State v. Rayfield (Lawyers Weekly No. 14-07-0014, 46 pp.) (Linda Stephens, J.) Appealed from Gaston County Superior Court (Jesse B. Caldwell III & Nathaniel J. Poovey, JJ.) N.C. App.
Holding: Even though there was a three and a half-year gap between the time defendant allegedly showed the minor victim pornography in his house and the time the search warrant was issued, the items to be searched – magazines, videos, computers, cell phones and thumb drives – are not inherently incriminating and have enduring utility for their owner; therefore, a reasonably prudent magistrate could conclude that the items could still be found in the area to be searched. Accordingly, the information in the search warrant application was not stale, and the magistrate had sufficient evidence to support a determination of probable cause.
We find no error in defendant’s convictions of four counts of taking indecent liberties with a child, one count of disseminating obscene material, one count of crime against nature, one count of first-degree statutory sex offense, and one count of first-degree statutory rape.
When the detective applied for a search warrant, he presented not only an affidavit but also live testimony. The magistrate violated G.S. § 15A-245 by neither recording nor contemporaneously summarizing the oral testimony offered by the detective. Nevertheless, the information in the affidavit was sufficient on its own for the magistrate to find probable cause. Thus, the magistrate’s violation of § 15A-245 was not substantial, and the trial court did not err in denying defendant’s motion to suppress.
Adult pornography was found at defendant’s house during a valid search of the premises, there was testimony at trial that defendant showed the victim both child pornography and adult pornography, and the trial court instructed the jury that it could consider the pornography only if it determined that it was relevant to defendant’s motive or intent to commit the alleged crimes; accordingly, the adult pornography was admissible under N.C. R. Evid. 404(b) as relevant to defendant’s motive or intent. Given the trial court’s careful handling of the matter, it was not an abuse of discretion for the trial court to determine that the danger of unfair prejudice did not substantially outweigh the probative value of the evidence.