Michael Peterson -- Court of Appeals Denial

STATE OF NORTH CAROLINA

V.

MICHAEL IVER PETERSON

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 179 N.C. App. 437, 634 S.E.2d 594 (2006), finding no prejudicial error in and affirming a judgment entered 10 October 2003 by Judge Orlando F. Hudson, Jr. in Superior Court, Durham County, upon a jury verdict finding defendant guilty of first-degree murder. Heard in the Supreme Court 10 September 2007.

Roy Cooper, Attorney General, by John G. Barnwell and William B. Crumpler, Assistant Attorneys General, for the State.

Thomas K. Maher for defendant-appellant.

BRADY, Justice.

Defendant Michael Iver Peterson was found guilty by a jury of the first-degree murder of his wife, Kathleen Peterson. Defendant appealed his conviction to the Court of Appeals, which determined, in a divided opinion, that defendant received a fair trial, free of prejudicial error. Defendant has appealed three issues as of right to this Court on the basis of a dissent in the Court of Appeals. First, we must determine whether the trial court's erroneous admission of evidence seized pursuant to an invalid search warrant was harmless beyond a reasonable doubt. We hold the admission of the evidence was harmless. Second, wemust determine whether the trial court erred in admitting evidence concerning the 1985 death of Elizabeth Ratliff. We hold that the trial court did not err in admitting this evidence. Third, we must determine whether particular statements made during the prosecution's closing argument warrant a new trial. We hold that these statements do not entitle defendant to a new trial. Accordingly, we affirm the decision of the Court of Appeals.

    Defendant asserts that the trial court committed prejudicial error in admitting, over his objection, evidence concerning the death of Elizabeth Ratliff in the Federal Republic of Germany in 1985, in violation of Rules 401, 402, 403, and 404 of the North Carolina Rules of Evidence. The trial court, after having evidence presented to it outside the presence of the jury, made the following findings of fact in ruling upon defendant's motion in limine seeking exclusion of this evidence:
    1.    The Defendant was present and represented by his counsels of record, David Rudolf and Thomas Maher. The State of North Carolina was represented by District Attorney James Hardin, Jr. and Assistant District Attorneys Freda Black and David Saacks.

    2.    A voir dire hearing was held outside the presence of the jury on August 18, 2003 and August 20-22, 2003. Live testimony was given by Cheryl Appel-Schumacher, a friend of Elizabeth Ratliff, Margaret Blair, a sister of Elizabeth Ratliff, and Dr. Deborah Radisch, a forensicpathologist with the North Carolina Office of the Chief Medical Examiner. The Court also received into evidence several photographs, documents, and a written proffer regarding the testimony of Margaret Blair.

    3.    Elizabeth Ratliff was a close friend and neighbor of the Defendant and his former wife, Patricia Peterson, when they lived in Germany in 1985. She had two young daughters named Margaret and Martha. Her husband, George Ratliff, was in the U.S. Air Force and he had passed away while away on assignment in October, 1983.

    4.    On the morning of November 25, 1985, Elizabeth Ratliff was found dead on the floor at the bottom of her open stairway in her home in Germany. The Defendant was summoned to the scene as were several other friends and associates.

    5.    The Defendant was with Ms. Ratliff the night before for dinner, and went back with her to her house to help with the children and a household chore.

    6.    Ms. Ratliff was found wearing her yellow plastic type boots that she would normally wear outdoors. It had snowed in that location two days before.

    7.    A large amount of blood was present at the scene, including bloodstains on the wall next to the stairway from the top of the stairs to the bottom, and underneath as well. The bloodstains at the top of the stairs contained smaller drops and appeared as if flicked on the wall by a small paintbrush. Bloodstains were also present on the wall opposite the staircase in the foyer area and on a refrigerator in the nearby kitchen. A pool of blood was found on the floor where Ms. Ratliff was found.

    8.    The Defendant dealt with the German authorities who responded that morning, and later handled the relations with the American military investigators who came to the scene. He also informed thefriends and associates that Ms. Ratliff had died from a fall down the stairs.

    9.    An autopsy performed in Germany at a U.S. Army hospital, with a later review by the Armed Forces Institute of Pathology, determined that Ms. Ratliff died naturally of spontaneous intracranial bleeding and her physical trauma injuries were secondary due to her fall down the stairs.

    10.    Ms. Ratliff was exhumed in April, 2003 and brought to North Carolina's Office of the Chief Medical Examiner for a subsequent forensic autopsy, which determined her death to be a homicide. During that autopsy, Dr. Radisch found seven severe lacerations to the scalp of Ms. Ratliff, with a linear skull fracture underneath one of the lacerations. Evidence of other intracranial bleeding was present as well.

    11.    Pursuant to the Last Will and Testament of Elizabeth Ratliff, Defendant and his former wife became the guardians of Ms. Ratliff's children, Margaret and Martha, and received certain household goods from her estate. The Defendant also received the benefits payments from the government to the children on their behalf.

    12.    Several similarities exist between the death of Elizabeth Ratliff in Germany in 1985 and the subject of this trial, which is the death of Kathleen Peterson in Durham, North Carolina in 2001. These similarities include:

        a.    The deceased being found at the bottom of a stairway.

        b.    No eyewitnesses to either alleged fall down the stairs.

        c.    A large amount of blood present.

        d.    Blood spatter present high and dried on the wall next to the stairway, including a bloodstain with small drops.
        e.    No evidence of any forced entry or exit, or of any property being stolen.

        f.    No murder weapon being recovered.

        g.    The general time of day (late night to early morning) and general period of the calendar (late November to early December).

        h.    Both deceased persons were females in their 40's who had a close personal relationship with the Defendant.

        i.    Both deceased persons were similar in physical characteristics so that they looked alike and reported of severe headaches in the weeks before their death.

        j.    Both deceased persons were planning to go on a trip in the near future and had dinner with the Defendant on the night before their death.

        k.    Both deceased persons were later determined to have died from blunt force trauma to the head, including the same number of scalp lacerations and same general location of scalp wounds.

        l.    Both deceased persons had what could be characterized as defensive wounds on their bodies.

        m.    The manner of death for both deceased persons was later determined to be homicide.

        n.    The Defendant was the last known person to see both of these persons alive.

        o.    By being summoned to the scene in Germany and living at the scene in Durham, the Defendant is then present on the scene when the authorities arrive and reports that the death is the result of an accidental fall down the stairs.
        p.    The Defendant is in charge of the remains, effects, and household after each death, and is potentially in charge of each estate after death.

        q.    The Defendant received money or other items of value after each death.

    Because these findings of fact by the trial court are supported by competent evidence found in the record, we consider them conclusive on appeal. See State v. Cummings, 361 N.C. 438, 471-72, 648 S.E.2d 788, 808 (2007) (citing State v. Wiggins, 334 N.C. 18, 38, 431 S.E.2d 755, 767 (1993)). Based upon these findings of fact, the trial court found the evidence regarding the Ratliff death to be relevant as to intent, knowledge, and absence of accident. Additionally, the trial court found that “[s]ubstantial evidence in the form of sufficient similar facts and circumstances exists between the two deaths so that a jury could reasonably find that the Defendant committed both acts,” that the remoteness in time between the two deaths did not diminish its admissibility, that the evidence was admissible under Rules 402 and 404(b) of the Rules of Evidence, and that “[t]he probative value of this evidence outweighs any prejudicial effect on the Defendant.”
    Defendant asserts that the trial court erred in admitting this evidence because there was no evidence which tended to show that defendant was responsible for the death of Elizabeth Ratliff. In State v. Jeter, this Court stated:
    [Rule 404(b)] includes no requisite that the evidence tending to prove defendant's identity as the perpetrator of another crimebe direct evidence, exclusively. Neither the rule nor its application indicates that examples of other provisions--such as admissibility of evidence of other offenses to prove motive, opportunity, intent, preparation, or plan--rest solely upon direct evidence. Under the statutory scheme of Rules 403 and 404, the concern that anything other than direct evidence of a defendant's identity in a similar offense might “mislead [the jury] and raise a legally spurious presumption of guilt” is met instead by the balancing test required by Rule 403: the critical inquiry regarding evidence of other offenses introduced for purposes of showing defendant's identity as the perpetrator of the offense for which he is being tried is not whether it is direct or circumstantial, but whether its tendency to prove identity in the charged offense substantially outweighs any tendency unfairly to prejudice the defendant.

326 N.C. 457, 459, 389 S.E.2d 805, 806-07 (1990) (alteration in original) (internal citation omitted). Thus, the prosecution was not required to present to the trial court direct evidence of defendant's involvement in the death of Elizabeth Ratliff, but could present circumstantial evidence which tends “to support a reasonable inference that the same person committed both the earlier and later acts.” State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991). In other words,
    evidence is admissible under Rule 404(b) of the North Carolina Rules of Evidence if it is substantial evidence tending to support a reasonable finding by the jury that the defendant committed a similar act or crime and its probative value is not limited solely to tending to establish the defendant's propensity to commit a crime such as the crime charged.

Id. at 303-04, 406 S.E.2d at 890 (citations omitted). The trial court's findings of fact indicate not only significant similarities between the deaths of the victim and ElizabethRatliff, but also indicate sufficient circumstantial evidence that defendant was involved in Ratliff's death--such as defendant being the last known person to see Ratliff alive; defendant being with Ratliff the night of her death; and there being no sign of forced entry and nothing missing from the residence, which indicated that Ratliff likely knew her assailant.
    This case is significantly similar to State v. Stager, in which the defendant was on trial for the first-degree murder of her second husband. Id. at 285, 406 S.E.2d at 879-80. The defendant told emergency responders that she accidently shot her second husband while she was removing a pistol from underneath a pillow. Id. at 286, 406 S.E.2d at 880. During their investigation of the death of defendant's second husband, investigators became aware that defendant's first husband died from a gunshot wound ten years earlier. Id. at 291-92, 406 S.E.2d at 883-84. The trial court determined that there were substantial similarities between the two deaths and found as a matter of law that the circumstances surrounding the death of the first husband were admissible “as evidence of intent, plan, preparation, or absence of accident.” Id. at 303, 406 S.E.2d at 890. This Court rejected the defendant's arguments that the evidence was irrelevant to prove intent or absence of accident. Id. at 304, 406 S.E.2d at 891. This Court noted eight similarities in Stager:
    (1) each of the defendant's husbands had died as a result of a single gunshot wound, (2) the weapon in each case was a .25 caliber semi-automatic handgun, (3) both weapons were purchased for the defendant's protection, (4) both men were shot in the early morninghours, (5) the defendant discovered both victims after their respective shootings, (6) the defendant was the last person in the immediate company of both victims, (7) both victims died in the bed that they shared with the defendant, and (8) the defendant benefited from life insurance proceeds resulting from both deaths.

Id. at 305-06, 406 S.E.2d at 892. Additionally, this Court rejected the defendant's argument that the temporal proximity of the two deaths weighed against admission of the evidence, stating “remoteness in time is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident; remoteness in time generally affects only the weight to be given such evidence, not its admissibility.” Id. at 307, 406 S.E.2d at 893.
    The similarities in the case sub judice are also striking. The trial court considered all of the evidence and found seventeen similarities between the deaths of Elizabeth Ratliff and the victim. Moreover, remoteness in time between the two deaths could affect the weight the jury might give to the evidence, but did not affect its admissibility. See id.
     We review the trial court's decision to admit the evidence pursuant to Rule 403 for an abuse of discretion. State v. Al-Bayyinah, 359 N.C. 741, 747-48, 616 S.E.2d 500, 506-07 (2005) (“Whether to exclude evidence is a decision within the trial court's discretion.”), cert. denied, 547 U.S. 1076 (2006). An “'[a]buse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'” State v. Elliott, 360 N.C. 400, 419, 628 S.E.2d 735, 748 (quoting State v.Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)), cert. denied, __ U.S. __, 127 S. Ct. 505, 166 L. Ed. 2d 378 (2006). “In our review, we consider not whether we might disagree with the trial court, but whether the trial court's actions are fairly supported by the record.” State v. Lasiter, 361 N.C. 299, 302, 643 S.E.2d 909, 911 (2007) (citing Wainwright v. Witt, 469 U.S. 412, 434 (1985)). The trial court did not act outside the bounds of reason in determining that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. We accordingly hold the trial court did not err in admitting evidence concerning the death of Elizabeth Ratliff.

    Defendant asserts that the trial court erred in overruling his objections to certain portions of the prosecution's closing arguments. In determining possible prejudice arising from improper arguments, we consider an allegedly improper statement in its broader context, as “particular prosecutorial arguments are not viewed in an isolated vacuum.” State v. Moseley, 338 N.C. 1, 50, 449 S.E.2d 412, 442 (1994), cert. denied, 514 U.S. 1091 (1995). The following exchange took place during the closing argument of Assistant District Attorney Black:
        [MS. BLACK:] Agent Deaver, Doctor Radisch, and Doctor Butts. You know what? They're state employees. Just like most of us that work here in the courthouse. And they work for your state. They work for your state, North Carolina.

        MR. MAHER [Defense Counsel]: Objection.

        THE COURT: Overruled.
        MS. BLACK: Not Chicago, Illinois. Not Connecticut. They work for us. They gave you truthful and accurate information. And you know what? They didn't get paid not one penny extra to come in here. Deaver should have, my goodness what he had to go through on the witness stand, but, no, he didn't get an extra penny.
        They might not have written books that they're signing and autographing for everybody. They might not travel to all of the rest of the states and give seminars and lectures. They're not allowed to, actually. It's not that they're not good enough to, it's they're not allowed to. They might not have appeared on Larry King Live or Court TV. But you know what? They are tried and true. Tried and true. Because they work for us.

        MR. MAHER: Objection.

MS. BLACK: For our state.

THE COURT: Approach the bench.

        (The following bench conference was held on the record:)

        MR. MAHER: I'm objecting because the suggestion that these witnesses work for us, including the jurors, is improper. They're not special employees that came in for these jurors, and the suggestion that somehow because they work for us that they are more believable I think is improper, and that's why I'm objecting.

        THE COURT: Ms. Black.

        MS. BLACK: They do.

        MR. MAHER: They don't work for the jurors.

        MS. BLACK: They work for the State of North Carolina and the jurors live in the State of North Carolina.

        MR. MAHER: That is exactly the point, is that it's improper to suggest that because these jurors live in North Carolina, that employees -- or they have no control over -- are somehow more credible, and I'm objecting.
        MS. BLACK: That's all I'm going to say about it.

        MR. MAHER: That's the basis for our objection.

        THE COURT: It's overruled in the Court's discretion.

        (Conclusion of bench conference.)

        THE COURT: All right. Objection is overruled.

        MS. BLACK: Now what further distinctions can be drawn about the experts? Well, one thing about Radisch, Deaver and Butts is they have been in this very courtroom before. They have. They've testified in front of people just like you. Durham County juries.
        Lee, Leestma, Bandak, Palmbach, they've never been to Durham, as far as I know, in this courthouse before to testify, and they'll probably maybe never come back here again.
        But after the tents and the vans are removed from outside of the courthouse, after all of the reporters and the cameras are gone, after all these cords and tape and everything are taken up from the floor, after we put -- get the box down, after the microphones are all removed, Court TV goes to cover another case, after we get our courthouse back to normal, Deaver, Radisch, and Butts will be back in this courtroom again. They will. There will be other cases. Other murder cases. They'll be in that very witness stand again. Because that's what they do for a living. That's their livelihood. That's how they pay their bills.

        MR. MAHER: Objection.

        THE COURT: Overruled.

        MS. BLACK: Doing the jobs that they do. And because they have to go face Durham County juries again, they only face juries from Murphy to Manteo, why in the world would they stake their reputation, their integrity, why would they stick their necks out to ruin their reliability when they know they've gotto face people like you again? The answer to that question is they wouldn't. They wouldn't. They wouldn't come in here and give you inaccurate information. They're not going to do that.

        MR. MAHER: Objection.

        THE COURT: Approach the bench, please.

        (The following bench conference was held on the record:)

        MR. RUDOLF: I just want to put on the record that I've now heard at least ten times when Ms. Black has vouched for the credibility of a witness. I believe that's reversible error. I think the Court ought to be admonishing the jury that no lawyer ought to be vouching for the credibility of any witness or for their own credibility.
        She's vouched for her own credibility, she's vouched for credibility of a witness. I think that's reversible error. Just for the record, I'm asking for a mistrial.
        I know the Court is going to deny that, and I'd ask the Court to admonish the jury that Ms. Black ought not be vouching for anybody. Credibility of a witness is for them to decide, not Ms. Black to vouch for.

        THE COURT: Well, I think that there were a couple of instances where you gave the Court the impression that you were -- your personal opinion. For instance, you said I don't think they would do that, meaning they would come in and give improper testimony.

        MS. BLACK: I didn't use the words, “I don't.”

        THE COURT: Yeah, I think you did.
        But anyway, at this point, the motion for a mistrial in the Court's discretion is denied. I'm not really sure about the “us” and the “them,” about they're coming down here, and they're your witnesses, they work for your state. I think that's a close issue. So I think you better be careful about that. I will instruct the jury that the personal opinion of counsel is not allowed.

        MR. RUDOLF: Thank you.
        THE COURT: Anything else?

        MR. HARDIN: No, sir.

        MS. BLACK: No, sir.

        (Conclusion of bench conference.)

        THE COURT: Members of the jury, at several points counsel has indicated to the jury what the Court considers to be her personal opinions. Personal opinions about the credibility of witnesses or about anything else is not allowed by counsel and you ought to disregard that. The credibility of witnesses will be for the jury. Counsel can make arguments as to why she believes you should accept her position, but her personal opinions, such as “I believe,” [are] not allowed by counsel.

    “In a hotly contested trial . . . '[t]he scope of jury arguments is left largely to the control and discretion of the trial court, and trial counsel will be granted wide latitude.'” State v. Allen, 360 N.C. 297, 306, 626 S.E.2d 271, 280 (quoting State v. Call, 349 N.C. 382, 419, 508 S.E.2d 496, 519 (1998) (alteration in original)), cert. denied, __ U.S. __, 127 S. Ct. 164, 166 L. Ed. 2d 116 (2006). In cases in which counsel makes a contemporaneous objection to opposing counsel's argument, this Court reviews the decision of the trial court for abuse of discretion. See State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002). “In order to assess whether a trial court has abused its discretion when deciding a particular matter, this Court must determine if the ruling 'could not have been the result of a reasoned decision.'” Id. (quoting State v. Burrus, 344 N.C. 79, 90, 472 S.E.2d 867, 875 (1996)). This Court has articulated a two-part analysis for determining whether the trial court abused its discretion in such cases. “[T]his Court firstdetermines if the remarks were improper . . . . Next, we determine if the remarks were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court.” Id. (citing Coble v. Coble, 79 N.C. 439, 79 N.C. 589 (1878)).
    In applying this analysis to the case at bar, we note that the State has conceded that Assistant District Attorney Black's arguments were both “excessive and inappropriate.” We will thus assume the statements at issue made by Assistant District Attorney Black to the jury were outside the parameters of acceptable argument and therefore improper. Because we assume the argument was improper, we must determine whether the argument prejudiced defendant to the degree that he is entitled to a new trial.
    “[F]or an inappropriate prosecutorial comment to justify a new trial, it 'must be sufficiently grave that it is prejudicial [error].'” State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487-88 (1992) (quoting State v. Britt, 291 N.C. 528, 537, 231 S.E.2d 644, 651 (1977) (alteration in original)). “In order to reach the level of 'prejudicial error' in this regard, it now is well established that the prosecutor's comments must have 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” State v. Green, 336 N.C. 142, 186, 443 S.E.2d 14, 40 (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974))), cert. denied, 513 U.S. 1046 (1994). However, this Court has held that when the trial courtinstructs the jury to disregard improper arguments and instructs counsel to confine his arguments to those matters contained in evidence, such an instruction renders the error caused by the improper arguments cured. See State v. Sanders, 303 N.C. 608, 618, 281 S.E.2d 7, 13, cert. denied, 454 U.S. 973 (1981).
    Defendant argues that the trial court's curative instruction did not pertain to the portion of the closing argument in which Ms. Black advised the jurors to believe the prosecution's expert witnesses because they “work for us.” Additionally, defendant contends that this statement amounts to prejudicial error that warrants a new trial. The State argues that the trial court's instruction did include the statements about which defendant complains and, even in the absence of the curative instruction, the statements did not rise to the level of prejudicial error. We agree with defendant that the curative instruction did not relate to the statements made concerning the State's experts “working for” the jury, but we agree with the State that any prejudice arising from these statements did not “'so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.'” Green, 336 N.C. at 186, 443 S.E.2d at 39 (citations omitted).
    Defense counsel objected three times concerning Ms. Black's argument that the prosecution's expert witnesses should be considered credible because they were State employees. All three of those objections were overruled by the trial court. It was not until Ms. Black stated “They wouldn't come in here and give you inaccurate information. They're not going to do that,”and defendant objected a fourth time, that the trial court determined it should instruct the jury to disregard the personal opinions of counsel. Although the trial court expressed some concern over the statements by Ms. Black encouraging the jury to consider that the experts were State employees, the trial court only instructed the jury: “Personal opinions about the credibility of witnesses or about anything else is not allowed by counsel and you ought to disregard that.” The State's argument here does not take into account the sequence of events in which the trial court overruled defendant's objections as to the “they work for us” statements, but instructed the jury to disregard the statements of personal opinion such as: “They wouldn't come in here and give you inaccurate information. They're not going to do that.” Accordingly, the trial court's instruction did not cure the error which arose from Ms. Black's statements that the prosecution's experts were to be believed because they worked for the State of North Carolina.
    However, we cannot say that the statements made by Ms. Black rise to the level of reversible error. Defendant cites the cases of State v. Allen, 353 N.C. 504, 546 S.E.2d 372 (2001) and State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (2002), in support of his position. We determine that these cases are significantly distinguishable so as to warrant a different result.
    In State v. Allen, this Court reversed the defendant's convictions because the prosecutor advised the jury that the trial court had “found” certain hearsay statements to be “trustworthy and reliable.” 353 N.C. at 509, 546 S.E.2d at 375. We noted that “[t]his argument clearly conveyed an opinion as to the credibility of evidence that was before the jury. This opinion was attributed directly to the trial judge in his presence, and he then overruled defendant's objection to this revelation.” Id. The statement was not improper because it gave the opinion of the prosecutor, but because it improperly stated a “legal opinion of the trial court on the admissibility and credibility of evidence, an opinion which was specifically outside the record.” Id. at 510, 546 S.E.2d at 376. In the case sub judice, there is no support to be found in the record for the contention that Ms. Black was asserting that the trial court in some way endorsed the testimony of the prosecution's witnesses.
    This case is also significantly different from State v. Jones. In Jones, this Court found it was improper for the prosecutor to invoke the Columbine school shootings and the Oklahoma City bombing as examples of tragedies that were analogous to the tragedy of the victim's death. 355 N.C. at 132, 558 S.E.2d at 107. These statements could not “be construed as anything but a thinly veiled attempt to appeal to the jury's emotions by comparing defendant's crime with two of the most heinous violent criminal acts of the recent past.” Id.
Additionally, this Court found it prejudicial when the prosecutor engaged in unnecessary name-calling. The prosecutor stated, “You got this quitter, this loser, this worthless piece of--who's mean . . . . He's as mean as they come. He's lower than the dirt on a snake's belly.” 355 N.C. at 133, 558 S.E.2d at 107. There isabsolutely no indication in the record that Ms. Black engaged in any name-calling or appealed to the raw emotions of the jurors.
    This trial spanned five months, and the record contains thousands of pages of transcripts. The offending statements by Ms. Black spanned less than five minutes. We conclude that defendant has not met his burden of showing, in the totality of the trial and closing arguments, that the jury would have reached a different result had the trial court sustained defendant's objection or instructed the jury in a broader manner so as to preclude consideration of the improper argument. Because this burden has not been met pursuant to N.C.G.S. § 15A-1443(a), we hold that the statements made by Ms. Black were not so egregious as to require a new trial. See State v. Rosier, 322 N.C. 826, 829, 370 S.E.2d 359, 361 (1988).

Because we hold that admission of the evidence seized pursuant to the third search warrant was harmless beyond a reasonable doubt, that the trial court did not err in admitting evidence concerning the death of Elizabeth Ratliff, and that the prosecutor's closing arguments did not amount to reversible error, we affirm the decision of the Court of Appeals.

AFFIRMED.

Michael Peterson
Court of Appeals Denial

NO. COA05-973

NORTH CAROLINA COURT OF APPEALS

FILED: 19 SEPTEMBER 2006

STATE OF NORTH CAROLINA

v . Durham County
No. 01 CRS 24821
MICHAEL IVER PETERSON

Appeal by defendant from judgment entered 10 October 2003 by
Judge Orlando F. Hudson, Jr. in Durham County Superior Court.
Heard in the Court of Appeals 18 April 2006.

Attorney General Roy Cooper, by Assistant Attorney General
John G. Barnwell and William B. Crumpler, for the State.

Winston and Maher, by Thomas K. Maher, for defendant- appellant.

Smith Moore, L.L.P., by James G. Exum, Jr., and Law Offices of
Kerstin Walker Sutton, P.L.L.C., by Kerstin Walker Sutton, for
the North Carolina Academy of Trial Lawyers, amicus curiae.

ELMORE, Judge.

Michael Peterson (defendant) appeals from a judgment entered consistent with the jury's verdict finding him guilty of first- degree murder. After a thorough review of the record, relevant law, and arguments of the parties, we hold that defendant received a trial free from prejudicial error; as such, we affirm the judgment against him.

Defendant argues that a warrant used to collect evidence from his house, specifically his computer, was constitutionally deficient and tainted the outcome of his trial. While we wholeheartedly agree the warrant in question is void of sufficient probable cause, and the trial court erred in denying defendant's motion to suppress, our review of the trial court's error supports a determination it was harmless beyond a reasonable doubt.

Defendant also argues that evidence of prior misconduct and sexual orientation was errantly introduced to the jurors and affected their ability to render a fair decision. We determine that there is no prejudicial error in the trial court's decision to allow presentation of this evidence.

Further, although defendant disputes the relevancy and admissibility of his wife's financial status, we find no error in the trial court's rulings. And finally, in a lengthy and contentious trial where both the State and defendant were ably represented, we see no prejudicial error in the State's remarks during closing statements.

On 9 December 2001, at 2:40 a.m., defendant called the City of Durham's 911 center from his residence. He stated that his wife, Kathleen Peterson (Kathleen), had fallen down the stairs. Defendant further stated that she was unconscious but was still breathing. Defendant hung up and then called back to 911 a short time later, claiming that Kathleen was not breathing.    Approximately seven to eight minutes after defendant's initial 911 call, James Rose and Ron Paige_paramedics with the Durham County Emergency Medical Services_arrived at the Peterson residence. Defendant's son, Todd Peterson (Todd), arrived at the same time as the paramedics.
    The Peterson house is a large estate home with an open foyer entrance. The paramedics found the front door open and noticed blood on it. Straight ahead through the front door is the large, main staircase leading to the second floor. Immediately to the left after entering, however, is a front hallway leading down to the kitchen. Off of this hallway near the kitchen is an enclosed, narrow stairwell also leading to the second floor. Upon entering the house, the paramedics observed Kathleen lying at the bottom of this stairwell. Her legs were out into the hallway and her head was just inside the encased, open doorframe where the first few steps are located. The stairwell runs parallel to the hallway, but has a few angled steps at the bottom designed to open up the staircase perpendicular to the hallway. Defendant was seen standing over Kathleen in a “semi-knees-bent position” with blood on his hands, arms, legs, and feet; he wore shorts and a t-shirt partially blood-soaked with splatter spots.
    When paramedics arrived at Kathleen's body, Todd tried to pull defendant away, stating, “Dad, she's dead, the paramedics arehere.” Paramedics Rose and Paige quickly determined that Kathleen had no pulse and was not breathing. Defendant stated that he had gone outside to turn off the lights, came back in, and found her at the bottom of the steps. Paramedic Rose testified that there was an “enormous amount of blood involved.” He saw “dried blood on the steps, and also on the wall. And it also looked like it had been wiped away or wiped on. It had been smeared, instead of just blood droplets just soaking down the wall.” He testified that based on his experience there was an unusual amount of blood for a fall, and the most severe injury he had seen from a fall was a broken neck. The blood under Kathleen's head had already clotted and started to harden.
    Later that day, Dr. Deborah Radisch, a pathologist with the Office of the North Carolina Medical Examiner, performed an autopsy on Kathleen's body and determined the cause of death to be blunt force trauma of the head. The autopsy revealed multiple contusions and abrasions on the head and neck; seven distinct lacerations on the posterior scalp; and contusions and abrasions on the arms, wrists, and hands.
    Also on that day, Investigator A.H. Holland, Jr., a member of the Criminal Investigation Division of the Durham Police Department, applied for and received a search warrant to search the Peterson residence at 1810 Cedar Street, Durham, North Carolina. The warrant stated that the property to be seized included, inter alia, fingerprints, bloodstains, physical layout and measurements of the premises, documentary evidence indicating ownership, and moving pictures, video, and still pictures to preserve the nature of the crime scene. Investigator Holland's affidavit supporting probable cause included the following underlying facts:
        This applicant has been a law enforcement officer for more than nineteen years. I am currently assigned to the Homicide Unit of the Criminal Investigation Division of the Durham Police Department. I have been an Investigator with the Durham Police Department since 1989. During this time I have been assigned to conduct follow-up investigations of Child Sexual Abuse, Adult Rape, Aggravated Assault and Homicide.

        On December 9, 2001, 0309 hrs., I, Inv. A.H. Holland, Jr., was paged by On-Call CID Supervisor Sgt. Fran Borden in reference to a Death Investigation at 1810 Cedar St. Sgt. Borden advised that the victim, age 47, fell down a flight of stairs and there was a large amount of blood present at the scene. At 0359 hrs., this investigator arrived at 1810 Cedar St. Prior to entering the front door, I observed blood on the sidewalk that leads to the front door. Upon entering the front door, I observed blood on the inside of the door. Sgt. Terry Wilkins advised that the victim's husband had blood all over his person. I saw the victim at a distance, but did not approach. At this point, this investigator made the decision to obtain this Search Warrant.

    On 10 December 2001 Investigator Holland applied for and received a second search warrant. This warrant stated the premisesto be searched as defendant's residence along with four vehicles not on the first warrant. The probable cause for the second warrant simply repeated the probable cause from the affidavit for the first warrant.
    On 12 December 2001 Investigator Holland applied for and received a third search warrant to search defendant's residence. That warrant stated that the property to be seized included all items from the previous warrant as well as “computers, CPUs, files, software, accessories and any and all other evidence that may be associated with this investigation.” The only additional probable cause listed in Investigator Holland's application for the search warrant was the following statement: “After conferring with the District Attorney's Office and the State Medical Examiners Office, this applicant has probable cause to believe that additional evidence remains at the residence.”
    On 20 December 2001 defendant was indicted on the charge of first-degree murder for the death of Kathleen. Before trial, the court denied defendant's motion to suppress all evidence seized as a result of the 9, 10, and 12 December 2001 search warrants.
    At trial, the State's evidence relative to motive tended to show that Kathleen had worked at Nortel Networks. Helen Prislinger, a process analyst and project manager for Nortel Networks, reported directly to Kathleen. Ms. Prislinger testifiedthat Kathleen telephoned her on 8 December 2001, at 11:08 p.m. Ms. Prislinger informed Kathleen that she had documents to e-mail her for a meeting the coming Sunday in Canada. Kathleen asked someone in the room for an e-mail address and gave it to Ms. Prislinger.
    Todd Markley, a lead consultant at CompuSleuth which performs forensic processing and investigation, testified as an expert in forensic computer examination. He examined a disk drive from defendant's computer and identified an e-mail sent 8 December 2001 at 11:53 p.m. from Ms. Prislinger. He could not determine if the e-mail had been read, but was “pretty confident” that the attached documents were not extracted. Mr. Markley also testified that he recovered a large volume of pictures of sexual activity that were on the computer as a result of web browsing.     The State introduced numerous e-mails between defendant and Brent “Brad” Wolgamott, a male escort. In these e-mails with Mr. Wolgamott, defendant attempted to set a time to “hook up” with Mr. Wolgamott and also indicated that defendant understood he would be paying for sexual services. The State further introduced an e-mail dated 23 February 2001 from Dirk Yates, an operator of a web service dealing in homosexual pornography.
    The State also introduced numerous papers that were collected by the police from defendant's den or study area. This paperwork included naked photographs of Mr. Wolgamott, escort reviews of Mr.Wolgamott, and printouts of e-mails between defendant and Mr. Wolgamott discussing defendant paying Mr. Wolgamott for sexual services. This paperwork was intermingled with other various paperwork including a tax appraisal of defendant's residence, Kathleen's cell phone bill from Sprint, and Kathleen's flex benefit confirmation statement from Nortel.
    Regarding the Petersons' finances and Kathleen's job status at Nortel Networks, Raymond Young, a special agent, certified public accountant, and certified fraud examiner with the North Carolina State Bureau of Investigation, testified that at the time of Kathleen's death, the value of the Petersons' major assets was $1,618,369.00.   (See footnote 1) In 1999, $276,790.00 was received into the Petersons' bank account   (See footnote 2) and $461,400.00 left the account. In 2000, $203,390.00 was received into the account and $300,760.00 left the account. In 2001, $180,480.00 was received into the account and $288,000.00 left the account. On the Petersons' 1999,2000, and 2001 tax returns, defendant had no taxable income from employment.
    Katherine Kayser, an administrative assistant at Nortel Networks, testified that in 2001, Kathleen earned $145,000.00 plus a bonus of $10,750.00. At Nortel, she obtained the following stock options: In 1994, 4,800 shares at $3.94 per share and she had 1,600 shares outstanding; in 1995, 5,600 shares at $4.2113 per share; in 1996, 4,800 shares at $5.6175 per share; in 1997, 5,600 shares at $8.8513 per share; in 1998, 6,000 shares at $11.29 per share; in 1999, 4,000 shares at $17.43 per share; in January 2000, 2,000 shares at $37.94; in April 2000, 2,000 shares at $57.41 per share; and in July 2000, 2,000 shares at $80.69 per share, and all were outstanding. In September 2000, Nortel's stock plunged. All of Kathleen's stock options from 2000 were cancelled as the market price fell below the option price; she was going to trade them in; however, upon her death they were reinstated. Kathleen exercised 3,200 shares of options with a purchase price of $3.94 in five separate transactions of 500, 800, 500, 200, and 1,200 shares with market prices of $36.75, $32.75, $37.625, $31.94, and $19.40 respectively, for a total profit of $80,431.50, less $31,054.05 in taxes for a net profit of $49,377.45. She exercised her last option in March 2001.    Ms. Kayser also testified that as Kathleen's beneficiary, defendant received $29,360.38 after taxes from her 401(k) plan; $94,455.75 after taxes from her retirement benefits; and $223,182.46 from her deferred compensation fund. Kathleen also had a life insurance policy for which she had filled out a “Life Insurance Beneficiary Designation Form” listing defendant as the beneficiary; however, she had neither signed nor dated that form.   (See footnote 3)
    Kim Barker, a human resource employee at Nortel, testified that from the fourth quarter of 2000 through 2001 Nortel laid off employees, described by Nortel as “optimization.” In November of 2001, Kathleen was placed on the “optimization list” for three days. However, Ms. Barker did not know if Kathleen knew that she was on the list. Ms. Barker testified that a terminated employee is not entitled to continue a company life insurance policy.
    John Huggard, an expert in the field of estate planning, testified as to how Kathleen's estate would be divided, pursuant to the laws of intestate succession, between defendant and Kathleen's daughter Caitlin Atwater.    E-mails recovered from defendant's computer also related to the Petersons' finances. One e-mail was from defendant to his ex- wife, Patty Peterson, asking her to pay a portion of their sons' living expenses. Another was an e-mail from Thomas Ratliff to defendant on 19 April 2001, responding to defendant's request that Thomas pay $5,000.00 per semester for Martha Ratliff's college expenses.
    The trial court also allowed the State to present evidence related to the death of Elizabeth Ratliff, a friend of defendant and his first wife who died under circumstances with factual similarities to the death of Kathleen. The facts regarding this incident will be set forth more fully in our discussion of the issue arising from the ruling to admit this evidence.
    Defendant presented evidence tending to support the theory that Kathleen died as a result of an accidental fall down the stairs. He presented several expert witnesses who testified regarding the blood splatter patterns and the biomechanics of a fall to support his theory of accident.
    On 10 October 2003 a jury found defendant guilty of first- degree murder. From that verdict and resulting sentence to life imprisonment without parole, defendant appeals.

I. Warrant

    On 4 March 2002 and 14 February 2003 defendant filed motions to suppress the evidence seized from the Peterson home. On 31 March 2003 the trial court conducted a hearing on these motions. The trial court's order, entered on 28 April 2003, contains nineteen findings of fact and five conclusions of law determining that the police had probable cause for the issuance of each of the three search warrants used to search and process the Peterson house during the time after Kathleen's death. Defendant argues that each warrant was invalid. Specifically, he argues each affidavit supporting the warrants was void of sufficient facts to suggest probable cause that a crime had been committed.
    “[T]he standard of review in evaluating a trial court's ruling on a motion to suppress is that the trial court's findings of fact 'are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.'” State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (quoting State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000) (citations omitted)). “Where an appellant fails to assign error to the trial court's findings of fact, the findings are 'presumed to be correct.'” State v. Downing, 169 N.C. App. 790, 794, 613 S.E.2d 35, 38 (2005) (citations omitted). Since defendant did not assign error to the trial court's findings, those findings are deemed conclusively supported by competent evidence. See id. Our review, therefore,is limited to determining whether those findings support the trial court's conclusions of law. See State v. Logner, 148 N.C. App. 135, 138, 557 S.E.2d 191, 193-94 (2001). If so, the conclusions stand; however, this legal determination is something we review anew. See State v. McArn, 159 N.C. App. 209, 211-12, 582 S.E.2d 371, 373-74 (2003); see also State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997) (“[T]he trial court's conclusions of law must be legally correct, reflecting a correct application of applicable legal principles to the facts found.”).
    It is axiomatic that probable cause serve as the basis for the issuance of search warrants, see U.S. Const. amend IV; and section 15A-244 of our General Statutes mandates the particular methodology of establishing it. Applications for warrants must contain statements of fact “supported by one or more affidavits particularly setting forth the facts and circumstances establishing probable cause to believe that the items are in the places or in the possession of the individuals to be searched[.]” N.C. Gen. Stat. § 15A-244(2) and (3) (2005).
        The affidavit is sufficient if it supplies reasonable cause to believe that the proposed search for evidence probably will reveal the presence upon the described premises of the items sought and that those items will aid in the apprehension or conviction of the offender. . . . Probable cause does not mean actual and positive cause nor import absolute certainty. . . . The facts set forth in anaffidavit for a search warrant must be such that a reasonably discreet and prudent person would rely upon them before they will be held to provide probable cause justifying the issuance of a search warrant. . . . A determination of probable cause is grounded in practical considerations.

State v. Arrington, 311 N.C. 633, 636, 319 S.E.2d 254, 256-57 (1984) (internal citations omitted); State v. Greene, 324 N.C. 1, 8-9, 376 S.E.2d 430, 435-36 (1989), sentence vacated on other grounds, 329 N.C. 771, 408 S.E.2d 185 (1991). “[W]hether probable cause has been established is based on factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act.” State v. Sinapi, 359 N.C. 394, 399, 610 S.E.2d 362, 365 (2005) (citations and quotations omitted). As such, the affidavit and warrant are reviewed not under a microscope, but under the totality of the circumstances. See Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548 (1983).
        Thus, under the totality of the circumstances test, a reviewing court must determine “whether the evidence as a whole provides a substantial basis for concluding that probable cause exists.” State v. Beam, 325 N.C. 217, 221, 381 S.E.2d 327, 329 (1989); see also Gates, 462 U.S. at 238-39, 76 L. Ed. 2d at 548 (concluding that “the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis'” to conclude that probable cause existed (citation omitted)). In adhering to this standard of review, we are cognizant that “great deference should be paid[to] a magistrate's determination of probable cause and that after-the-fact scrutiny should not take the form of a de novo review.” Arrington, 311 N.C. at 638, 319 S.E.2d at 258.

State v. Pickard, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (No. COA05-1414) (5 July 2006).
    The trial court's findings in the case sub judice are essentially a recitation of the events leading up to the issuance of the warrants. Taken as true, they reflect that Investigator Holland obtained an initial search warrant for the Peterson residence and one Jaguar vehicle on 9 December 2001 at 6:04 a.m. The probable cause was based on the relay of information regarding an excessive amount of blood at the base of the stairs, blood “all over” defendant, and blood droplets on the door and sidewalk outside. Also noted in the affidavit was Investigator Holland's background of nineteen years on the force and his connection with homicide investigations.
    The property to be seized was identified with some level of particularity.
        Fingerprints, bloodstains, fired and unfired bullets and casings, any and all other weapons, footwear impressions, trace hair and clothing fibers, physical layout of the premises, measurements of the premises, moving pictures, video, and still pictures to preserve the nature of the crime scene; documentary evidence indicating ownership, possession and control of the premises; andany and all evidence that may relate to the Death Investigation.

    Thus, this first search warrant was sought and issued within a matter of hours after police discovered Kathleen's body. The probable cause outlines that Kathleen suffered a fall down a set of stairs. There was an excessive amount of blood located around the body for a fall located around the body and down the stairs. There was also blood at various points inside and outside the house. Notably, the victim's husband's hands and clothes were covered in blood. Under a deferential standard, these statements are sufficient to at least suggest something more than a fall and perhaps even a homicide, albeit that innocent explanations for the blood also might exist. “Probable cause is a flexible, common-sense standard. It does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability is all that is required.” State v. Zuniga, 312 N.C. 251, 262, 322 S.E.2d 140, 146 (1984). Accordingly, looking for a weapon, whether that be a blunt object, sharp object, or gun would be sufficient based on this evidence. Further, ascertaining evidence about the scene would also be justified, including pictures, measurements, fingerprints, impressions, or fibers. Even without a warrant, police can search an entire home for other victims or assailants, securing items in plain view, if theybelieve a homicide could have occurred. See State v. Williams, 116 N.C. App. 225, 229-30, 447 S.E.2d 817, 820 (1994) (discussing warrantless search exception for emergency situations). The second search warrant, issued on 10 December 2001, was identical to the first warrant, except that four different motor vehicles were substituted for the motor vehicle listed in the first warrant. Defendant does not separately challenge the probable cause underlying the second warrant; our analysis for these first two warrants is the same. The principles stated supra support affirming the use of the first two warrants; however, the third is more precarious.   (See footnote 4)
    The third warrant is similar in many respects to the first two. The warrant recites an identical “property to be seized” section, save for one change. The warrant includes the statement: “Evidence to be seized shall include computers, CPUs, files, software, accessories and any and all other evidence that may be associated with this investigation.” The probable cause stated in the affidavit supporting the seizure of computers in the homicide investigation is identical to that recited before: amount of bloodat scene of fall; the location of blood on defendant, the house, and exterior areas; and the background of Investigator Holland. The additional facts that separate this warrant from the others are merely that: “After conferring with the District Attorney's Office and the State Medical Examiners Office, this applicant has probable cause to believe that additional evidence remains at the residence.”
        An affidavit signed under oath or affirmation by the affiant and indicating the basis for the finding of probable cause by the issuing magistrate must be a part of or attached to the warrant. . . . The affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant; but the affidavit in such case must contain some of the underlying circumstances from which the affiant's informer concluded that the articles sought were where the informer claimed they were, and some of the underlying circumstances from which the affiant concluded that the informer, whose identity need not be disclosed, was credible and his information reliable. . . . Whether the affidavit is sufficient to show probable cause must be determined by the issuing magistrate rather than the affiant. This is constitutionally required by the Fourth Amendment. . . .

        . . .

        Probable cause cannot be shown “by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the 'underlying circumstances' upon which that belief is based. . . . Recital of some of the underlying circumstances in the affidavit isessential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.” . . . The issuing officer “must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion. . . .”

State v. Campbell, 282 N.C. 125, 129-31, 191 S.E.2d 752, 755-56 (1972) (internal citations omitted).
    The affidavit here does not include the substance of the conversations or discoveries in the thirty-six hour investigation that might lead one to need to check the computers in the home. See State v. McHone, 158 N.C. App. 117, 121-22, 580 S.E.2d 80, 83- 84 (2003) (affidavit insufficient when it contained no information as to substance of a lengthy interview with defendant, only that a conversation occurred). The affidavit does not include any indication, other than the amount of blood, that would suggest a search of defendant's computer would lead to information regarding the potential homicide. See State v. Goforth, 65 N.C. App. 302, 307-08, 309 S.E.2d 488, 493 (1983) (application to search house for drugs and drug activity that is supported solely by conclusory statements suggesting the activities are present is not constitutionally sufficient). The affidavit only includes a wholly conclusory statement that the affiant has probable cause to search the computers in defendant's house. See State v. Hyleman, 324 N.C.506, 510, 379 S.E.2d 830, 832-33 (1989) (when the affiant fails to state the substance of information received from other sources and fails to disclose any facts that would lead a magistrate to reasonably believe that evidence of a crime existed at defendant's residence, then “[t]he inadequacies of the affidavit resulted in the magistrate being confronted with an insufficient, 'bare bones' application for a search warrant.”). This deficient factual statement offered to support an independent basis for probable cause cannot stand, regardless of the deference due the trial court. See, e.g., State v. Edwards, 286 N.C. 162, 170, 209 S.E.2d 758, 763 (1974) (“We conclude that in instant case the search warrant was invalid because the affiant did not inform the magistrate of any underlying circumstances from which the informant concluded that non-tax-paid whiskey was where he said that it was.”); Gooden v. Brooks, Comr. Of Labor, 39 N.C. App. 519, 251 S.E.2d 698 (1979) (Fourth Amendment protection consists of including the underlying facts necessary to allow the issuing officer to determine the existence of probable cause, not the affiant.).
    This Court in State v. Sheetz, 46 N.C. App. 641, 265 S.E.2d 914 (1980), reviewed a similar warrant and arrived at the same conclusion. There, the warrant's supporting affidavit establishednothing more than the district attorney's inclination to review a retail store's financial records following a fire.
        [T]hat as a result of an investigation being conducted by the Forsyth County Sheriff's Department into a fire occurring at Clemmons Florist and Gift Shop on August 28, 1978 in Forsyth County, Clemmons, North Carolina, the said District Attorney has reason to believe that the examination of certain records in the possession of Charles Steven Sheetz and one Clemmons Florist Gift [sic] Shop and the entire business and working records of the Clemmons Florist and Gift Shop would be in the best interest of the enforcement of the law and the administration of justice in Forsyth County . . .

Id. at 647, 265 S.E.2d at 918. Relying on Campbell, this Court found constitutional error without hesitation.
        One of the grounds upon which our Supreme Court [in Campbell] held the seizure of the drugs unconstitutional was that nowhere in the affidavit was there a sufficient statement of underlying circumstances from which the magistrate could have concluded that probable cause existed. We believe that the affidavit in question contains the same flaw. The allegation that agents have conducted an investigation which has disclosed evidence of irregularities which, if supported by evidence and found to be true, would constitute serious violations of the law on the part of the defendant, without the disclosure of facts from which the magistrate could ascertain the existence of irregularities that would constitute serious violations of the law, does not meet the constitutional standard for issuance of a search warrant.
Id. at 648, 265 S.E.2d at 919. Just as in Sheetz, the affidavit supporting the warrant in this case woefully fails to pass constitutional muster.
    Notably though, every error, even of a constitutional magnitude, does not require reversal. “A violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.” N.C. Gen. Stat. § 15A-1443(b) (2005); State v. Silva, 304 N.C. 122, 133, 282 S.E.2d 449, 456 (1981) (“When the error committed deprives a defendant of a constitutional right, prejudice is presumed, and the burden is on the State to prove otherwise.”); State v. Rhodes, 151 N.C. App. 208, 217-18, 565 S.E.2d 266, 272 (2002) (applying a harmless beyond a reasonable doubt standard to a violation of defendant's Fourth Amendment right). Since our analysis of whether the violation of defendant's Fourth Amendment rights is harmless beyond a reasonable doubt requires a review of the error in light of all evidence introduced at trial, we will review the remainder of defendant's issues first.
    After careful consideration, we determine that the State has met its burden in this case; the evidence and testimony admitted in defendant's trial pursuant to the third warrant did not prejudicedefendant in light of other properly admitted evidence. Evidence from a search of defendant's computer is the crux of what was recovered and admitted pursuant to the invalid warrant. That evidence suggested that the Petersons were possibly in financial difficulty, that defendant had homosexual interests, that an e-mail was sent to Kathleen the night of her death, and perhaps that the Petersons' marriage was strained. This same evidence was presented through numerous other sources: Helen Prislinger testified about sending the e-mail to defendant's account; ample evidence of defendant's possible predilection for homosexuality was introduced by printed e-mails and photos seized from the desk drawer next to the computer pursuant to a valid warrant; and copious amounts of evidence and testimony was admitted regarding the Petersons' faltering financial condition. As such, the evidence introduced pursuant to the invalid warrant was nothing more than repetition of other properly admitted evidence, thereby rendering its impact on the jury harmless beyond a reasonable doubt.

II. Rule 404(b) Ratliff Evidence

    The trial court conducted an extensive voir dire hearing on the proposed Rule 404(b) evidence regarding Elizabeth Ratliff, an individual close to defendant who seventeen years prior to Kathleen's death was found dead at the bottom of a set of stairs.    Elizabeth Ratliff worked as a teacher with the Department of Defense Dependent School System, and her husband George was an officer in the United States Air Force. In the early 1980s the couple lived in Klein Gerau, Germany. Both were good friends with defendant and his first wife, Patty. After George's death in 1983, defendant began to help Elizabeth with funeral arrangements, financial matters, and general support. About a year after her husband's death, Elizabeth and the couple's two daughters moved to a house down the street from the Petersons in Graefenhausen, Germany. Defendant continued to help care for the Ratliff family over the next year.
    Then, at around 7:15 a.m. on 25 November 1985, Barbara Malagino, permanent nanny to the Ratliff children, found Elizabeth dead at the bottom of the main staircase in her home. A friend and co-worker of Elizabeth's, Cheryl Appel-Schumacher, testified that she arrived at the house around 9:00 a.m.; she described the scene.
    She stated that defendant was there, talking mainly with the police, military, and other official personnel at the house. Along with defendant and those officials, several other people were in the small foyer area: Amy Beth and Bruce Berner, neighbors of the Ratliff family; Patty Peterson; and a taxicab driver. Elizabeth's body was at the bottom of the stairs; she was wearing a pair of yellow boots and was partially covered by a coat. There was bloodsprayed down the wall of the open staircase, blood on the wall opposite the foyer area, blood on a chest and footlocker, and a pool of blood underneath Elizabeth's body. Ms. Appel-Schumacher also described a smaller pattern of blood droplets at the top of the stairs, above a light switch. It appeared to have been flicked from a brush, whereas the blood down the wall was more of a tear drop pattern which increased in size further down the stairs. Ms. Appel-Schumacher said that she, her husband, and someone else, probably defendant, helped clean up the blood after Elizabeth's body was taken away. She also testified that on the Thursday before Elizabeth died, Elizabeth complained to her about headaches and had scheduled an appointment with a doctor for the following week.
    Elizabeth's sister, Margaret Blair, testified that defendant called her later in the day on 25 November 1985 and informed her of Elizabeth's death. He said she accidentally fell down the stairs and died. Sometime near the funeral, Margaret spoke with defendant regarding the events surrounding her sister's death. Defendant told her that he and his wife had the Ratliff family over for dinner and he returned with them to help get the girls to bed and take out the trash.
    Margaret Blair also testified that Elizabeth had planned a trip to Copenhagen, Denmark, over the upcoming Christmas vacation. She further testified that pursuant to Elizabeth's will defendant and Patty became guardians of Martha and Margaret Ratliff. Defendant received various household goods and benefits associated with the two children.
    On 27 November 1985 an autopsy performed by the United States military determined Elizabeth's cause of death to be “[i]ntracranial hemorrhage, cerebellar-brain stem secondary to Von Willebrand coagulation abnormality . . . [s]calp lacerations secondary to terminal fall.” The military investigation concluded there were “no indications of foul play.”
    On 14 April 2003 Elizabeth's body was exhumed and an autopsy performed by Dr. Deborah Radisch revealed contradictory findings. Dr. Radisch determined the cause of death to be blunt force trauma to the head. Dr. Radisch noted multiple injuries, including marks on the head, seven distinct lacerations, and injuries to the left hand, forearm, and back. Dr. Radisch opined that the “intracranial hemorrages noted at the first autopsy were primarily the result of blunt trauma rather than any underlying natural disease process.”
    Defendant argues the trial court erred in admitting this evidence pursuant to Rule 404(b). Ultimately, we disagree.
        Article IV of the Rules of Evidence deals with the relevancy of evidence. Rules 401 and 402 establish the broad principle that relevant evidence_evidence that makes the existence of any fact at issue more or less probable_isadmissible unless the Rules provide otherwise. Rule 403 allows the trial judge to exclude relevant evidence if, among other things, “its probative value is substantially outweighed by the danger of unfair prejudice.” Rules 404 through 412 address specific types of evidence that have generated problems. Generally, these latter Rules do not flatly prohibit the introduction of such evidence but instead limit the purpose for which it may be introduced.

Huddleston v. United States, 485 U.S. 681, 687, 99 L. Ed. 2d 771, 781 (1988). Rule 404(b) is “a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by 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 of the nature of the crime charged.” State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). Rule 404(b) states that evidence of other crimes, wrongs, or acts may be admissible if probative of “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005). “This list of proper purposes is neither exclusive nor exhaustive.” State v. Church, 99 N.C. App. 647, 653, 394 S.E.2d 468, 472 (1990) (citing State v. Young, 317 N.C. 396, 412, 346 S.E.2d 626, 635 n.2 (1986)). Thus, so long as evidence of defendant's prior acts makes the existence of any fact at issue, other than the character of the accused, more or less probable,that evidence is admissible under Rule 404(b). See Coffey, 326 N.C. at 278-79, 389 S.E.2d at 54.
    Despite this broad notion of inclusion, the Rule is not without limitations and any Rule 404(b) evidence “should be carefully scrutinized in order to adequately safeguard against the improper introduction of character evidence against the accused.” See State v. al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 122-23 (2002) (citing cases and text expounding upon the rationale for limitation). The United States Supreme Court in Huddleston recognized several factors that balance the admissibility of 404(b) evidence against safeguarding defendant's character: first, the evidence must be offered for a proper purpose; second, the evidence must be relevant; third, pursuant to Rule 403, the probative value of the evidence must not be substantially outweighed by “its potential for unfair prejudice”; and fourth, upon request, the defendant is entitled to an instruction that the jury consider the evidence only for the proper purpose that it is admitted. Huddleston, 485 U.S. at 691-92, 99 L. Ed. 2d at 783-84. Accordingly, we will review the trial court's decision to admit evidence surrounding the death of Elizabeth Ratliff for an abuse ofdiscretion.   (See footnote 5) State v. al-Bayyinah, 359 N.C. 741, 747, 616 S.E.2d 500, 506 (2005).
    First, the trial court found that evidence of Elizabeth's death was probative of defendant's intent, knowledge, and the absence of accident in Kathleen's death. Our appellate case law contains a cornucopia of comparable situations in which the courts have upheld the admission of evidence regarding prior deaths due to its probative value for these disputed elements. See , e.g., State v. Moses, 350 N.C. 741, 758-60, 517 S.E.2d 853, 864-65 (1999) (evidence of prior shooting death relevant to show identity of killer in similar death); State v. Moore, 335 N.C. 567, 594-96, 440 S.E.2d 797, 812-14 (1994) (prior poisoning deaths of males intimately associated with defendant relevant to show motive, opportunity, identity, and intent in trial for poisoning death); State v. Stager, 329 N.C. 278, 301-07, 406 S.E.2d 876, 888-93 (1991) (evidence of first husband's death by gunshot wound admissible in trial for second husband's shooting death to prove motive, intent, plan, preparation, knowledge, or absence of accident); State v. Barfield, 298 N.C. 306, 328, 259 S.E.2d 510,529-30 (1979) (evidence of four other poisonings relevant to show intent, motive, and common plan or scheme in trial for poisoning), overruled on other grounds by, State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986); State v. Lanier, 165 N.C. App. 337, 346-47, 598 S.E.2d 596, 602-03 (where defendant claimed that poisoning was accidental, prior husband's drowning admissible in case against defendant for the poisoning of her husband), disc. review denied, 359 N.C. 195, 608 S.E.2d 59 (2004); State v. Underwood, 134 N.C. App. 533, 538, 518 S.E.2d 231, 236 (1999) (evidence of prior shooting death of person closely associated with defendant admissible in trial for shooting death of an individual also closely associated with defendant in order to show identity).
    We can see no error in the determination that the circumstances of Elizabeth's death were admissible to, at the very least, show the absence of accident in Kathleen's death, as defendant claimed. “Where, as here, an accident is alleged, evidence of similar acts is more probative than in cases in which an accident is not alleged.” Stager, 329 N.C. at 304, 406 S.E.2d at 891. “The doctrine of chances demonstrates that the more often a defendant performs a certain act, the less likely it is that the defendant acted innocently.” Id. at 305, 406 S.E.2d at 891 (quoting Imwinkelried, Uncharged Misconduct Evidence § 5:05 (1984)).        In isolation, it might be plausible that the defendant acted accidentally or innocently; a single act could easily be explained on that basis. However, in the context of other misdeeds, the defendant's act takes on an entirely different light. The fortuitous coincidence becomes too abnormal, bizarre, implausible, unusual, or objectively improbable to be believed. The coincidence becomes telling evidence of mens rea.

Id.; see also State v. Murillo, 349 N.C. 573, 593-94, 509 S.E.2d 752, 764 (1998) (evidence of defendant accidentally shooting his first wife ruled admissible in trial for shooting death of second wife to show the absence of accident).
    Second, the trial court found the evidence to be relevant. “Evidence is admissible under Rule 404(b) only if it is relevant. 'Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case.'” Huddleston, 485 U.S. at 689, 99 L. Ed. 2d at 782 (quoting Advisory Committee's Notes on Fed. Rule Evid. 401, 28 U.S.C. App., p. 688). “In the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.” Id. That framework has been further refined in North Carolina such that Rule 404(b) evidence probative of a permissible purpose is admissible if it is evidence of a similaract with a certain degree of temporal proximity to the current charge. See al-Bayyinah, 356 N.C. at 153-55, 567 S.E.2d at 122-23.
        When the features of the earlier act are dissimilar from those of the offense with which the defendant is currently charged, such evidence lacks probative value. When otherwise similar offenses are distanced by significant stretches of time, commonalities become less striking, and the probative value of the analogy attaches less to the acts than to the character of the actor.

State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989), vacated on other grounds by, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990), on remand at, 329 N.C. 679, 406 S.E.2d 827 (1991).
    Here, the trial court concluded that:
        2. Substantial evidence in the form of sufficient similar facts and circumstances exists between the two deaths so that a jury could reasonably find that the Defendant committed both acts.

        3. The temporal proximity or remoteness in time between these two deaths does not diminish its effect of admissibility with respect to the purposes for which it is offered.

It based those conclusions on seventeen similarities between the circumstances of Elizabeth's death and that of Kathleen's, including in part:
        a. The deceased being found at the bottom of a stairway.

        b. No eyewitnesses to either alleged fall down the stairs.
        c. A large amount of blood present.

        d. Blood splatter present high and dried on the wall next to the stairway, including a bloodstain with small drops.

        e. No evidence of any forced entry or exit, or of any property being stolen.

        . . .

        h. Both deceased persons were females in their late 40's who had a close personal relationship with the Defendant.

        i. Both deceased persons were similar in physical characteristics so that they looked alike and reported of severe headaches in the weeks before their death.

        j. Both deceased persons were planning to go on a trip in the near future and had dinner with the Defendant on the night before their death.

        k. Both deceased persons were later determined to have died from blunt force trauma to the head, including the same number of scalp lacerations and the same general location of the scalp wounds.

        l. Both deceased persons had what could be characterized as defensive wounds on their bodies.

        . . .

        n. The Defendant was the last known person to see both of these persons alive.

        o. By being summoned to the scene in Germany and living at the scene in Durham, the Defendant is then present on the scene when the authorities arrive and reports that thedeath is the result of an accidental fall down the stairs.

        p. The Defendant is in charge of the remains, effects, and household after each death, and is potentially in charge of each estate after death.

        q. The Defendant received money or other items of value after each death.

    Defendant contends that before the State could have used Elizabeth's death to show the absence of accident, it needed to establish a substantial and independent link between defendant and Elizabeth's death; otherwise the use of this evidence would potentially prejudice defendant based upon a prior act for which he had no involvement. But it is not necessary to the evidence's admissibility that the State specifically establish a direct evidentiary link between defendant and the previous crime or act. In fact, in State v. Jeter, 326 N.C. 457, 459, 389 S.E.2d 805, 806- 07 (1990), the Supreme Court rejected that argument in favor of a more flexible test, such as that in Huddleston or Stager.
        [Rule 404(b)] includes no requisite that the evidence tending to prove defendant's identity as the perpetrator of another crime be direct evidence, exclusively. Neither the rule nor its application indicates that examples of other provisions_such as admissibility of evidence of other offenses to prove motive, opportunity, intent, preparation, or plan_rest solely upon direct evidence. E.g., State v. Price, 326 N.C. 56, 388 S.E.2d 84 (1990) (circumstantial evidence of defendant's perpetration of “virtually identical”strangulation, proximate in time, showing preparation, plan, knowledge or identity). Under the statutory scheme of Rules 403 and 404, the concern that anything other than direct evidence of a defendant's identity in a similar offense might “mislead [the jury] and raise a legally spurious presumption of guilt” is met instead by the balancing test required by Rule 403[.]

Id., 389 S.E.2d at 806.
    In Stager, our Supreme Court was presented with a scenario comparable to this one. There, the defendant was on trial for the first-degree murder of her husband. Stager, 329 N.C. at 284-85, 406 S.E.2d at 879. She claimed that she accidentally shot her husband when pulling a gun out across the bed from underneath his pillow one morning. Id. at 286, 406 S.E.2d at 880. The next day she began inquiring about death proceeds from the military, her husband being a member of the National Guard, and further inquired about life insurance proceeds. The facts, circumstances, and scientific evidence all failed to support an accidental shooting, instead suggested the possibility of foul play.
    The State introduced evidence that nearly ten years prior to Mr. Stager's death, the defendant's first husband was found dead in their bedroom killed by a single gun shot. Id. at 296-97, 406 S.E.2d at 886-87. The defendant stated that her husband was upstairs cleaning the gun when it must have fired and killed him. Id. at 297, 406 S.E.2d at 887. The defendant collected nearly$86,000.00 in life insurance proceeds and estate property after her husband's death. Id. at 300, 406 S.E.2d at 888.
    At her trial and on appeal, the defendant argued the evidence of her first husband's death was not relevant or admissible pursuant to Rule 404(b). Our Supreme Court disagreed and found no error in the admission of the evidence due to its probative value for intent, the absence of accident, and the fact that the deaths were sufficiently similar. Id. at 307, 406 S.E.2d at 892-93. Relying on Huddleston, the Court held:
        [I]f there is sufficient evidence to support a jury finding that the defendant committed the similar act [then] no preliminary finding by the trial court that the defendant actually committed such an act is required[;] . . . evidence is admissible under Rule 404(b) of the North Carolina Rules of Evidence if it is substantial evidence tending to support a reasonable finding by the jury that the defendant committed a similar act or crime and its probative value is not limited solely to tending to establish the defendant's propensity to commit a crime such as the crime charged.

Id. at 303-04, 406 S.E.2d at 890. “Similar” acts or crimes, the Court held, means “there are 'some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both.'” Stager, 329 N.C. at 304, 406 S.E.2d at 890-91 (quoting State v. Green, 321 N.C. 594, 603, 365 S.E.2d 587, 593, cert. denied, 488 U.S. 900, 102 L. Ed. 2d 235 (1988)).    Thus, although perhaps more persuasive, it is not necessary to the evidence's admissibility under Rule 404(b) that the State specifically connect defendant to the previous crime or act, so long as substantial evidence of the similarities of the two crimes or acts suggests that the same person committed both acts. And while defendant challenges the veracity of the trial court's findings on similarity, the numerous and unique similarities between Elizabeth's death and that of Kathleen reveal substantial circumstantial evidence that favors admissibility.
    Further, we can discern little merit in defendant's argument that Elizabeth's death is too remote. It may be true that “remoteness in time tends to diminish the probative value of the evidence and enhance its tendency to prejudice,” Artis, 325 N.C. at 300, 384 S.E.2d at 482, but “remoteness in time generally affects only the weight to be given such evidence, not its admissibility.” Stager, 329 N.C. at 307, 406 S.E.2d at 893.
        Remoteness in time between an uncharged crime and a charged crime is more significant when the evidence of the prior crime is introduced to show that both crimes arose out of a common scheme or plan. In contrast, remoteness in time is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident[.]

Id. (citations omitted). The striking similarities between Kathleen's death and that of Elizabeth's overshadow the seventeen-year-difference in their deaths, particular given that the State's use of the evidence was to show absence of accident, intent, or knowledge.
    Third, we see no abuse of discretion in the trial court's balancing test consistent with the dictates of Rule 403.
        When prior incidents are offered for a proper purpose, the ultimate test of admissibility is whether they are sufficiently similar and not so remote as to run afoul of the balancing test between probative value and prejudicial effect set out in Rule 403. In each case, the burden is on the defendant to show that there was no proper purpose for which the evidence could be admitted. The determination of whether relevant evidence should be excluded under Rule 403 is a matter that is left in the sound discretion of the trial court, and the trial court can be reversed only upon a showing of abuse of discretion.

Lanier, 165 N.C. App. at 345, 598 S.E.2d at 602 (internal citations and quotations omitted); see also Coffey, 326 N.C. at 281, 389 S.E.2d at 56 (“Whether to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial court.”). The trial court here conducted an extensive voir dire, issued numerous findings of fact, found at least seventeen similarities between the evidence proffered and the crime charged, and concluded the “probative value of this evidence outweighs any prejudicial effect on the Defendant.” We have already concluded that the similaritiesbetween the two deaths were numerous and that Elizabeth's death was not too remote.
    That said, “[e]vidence which is probative of the State's case necessarily will have a prejudicial effect upon the defendant; the question is one of degree.” Coffey, 326 N.C. at 281, 389 S.E.2d at 56; see also Stager, 329 N.C. at 310, 406 S.E.2d at 895 (“Certainly, the evidence was prejudicial to the defendant in the sense that any evidence probative of the State's case is always prejudicial to the defendant.”). There is little doubt that the evidence of Elizabeth's death was useful to the State for challenging defendant's sole defense in this case, namely, that Kathleen's death was an accident. This evidence in and of itself is prejudicial to defendant, but not substantially so, considering that the balance under Rule 403 favors admissibility of probative evidence.
    As such, we reject defendant's argument that evidence of Elizabeth's death was inadmissible because “[t]he two deaths would create a false image of convincing evidence, just as mirrors facing each other create the impression of a never-ending hall, while each examined in its own light would not withstand scrutiny.” The evidence is admissible due to the fact it was offered for a proper purpose, and was sufficient to allow a jury to reasonably conclude that the act occurred and that the defendant was the actor.

III. Evidence of Bi-Sexuality Under Rule 404(b)

    Defendant next argues the trial court erred, in ruling upon his motion in limine, to admit evidence of his bi-sexuality. Defendant contends this evidence was irrelevant and unfairly prejudicial. We disagree.
    Generally, evidence is admissible at trial if it is relevant and its probative value is not substantially outweighed by, among other things, the danger of unfair prejudice. See N.C. Gen. Stat. § 8C-1, Rules 402, 403 (2005). “Evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue. In criminal cases, every circumstance that is calculated to throw any light upon the supposed crime is admissible. The weight of such evidence is for the jury.” State v. Smith, 357 N.C. 604, 613-14, 588 S.E.2d 453, 460 (2003) (internal quotations and citations omitted); see also N.C. Gen. Stat. § 8C-1, Rule 401 (2005) (“'Relevant evidence' means evidence having 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.”). The standard set by Rule 401,
        gives the judge great freedom to admit evidence because the rule makes evidence relevant if it has any logical tendency to prove any fact that is of consequence. Thus, even though a trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuseof discretion standard applicable to Rule 403, such rulings are given great deference on appeal.

State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991) (internal citations omitted).
    The trial court concluded that the evidence regarding defendant's bi-sexuality was relevant for two purposes: one, it related to a possible motive; and two, it could be used “to rebut the assertions in Defendant's opening statement regarding the idyllic relationship between the Defendant and the deceased in this case.” We now consider whether the evidence of defendant's bi- sexual tendencies was relevant because it rebutted defendant's opening statements of a loving relationship. Defendant argues that none of defense counsel's opening statements “opened the door” for introduction of defendant's bi-sexuality. In his opening statement, defense counsel recounted the relationship between defendant and Kathleen as follows:
        And Michael Peterson and Katherine [sic] Atwater connected. Kathleen and Michael connected in a way that a few people who are really, really lucky in life have a chance to connect. It had nothing to do with tangible things. They felt like soul mates. . . . And so they fell in love, and in . . . 1989 they began to live together. . . . [W]hat kept them together, what caused them to build that, was a love that absolutely everyone who saw them or knew them understood and recognized, and envied[.]
Defense counsel also read from an essay Kathleen's daughter Caitlin had written in 1999:
        Michael Peterson stopped my mother's tears. . . . My father had torn her apart, crushing her shell and the illusion in which she lived, destroying her dignity and pride. But Mike was able to restore her strength and confidence, and to show her that she could find true love.

Defense counsel also showed family pictures of defendant and Kathleen throughout his opening statement.
    Our courts have previously allowed evidence in to rebut a defendant's contentions made in his opening statement. See, e.g., Murillo, 349 N.C. at 600, 509 S.E.2d at 768 (character evidence concerning the victim's performance as a school teacher relevant to rebut the defendant's contentions in his opening statement that the victim was a violent alcoholic); State v. Jones, 342 N.C. 457, 463- 64, 466 S.E.2d 696, 698-99 (testimony by the defendant's former girlfriend regarding a previous assault by the defendant and her fear of him was relevant to rebut the defendant's contentions in his opening statement that the reason the girlfriend delayed three years in reporting him was to get back at him and collect a reward), cert. denied, 518 U.S. 1010, 135 L. Ed. 2d 1058 (1996); State v. Reaves, 132 N.C. App. 615, 619, 513 S.E.2d 562, 565 (“This evidence was relevant to the issue of the State's inability to present shell casings from the weapon allegedly used by defendant. Defendant's counsel raised this matter in his opening argument, and, having invited the State's response, cannot now claim he was improperly prejudiced by the State's exhibition of the weapons to the jury.”), disc. review denied, 350 N.C. 846, 539 S.E.2d 4 (1999).
    As defense counsel, in his opening statement, extensively discussed defendant and Kathleen's relationship and portrayed the marriage as a happy and loving one, the trial court properly found that evidence of defendant's attempts to have sexual relations with a male escort and interest in homosexual pornography were relevant to reb