we conclude that Defendant

received a fair trial free from prejudicial error.

NO PREJUDICIAL ERROR.

Judges McGEE and STEPHENS concur.