              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-1211

                                 Filed: 20 June 2017

Pitt County, No. 14 CRS 059021

STATE OF NORTH CAROLINA,

             v.

ROSHAWN THOMPSON, Defendant.


      Appeal by Roshawn Thompson from judgment entered 24 March 2016 by Judge

Marvin K. Blount, III in Pitt County Superior Court. Heard in the Court of Appeals

19 April 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Harriet F.
      Worley, for the State.

      The Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for defendant-
      appellant.


      MURPHY, Judge.


      Roshawn Thompson (“Defendant”) appeals from his conviction for robbery with

a dangerous weapon.      On appeal, he contends that the trial court erred by (1)

sustaining the State’s objection to Defendant’s use of an unauthenticated screenshot

during cross-examination of the victim; (2) permitting the State to introduce a picture

of Defendant making “the middle finger” gesture for illustrative purposes; (3) causing

cumulative prejudice from evidentiary rulings; (4) finding that the offense involved

criminal street gang activity pursuant to N.C.G.S. § 14-50.25 (2015); and (5) violating
                                 STATE V. THOMPSON

                                   Opinion of the Court



his rights under the Fifth and Sixth Amendments to the United States Constitution

by making the criminal street gang activity finding without a finding by the jury.

After careful review, we hold that the trial court did not abuse its discretion in

sustaining the State’s objection to Defendant’s use of an unauthenticated screenshot

during cross-examination of the victim, or in permitting the State to introduce a

picture of Defendant making “the middle finger” gesture for illustrative purposes.

Since the trial court did not err in its evidentiary rulings, issues (1) and (2) did not

create cumulative prejudice.     While we decline to reach the constitutionality of

N.C.G.S. § 14-50.25, we agree with Defendant that the trial court erred in finding

that the offense involved criminal street gang activity and we remand for

resentencing on the underlying felony without the criminal street gang activity

finding.

                                    Background

      On 7 November 2014, Mr. Kendall Rascoe, Jr. (“Rascoe”) traveled to Greenville

to go to a shopping mall and to see his cousin, LaToya. As he left the mall, he saw

his other cousin, Defendant, at a stop sign. Rascoe spoke with Defendant, who agreed

to drive him to his brother’s house. After Rascoe got in the car, Defendant received a

phone call, after which Defendant told Rascoe he needed to pick up Andre Grey

(“Grey”). Rascoe rode with Defendant to pick up Grey. Defendant then drove to a

dead end, and Grey pulled a gun on Rascoe, directing him to “give everything up.”



                                          -2-
                                STATE V. THOMPSON

                                 Opinion of the Court



Defendant instructed Rascoe “to give everything up or he was going to [be shot.]”

Defendant reached into Rascoe’s pockets and removed Rascoe’s money, identification,

cell phone, and global cash card with Grey’s gun still pressed against Rascoe’s neck.

Defendant and Grey got out of the car and opened Rascoe’s passenger door. Rascoe

got out and Grey pulled Rascoe’s coat hood over his head and put the gun to his

forehead. Defendant punched Rascoe in the face and left with Grey. Rascoe called

law enforcement from a nearby home.         Rascoe met with Detective Gillen and

identified Defendant and Grey through Defendant’s Facebook page. Subsequently,

Defendant was charged with robbery with a dangerous weapon.

        Defendant was convicted of robbery with a dangerous weapon.          During

sentencing, the State requested “gang restrictions” and Defendant’s Judgment

reflects a finding that the “offense(s) involved criminal street gang activity.”

Defendant gave oral notice of appeal.

                                        Analysis

   I.      Unauthenticated Screenshot of a Facebook Message

        At trial, during Rascoe’s cross-examination, Defendant’s counsel elicited

testimony that Rascoe had spoken on Facebook with Defendant on the offense date,

7 November 2014. Defendant’s counsel then asked Rascoe if he went to Greenville

that day to buy marijuana and whether he contacted Defendant to buy marijuana.

Rascoe replied no to both questions. Defendant’s counsel then asked to approach the



                                          -3-
                                 STATE V. THOMPSON

                                  Opinion of the Court



judge outside the jury’s presence. Outside the jury’s presence, Defendant’s counsel

described a screenshot of what he alleged was a Facebook message between

Defendant and Rascoe the day of the incident in question. Defendant explained that

he did not seek to admit the document, he only wanted to use it to “hit [Rascoe’s]

incredibility, impeach his testimony and ask him some questions.” The State had not

received this screenshot pursuant to reciprocal discovery. The State expressed that

it seriously doubted the screenshot was admissible, but that the trial court would see

if it was if the Defendant put it on as evidence. Until then, Defendant’s counsel could

ask Rascoe questions, but was stuck with the answers. Judge Blount instructed that

Defendant’s counsel could not hold the screenshot in his hand. Judge Blount made it

clear that Defendant could continue to ask questions, which his counsel did.

      Defendant argues that the trial court abused its discretion by sustaining the

State’s objection to the introduction of an unauthenticated screenshot to impeach

Rascoe’s credibility. We disagree.

      The scope of cross-examination is within the discretion of the trial judge. State

v. Forte, 360 N.C. 427, 442, 629 S.E.2d 137, 147 (2006). A trial judge abuses his

discretion when a ruling “is manifestly unsupported by reason or is so arbitrary that

it could not have been the result of a reasoned decision.” State v. Whaley, 362 N.C.

156, 160, 655 S.E.2d 388, 390 (2008) (quoting State v. Peterson, 361 N.C. 587, 602-03,

652 S.E.2d 216, 227 (2007)). In reviewing whether a trial judge abused his discretion,



                                         -4-
                                  STATE V. THOMPSON

                                   Opinion of the Court



“we consider not whether we might disagree with the trial court, but whether the

trial court’s actions are fairly supported by the record.” Id. at 160, 655 S.E.2d at 390.

      “[A] witness’s character or propensity for telling the truth is subject to

impeachment through cross-examination about prior inconsistent statements[.]”

State v. Mitchell, 169 N.C. App. 417, 420, 610 S.E.2d 260, 263 (2005). “Whether a

foundation must be laid before a prior inconsistent statement may be shown depends

on whether the prior inconsistency relates to a matter pertinent and material to the

pending inquiry, or is merely collateral.” State v. Mack, 282 N.C. 334, 340, 193 S.E.2d

71, 75 (1972) (emphasis and citations omitted). For material matters, “statement[s]

may be shown by other witnesses without the necessity of first laying a foundation

therefor by cross-examination.” Id. at 334, 194 S.E.2d at 75. When the impeachment

about prior inconsistent statements involves only a collateral matter, the witness’

answers are conclusive and extrinsic evidence may not be presented to contradict the

witness. Mitchell, 169 N.C. App. at 420, 610 S.E.2d at 263. “The proper test for

determining what is material and what is collateral is whether the evidence offered

in contradiction would be admissible if tendered for some purpose other than mere

contradiction; or in the case of prior inconsistent statements, whether evidence of the

facts stated would be so admissible.” State v. Long, 280 N.C. 633, 640, 187 S.E.2d 47,

51 (1972).




                                          -5-
                                 STATE V. THOMPSON

                                  Opinion of the Court



      Defendant never sought to admit the screenshot. He only wanted to “hit

[Rascoe’s] incredibility, impeach his testimony and ask him some questions.” This

was permissible, as Rascoe’s character or propensity for telling the truth was subject

to impeachment about prior inconsistent statements. See Mitchell, 169 N.C. App. at

420, 610 S.E.2d at 263 (explaining that cross-examination of a witness may include

questions about prior inconsistent statements for impeachment purposes). While

Defendant could ask about the screenshot, he could not impeach Rascoe’s credibility

with extrinsic evidence to prove the contents of the screenshot where no foundation

had been laid and the materiality of the posts had not been demonstrated by

Defendant.   Although this matter may have affected the jury’s view of Rascoe’s

credibility, Defendant did not demonstrate its admissibility as to the issue of whether

Defendant and Grey robbed the victim at gunpoint. As the record demonstrates this

matter could be deemed collateral, and Defendant did not argue otherwise, the trial

court did not abuse its discretion in requiring Defendant to lay a foundation before

using the unauthenticated screenshot as a prop while cross-examining Rascoe.

      Nonetheless, Defendant had the opportunity to ask Rascoe whatever questions

he wanted to about the information the screenshot contained. Defendant’s argument

that he was unable to conduct voir dire to establish authenticity or purpose of the

document is misplaced. Defendant never requested to make an offer of proof or




                                         -6-
                                  STATE V. THOMPSON

                                   Opinion of the Court



attempted to otherwise introduce the screenshot. The trial court’s actions are fairly

supported by the record, and no abuse of discretion took place.

   II.      Illustrative Picture of Defendant and Grey

         Subsequent to Rascoe’s testimony, the State called Detective Brian Gillen who

had investigated the incident in question. During the direct examination of the

detective, he described how Rascoe showed him a picture of Defendant and Grey on

Defendant’s Facebook page for identity purposes. Detective Gillen described using a

snipping tool and printing the exact picture that Rascoe had shown him for identity

purposes.     The State moved to enter the exhibit into evidence for illustrative

purposes, and, although Defendant objected as to the picture’s authentication, his

objection was overruled, and the picture was admitted.

         Defendant argues that the trial court committed plain error by allowing the

State to introduce a picture of Defendant and Grey, wherein Defendant’s middle

fingers are extended, for illustrative purposes because it was not relevant to the trial

and had a prejudicial effect. We disagree.

         “[T]he plain error standard of review applies on appeal to unpreserved

instructional or evidentiary error.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d

326, 334 (2012). Plain error exists when: (1) there is an error; (2) that is plain; (3)

that affects a substantial right; (4) that must seriously affect the fairness, integrity

or public reputation of judicial proceedings. Id., at 515-16, 723 S.E.2d at 332-33.



                                          -7-
                                 STATE V. THOMPSON

                                   Opinion of the Court



“[P]lain error review should be used sparingly, only in exceptional circumstances, to

reverse criminal convictions on the basis of unpreserved error[.]” Id. at 517, 723

S.E.2d at 333.     Relevant evidence – evidence having any tendency to make the

existence of any fact of consequence to the determination of the action more or less

probable – is admissible unless disallowed by federal or state law. N.C.G.S. § 8C-1,

Rule 401-02 (2015). The trial judge has the discretion to exclude relevant evidence

when “its probative value is substantially outweighed by the danger of unfair

prejudice[.]” N.C.G.S. § 8C-1, Rule 403 (2015). Photographs that are material and

relevant to illustrate a witness’ identification of a defendant are admissible for

illustrative purposes. N.C.G.S. § 8-97 (2015); State v. Brady, 299 N.C. 547, 558, 264

S.E.2d 66, 72 (1980). Such photographs may be authenticated by the testimony of a

witness with knowledge “that a matter is what it claimed to be.” N.C.G.S. § 8C-1,

Rule 901 (2015).

      Here, the trial court properly admitted the photograph pursuant to N.C.G.S. §

8-97 to illustrate Detective Gillen’s testimony that Rascoe used the photograph to

identify Defendant and Grey. Before the trial court admitted the photograph for this

purpose, Detective Gillen testified as to how Rascoe located the photograph and used

it to identify Defendant and Grey, authenticating the photograph pursuant to Rule

901(b)(1) of the North Carolina Rules of Evidence.        Thereafter, the trial judge

properly instructed the jury that it was only to consider the photograph for its limited



                                          -8-
                                   STATE V. THOMPSON

                                    Opinion of the Court



purpose: illustrating and explaining Detective Gillen’s testimony. The photograph

was relevant to the victim’s identification of Defendant, and it was not unduly

prejudicial. Therefore, the admission of the photograph was proper. While Defendant

correctly notes that we have not considered the “prejudice involved with photographs

depicting a suspect making the gesture known as ‘the middle finger’,” we do not

conclude, given the evidence in this case, that such a picture, admitted for illustrative

purposes, had a probable impact on the jury’s verdict. See Lawrence, 365 N.C. at 518,

723 S.E.2d at 334 (articulating the plain error standard of review). Therefore, we

conclude that the trial court committed no error, much less plain error, in admitting

the photograph for illustrative purposes.

   III.     Cumulative Error

         Defendant avers that the trial court deprived Defendant of his due process

right to a trial free from prejudicial error by limiting Defendant’s cross-examination

of Rascoe and admitting the illustrative picture of Defendant and Grey. We disagree.

As explained above, the trial court did not err in the rulings Defendant raises as

issues on appeal. Therefore, Defendant’s argument has no merit.

   IV.      Criminal Street Gang Activity Finding

         During sentencing, the State requested “gang restrictions” as follows:

               [State]: The Defendant . . . has been validated by the
               Division of Adult Corrections as being a Blood gang
               member, so we would ask for gang restrictions. Mr. Grey,
               the co-defendant in this case . . . [is] also a Blood gang


                                           -9-
                                  STATE V. THOMPSON

                                   Opinion of the Court



              member, so that’s definitely gang affiliation that played a
              part in this, your Honor. We would ask that you sentence
              accordingly.

              [Court]: All right, Madam Clerk, judgment in file number
              14 CRS 59021. Stand up, sir. The Defendant having been
              found guilty of robbery with a dangerous weapon, it’s a
              Class D felony. The Court determines prior record points
              to be 4, prior record level II. The sentence is in the
              presumptive range. The Court orders that the Defendant
              be in prison for a term of 65 to 90 months in the custody of
              the North Carolina Department of Corrections. The
              Defendant be given credit for any time spent in
              confinement prior to the date of this judgment. The Court
              upon the finding of gang affiliation orders gang restrictions
              . . . [.]

(Emphasis added). The Judgment includes a finding that the “offense(s) involved

criminal street gang activity.”

       Defendant argues that the trial court erred by finding that the offense

committed by Defendant involved criminal street gang activity pursuant to Section

14-50.25 of the North Carolina General Statutes. The record contains no evidence

that supports the conclusion that Defendant’s crime involved criminal street gang

activity. The State agrees; however, it argues that the finding did not amount to error

or plain error because the finding was a clerical error. We agree with Defendant that

this was a judicial error and not a clerical error, and therefore we cannot remand the

case as clerical error.

       “A clerical error is an error resulting from a minor mistake or inadvertence,

especially in writing or copying something on the record, and not from judicial


                                          - 10 -
                                 STATE V. THOMPSON

                                   Opinion of the Court



reasoning or determination” and “include[s] mistakes such as inadvertent checking

of boxes on forms or minor discrepancies between oral rulings and written orders.”

In re D.D.J., 177 N.C. App. 441, 444, 628 S.E.2d 808, 811 (2006) (internal quotation

and citations omitted). Trial court judges have the authority to correct “[c]lerical

mistakes in judgments, orders or other parts of the record and errors therein arising

from oversight or omission[.]” N.C.G.S. § 1A-1, Rule (60)(a) (2015). However, trial

courts do not have the power “to affect the substantive rights of the parties or correct

substantive errors in their decisions.” Hinson v. Hinson, 78 N.C. App. 613, 615, 337

S.E.2d 663, 664 (1985).

      A clerical error did not occur here. The trial judge announced in open court

that the court ordered gang restrictions “upon the finding of gang affiliation.” He

made this determination immediately after the State remarked that Defendant’s

alleged gang affiliation “played a part in this.” Following the State’s assertion and

the trial judge’s order, the Judgment reflected the judicial determination that gang

activity played a part in the crime through a criminal street gang activity finding

pursuant to N.C.G.S. § 14-50.25. As the error resulted from a judicial determination,

the case cannot be remanded as a clerical error.

      Accordingly, we address the trial court’s error. Even though Defendant did not

object to this error at sentencing, we may review this error as preserved because “[a]n

error at sentencing is not considered an error at trial for the purpose of [North



                                          - 11 -
                                 STATE V. THOMPSON

                                  Opinion of the Court



Carolina Rule of Appellate Procedure] 10(b)(1)[.]” State v. Curmon, 171 N.C. App.

697, 703, 615 S.E.2d 417, 422 (2005).

      N.C.G.S. § 14-50.25 provides that when a defendant is found guilty of a

criminal offense relevant to the statute “the presiding judge shall determine whether

the offense involved criminal street gang activity.”           If the judge makes this

determination, then he “shall indicate on the form reflecting the judgment that the

offense involved criminal street gang activity.”         N.C.G.S. § 14-50.25.   We have

previously held that “making a finding of criminal street gang activity [is] a

‘substantive change’ in [a judgment.]” State v. Dubose, 208 N.C. App. 406, 413, 702

S.E.2d 330, 335 (2010).

      Determinations assigned to the trial judge are generally reviewed for abuse of

discretion. See, e.g., State v. McGrady, 368 N.C. 880, 893, 787 S.E.2d 1, 11 (2016)

(reviewing a trial judge’s determination as to whether the proffered expert testimony

qualified under North Carolina Rule of Evidence 702(a)); State v. Ford, ___ N.C. App.

___, ___, 782 S.E.2d 98, 103 (2016) (reviewing a trial judge’s determination as to

North Carolina Rule of Evidence 403); State v. Smith, 241 N.C. App. 619, ___, 773

S.E.2d 114, 118-19, review denied, 368 N.C. 355, 776 S.E.2d 857 (2015) (reviewing a

trial court judge’s decision to permit a withdrawal of counsel).

      The statute assigns the trial judge the task of determining whether the offense

involved criminal street gang activity. The trial judge here determined that the



                                         - 12 -
                                        STATE V. THOMPSON

                                         Opinion of the Court



offense involved criminal street gang activity even though there was no evidence

presented at trial supporting the trial judge’s decision. Therefore, because the trial

judge based this determination on no evidence, he abused his discretion by making

the criminal street gang activity finding. See State v. Riddick, 315 N.C. 749, 756, 340

S.E.2d 55, 59 (1986) (“A trial court may be reversed for abuse of discretion only upon

a showing that its ruling was manifestly unsupported by reason and could not have

been the result of a reasoned decision.”) Thus, we remand for a new sentencing

hearing to be conducted without the finding that the offense involved criminal street

gang activity.

        Defendant requests that we apply Rule 2 to invalidate N.C.G.S. § 14-50.25 on

constitutional grounds.1 However, it is well-established that our Court will not decide

a constitutional question when a case may be disposed on other grounds. Dubose, 208

N.C. App. at 413, 702 S.E.2d at 335. Thus, we decline to reach this issue, reserving

the review of N.C.G.S. § 14-50.25’s constitutionality for a later decision.

                                              Conclusion

        Finding no error as to the exclusion of an unauthenticated Facebook screenshot

and no plain error in admitting a picture used during the identification of Defendant,



        1  Defendant argues that N.C.G.S. § 14-50.25 is unconstitutional on its face and as applied to
Defendant because it requires a judge to make factual findings that enhance the penalty for a crime
in violation of the Fifth and Sixth Amendments to the United States Constitution, citing Apprendi v.
New Jersey, 530 U.S. 466, 476, 147 L. Ed. 2d 435 (2000) in support of his argument. The State declined
to brief this issue, claiming that the constitutionality of this statute does not need to be addressed in
this appeal because the error was clerical. However, as discussed above, this error was clearly judicial.

                                                 - 13 -
                                STATE V. THOMPSON

                                 Opinion of the Court



we do not find any cumulative error requiring a new trial. Having resolved the

evidentiary judicial error as to criminal street gang activity, we need not reach the

constitutionality of the statute. For the reasons stated above, the judgment of the

trial court is affirmed in part; and remanded for a new sentencing hearing consistent

with this opinion.

      NO ERROR IN PART; VACATED AND REMANDED IN PART FOR A NEW

SENTENCING HEARING.

      Judges CALABRIA and DIETZ concur.




                                        - 14 -
