State v. Moore , 236 N.C. App. 642 ( 2014 )

NO. COA14-244
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Scotland County
No. 12 CRS 50906
SHAWN MOORE,
Defendant.
Appeal by defendant from judgment entered 31 October 2013
by Judge Richard Brown in Scotland County Superior Court. Heard
in the Court of Appeals 26 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Jill F. Cramer, for the State.
Parish & Cooke, by James R. Parish, for defendant-
appellant.
BRYANT, Judge.
Where the prior statement of a witness did not differ
significantly from the witness’ trial testimony, the trial court
did not abuse its discretion in admitting the statement for
corroborative purposes.
On 24 June 2013, defendant Shawn Moore was indicted by a
Scotland County grand jury for robbery with a dangerous weapon.
The matter came on for trial during the 28 October 2013 criminal
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session of Scotland County Superior Court, the Honorable Richard
Brown, Judge presiding. At trial, the State’s evidence tended
to show the following.
On 15 March 2012, Sergeant Jeffrey Cooke of the Scotland
County Sheriff’s Office responded to an emergency call. When
Sergeant Cooke arrived at the scene, he found Travis McLean
lying on the ground bleeding from a foot injury. McLean told
Sergeant Cooke that three men came to his house to look at some
electronic equipment. The men then grabbed McLean’s shotgun and
shot McLean in the foot before taking McLean’s cell phone and
fleeing in McLean’s car, a lavender-colored 1994 Cadillac
Fleetwood Brougham. McLean’s car was later found abandoned and
seriously damaged in Marlboro, South Carolina.
At trial, McLean testified that he knew one of the three
men who robbed him because his cousin once introduced the two
men. This man, defendant, was known to McLean as “Mook” or
“Mooky.” McLean stated that defendant and two other men, later
identified as Michael Liles and Ari Miles, came to McLean’s
house to buy a half pound of marijuana. McLean testified that
because he did not have enough marijuana to sell, he texted his
supplier “Scottie” to bring additional marijuana to his house.
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While the men waited for the marijuana, defendant noticed
McLean’s shotgun in the corner of the living room and asked if
he could buy it. After McLean declined to sell the shotgun,
defendant then asked if he could shoot it; McLean said yes.
After defendant fired the shotgun outside in the backyard,
defendant asked McLean to show him McLean’s car’s electronics.
McLean went to his car and turned it on to run the audio system.
After McLean turned on his car’s audio system, he stated
that he received a phone call and began to walk back towards his
house. McLean testified that as he walked back towards his
house, Ari Miles suddenly stepped in front of him, pointed the
shotgun at him, and demanded McLean give Miles his cell phone.
Miles then fired the shotgun towards McLean’s feet. McLean
threw his cell phone at Miles and began to run away but realized
that he had been shot in the left foot and ankle and was unable
to run. McLean testified that immediately after the shooting,
defendant got into McLean’s car and drove away. Liles and Miles
both left in Liles’ car. McLean stated that the shotgun damage
to his foot was so severe his Achilles tendon had to be removed.
The State also presented the testimony of Ari Miles at
trial. Miles was currently being held at the Scotland County
Correctional facility following his conviction for the armed
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robbery of McLean. Miles testified that he went with defendant
and Liles to McLean’s house to purchase marijuana and that while
McLean was trying to find more marijuana for them, defendant
told Miles he wanted to steal McLean’s car. Miles said
defendant threatened him by flashing a gun tucked into his
waistband and ordered Miles to use McLean’s shotgun for the
robbery. Miles testified that he did not want to hurt McLean
and that he thought he had only shot at the ground, rather than
hitting McLean’s left foot and ankle. Miles said that after the
robbery, he traded McLean’s cell phone to another person for a
different cell phone.
On 29 October 2013, defendant filed a motion in limine to
exclude/redact statements or exhibits. During the pre-trial
hearing, the trial court heard arguments from counsel regarding
two of the State’s exhibits: a statement made by Ari Miles on 28
March 2012; and a statement by Ari Miles made 9 October 2013.
The trial court denied defendant’s motion on grounds that the
two statements were not significantly different but noted that
if Miles testified at trial and his testimony changed
significantly from the prior statements, the trial court would
reconsider its decision.
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Ari Miles testified during trial as to his involvement with
defendant and the robbery of McLean. Defendant then objected
during the testimony of Investigator Laviner when Miles’ 28
March 2012 statement was read aloud to the jury. The trial
court, after reconsidering the arguments of counsel and the
statement in question, overruled defendant’s objection and
allowed the statement to be admitted for corroborative purposes.
The trial court also gave limiting instructions to the jury
regarding their consideration of Miles’ prior statement.
On 31 October, a jury convicted defendant of robbery with a
dangerous weapon. Defendant was found to be a prior record
level II and was sentenced to 59 to 83 months imprisonment.
Defendant appeals.
____________________________
In his sole issue on appeal, defendant argues that the
trial court erred in allowing Ari Miles’ 28 March 2012 statement
to be admitted for corroborative purposes, and that defendant
was prejudiced as a result. We disagree.
“The standard of review for this Court assessing
evidentiary rulings is abuse of discretion. A trial court may
be reversed for an abuse of discretion only upon a showing that
its ruling was so arbitrary that it could not have been the
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result of a reasoned decision.” State v. Cook, 193 N.C. App.
179, 181, 666 S.E.2d 795, 797 (2008) (citation and quotation
omitted). “The abuse of discretion standard applies to
decisions by a trial court that a statement is admissible for
corroboration.” State v. Tellez, 200 N.C. App. 517, 526, 684
S.E.2d 733, 739 (2009) (citations omitted).
Defendant contends the trial court erred in admitting
Miles’ 28 March 2012 statement into evidence because the
statement contained significant differences from Miles’ own
testimony during trial and these differences resulted in
prejudicial error entitling defendant to a new trial.
[C]orroborative testimony is testimony
which tends to strengthen, confirm, or make
more certain the testimony of another
witness. In order to be admissible as
corroborative evidence, a witness'[] prior
consistent statements merely must tend to
add weight or credibility to the witness's
testimony. Further, it is well established
that such corroborative evidence may contain
new or additional facts when it tends to
strengthen and add credibility to the
testimony which it corroborates. If the
previous statements are generally consistent
with the witness' testimony, slight
variations will not render the statements
inadmissible, but such variations . . .
affect [only] the credibility of the
statement. A trial court has wide latitude
in deciding when a prior consistent
statement can be admitted for corroborative,
non[-]hearsay purposes.
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Id. at 526—27, 684 S.E.2d at 740 (citations omitted). “The
trial court is [ultimately] in the best position to determine
whether the testimony of [one witness as to a prior statement of
another witness] corroborate[s] the testimony of [the latter].”
State v. Bell, 159 N.C. App. 151, 156, 584 S.E.2d 298, 302
(2003) (citation omitted). “Only if the prior statement
contradicts the trial testimony should the prior statement be
excluded.” Tellez, 200 N.C. App. at 527, 684 S.E.2d at 740
(citation omitted).
Ari Miles testified at trial that he went with Michael
Liles and defendant to McLean’s house to purchase marijuana.
Miles stated that defendant became interested in McLean’s
shotgun and that after discussing the marijuana purchase with
him and Liles, told Miles “he was going to give me the shotgun
for me to stick [McLean] up.” Miles said defendant then began
to ask McLean questions about McLean’s car, and McLean turned
the car and its audio system on. Miles stated that once McLean
began to walk away from the car, defendant signaled for Miles to
rob McLean. After Miles fired the shot gun at McLean, McLean
“threw his cell phone and ran” while defendant got into McLean’s
car. Miles stated that defendant threatened him by flashing a
gun tucked into defendant’s waistband before driving away.
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Miles further said that he gave the shotgun to Liles and fled in
Liles’ car, and traded McLean’s cell phone to another person for
a different type of cell phone.
During his testimony, Investigator Laviner read a statement
made by Ari Miles on 28 March 2012. In his statement, Miles
described his trip with Liles and defendant to McLean’s house to
purchase marijuana, defendant’s interest in McLean’s shotgun,
and defendant asking McLean to show him the audio system in
McLean’s car. Miles said in his statement that defendant said
he wanted to rob McLean and that if Miles did not shoot McLean,
defendant “would do [Miles.]” In his statement, Miles further
said that he shot at the ground and McLean threw his cell phone
at him in response; Miles then ran back to Liles’ car and left.
Defendant was described as taking the shotgun and driving the
car down to the sand hills.
Defendant’s contention that there were significant
differences between Miles’ testimony and prior statement is
without merit. In reviewing Miles’ testimony and prior
statement, the differences between the two are slight.
Moreover, both substantiate defendant’s participation in
McLean’s robbery, including defendant’s decision to rob McLean
for McLean’s car, defendant getting Miles to use the shotgun as
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part of the robbery by threatening Miles, and defendant leaving
the scene in McLean’s car. As such, the trial court did not
abuse its discretion in allowing Miles’ prior statement to be
admitted, as the differences between Miles’ testimony and prior
statement were slight and did not change Miles’ account of
McLean’s robbery. See State v. Lloyd, 354 N.C. 76, 104, 552
S.E.2d 596, 617 (2001) (“[P]rior consistent statements are
admissible even though they contain new or additional
information so long as the narration of events is substantially
similar to the witness' in-court testimony.” (citation
omitted)).
Defendant further contends the trial court erred in its
admission of Miles’ prior statement as corroborative evidence
based on our Supreme Court’s decisions in three cases: State v.
Frogge, 345 N.C. 614, 481 S.E.2d 278 (1997); State v. Warren,
289 N.C. 551, 223 S.E.2d 317 (1976); and State v. Fowler, 270
N.C. 468, 155 S.E.2d 83 (1967). However, these cases are not
applicable to the instant case.
In Frogge, Warren, and Fowler, the defendants were
convicted of first-degree murder. On appeal, the defendants
challenged the trial court’s admission of prior statements of
witnesses as corroborative evidence, arguing that the prior
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statements were so substantially different from testimony given
during the trial that the defendants were prejudiced as a
result. Our Supreme Court agreed, finding that in each case the
prior statements were contradictory to testimony given during
the trial and, because the evidence directly affected the first-
degree murder charges facing the defendants, the admission of
such evidence was indeed prejudicial. See Frogge, 345 N.C. at
616—18, 481 S.E.2d at 279—80 (ordering a new trial for the
defendant on grounds of prejudice caused by the improper
admission of corroborative evidence where “the inconsistencies
between [defendant’s] prior statement and his trial testimony
went to the heart of the prosecution's case for felony
murder[]”); Warren, 289 N.C. at 553—59, 223 S.E.2d at 319—22
(holding that corroborative evidence was prejudicial to the
defendant where the testimony “went beyond and contradicted”
other testimony that was essential to the defendant’s charged
offense of first-degree murder); Fowler, 270 N.C. at 469—72, 155
S.E.2d at 84—87 (ordering a new trial where the differences in
the corroborative testimony could account for the difference
between the defendant receiving life imprisonment and the death
penalty).
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Here, defendant was charged with the offense of robbery
with a dangerous weapon. As previously discussed, there were
only slight differences between Ari Miles’ testimony and his
prior statement. Further, Miles’ testimony and prior statement
were substantially consistent regarding defendant’s involvement
in McLean’s robbery including events leading up to, during, and
immediately after the robbery. Any “inconsistencies between
[Miles’] prior statement and his trial testimony [did not go] to
the heart of the prosecution's case for [robbery with a
dangerous weapon].” See Frogge, 345 N.C. at 616—18, 481 S.E.2d
at 279—80.
Defendant also argues that the trial court erred by
admitting as corroborative evidence Miles’ testimony and prior
statement because Miles’ prior statement “introduced a murderous
intent on the part of the defendant” and “this inadmissible and
highly prejudicial testimony resulted in prejudicial error
entitling the defendant to a new trial.” We disagree for, as
discussed above, the differences that existed between Miles’
testimony at trial and his prior consistent statement made
within days of the robbery were only slight and did not go to
the heart of defendant’s charged offense of robbery with a
dangerous weapon. Defendant is unable to demonstrate prejudice
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from the admission of Miles’ prior statement. See State v.
Gappins, 320 N.C. 64, 68, 357 S.E.2d 654, 657 (1987) (“The
burden is on the party who asserts that evidence was improperly
admitted to show both error and that he was prejudiced by its
admission. The admission of evidence which is technically
inadmissible will be treated as harmless unless prejudice is
shown such that a different result likely would have ensued had
the evidence been excluded.” (citations omitted)). We further
note that the evidence presented against defendant, particularly
the testimony of McLean, was overwhelming such that the
differences in Miles’ testimony and prior statement would not
affect the outcome of defendant’s trial. See State v. Moses, 52
N.C. App. 412, 421—24, 279 S.E.2d 59, 65—66 (1981) (holding that
the trial court did not abuse its discretion in admitting
evidence of corroborative statements where there were no
fundamental differences between the statements, nor did the
defendant receive an unfair trial where the defendant presented
no evidence and the State’s evidence against the defendant was
overwhelming). Accordingly, the trial court did not abuse its
discretion in admitting Miles’ prior statement for corroborative
purposes, where the statement tended to add weight and
credibility to Miles’ testimony at trial.
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No error.
Chief Judge McGEE and Judge STROUD concur.