State v. Booker , 262 N.C. App. 290 ( 2018 )


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  •               IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA18-165
    Filed: 6 November 2018
    Guilford County, No. 16 CRS 83608
    STATE OF NORTH CAROLINA
    v.
    JALA NAMREH BOOKER
    Appeal by defendant from judgment entered 20 July 2017 by Judge Michael D.
    Duncan in Guilford County Superior Court.       Heard in the Court of Appeals 5
    September 2018.
    Attorney General Joshua H. Stein, by Special Deputy Attorney General
    Kimberley A. D’Arruda, for the State.
    Joseph P. Lattimore for defendant-appellant.
    DAVIS, Judge.
    In this appeal, we address whether (1) an indictment for embezzlement was
    legally sufficient where it failed to expressly allege fraudulent intent and did not
    specify the acts allegedly constituting embezzlement; (2) the trial court committed
    plain error by instructing the jury on an element of embezzlement not supported by
    the evidence; and (3) the trial court plainly erred by allowing testimony concerning
    the defendant’s post-arrest silence.   After a thorough review of the record and
    applicable law, we conclude that the defendant received a fair trial free from
    prejudicial error.
    STATE V. BOOKER
    Opinion of the Court
    Factual and Procedural Background
    The State introduced evidence at trial tending to show the following facts: In
    2013, Marjorie Hetzel owned Interstate All Battery Center franchises in Danville,
    Virginia and Greensboro, North Carolina. In November 2013, Hetzel hired Jala
    Namreh Booker (“Defendant”) as the office manager for the Greensboro franchise. As
    part of her duties as office manager, Defendant was responsible for the daily reports
    generated from the register, managing accounts payable and receivable, and
    occasionally assisting with sales.    None of the store’s other employees were
    responsible for bookkeeping or “keeping track of the money” in any capacity.
    At the close of business each day, Defendant was required to generate a daily
    activity report from the cash register summarizing the store’s monetary transactions
    for that day. After verifying that the cash register actually contained the amount of
    money listed in the daily activity report, she was supposed to place the money from
    the cash register in a bank deposit bag and lock the bag in a cabinet on the store’s
    premises overnight. On the following business day, Defendant was expected to take
    the money in the bag to the bank and deposit it.
    Prior to June 2015, Hetzel did not have any concerns about Defendant’s job
    performance or her handling of the business’s finances. That month, Defendant
    called Hetzel to express confusion over how she should handle five dollars that an
    outside salesman had placed in the cash register. Upon arriving at the store, Hetzel
    -2-
    STATE V. BOOKER
    Opinion of the Court
    asked Defendant for the applicable deposit ticket. In response, Defendant retrieved
    from her car five separate envelopes containing cash, checks, and deposit slips.
    Together, the envelopes contained over $10,000.
    Hetzel immediately began reviewing the business’s financial records and
    noticed that the previous deposit made by Defendant was $447 short. When Hetzel
    asked her about the missing funds, Defendant stated that the money was in the
    envelopes she had retrieved from her car. Hetzel told Defendant to deposit the money
    in the envelopes immediately, and she did so. Hetzel fired Defendant the following
    day.
    On 22 June 2015, Hetzel contacted the Greensboro Police Department
    regarding financial discrepancies in her business records and subsequently discussed
    her concerns with Detective Edward Bruscino. After analyzing various financial
    documentation and bank records provided to him by Hetzel, Detective Bruscino
    determined that discrepancies existed during the time period when Defendant was
    employed between the amount of money that should have been deposited and the
    amount that was actually deposited.
    Detective Bruscino focused his investigation on the months of December 2014
    and March 2015 because those “were the months that truly showed where cash was
    missing from multiple deposits.”      On numerous dates during those months,
    Defendant had either deposited less money than the business’s financial records
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    STATE V. BOOKER
    Opinion of the Court
    indicated should have been deposited or she did not make a deposit at all. At no point
    during her employment did Defendant ever inform Hetzel about any financial
    discrepancies related to the business.
    Defendant was indicted by a grand jury on 23 January 2017 on the charge of
    embezzlement. A jury trial was held beginning on 19 July 2017 before the Honorable
    Michael D. Duncan in Guilford County Superior Court. At the close of the State’s
    evidence, Defendant moved to dismiss the embezzlement charge, and the trial court
    denied the motion. She renewed her motion to dismiss at the close of all the evidence,
    which was once again denied.
    On 20 July 2017, the jury found Defendant guilty of embezzlement. The trial
    court sentenced her to a term of 6 to 17 months imprisonment, suspended the
    sentence, and placed Defendant on supervised probation for a period of 60 months.
    The court also ordered her to pay restitution in the amount of $4,100.67. Defendant
    filed a timely notice of appeal.
    Analysis
    On appeal, Defendant argues that the trial court erred by (1) denying her
    motion to dismiss the embezzlement charge on the ground that the indictment was
    facially invalid; (2) instructing the jury on an element of embezzlement not supported
    by the evidence; and (3) permitting testimony concerning her post-arrest silence. We
    address each argument in turn.
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    STATE V. BOOKER
    Opinion of the Court
    I.   Motion to Dismiss
    Defendant first contends that the trial court erred by denying her motion to
    dismiss. Specifically, she asserts that the indictment was invalid because it failed to
    allege any fraudulent intent on her part and did not specify the acts committed by
    her that constituted embezzlement. We disagree.
    An indictment must contain
    a plain and concise factual statement in each count which,
    without allegations of an evidentiary nature, asserts facts
    supporting every element of a criminal offense and the
    defendant’s commission thereof with sufficient precision
    clearly to apprise the defendant or defendants of the
    conduct which is the subject of the accusation.
    State v. Jones, 
    367 N.C. 299
    , 306, 
    758 S.E.2d 345
    , 350 (2014) (citation, quotation
    marks, and brackets omitted). An indictment that “fails to state some essential and
    necessary element of the offense” is fatally defective, State v. Ellis, 
    368 N.C. 342
    , 344,
    
    776 S.E.2d 675
    , 677 (2015) (citation and quotation marks omitted), and if an
    indictment is fatally defective, the trial court lacks subject matter jurisdiction over
    the case. State v. Justice, 
    219 N.C. App. 642
    , 643, 
    723 S.E.2d 798
    , 800 (2012).
    An indictment “is constitutionally sufficient if it apprises the defendant of the
    charge against him with enough certainty to enable him to prepare his defense and
    to protect him from subsequent prosecution of the same offense.” State v. Stroud, __
    N.C. App. __, __, 
    815 S.E.2d 705
    , 709 (citation and quotation marks omitted), appeal
    dismissed and disc. review denied, __ N.C. __, 
    817 S.E.2d 573
    (2018). A defendant
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    STATE V. BOOKER
    Opinion of the Court
    has received sufficient notice “if the illegal act or omission alleged in the indictment
    is clearly set forth so that a person of common understanding may know what is
    intended.” State v. Haddock, 
    191 N.C. App. 474
    , 477, 
    664 S.E.2d 339
    , 342 (2008)
    (citation and quotation marks omitted). Furthermore, “while an indictment should
    give a defendant sufficient notice of the charges against him, it should not be
    subjected to hyper technical scrutiny with respect to form.” State v. Harris, 219 N.C.
    App. 590, 592, 
    724 S.E.2d 633
    , 636 (2012) (citation and quotation marks omitted). On
    appeal, this Court reviews the sufficiency of an indictment de novo. State v. Marshall,
    
    188 N.C. App. 744
    , 748, 
    656 S.E.2d 709
    , 712, disc. review denied, 
    362 N.C. 368
    , 
    661 S.E.2d 890
    (2008).
    N.C. Gen. Stat. § 14-90 provides, in pertinent part, as follows:
    (a) This section shall apply to any person:
    ....
    (4) Who is an officer or agent of a corporation, or any
    agent, consignee, clerk, bailee or servant, except
    persons under the age of 16 years, of any person.
    (b) Any person who shall:
    (1) Embezzle or fraudulently or knowingly and willfully
    misapply or convert to his own use, or
    (2) Take, make away with or secrete, with intent to
    embezzle or fraudulently or knowingly and willfully
    misapply or convert to his own use, any money,
    goods or other chattels, bank note, check or order for
    the payment of money . . . or any other valuable
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    STATE V. BOOKER
    Opinion of the Court
    security whatsoever that (i) belongs to any other
    person or corporation . . . which shall have come into
    his possession or under his care, shall be guilty of a
    felony.
    N.C. Gen. Stat. § 14-90 (2017).
    This Court has explained that in order to convict a defendant of embezzlement
    the State must prove the following essential elements:
    (1) [T]hat defendant, being more than sixteen years of
    age, acted as an agent or fiduciary for his principal; (2)
    that he received money or valuable property of his
    principal in the course of his employment and through
    his fiduciary relationship; and (3) that he fraudulently
    or knowingly and willfully misapplied or converted to
    his own use the money or valuable property of his
    principal which he had received in his fiduciary
    capacity.
    State v. Melvin, 
    86 N.C. App. 291
    , 298, 
    357 S.E.2d 379
    , 383 (1987) (citation omitted).
    With regard to the third element, “’[t]he State does not need to show that the agent
    converted his principal’s property to the agent’s own use, only that the agent
    fraudulently or knowingly and willfully misapplied it[.]” State v. Parker, 233 N.C.
    App. 577, 580, 
    756 S.E.2d 122
    , 124-25 (2014) (citation omitted).
    In the present case, Defendant’s indictment stated, in pertinent part, as
    follows:
    [D]efendant named above unlawfully, willfully and
    feloniously did embezzle three thousand nine hundred fifty
    seven dollars and eighty one cents ($3,957.81) in good and
    lawful United States currency belonging to AMPZ, LLC
    d/b/a Interstate All Battery Center. At the time the
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    STATE V. BOOKER
    Opinion of the Court
    defendant was over 16 years of age and was the employee
    of AMPZ, LLC d/b/a Interstate All Battery Center and in
    that capacity had been entrusted to receive the property
    described above and in that capacity the defendant did
    receive and take into her care and possession that property.
    Defendant first argues that her indictment failed to adequately allege that she
    acted with fraudulent intent. As quoted above, the indictment stated that Defendant
    “unlawfully, willfully and feloniously did embezzle” $3,957.81 in her capacity as an
    employee of Interstate All Battery Center. Defendant nevertheless contends that her
    indictment was facially invalid because it merely stated that she “did embezzle” a
    sum of money without specifically alleging that she did so with a fraudulent intent.
    However, “embezzle” has been defined as “to appropriate (as property entrusted to
    one’s care) fraudulently to one’s own use.”         Webster’s Ninth New Collegiate
    Dictionary 406 (9th ed. 1991); see also State v. Smithey, 
    15 N.C. App. 427
    , 429, 
    190 S.E.2d 369
    , 370 (1972) (“Fraudulent intent which constitutes a necessary element of
    the crime of embezzlement . . . is the intent of the agent to embezzle or otherwise
    willfully and corruptly use or misapply the property of the principal or employer for
    purposes other than those for which the property is held.” (citation and quotation
    marks omitted)).
    Thus, the concept of fraudulent intent is already contained within the ordinary
    meaning of the term “embezzle.” As noted above, a defendant receives sufficient
    notice where the allegations in the indictment permit a “person of common
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    STATE V. BOOKER
    Opinion of the Court
    understanding [to] know what is intended.” 
    Haddock, 191 N.C. App. at 477
    , 664
    S.E.2d at 342 (citation and quotation marks omitted).             Defendant makes no
    contention in her appellate brief that she was prejudiced in her ability to prepare a
    defense based upon a misapprehension of the meaning of the term “embezzle.”
    Moreover, this Court has held that an allegation that a defendant acted
    willfully “implies that the act is done knowingly” and “suffice[s] to allege the requisite
    knowing conduct” for purposes of determining the validity of an indictment. 
    Harris, 219 N.C. App. at 595-96
    , 724 S.E.2d at 637-38 (citation and quotation marks omitted).
    As discussed above, in order to convict a defendant of embezzlement the State is
    required to prove that she “fraudulently or knowingly and willfully misapplied or
    converted to [her] own use” the property of her principal. 
    Melvin, 86 N.C. App. at 298
    , 357 S.E.2d at 383 (emphasis added).            Thus, the allegation contained in
    Defendant’s indictment that she “unlawfully, willfully and feloniously did embezzle”
    can fairly be read to allege that she “knowingly and willfully” embezzled from her
    employer. Therefore, we are satisfied that the indictment is not insufficient for failing
    to specifically allege a fraudulent intent on the part of Defendant.
    We find similarly unavailing Defendant’s contention that her indictment was
    defective for failing to specify the acts constituting embezzlement. She makes the
    conclusory assertion that “the ambiguous term ‘embezzle’” was inadequate to
    properly inform her of the charge against her. However, we find nothing vague or
    -9-
    STATE V. BOOKER
    Opinion of the Court
    insufficiently particular about the allegations contained in the indictment. Indeed,
    it alleges that Defendant embezzled $3,957.81 entrusted to her in a fiduciary capacity
    as an employee of Interstate All Battery Center. We fail to see how these allegations
    would not adequately apprise Defendant as to the charges facing her or prejudice her
    ability to prepare a defense. Accordingly, we hold that the trial court did not err in
    denying Defendant’s motion to dismiss. See State v. Lowe, 
    295 N.C. 596
    , 604, 
    247 S.E.2d 878
    , 884 (1978) (upholding validity of indictment where “Defendant was
    sufficiently informed of the accusation against him”).
    II.   Jury Instructions
    Defendant next contends that the trial court erred by instructing the jury that
    it could convict her of embezzlement based upon the theory that she “did take and
    make away with U.S. currency with the intent to embezzle” where the State’s sole
    theory at trial was instead that she “misapplied” the money. Although Defendant
    concedes that the trial court did, in fact, correctly charge the jury as to the theory of
    misapplication, she nevertheless asserts that the erroneous instruction on an
    alternative theory entitles her to a new trial.
    Because Defendant failed to object to the trial court’s jury instructions, our
    review of this issue is limited to plain error. See N.C. R. App. P. 10(a)(4) (“In criminal
    cases, an issue that was not preserved by objection noted at trial and that is not
    deemed preserved by rule or law without any such action nevertheless may be made
    - 10 -
    STATE V. BOOKER
    Opinion of the Court
    the basis of an issue presented on appeal when the judicial action questioned is
    specifically and distinctly contended to amount to plain error.”).
    For error to constitute plain error, a defendant must
    demonstrate that a fundamental error occurred at trial. To
    show that an error was fundamental, a defendant must
    establish prejudice—that, after examination of the entire
    record, the error had a probable impact on the jury’s
    finding that the defendant was guilty. Moreover, because
    plain error is to be applied cautiously and only in the
    exceptional case, the error will often be one that seriously
    affects the fairness, integrity or public reputation of
    judicial proceedings[.]
    State v. Lawrence, 
    365 N.C. 506
    , 518, 
    723 S.E.2d 326
    , 334 (2012) (internal citations,
    quotation marks, and brackets omitted).
    Our appellate courts have held that a new trial is required where a trial court
    instructs the jury — over the objection of the defendant — on a theory of the
    defendant’s guilt that is not supported by the evidence presented at trial. See, e.g.,
    State v. Pakulski, 
    319 N.C. 562
    , 574, 
    356 S.E.2d 319
    , 326 (1987) (holding new trial
    required where trial court instructed jury on alternative theory unsupported by the
    evidence); State v. O’Rourke, 
    114 N.C. App. 435
    , 442, 
    442 S.E.2d 137
    , 140 (1994)
    (“Where the trial court instructs on alternative theories, one of which is not supported
    by the evidence, and it cannot be discerned from the record upon which theory the
    jury relied in arriving at its verdict, the error entitles the defendant to a new trial.”
    (citation omitted)).
    - 11 -
    STATE V. BOOKER
    Opinion of the Court
    However, a new trial is not necessarily required as a result of such an error in
    cases where no objection is raised at trial.
    Recently . . . , our Supreme Court has declared that such
    instructional errors not objected to at trial are not plain
    error per se. In State v. Boyd, 
    366 N.C. 548
    , 
    742 S.E.2d 798
                 (2013), the Supreme Court, adopting a dissent from this
    Court, 
    222 N.C. App. 160
    , 
    730 S.E.2d 193
    (2012) (Stroud,
    J., dissenting), declared an additional requirement for a
    defendant arguing an unpreserved challenge to a jury
    instruction as unsupported by the evidence. The Court in
    Boyd shifted away from the long standing assumption that
    the jury based its verdict on the theory for which it received
    an improper instruction, and instead placed the burden on
    the defendant to show that an erroneous disjunctive jury
    instruction had a probable impact on the jury’s verdict.
    State v. Malachi, __ N.C. App. __, __, 
    799 S.E.2d 645
    , 649 (2017) (internal citations
    and quotation marks omitted). Thus, a reviewing court conducting a plain error
    analysis in this context “is to determine whether a disjunctive jury instruction
    constituted reversible error, without being required in every case to assume that the
    jury relied on the inappropriate theory.” State v. Robinson, __ N.C. App. __, __, 
    805 S.E.2d 309
    , 318 (2017) (citation and quotation marks omitted).
    In the present case, the trial court instructed the jury, in pertinent part, as
    follows:
    The defendant in this case, members of the jury, has
    been charged with embezzlement by virtue of employment.
    For you to find the defendant guilty of this offense, the
    state must prove three things beyond a reasonable doubt:
    First, that the defendant was an agent or clerk of AMPZ,
    LLC, doing business as Interstate All Battery Center.
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    STATE V. BOOKER
    Opinion of the Court
    Second, that while acting as an agent or clerk, U.S.
    currency came into the defendant’s possession or care.
    And third, that the defendant did take and make
    away with U.S. currency with the intent to embezzle and
    fraudulently, knowingly, and willfully misapply and/or
    convert U.S. currency into the defendant’s own use.
    If you find from the evidence beyond a reasonable
    doubt that on or about the alleged date the defendant was
    an agent or clerk of AMPZ, LLC, doing business as
    Interstate All Batteries Center, that while the defendant
    was acting as agent or clerk, U.S. currency came into the
    defendant’s possession or care, and that the defendant
    embezzled and/or fraudulently or knowingly and willfully
    misapplied or converted to the defendant’s own use U.S.
    currency with the intent to embezzle, fraudulently or
    knowingly and willfully misapply or convert U.S. currency
    to the defendant’s own use, it would be your duty to return
    a verdict of guilty.
    (Emphasis added.)
    Defendant argues that the trial court committed plain error by instructing the
    jury on an alternative theory of guilt not supported by the evidence — namely, by
    including as an element of embezzlement that she “did take and make away with”
    money entrusted to her in a fiduciary capacity. She concedes, however, that the jury
    was “correctly instructed on the law arising from the evidence” during the trial court’s
    summation of the elements of embezzlement. Nevertheless, Defendant contends that
    the trial court deprived her of the right to a unanimous verdict by charging the jury
    “correctly at one point and incorrectly at another.”
    - 13 -
    STATE V. BOOKER
    Opinion of the Court
    We are unable to conclude that the trial court’s instructions amounted to plain
    error. Here, Defendant was the only store employee responsible for depositing money
    into Interstate All Battery Center’s bank account. She was also the only employee
    whose duties included maintaining financial records and “keeping track of the
    money.” Detective Bruscino testified with regard to numerous dates throughout
    Defendant’s employment on which she should have made cash deposits but either did
    not deposit any cash at all or deposited less money than she should have.
    Furthermore, Defendant never expressed any concerns to Hetzel regarding difficulty
    in balancing the books or the existence of discrepancies in financial records.
    The evidence that Defendant misapplied money entrusted to her in a fiduciary
    capacity was overwhelming. Therefore, it cannot reasonably be argued that the jury
    “probably would have returned a different verdict,” see 
    Lawrence, 365 N.C. at 507
    ,
    723 S.E.2d at 327, but for the trial court’s error in instructing it upon the alternative
    theory that Defendant “did take and make away with” her employer’s money.
    Accordingly, we hold that the trial court’s error did not rise to the level of plain error.
    See Robinson, __ N.C. App. at __, 805 S.E.2d at 319 (no plain error where improper
    instruction on alternative theory not supported by the evidence “did not play a
    significant role in the jury’s decision”).
    III. Testimony Concerning Post-Arrest Silence
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    STATE V. BOOKER
    Opinion of the Court
    Finally, Defendant argues that the trial court plainly erred by permitting
    Detective Bruscino to testify with regard to her post-arrest silence. Specifically, she
    asserts that the admission of this testimony violated her Fifth Amendment right
    against self-incrimination. Once again, we disagree.
    “Whether the State may use a defendant’s silence at trial depends on the
    circumstances of the defendant’s silence and the purpose for which the State intends
    to use such silence.” State v. Boston, 
    191 N.C. App. 637
    , 648, 
    663 S.E.2d 886
    , 894,
    appeal dismissed and disc. review denied, 
    362 N.C. 683
    , 
    670 S.E.2d 566
    (2008). This
    Court has held that “a defendant’s pre-arrest silence and post-arrest, pre-Miranda
    warnings silence may not be used as substantive evidence of guilt, but may be used
    by the State to impeach the defendant by suggesting the defendant’s prior silence is
    inconsistent with his present statements at trial.” State v. Mendoza, 
    206 N.C. App. 391
    , 395, 
    698 S.E.2d 170
    , 174 (2010) (citation omitted).
    At trial, the following exchange took place between Defendant’s counsel and
    Detective Bruscino on cross-examination:
    [DEFENSE COUNSEL]:            Did you ever        interview
    [Defendant] in connection with this case?
    [DETECTIVE BRUSCINO]: I did not.
    [DEFENSE COUNSEL]: Did you attempt to try to locate
    her before you issued a warrant to speak with her about it?
    [DETECTIVE BRUSCINO]: Yes. We went to multiple
    locations looking for her. We had many, many addresses
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    STATE V. BOOKER
    Opinion of the Court
    to go to, but we didn’t go to all of them. We could only go
    to a few of them. And we weren’t able to locate [Defendant].
    [DEFENSE COUNSEL]: Did you come to find out how this
    warrant was served on her?
    [DETECTIVE BRUSCINO]: I did not.             All I got was
    notification that it was served.
    [DEFENSE COUNSEL]: Okay. So you weren’t ever
    notified that she turned herself in on this case?
    [DETECTIVE BRUSCINO]: No.
    ....
    [DEFENSE COUNSEL]: So did you go to the Rankin King
    address?
    [DETECTIVE BRUSCINO]: The Rankin King address?
    Yes, we did. We knocked on that door.
    [DEFENSE COUNSEL]: Okay. And do you know what
    happened when you knocked on that door?
    [DETECTIVE BRUSCINO]: No one was home. Typically
    when no one is home, we leave a business card with a phone
    number on it.
    [DEFENSE COUNSEL]: Did you come to find out later
    that was her mother’s address?
    [DETECTIVE BRUSCINO]: I did not.
    [DEFENSE COUNSEL]: So you didn’t go back at any point
    to try to knock on the door again later?
    [DETECTIVE BRUSCINO]: No. We had left a card, as
    well as that was the address on her license.
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    STATE V. BOOKER
    Opinion of the Court
    [DEFENSE COUNSEL]: Okay. So after [Defendant] did
    turn herself in when she found out about the warrant, did
    you try to make an interview with her after that?
    [DETECTIVE BRUSCINO]: I did not.
    Immediately after the above-quoted testimony from Detective Bruscino, the
    following exchange took place on redirect examination:
    [PROSECUTOR]: Detective Bruscino, after you left your
    card at the residence listed on [Defendant’s] driver’s
    license, when was it after you did that that [Defendant]
    called you to talk to you?
    [DETECTIVE BRUSCINO]:                [Defendant] never made
    contact with me.
    [PROSECUTOR]:        After you took out charges and
    [Defendant] was served, when did [Defendant] call you so
    she could come in and talk to you about this?
    [DETECTIVE BRUSCINO]: She never contacted me.
    [PROSECUTOR]: Has [Defendant] ever emailed you,
    voicemailed you or anything to come in and discuss all of
    this with you?
    [DETECTIVE BRUSCINO]:            She’s never made contact
    with me.
    [PROSECUTOR]: And have you met with people accused
    of embezzlement and gone over records and things with
    people who are facing these type of charges?
    [DETECTIVE BRUSCINO]: Yes. Many times people will
    come in to discuss any allegations against them.
    [PROSECUTOR]: And do you consider that part of your
    job?
    - 17 -
    STATE V. BOOKER
    Opinion of the Court
    [DETECTIVE BRUSCINO]: Yes.
    Defendant contends that Detective Bruscino’s testimony on redirect
    examination violated her Fifth Amendment right against self-incrimination. The
    State argues, in response, that Defendant “opened the door” to such testimony. The
    legal concept of “[o]pening the door refers to the principle that where one party
    introduces evidence of a particular fact, the opposing party is entitled to introduce
    evidence in explanation or rebuttal thereof, even though the rebuttal evidence would
    be incompetent or irrelevant had it been offered initially.” State v. Ligon, 206 N.C.
    App. 458, 467, 
    697 S.E.2d 481
    , 487 (2010) (citation and quotation marks omitted).
    Thus, “the law wisely permits evidence not otherwise admissible to be offered to
    explain or rebut evidence elicited by the defendant himself.” 
    Id. at 466,
    697 S.E.2d
    at 487 (citation, quotation marks, and brackets omitted). The State asserts that
    Defendant opened the door to Detective Bruscino’s testimony by pursuing a line of
    inquiry on cross-examination centered around his attempts to contact Defendant both
    prior to and following her arrest.
    We agree with the State that Defendant opened the door for the prosecutor to
    ask Detective Bruscino about his attempts to contact her. However, we are not
    persuaded that Defendant similarly opened the door for testimony concerning the
    extent to which other defendants facing embezzlement charges had spoken to
    Detective Bruscino in the past. Nevertheless, even assuming arguendo that this
    - 18 -
    STATE V. BOOKER
    Opinion of the Court
    portion of Detective Bruscino’s testimony was improper, because Defendant failed to
    object to this exchange at trial she is once again limited to plain error review on
    appeal.   See State v. Wagner, __ N.C. App. __, __, 
    790 S.E.2d 575
    , 580 (2016)
    (“Defendant did not object to this testimony at trial. Therefore, our review is limited
    to plain error.” (citation omitted)), disc. review denied, 
    369 N.C. 483
    , 
    795 S.E.2d 221
    (2017).
    Based on our thorough review of the record, we fail to see how this portion of
    Detective Bruscino’s testimony could have had a probable impact on the jury’s verdict.
    Therefore, we hold that the trial court’s admission of the challenged testimony did
    not constitute plain error. See State v. Stancil, 
    355 N.C. 266
    , 267, 
    559 S.E.2d 788
    ,
    789 (2002) (“The overwhelming evidence against defendant leads us to conclude that
    the error committed did not cause the jury to reach a different verdict than it
    otherwise would have reached.”).
    Conclusion
    For the reasons stated above, we conclude that Defendant received a fair trial
    free from prejudicial error.
    NO PREJUDICIAL ERROR.
    Judges ELMORE and DILLON concur.
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