                                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
                                       -2-
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.
                                       -3-
    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
                                           -4-
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.
                                      -5-
    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
                                       -6-
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.
                                      -7-
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.
                                      -8-
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
                                       -9-
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
                                                -10-
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).
                                          -11-
      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
                                            -12-
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.
                         -13-
No error.

Chief Judge McGEE and Judge STROUD concur.
