An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                  NO. COA13-360
                         NORTH CAROLINA COURT OF APPEALS

                             Filed: 4 February 2014


STATE OF NORTH CAROLINA

      v.                                       Wake County
                                               No. 11 CRS 214093
FLOYD JAMAR JOHNSON,
          Defendant.


      Appeal by defendant from judgment entered 16 May 2012 by

Judge    Michael    J.   O'Foghludha     in    Wake    County   Superior    Court.

Heard in the Court of Appeals 23 September 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Thomas D. Henry, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Jon H. Hunt, for defendant-appellant.


      GEER, Judge.


      Defendant Floyd Jamar Johnson appeals from his conviction

of assault with a deadly weapon with the intent to kill, first

degree     burglary,      misdemeanor     child       abuse,    and   misdemeanor

assault    by   pointing     a   gun.     On   appeal,    defendant     primarily

argues that the trial court committed plain error by admitting

testimony recounting unsworn statements of a witness taken on
                                         -2-
the night of the           alleged crime       when, defendant asserts, the

statements did not corroborate the witness' in-court testimony.

Although the unsworn statement differed slightly from the in-

court testimony of the witness, both accounts were substantially

the same, and the unsworn statement tended to add weight and

credibility to the witness' account.                 The testimony regarding

the unsworn statement was, therefore, admissible corroborative

evidence.

                                     Facts

    The State's evidence tended to show the following facts.

Defendant was married to Saroya Johnson with whom he had two

children.       In February 2011, their marriage was experiencing

difficulties, and Ms. Johnson moved out of the marital home.

She began a relationship with Floyd Farrow, her co-worker.

    In       March    2011,   defendant        learned    of   the   relationship

between Ms. Johnson and Mr. Farrow.               One evening in April 2011,

defendant waited outside Ms. Johnson's home and upon seeing Ms.

Johnson return to the house with Mr. Farrow, charged Mr. Farrow

and took swings at him.           Mr. Farrow responded by rushing to his

truck   to    get    his   gun.    The   situation       de-escalated   when   Mr.

Farrow realized who defendant was and asked defendant to talk

"man to man."        Defendant agreed and asked Mr. Farrow to put away

his gun, which he did.            Mr. Farrow offered to "back off" from
                                     -3-
Ms. Johnson if defendant wanted to make their relationship work,

but defendant replied "Nah, nah, she's yours."                 The two men

shook hands before defendant left.           Between April and June 2011,

defendant had no further contact with Mr. Farrow.

    On the night of 20 June 2011, defendant was driving back to

Raleigh from Elizabeth City with his nine-year-old son.                  Over

the weekend, defendant had called Ms. Johnson several times, and

the final call had ended abruptly when Ms. Johnson's phone went

dead.    Ms. Johnson was staying at Mr. Farrow's apartment that

night.   Around   12:15   a.m.,   defendant     knocked   on   Mr.   Farrow's

apartment   door,   and   Mr.     Farrow's    roommate,   Kenneth     Hamlin,

answered.    Defendant asked if Mr. Farrow was at home.                   Mr.

Hamlin was unsure, so he knocked on Mr. Farrow's bedroom door.

When he did not get a response, he told defendant that Mr.

Farrow was not home.      Defendant asked, "So that's not his truck

outside?"   Mr. Hamlin replied, "I guess so, man, but nobody came

to his door so nobody's there."            When defendant asked whether

his wife was inside, Mr. Hamlin replied that he did not know.

Sensing that defendant was upset, Mr. Hamlin then tried to close

the door.    However, defendant blocked the door and entered the

apartment with his gun pointed at Mr. Hamlin, saying, "Where the

fuck are they?"
                                         -4-
       Meanwhile, Mr. Farrow and Ms. Johnson had heard the knock

at the door from inside the bedroom.                     Ms. Johnson recognized

defendant's voice and told Mr. Farrow "[t]hat's Jamar."                         Mr.

Farrow called 911 and grabbed his gun because he "knew nothing

good   was    going    to    happen."      Ms.    Johnson    retreated     to   the

bathroom.

       Mr. Farrow then opened his bedroom door to peek out and

found defendant standing in front of the bedroom.                   He attempted

to shut the door on defendant who started pushing on the door

from the hallway, trying to gain entry into the bedroom.                        Mr.

Farrow saw defendant's arm come around the door and saw that

defendant had a gun.           Mr. Farrow dropped to the ground, aimed

his    gun   at    defendant,    and     fired    five    shots    at   defendant,

thinking "[i]t's either him or me."

       Defendant was hit in the neck and chest.               He fired one shot

from his gun, but it did not strike Mr. Farrow.                     Police found

five 40 caliber shells and one 45 caliber shell at the scene.

After the shots were fired and defendant lay incapacitated on

the floor, Mr. Farrow took control of both guns, released the

magazine from his gun, unloaded defendant's gun, placed them

both   on    the   kitchen    counter,    and    redialed    the   police.      Ms.

Johnson      heard    her    nine-year-old       son   screaming    outside     the

apartment and ran to comfort him.
                                       -5-
       On 12 September 2011, defendant was indicted for assault

with a deadly weapon with intent to kill, first degree burglary,

misdemeanor child abuse, and misdemeanor assault by pointing a

gun.      The   jury   found   defendant      guilty   of   all    the   indicted

offenses.       The    trial   court    consolidated        the   offenses   for

sentencing and sentenced defendant to one presumptive-range term

of 60 to 81 months imprisonment.                Defendant filed a written

notice of appeal and a petition for writ of certiorari.

                                 Discussion

       We first address this Court's jurisdiction to hear this

appeal.     Defendant filed a written pro se notice of appeal on 31

May 2012, 15 days after judgment was entered.                     The notice of

appeal was filed one day late.               See N.C.R. App. P. 4(a), (b).

Our Supreme Court has held that a jurisdictional default, such

as a failure to comply with Rule 4 of the Rules of Appellate

Procedure, "precludes the appellate court from acting in any

manner other than to dismiss the appeal."              Dogwood Dev. & Mgmt.

Co. v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361,

365 (2008).      Because defendant's notice of appeal was untimely,

we must dismiss his appeal.            Defendant has, however, filed a

petition for writ of certiorari pursuant to Rule 21(a)(1) of the
                                       -6-
Rules of Appellate Procedure.               We exercise our discretion to

allow the petition and address the merits of this appeal.1

                                        I

     Defendant   first       argues    that    the    trial    court   erred     by

admitting testimony regarding prior unsworn statements of Ms.

Johnson to the police on the night of the incident when those

statements did not corroborate Ms. Johnson's testimony at trial.

Because   defendant    did    not     object   to    the   admission    of     this

evidence at trial, we review for plain error.                 Our Supreme Court

has explained:

           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 affect[s] 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 and quotation marks omitted).

     "A witness's prior consistent statements may be admitted to

corroborate   the     witness's       courtroom      testimony."       State     v.

     1
      We note that the State has not responded to defendant's
petition and did not move to dismiss the appeal.
                                              -7-
Harrison, 328 N.C. 678, 681, 403 S.E.2d 301, 303 (1991).                               An

out-of-court statement will not be admitted, however, if it is

inconsistent      with    or    contradicts          the   declarant's       substantive

testimony at trial.             State v. Stills, 310 N.C. 410, 416, 312

S.E.2d 443, 447 (1984).                Moreover, if the statement "'contains

additional evidence going beyond [the declarant's] testimony,

the State is not entitled to introduce the "new" evidence under

a claim of corroboration . . . .'"                     State v. Warren, 289 N.C.

551, 557, 223 S.E.2d 317, 321 (1976) (quoting State v. Brooks,

260 N.C. 186, 189, 132 S.E.2d 354, 356 (1963)).

      On    the     other       hand,     "if        the    testimony      offered     in

corroboration       is     generally          consistent        with   the    witness's

testimony, slight variations will not render it inadmissible."

Id.      Where the testimony is substantially similar, "[slight]

variations affect only the credibility of the evidence which is

always     for    the    jury."         Id.         Moreover,     "[n]ew     information

contained within the witness' prior statement, but not referred

to in his trial testimony, may also be admitted as corroborative

evidence    if    it    tends     to    add    weight      or   credibility     to   that

testimony."       State v. Garcell, 363 N.C. 10, 40, 678 S.E.2d 618,

637 (2009) (quoting State v. Davis, 349 N.C. 1, 28, 506 S.E.2d

455, 469-70 (1998)).

      At trial, Ms. Johnson testified to the following:
                         -8-
     Q.   When   you   looked          out    of      the
bathroom, what did you see?

     A.   I   just     seen    him   coming    in    the
door.

     Q.   When   you     say    him,   who    are     you
talking about?

     A.   The defendant, Floyd.

     Q.    You saw him come in the door? Of
what door?

     A.   Orlando's bedroom door.

     Q.   You saw him come into the bedroom
door?

     A.   Uh-huh.

     Q.   Did    you    see     anything     prior     to
that?

     A.   No.

     Q.   And what was the next thing that
you -- did you see whether or not the
defendant had anything in his hands?

     A.   I did see him, like, with a gun in
his hand.

     Q.   I can't hear you.

     A.   I seen him with a gun in the hand
when the door opened and he came in.

     Q.   You saw him with a gun in his hand
and the door open?

     A.   Uh-huh.

     Q.   What   were     you    thinking     at     that
point?
                                    -9-
                A.   I wasn't.            Like,     I    just       went
           blank. I just --

                Q.   What's the next          thing that            you
           recall after seeing him            come into             the
           bedroom with a gun?

                 A.    I just seen fire.

                Q.     When   you   say   fire,     what       do   you
           mean?

                 A.    Just seen, I guess, gunshots.

    Later, to corroborate Ms. Johnson's testimony, Detective

Doug Bacon testified as follows:

                Q.   And did [Ms. Johnson]                   tell    you
           what she saw from the bathroom?

                A.   She stated that she was standing
           at the -- in the bathroom, and when she saw
           her husband pushing on the door, which he
           finally got open, she stated that her
           husband entered the room with a gun in his
           hand.

                Q.   And what did she tell you that she
           saw next?

                A.   Ms. Johnson stated that she saw
           her husband fire the gun in the bedroom, and
           then she heard her son screaming, at which
           time she took off running out of the bedroom
           and ran out into the parking lot looking for
           him.

    Defendant argues that the detective's testimony that Ms.

Johnson   "saw   her   husband   fire   the   gun       in   the    bedroom"   adds

additional information to her trial testimony that she merely

saw "fire" or "gunshots" when her husband entered the bedroom
                                        -10-
with his gun, and was, therefore, inadmissible to corroborate

her   testimony.      However,     "a    statement      that   merely   contains

additional facts is not automatically barred."                    Harrison, 328

N.C. at 682, 403 S.E.2d at 304.                 The dispositive question is

whether the testimony is sufficiently similar such that it tends

to strengthen and add credibility to the witness' testimony.

Id. at 682-83, 403 S.E.2d at 304.

      This test was applied in State v. Rogers, 299 N.C. 597, 264

S.E.2d 89 (1980), which we find analogous to this case.                        In

Rogers,   a   passenger     in   the    defendant's     vehicle   testified   at

trial that he saw the defendant pull the victim out of the car

and onto the bridge, heard someone say, "'Man, . . . don't throw

that boy in that cold-ass water'" and then heard a splash.                    Id.

at 600, 264 S.E.2d at 91-92.            The detective then testified that

the witness had told him the defendant threw the victim over the

bridge.     Id., 264 S.E.2d at 92.             Our Supreme Court noted that

although the witness never testified that he actually saw the

defendant     throw   the    victim      over     the   bridge,     "the   clear

implication of [the witness'] testimony is that defendant did

precisely that act."         Id. at 601, 264 S.E.2d at 92.              Further,

the fact that the witness "did not mention one act which was

clearly a component of a series of interrelated acts does not in

any way serve to abridge the probative force of the rest of his
                                      -11-
testimony."       Id.      The   Court    concluded    that      the   detective's

testimony was admissible as corroborative evidence because of

the substantial similarity of the testimony.               Id.

    Here,       as   in    Rogers,       the    detective's       testimony     was

substantially similar to Ms. Johnson's.                The prosecutor's line

of questioning focused on what Ms. Johnson had observed with

respect to her husband.          There were no questions about and no

mention of Mr. Farrow at this point in the testimony.                           Ms.

Johnson testified, with respect to her husband, that she saw him

enter the room with his gun, and the next thing she saw was

"fire"   or    "gunshots."       A   reasonable    juror    could,      given   the

context, infer that Ms. Johnson meant that she saw "fire" or

"gunshots" from defendant's gun.

    Any       additional    precision      in    the   detective's      testimony

regarding Ms. Johnson's out-of-court statement was no different

than the added detail in Rogers.                It amounted to nothing more

than what a reasonable juror would have been able to infer from

the witness' testimony alone, and, by the same token, tended to

add weight and credibility to her testimony.                      We, therefore,

hold that it was admissible corroborative evidence.                      See also

State v. Lloyd, 354 N.C. 76, 104, 552 S.E.2d 596, 617 (2001)

(holding detective's testimony that witness told him "'Willie

shot my mama'" was "an admissible shorthand statement of fact"
                                        -12-
corroborating witness' testimony that he "heard defendant and

the victim arguing, heard shots, saw the victim bleeding and

lying on the porch, and saw defendant fleeing the crime scene").

     Even if it were error to admit the statement, it was not

prejudicial.         Defendant argues that this evidence had a probable

impact on the jury's finding of guilt because it was a closely

contested      case    and    the   out-of-court     statement       was    the    only

testimony that a witness saw or heard defendant fire his gun.

Defendant contends that the out-of-court statement undercut his

claims that he fired only after Mr. Farrow began shooting and

that he did not intentionally fire his weapon.

     However, it was undisputed at trial that defendant in fact

fired    his    gun   once,    although   Mr.    Farrow      fired    his    gun   five

times.     Ms. Johnson's out-of-court statement only arguably added

that she saw him fire the gun, a fact immaterial to defendant's

defense.        It    indicated     neither    who   fired    first    nor    whether

defendant intentionally squeezed the trigger.                  Indeed, Detective

Bacon expressly noted the lack of witnesses regarding who fired

first:

                    Q.   Detective, you were asked as far
               as whether Orlando Farrow knew who fired
               first. Does anybody know who fired first?

                    A.  I don't think so. From everything
               I know of, Ms. Johnson doesn't.   She says
               that she knows that her husband did fire.
               It's obvious that Mr. Farrow did fire as
                                               -13-
            well because Mr. Johnson got struck.

       Further, the jury was instructed to use Detective Bacon's

testimony only to assess the credibility of Ms. Johnson, and

Detective Bacon explained at trial that he was testifying based

on his report of the incident and that he was not repeating Ms.

Johnson's words exactly.                 "My report is basically a paraphrased

statement of what the individual had told me.                              I can't recall

exactly     the    specifics         and       therefore     do     not    want   to     give

untruthful testimony in court so therefore I utilize my notes

that   --   directly      what       I    wrote,      not    what    somebody     else   has

written."

       Because     (1)        the    jury       knew    that        the    statement      was

paraphrased       by   the     detective,        (2)    it    did    not   undermine      the

defense's theory of how the events occurred, and (3) the jury

was    instructed        to    use       the     evidence      only       to   assess     the

credibility of Ms. Johnson, we hold that the testimony did not

have a probable impact on the jury's finding of guilt.

                                                II

       Defendant next argues that the trial court committed plain

error in its instruction on the first element of first degree

burglary, which required the jury to find beyond a reasonable

doubt:

                 First, that the defendant broke and
            entered a dwelling house. A breaking need
                                           -14-
            not be actual, that is, the defendant need
            not physically remove a barrier.           The
            defendant may, by a threat of force, inspire
            such fear as to induce the occupant to allow
            entry.    In this situation, the defendant
            would have constructively broke, and such
            constructive   breaking   is   a   sufficient
            breaking for the purposes of this offense.

Defendant does not contend that this is an incorrect statement

of the law.           Rather, he argues that this jury instruction was

improper    because       it     amounted    to   both   (1)    an    impermissible

opinion by the trial court and (2) a peremptory instruction that

an element of the offense had been proven beyond a reasonable

doubt.

       "In instructing the jury, the judge shall not express an

opinion as to whether or not a fact has been proved . . . ."

N.C.     Gen.    Stat.    §    15A-1232      (2013).     This       prohibition   is

mandatory.       State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97

(1989).     Our courts review the totality of the circumstances to

determine       whether    the     judge    expressed    an    improper    opinion.

State v. Foye, ___ N.C. App. ___, ___, 725 S.E.2d 73, 81 (2012).

"'Whether       the    judge's    language    amounts    to    an    expression   of

opinion is determined by its probable meaning to the jury, not

by the judge's motive.'"            Id. at ___, 725 S.E.2d at 81 (quoting

State v. McEachern, 283 N.C. 57, 59–60, 194 S.E.2d 787, 789

(1973)).
                                         -15-
      Defendant    contends    that      instructing      the    jury   that    "[i]n

this situation, the defendant would have constructively broke"

specifically     referred     to    defendant      and    expressed      the    trial

court's opinion that defendant in fact constructively broke into

the apartment.      However, "a charge must be construed as a whole,

and   isolated    portions    of    a    charge    will    not   be     held    to   be

prejudicial where the charge as a whole is correct and free from

objection."      State v. Slade, 291 N.C. 275, 283, 229 S.E.2d 921,

926 (1976).       "'It is not sufficient to show that a critical

examination of the judge's words, detached from the context and

the incidents of the trial, are capable of an interpretation

from which an expression of opinion may be inferred.'"                               Id.

(quoting State v. Gatling, 275 N.C. 625, 633, 170 S.E.2d 593,

598 (1969)).

      When viewed in context, "[i]n this situation" refers to the

previous two sentences which state that "[a] breaking need not

be actual, that is, the defendant need not physically remove a

barrier.   The defendant may, by a threat of force, inspire such

fear as to induce the occupant to allow entry."                   In other words,

"[i]n this situation" refers to a hypothetical situation where

the defendant -- any defendant -- breaks and enters through non-

physical   means.      In    that       event,    "the    defendant     would    have

constructively broke."         (Emphasis added.)             The use of "would
                                      -16-
have" instead of "has" indicated that the trial court was not

referring    to    defendant    specifically,     but     rather   to    the   law

generally.

    Additionally, before listing the elements, the judge stated

"[f]or    you     to   find   the   defendant    guilty    of   [first    degree

burglary], the State must prove five things beyond a reasonable

doubt."     After stating the elements, he instructed the jury "if

you find from the evidence beyond a reasonable doubt that on or

about the alleged date the defendant [committed all the elements

of the offense], it would be your duty to return a verdict of

guilty of first-degree burglary.             If you do not so find or have

a reasonable doubt as to one or more of these things, you will

not return a verdict of guilty."             Finally, the judge stated that

"[t]he law requires the presiding judge to be impartial.                       You

should not infer from anything I have done or said that the

evidence is to be believed or disbelieved, that a fact has been

proved, or what your findings ought to be.                It is your duty to

find the facts and render a verdict reflecting the truth."

    When viewed in context, the judge's instruction regarding

first degree burglary did not constitute an improper expression

of opinion or amount to an instruction that an element of the

offense had been proven beyond a reasonable doubt.                      Defendant
                                     -17-
has,    therefore,   failed     to    show   any   error   in   the   jury

instructions.


       No error.

       Chief Judge MARTIN and Judge STROUD concur.

       Report per Rule 30(e).
