 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.
 Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North
 C a r o l i n a           R u l e s         o f     A p p e l l a t e             P r o c e d u r e .



                  IN THE COURT OF APPEALS OF NORTH CAROLINA
                                            No. COA14-1102

                                          Filed: 3 March 2015

 STATE OF NORTH CAROLINA
                                                         Wilkes County
                  v.
                                                         Nos. 10 CRS 1087-89, 52859
 MICHAEL LEE SHEETS



        Appeal by defendant from judgment entered 23 May 2014 by Judge William Z.

Wood, Jr. in Wilkes County Superior Court.                       Heard in the Court of Appeals 3

February 2015.



        Roy Cooper, Attorney General, by Jennifer T. Harrod, Assistant Attorney
        General, for the State.

        Staples Hughes, Appellate Defender, by James R. Grant, Assistant Appellate
        Defender, for defendant-appellant.


        TYSON, Judge.


        Michael Lee Sheets (“Defendant”) appeals from convictions of two counts of

first degree sex offense with a child, two counts of crime against nature, and one count

of indecent liberties with a child. We find no error in Defendant’s convictions or the

judgments entered thereon.

                                           I. Factual Background
                                  STATE V. SHEETS

                                  Opinion of the Court



      On 8 November 2010, a grand jury indicted Defendant on two counts of first

degree sex offense with a child, two counts of crime against nature, one count of

indecent liberties with a child, and one count of disseminating obscenity to a minor

under the age of thirteen.

      The State’s evidence tended to show that in 2009, J.P., age eight, lived with

her mother, Rosalind Elmore (“Ms. Elmore”) and Defendant, her mother’s boyfriend.

One day, Defendant told J.P. that “if [she] didn’t do what he wanted [her] to do that

he would lie and tell [her] mom . . . things that weren’t true, which [she] knew would

either hurt [her mom] or hurt [her].” J.P. testified Defendant made her perform oral

sex on him on several occasions. She also testified Defendant touched her chest and

put his mouth on her genitals.

      At trial, J.P. testified Defendant would enter her name into a “Google” image

search. J.P.’s true given name is “rather unusual” and is the same as that of a

pornographic actress. Defendant would show J.P. the search results of images of a

nude blonde woman. Defendant also made J.P. watch pornography on the computer.

      On 2 August 2010, Defendant and Ms. Elmore ended their relationship and

Defendant moved out of Ms. Elmore’s house. That evening, J.P. told a relative, whom

she called “Aunt Christina,” about Defendant’s behavior and actions. After talking

to J.P., Aunt Christina informed J.P.’s parents. Her family subsequently filed a

report with the Wilkes County Sheriff’s Office.




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                                   STATE V. SHEETS

                                   Opinion of the Court



      On 10 August 2010, J.P.’s father took her to Brenner Children’s Hospital in

Winston-Salem, North Carolina. Elizabeth Goodman (“Ms. Goodman”), a sexual

assault nurse examiner, interviewed J.P. J.P. told Ms. Goodman about Defendant’s

conduct, explaining “[she] got harassed” and “[b]ad stuff happened to [her].”

      On 9 September 2010, J.P. was seen at Brenner Children’s Hospital by Dr.

Sara Sinal (“Dr. Sinal”), a pediatrician with the child abuse team.          Dr. Sinal’s

examination of J.P. showed no physical signs of sexual abuse.          This result was

consistent with Defendant’s actions as J.P. had described them.

      SBI Special Agent Alan Flora (“Agent Flora”) testified that he had replicated

Defendant’s Google image search of J.P.’s name. Prior to his testimony, Defendant

renewed a pre-trial motion in limine objecting to Agent Flora’s anticipated testimony.

After a lengthy voir dire of Agent Flora, and over Defendant’s objection, the trial court

permitted Agent Flora to testify about the results of his Google image search. Agent

Flora testified he performed the Google image search of J.P.’s name on his state-

issued computer and the search returned “numerous images of a nude blonde female.”

      Defendant testified on his own behalf.              He denied engaging in any

inappropriate behavior with J.P.       He could not offer an explanation for J.P.’s

allegations that he had sexually abused her.

      At the close of the State’s evidence, upon Defendant’s motion, the trial court

dismissed the dissemination of obscenity to a minor charge. On 23 May 2014, the

jury returned verdicts finding Defendant guilty on the remaining charges.


                                           -3-
                                   STATE V. SHEETS

                                  Opinion of the Court



      The trial court arrested judgment on the crime against nature convictions and

consolidated one of the sex offense convictions with the indecent liberties conviction.

Defendant was sentenced to two concurrent active terms of 192-240 months

imprisonment. Defendant gave notice of appeal in open court.

                                         II. Issues

      Defendant argues the trial court erred by (1) closing the courtroom to

bystanders without making the necessary findings to support closure; and (2)

admitting evidence of the Google image search performed by Agent Flora. In his brief,

Defendant also argued the trial court erred by referring to J.P. as “the victim” in the

jury charge. Defendant conceded this issue at oral argument, in light of our Supreme

Court’s holding in State v. Walston, __ N.C. __, 766 S.E.2d 312 (2014) (holding trial

court’s use of the word “victim” in pattern jury instructions was not error).

                                        III. Analysis

                                  A. Courtroom Closure

      Defendant asserts his federal and state constitutional rights to a public trial

were violated by the trial court’s decision to close the courtroom during J.P.’s

testimony. He argues the trial court failed to make the requisite findings to support

closure. We disagree.

                                  1. Standard of Review

      Defendant failed to object to the State’s motion to exclude bystanders from the

courtroom during J.P.’s testimony. Defendant has failed to preserve this issue for


                                          -4-
                                   STATE V. SHEETS

                                  Opinion of the Court



appellate review. “Constitutional issues not raised and passed upon at trial will not

be considered for the first time on appeal.” State v. Lloyd, 354 N.C. 76, 86-87, 552

S.E.2d 596, 607 (2001) (citation omitted).

           2. Rule 2 of the North Carolina Rules of Appellate Procedure

      Nevertheless, Defendant asks this Court to invoke Rule 2 of the Appellate

Rules of Procedure to review the merits of his argument. Under Rule 2, this Court

may suspend the rules in order “[t]o prevent manifest injustice to a party, or to

expedite decision in the public interest.” N.C.R. App. P. 2 (2013).

      Our Supreme Court has addressed the appropriateness of invoking Rule 2 on

many occasions. “Rule 2 relates to the residual power of our appellate courts to

consider, in exceptional circumstances, significant issues of importance in the public

interest or to prevent injustice which appears manifest to the Court and only in such

instances.” State v. Hart, 361 N.C. 309, 315-16, 644 S.E.2d 201, 205 (2007) (citations

and quotation marks omitted). “[T]he exercise of Rule 2 was intended to be limited

to occasions in which a fundamental purpose of the appellate rules is at stake, which

will necessarily be rare occasions.” Id. at 316, 644 S.E.2d at 205 (citations and

internal quotation marks omitted).

      Nothing in either the record or either party’s brief demonstrates “exceptional

circumstances” sufficient to justify suspending or varying the rules in order to

prevent “manifest injustice” to Defendant. Id. at 315, 644 S.E.2d at 205.




                                          -5-
                                   STATE V. SHEETS

                                   Opinion of the Court



      Pursuant to N.C. Gen. Stat. § 15-166, “[i]n the trial of cases for rape or sex

offense . . . the trial judge may, during the taking of the testimony of the prosecutrix,

exclude from the courtroom all persons except the officers of the court, the defendant

and those engaged in the trial of the case.” N.C. Gen. Stat. § 15-166 (2013). The

general rule is that

             [i]n clearing the courtroom, the trial court must determine
             if the party seeking closure has advanced an overriding
             interest that is likely to be prejudiced, order closure no
             broader than necessary to protect that interest, consider
             reasonable alternatives to closing the procedure, and make
             findings adequate to support the closure.

State v. Jenkins, 115 N.C. App. 520, 525, 445 S.E.2d 622, 625 (citation omitted), temp.

stay allowed, 336 N.C. 784, 447 S.E.2d 435, disc. review denied, 337 N.C. 804, 449

S.E.2d 752 (1994); see also Waller v. Georgia, 467 U.S. 39, 48, 81 L.Ed.2d 31, 39

(1984).

      This Court has held that “where defendant consents to the closure, the trial

court is not required to make specific findings of fact.” State v. Starner, 152 N.C. App.

150, 154, 566 S.E.2d 814, 817, cert. denied, 356 N.C. 311, 571 S.E.2d 209 (2002). Cf.

Waller, 467 U.S. at 48, 81 L.Ed. at 39 (requiring the trial court to make closure no

broader than necessary, consider alternatives, and make findings of fact to support

closure where closure ordered over defendant’s objection).

      The State moved to exclude bystanders from the courtroom during J.P.’s

testimony pursuant to N.C. Gen. Stat. § 15-166. When the trial court inquired as to



                                           -6-
                                   STATE V. SHEETS

                                  Opinion of the Court



defense counsel’s position on this matter, Defendant’s attorney responded, “I don’t

wish to be heard on that either, Your Honor.” After defense counsel acquiesced to the

State’s motion, the trial court granted the motion and engaged in the following

colloquy with the State:

             MS. POSEY: Yes. Okay. And I believe Your Honor needs
             to make specific findings of fact that I have outlined in the
             motion, that I have advanced an overriding interest for the
             victim to be able to testify, that closure is no broader than
             necessary to protect that interest, and that the Court has
             considered reasonable alternatives to closing the
             procedure.

             THE COURT: Sure. I will so find.

The trial court later entered a written order, which included the Waller factors above

and excluded bystanders from the courtroom during J.P.’s testimony.

      In light of Defendant’s consent to the closure of the courtroom, we exercise our

discretionary authority and decline to invoke Rule 2. This argument is dismissed.

                     B. Agent Flora’s Google Image Search

      Defendant asserts the trial court erred by admitting Agent Flora’s testimony

regarding the Google image results from the search he performed. He argues this

testimony was speculative, irrelevant, and unfairly prejudicial.

                              1. Standard of Review

      “Whether evidence is relevant is a question of law, thus we review the trial

court’s admission of the evidence de novo.” State v. Kirby, 206 N.C. App. 446, 456, 697

S.E.2d 496, 503 (2010) (citation omitted). However, whether to exclude evidence is a


                                          -7-
                                   STATE V. SHEETS

                                  Opinion of the Court



decision within the trial court’s discretion. State v. Peterson, 361 N.C. 587, 602, 652

S.E.2d 216, 227 (2007) (citation omitted), cert. denied, 552 U.S. 1271, 170 L.Ed.2d 377

(2008). Thus, “a trial court’s ruling will be reversed on appeal only upon a showing

that the ruling was so arbitrary that it could not have been the result of a reasoned

decision.” Kirby at 457, 697 S.E.2d at 503 (citation and internal quotation marks

omitted).

                                     2. Analysis

      Evidence is relevant if it has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” N.C.R. Evid. 401. Relevant evidence

may be excluded under Rule 403 “if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

N.C.R. Evid. 403.

      Defendant argues Agent Flora’s testimony was speculative and irrelevant

because of the potential differences between conducting the search on the SBI’s

computer as compared with Defendant’s computer at a different date and time.

      Agent Flora’s testimony was introduced at trial to corroborate J.P.’s allegation

that Defendant had showed her images of a nude blonde woman, which were the

results returned from a Google image search of J.P.’s name. Agent Flora did not

intend for his Google image search to be an exact replication of Defendant’s alleged

Google image search. Rather, Agent Flora performed the Google image search of the


                                          -8-
                                   STATE V. SHEETS

                                   Opinion of the Court



same “rather unusual” name shared by both J.P. and the pornographic actress in an

effort to corroborate J.P.’s allegations by establishing that this information was

available on the Internet. “An individual piece of evidence need not conclusively

establish a fact to be of some probative value. It need only support a logical inference

of the fact’s existence.” State v. Payne, 328 N.C. 377, 401, 402 S.E.2d 582, 596 (1991).

Agent Flora’s Google image search, which returned the same results as J.P. had

alleged and testified to, was relevant because it directly corroborated J.P.’s testimony.

      Defendant asserts even if Agent Flora’s testimony was relevant, it should have

been excluded under Rule 403 as unfairly prejudicial. N.C.R. Evid. 403. Defendant

argues that jurors generally assign extraordinarily high probative value to expert

opinions and “the trial court’s admission of this wholly speculative evidence from an

expert in computer forensic examination risked misleading the jury about the

strength of that evidence.” We disagree.

      “[I]t is defendant’s burden to show prejudice from the admission of evidence.”

State v. Oliver, 210 N.C. App. 609, 615, 709 S.E.2d 503, 508 (citation omitted), disc.

review denied, 365 N.C. 206, 710 S.E.2d 37 (2011). In order to show prejudice,

Defendant must show that “a different result likely would have ensued had the

evidence been excluded.” Id. (citation and quotation marks omitted).

      On cross-examination, defense counsel elicited an explanation from Agent

Flora that his Google image search was not identical to the search J.P. described.

Agent Flora testified that a “safe search” filter would affect search results by


                                           -9-
                                  STATE V. SHEETS

                                 Opinion of the Court



eliminating explicit content and Google search results change with the passage of

time. Agent Flora testified to the search he performed and its limitations, such as

the fact that certain factors could have caused different search results on his

computer versus Defendant’s computer.

      The jury was provided a balanced view of the appropriate weight to give Agent

Flora’s testimony. Defendant has failed to show any prejudicial error by the trial

court in allowing this testimony. Defendant’s argument is overruled.

                                    Conclusion

      Defendant received a fair trial free from prejudicial errors he preserved and

argued. We find no error in Defendant’s convictions or the trial court’s judgment.

      NO ERROR.

      Judges ELMORE and DAVIS concur.

      Report per Rule 30(e).




                                        -10-
