              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-272

                               Filed: 20 October 2015

Cumberland County, No. 11 CRS 59302

STATE OF NORTH CAROLINA

             v.

VICTOR JAY CRISCO, JR.


      Appeal by defendant from judgment entered 15 August 2014 by Judge James

Floyd Ammons, Jr. in Cumberland County Superior Court. Heard in the Court of

Appeals 8 September 2015.

      Attorney General Roy Cooper, by Special Deputy Attorney General Sandra
      Wallace-Smith, for the State.

      Gilda C. Rodriguez for defendant-appellant.


      TYSON, Judge.

      Victor Jay Crisco, Jr. (“Defendant”) appeals from his conviction of first-degree

murder. We find no prejudicial error.

                                   I. Background

      Defendant was tried and convicted by a jury of murdering Carrie Welch

(“Welch”).   On 2 July 2010, a lineman employed with the power company was

relocating power lines in Fayetteville when he discovered Welch’s body. The body

was found on Neptune Drive, a dirt road off of Bragg Boulevard, and behind the
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former Stereo World building. The lineman immediately called his supervisor, who

called the police.

       Fayetteville Police Officer John Newland arrived on the scene where the body

was discovered. Although Officer Newland was very familiar with Welch, it took him

ten or fifteen minutes to identify the body, due to the presence of blood and

disfigurement of the face.

       Dr. Jonathan Privette, a staff pathologist in the Medical Examiner’s office,

performed the autopsy on Welch’s body. He was admitted and testified as an expert

witness in forensic pathology, and opined that Welch died as a result of blunt force

injuries to her head. He also testified that Welch was struck at least seven times on

the head. Dr. Privette was unable to determine with certainty the type of instrument

which caused the injuries, but testified they could have been caused by a baseball bat.

       The State’s evidence tended to show Welch and her husband, Patrick Welch

(“Patrick”), rented a residence owned by Defendant located on Rhew Street in

Fayetteville. Patrick’s mother paid Welch and Patrick’s rent. Patrick’s mother died

approximately one month before Welch was murdered. Defendant lived about two

blocks from the house he rented to Welch and Patrick.

       Marisha Garland (“Garland”) supplied drugs to Welch, Patrick, and

Defendant. Garland had known Welch for about ten years. On 24 June 2010,

Defendant called Garland’s cellphone from the Cumberland County jail. Defendant



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was trying to reach Welch, who was present with Garland at the time. Garland

handed the phone to Welch, who spoke with Defendant.         According to Garland,

Defendant wanted money retrieved from his house to use for his bail. Garland heard

Welch say to Defendant that “she would have to get Patrick to do it because she

couldn’t go do it.” According to Garland, Defendant agreed Patrick was to go into

Defendant’s house and get money to bail him out of jail.

      Patrick and an acquaintance went to Defendant’s house. Shortly thereafter,

Officer Rodney Miller responded to a complaint of someone loitering behind

Defendant’s house.    When he arrived, he saw Patrick enter the back door of

Defendant’s house. Officer Miller called for backup and the officers entered the

house. Patrick stated he had permission from Defendant to be in the house to get

money for Defendant’s bail. Defendant, who was still in jail, was contacted and told

the police that no one was allowed to be in his house. Patrick and his acquaintance

were arrested for breaking and entering. They were released the same day with

unsecured bonds.

      Patrick failed to appear in court on the breaking and entering charge. A week

later, on 1 July 2010, Defendant telephoned Officer Trevor Durham. Officer Durham

testified that Defendant was out of jail and “irate” because Welch and Patrick broke

into his house while he was in jail. Defendant wanted them immediately arrested

and told Officer Durham where Patrick was located. The same evening, Officer



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Durham arrested Patrick for failing to appear in court on the breaking and entering

charge.

      The same day, 1 July 2010, Welch called her sister-in-law, Wanda Wingard

(“Wingard”) around 10:00 p.m. from Defendant’s cellphone. Welch asked Wingard for

$300.00 to bail Patrick out of jail. Ms. Wingard asked her to call back the following

morning so that she could verify the information given by Welch.

                              A. Garland’s Testimony

      According to Garland, Welch engaged in prostitution to raise the money needed

to bail Patrick out of jail. Garland picked Welch up from a gas station after her last

“date.” They saw Defendant at the gas station. Garland drove Welch to Defendant’s

house around 3:00 a.m. Defendant arrived home approximately five minutes later.

Garland went inside Defendant’s house and stayed for approximately twenty

minutes. She sold drugs to Welch and gave drugs to Defendant to “watch over” Welch

because Welch was “scared.”

      Garland testified Welch was supposed to call her around 8:00 a.m. for them to

meet at 9:00 a.m. to go post Patrick’s bail. At approximately 5:00 a.m., Garland

received a call from Defendant’s cellphone. Garland did not answer the call and a

voicemail message was left. When Garland listened to the voicemail message, she

heard loud “Elvis” music playing in the background and Welch screaming hysterically

“wait, wait, wait.” Garland testified Defendant often listened to “Elvis” music.



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      Garland went to Defendant’s house around 10:00 a.m. and spoke with

Defendant, who was standing outside.         She testified that Defendant appeared

“normal” and was smoking a cigarette. Garland did not go inside the house, nor did

she later describe the subject matter of that conversation with Defendant.

      Garland thereafter learned that Welch’s body had been found behind the

former Stereo World building. She returned to Defendant’s house around 2:00 p.m.

and entered Defendant’s residence through the back door. She observed Defendant

cleaning and wiping the kitchen floor. The house smelled of “a lot of Clorox, or

bleach.” She stated, “[t]he box said bleach.”

      The day after Welch’s murder, Defendant went to Wingard’s house to collect

Welch and Patrick’s rent. Wingard told Defendant that the “money trail” stopped

with the death of her mother-in-law. They would not be paying Welch and Patrick’s

rent. Defendant then asked Wingard if she had heard about Welch’s death and stated

there was a rumor going around the neighborhood that he had killed Welch.

                           B. Matthew Black’s Testimony

      Matthew Black (“Black”) was an acquaintance of Defendant’s since grade

school. Black would occasionally perform handyman repair services for Defendant.

One day in early 2011, Defendant called Black and stated he wanted Black to board

up some windows in his house. Black picked Defendant up and the two men drove to

Defendant’s house. Upon arrival, they sat in Black’s truck for a while. Black testified



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Defendant stated he had “an eerie feeling” about going inside the house. While they

were inside the house, Defendant stated to Black that he was a “prime suspect” in

the Carrie Welch murder case.        Defendant also asked Black about applying

polyurethane to the kitchen cabinets.

      Defendant and Black later purchased a bottle of tequila and went to Black’s

mother’s house. They began drinking shots of the tequila. According to Black,

Defendant told him that he had killed Welch with a baseball bat in his kitchen.

Defendant explained to Black that Patrick Welch was in jail, and that Defendant had

pending charges and would be going to jail.              Defendant claimed Welch was

blackmailing him. Defendant stated Welch told him “if he didn’t take care of her . . .

he was going to become [Patrick’s] bitch.”

      Defendant went to the bathroom. Black called his wife, Michelle, and told her

to stay on the phone and just listen. Defendant returned and Black and Defendant

continued to discuss Welch’s murder. Defendant told Black again that he had killed

Welch. He stated he burned the baseball bat in the fire pit outside his house and took

the body to a remote area off Bragg Boulevard near the former Stereo World building.

Defendant spent that night at Black’s mother’s house. The next morning Defendant

told Black to forget what he had told him the previous night.

      Michelle Black testified her husband called her and told her to listen, but not

talk. She heard her husband ask a man, whose voice she recognized as Defendant’s,



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to repeat what he had just said. Defendant stated he and Welch were in the kitchen,

he beat her with a baseball bat, and took her body to Bragg Boulevard.

      In February 2011, Matthew Black placed two calls to Crime Stoppers to report

what Defendant had told him. Crime Stoppers offers rewards for tips that lead to

criminal convictions. Michelle Black testified her husband called Crime Stoppers the

day after Defendant confessed to the murder.

      Detective Jason Sondergaard received the tips from Crime Stoppers on 14

February 2011. He contacted Black on 28 February 2011 and set up an interview.

Detective Sondergaard interviewed Black and his wife on 1 March 2011.

      Sometime later, Defendant contacted Black and asked him if he had contacted

the police. Black lied and told Defendant he had not. Defendant stated to Black that

he had told a preacher from Sanford about the murder. Defendant told Black he

regretted telling the preacher, because the preacher was now acting differently.

Defendant also told Black he did not believe the preacher would keep the information

to himself.

                        C. Search of Defendant’s Residence

      On 1 March 2011, Fayetteville police officers and SBI agents executed a search

warrant on Defendant’s residence. Officer Dianne Bettis, a K-9 handler certified in

cadaver recovery, searched the house with a cadaver dog. The dog alerted on a set of

drawers located in the kitchen.



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      Chadrick Barefoot (“Agent Barefoot”), an SBI crime scene agent, searched the

house for evidence of blood. He observed dark red stains in a linear pattern on the

kitchen ceiling. Agent Barefoot also discovered blood stains on the wooden floor in a

room adjacent to the kitchen and underneath the floorboards. He applied Luminol to

areas throughout the home and observed a pale blue glow, indicating a positive result

for the presence of blood. These areas included the kitchen floor; an area near the

bathroom and bedroom; on the couch in the living room; and in the area between the

living room and kitchen.

      Jessica Posto, a former SBI expert witness in body fluid identification,

examined items located in Defendant’s house for the presence of blood.           The

swabbings from the kitchen ceiling and a deadbolt lock in the kitchen returned a

positive chemical reaction to indicate the presence of blood.

      Sharon Hinton (“Hinton”), a forensic analyst at the North Carolina State

Crime Laboratory, tested the blood samples collected from Defendant’s house to

determine whether the DNA profile contained in the samples matched Welch’s DNA

profile. Hinton testified three blood samples obtained from the house completely

matched Welch’s DNA profile. Those three samples were obtained from the kitchen

ceiling, the kitchen wall near a door, and underneath a wooden floor board in an

additional room in the house.




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      Charles Lee Newcomb (“Newcomb”), an SBI fire and arson investigator,

examined three pieces of burned wood recovered from Defendant’s backyard fire pit.

Newcomb testified that the pieces of wood had a “very tight grain pattern” and a

slight curvature.   He testified that each piece of charred wood could have been

portions of a baseball bat.

      Defendant was indicted for Welch’s murder on 19 March 2012. On 11 August

2014, Defendant filed a motion to suppress from the jury any confession Defendant

made to Ronnie Roy (“Pastor Roy”), pastor at Messiah Baptist Ministries, pursuant

to N.C. Gen. Stat. § 8-53.2. Defendant also filed a motion in limine to exclude

Matthew Black’s testimony that Defendant told him he had confessed to a preacher.

This motion requested the court to order the State to “refrain from directly or

indirectly eluding to a confession made by the defendant to his pastor” pursuant to

N.C. Gen. Stat. § 8-53.2 and Rules 402 and 403 of the Rules of Evidence. This motion

asserted Black had been interviewed several times by the State and defense counsel,

and had only mentioned Defendant’s confession to a pastor within the ten days

preceding the filing of the motion.

      The court heard the motions immediately prior to the commencement of trial.

The court heard voir dire testimony from Black and Pastor Roy. Black testified to

the statements Defendant made to him at his mother’s house about Welch’s murder.

Black also testified about Defendant’s phone call to him in which he asked Black if



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he had talked to the police and stated he had told a preacher in Sanford about the

murder.

       Pastor Roy testified at the motion hearing that he was ordained by Bethel Bible

College in Sanford. He had previously served as the pastor of Messiah Baptist

Church in Harnett County. Pastor Roy met Defendant, while both were students at

Fayetteville Technical Community College, and they became acquaintances. The two

men later lost touch and Pastor Roy became ordained as a pastor.

       Pastor Roy stated he had not spoken with Defendant for a “long time.” He re-

connected with Defendant after he saw Defendant’s name in a “crime magazine”

pertaining to an unrelated charge. Pastor Roy contacted Defendant and informed

him that he had become a pastor, saw that Defendant was in trouble, and offered to

help Defendant. Pastor Roy thereafter contacted Defendant once or twice per week

and they talked. Defendant accepted Pastor Roy’s offer to participate in counseling

sessions with him. Defendant stated he wanted to stop using drugs and to change

his life.

       During one of the counseling sessions, Defendant and Pastor Roy discussed

truthfulness as part of Pastor Roy’s program: “12 Steps to Freedom in Christ.”

Defendant told Pastor Roy he murdered Welch by beating her to death with a baseball

bat, disposed of her body, and attempted to clean up the murder scene. Defendant

also told Pastor Roy that Welch was trying to raise money to get her husband out of



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jail, but Defendant was afraid of her husband and did not want him to be out of jail.

Defendant also told Pastor Roy that Welch came to his house one night and believed

Defendant was going to give her money. While Welch was on the phone, Defendant

picked up a baseball bat and beat her to death.

      Pastor Roy stated Defendant participated in several more counseling sessions

with him over the next few weeks. On these occasions, Defendant would ask him

whether their conversation was being recorded or if he had called the police. Pastor

Roy stated he became fearful of Defendant and called the police. Pastor Roy testified

at the motion hearing only, out of the presence of the jury.

      The trial court ruled the clergy-communicant privilege did not exist because

Pastor Roy had initially sought Defendant and offered to help him. The trial court

determined Defendant was not seeking counsel and advice from his minister. If the

privilege did exist, the court determined it was waived when Defendant confessed to

Black and told Black he had told a preacher about the murder. Pastor Roy was

present at trial, but was not called to testify.

      The jury found Defendant guilty of first-degree murder.        The trial court

sentenced him to life in prison without the possibility of parole. Defendant appeals.

                                        II. Issue




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      Defendant argues the trial court erred in concluding the clergy-communicant

privilege did not apply and by denying Defendant’s motion to suppress and motion in

limine concerning his statements.


                        III. Clergy-Communicant Privilege

                               A. Standard of Review

      This Court’s review of the trial court’s order denying a motion to suppress “is

strictly limited to determining whether the trial judge’s underlying findings of fact

are supported by competent evidence, in which event they are conclusively binding

on appeal, and whether those factual findings in turn support the judge’s ultimate

conclusions of law.” State v. Stanley, 175 N.C. App. 171, 174, 622 S.E.2d 680, 682

(2005) (citations omitted). The trial court’s conclusions of law are reviewed de novo.

State v. Campbell, 188 N.C. App. 701, 704, 656 S.E.2d 721, 724 (2008) (citation

omitted).

                             B. Application of Privilege

      N.C. Gen. Stat. § 8-53.2, entitled “Communications between clergymen and

communicants,” provides:

             No priest, rabbi, accredited Christian Science practitioner,
             or a clergyman or ordained minister of an established
             church shall be competent to testify in any action, suit or
             proceeding concerning any information which was
             communicated to him and entrusted to him in his
             professional capacity, and necessary to enable him to
             discharge the functions of his office according to the usual
             course of his practice or discipline, wherein such person so

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             communicating such information about himself or another
             is seeking spiritual counsel and advice relative to and
             growing out of the information so imparted, provided,
             however, that this section shall not apply where
             communicant in open court waives the privilege conferred.

N.C. Gen. Stat. § 8-53.2 (2013).

      Our Supreme Court has held that § 8-53.2 has two requirements for the clergy-

communicant privilege to apply: (1) the defendant must be seeking the counsel and

advice of his minister; and (2) the information must be entrusted to the minister as a

confidential communication. State v. West, 317 N.C. 219, 223, 345 S.E.2d 186, 189

(1986). This statute expressly allows the communicant to waive the privilege in open

court. N.C. Gen. Stat. § 8-53.2.

      The State did not call Pastor Roy to testify before the jury. However, the trial

court’s denial of Defendant’s motion to suppress and motion in limine allowed

evidence that Defendant had communicated with Pastor Roy to be admitted into

evidence through the testimony of other witnesses. Black testified as follows:

             Q: During any conversation he – Mr. Crisco said what to
             you about – you started to say a preacher?

             A: Yeah, he said that he had met a preacher in Sanford and
             that he had told the preacher about it and he was
             uncomfortable that he had told the preacher about it, and
             that — that the preacher wasn’t acting right about him
             telling him, you know, like he would keep it to himself or
             something. I don’t –

             Q: Now, you said “it” a lot, like what you’re talking about;
             he told the preacher about what?


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             A: The murder.

      The trial court ex mero moto also asked Black about Defendant’s conversation

with Pastor Roy in front of the jury:


             THE COURT: Can you tell me exactly what Mr. Crisco said
             about any conversation with a preacher?

             THE WITNESS: Yes, sir. He told me that he – the preacher
             was helping him in Sanford get on his feet, and then he told
             me that he had told the preacher about this murder, and
             that he wished he wouldn’t had [sic] told him that, that the
             preacher kind of – in other words, wasn’t going to — he
             didn’t think he was going to keep it to himself, something
             of that nature, that he was telling.

      The State brought up the subject of the preacher again during its direct

examination of the lead detective, Detective Sondergaard, its last witness:

             Q: Were you present in the courtroom when Matthew Black
             during his testimony mentioned a phone call that he
             received from Mr. Crisco and discussed talking to a
             preacher, that Mr. Crisco spoke to a preacher; do you recall
             that testimony?

             A: Yes.

             Q: Right now just answer with a yes or no: Throughout the
             course of your investigation, were you contacted by a
             preacher?

             A: Yes.

             Q: What was –

             [DEFENSE COUNSEL]: Objection.


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              THE COURT: Overruled as to that.

              BY [THE PROSECUTOR]:

              Q: What was his name?

              A: Ronnie Roy.

              Q: Is he present in the courtroom?

              A: Yes, he is.

       By its plain and ordinary meaning, N.C. Gen. Stat. § 8-53.2, applies to the

competency of clergyperson’s testimony, and only applies to communications between

Defendant and Pastor Roy. Although Pastor Roy was not called and did not testify

before the jury at trial, Defendant argues the State circumvented Defendant’s

privileged communication to Pastor Roy by eliciting testimony from Black and

Detective Sondergaard about the privileged communication. Even without calling

the preacher to testify, Defendant argues the State was able to show the jury

Defendant had confessed to a preacher, and the preacher was real and present before

them, all in violation of the privilege.

       A party who communicates and makes disclosures to his preacher does not

have “any reason to expect confidentiality” when the disclosures are made in the

presence of a third party. West, 317 N.C. at 223, 345 S.E.2d at 189 (holding the

defendant’s admissions to his preacher were not “entrusted” to the preacher in

pursuit of counsel and advice when the preacher’s wife was present). In the context


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of the clergy-communicant privilege, our appellate courts have not considered

whether a disclosure made to clergy can be waived by an out of court, voluntary

disclosure of the substance of the communication to a third party.

      However, “[i]t is well established in this state that even absolutely privileged

matter may be inquired into where the privilege has been waived by disclosure.”

Industrotech Constructors, Inc. v. Duke University, 67 N.C. App. 741, 743-44, 314

S.E.2d 272, 274 (1983) (holding any privilege of confidentiality in arbitration

transcripts had been waived by the university’s disclosure of the materials to a non-

party). The plain language of the statute itself allows waiver in open court.

      N.C. Gen. Stat. § 8-53.2 applies only to “confidential” communication between

clergy and communicant.      The statute does not restrict the applicability of the

privilege based upon which party initiates the communication. Presuming Defendant

was seeking the counsel and advice of Pastor Roy when he confessed to Welch’s

murder, Defendant’s statements were “entrusted” to Pastor Roy under the privilege.

N.C. Gen. Stat. § 8-53.2.

      Defendant told Black, a third party and not a pastor, that he had confessed to

“a preacher in Sanford” about the murder. West, 317 N.C. at 223, 345 S.E.2d at 189.

No recognized privilege exists between Defendant and Black. The statement by

Defendant to Black that Defendant had confessed to a preacher is not privileged. The

State was permitted to present evidence of statements Defendant made to Black



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because N.C. Gen. Stat. 8-53.2, by its express terms, does not apply to or exclude

those statements.

                                    D. Prejudice

      Even if we accept Defendant’s argument that the trial court erred in admitting

Black’s testimony that Defendant stated he had told “a preacher from Sanford” about

the murder or Detective Sondergaard’s testimony, Defendant has failed to show

prejudice to warrant a new trial. Erroneous admission of evidence requires a new

trial only when the error is prejudicial. State v. Locklear, 349 N.C. 118, 149, 505

S.E.2d 277, 295 (1998), cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999). “A

defendant is prejudiced by errors relating to rights arising other than under the

Constitution of the United States when there is a reasonable possibility that, had the

error in question not been committed, a different result would have been reached at

the trial out of which the appeal arises.” N.C. Gen. Stat. § 15A-1443(a) (2013). The

burden rests upon Defendant to show prejudice. Id.

      The State presented other relevant and substantial evidence from which a jury

could find beyond a reasonable doubt that Defendant killed Carrie Welch and

committed first-degree murder: (1) Garland left Welch with Defendant at his home

in the early morning hours of 1 July 2010; (2) around 5:00 a.m., Welch called Garland

from Defendant’s cellphone; (3) in the voicemail message left on Garland’s phone,

“Elvis” music was playing and Welch was hysterically screaming “wait, wait, wait”;



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Defendant regularly played “Elvis” music; (4) around 2:00 p.m. the same day, Garland

returned to Defendant’s home and saw Defendant wiping his kitchen floor; (5) the

residence smelled of bleach and Garland saw a box of bleach; (6) Defendant told Black

he killed Welch in his kitchen with a baseball bat; (7) Michelle Black heard Defendant

state he beat Welch to death with a baseball bat and took her body to Bragg

Boulevard; (8) blood was found on Defendant’s kitchen ceiling, the kitchen wall, and

the floor in an additional room, which matched Welch’s DNA profile; (9) charred

pieces of wood with a “very tight grain pattern” and slight curvature were found in

Defendant’s backyard; (10) an SBI fire and arson expert testified each piece of charred

wood could have been portions of a baseball bat.

      Defendant has failed to show a reasonable possibility exists that a different

result would have been reached by the jury if Black or Detective Sondergaard had not

been permitted to testify Defendant stated to him that he told “a preacher in Sanford”

about the murder. The admission of Black’s testimony was not prejudicial error to

warrant a new trial.

                                   IV. Conclusion

      The clergy-communicant privilege set forth in N.C. Gen. Stat. § 8-53.2 does not

depend upon which party initiates the communication. The privilege does not apply

to Defendant’s statements to Black, a third party and non-pastor, about his confession




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to “a preacher in Sanford” regarding the murder.        No privilege exists between

Defendant and Black to exclude Black’s testimony.

      Even if the admission of Black’s or Detective Sondergaard’s testimony was

error, Defendant has failed to show prejudice. Defendant received a fair trial, free

from prejudicial errors he preserved and argued.

      NO PREJUDICIAL ERROR.

      Judges BRYANT and GEER concur.




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