              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-267

                                Filed: 5 April 2016

Mecklenburg County, No. 12CRS010134-36

THE STATE OF NORTH CAROLINA,

             v.

VICTOR OLANDUS MOULTRY, Defendant.


      Appeal by defendant from judgments entered on 4 April 2014 by Judge H.

William Constangy in Superior Court, Mecklenburg County. Heard in the Court of

Appeals 9 September 2015.


      Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Daniel
      Snipes Johnson, for the State.

      Appellate Defender Staple Hughes, by Assistant Appellate Defender Constance
      E. Widenhouse, for defendant-appellant.


      STROUD, Judge.


      The trial court entered judgments against defendant for hit and run, second

degree murder, and possession of cocaine. Defendant appeals. For the following

reasons, we find no error.

                                   I.     Background

      On 16 February 2012, Officer Tim Wilson of the Charlotte Mecklenburg Police

Department was speaking with Ms. Marian Carpenter, the victim of a hit and run

accident, and two witnesses to that accident when he heard over his radio that there
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had been another accident he believed might be related to the first “due to the time”

and proximity. When Officer Wilson arrived at the scene of the second accident he

saw a Ford and an Impala with damage consistent with Ms. Carpenter’s and the

witnesses’ descriptions of the hit and run. Defendant, the driver of the Impala, and

the driver of the Ford truck were taken to the hospital.                     Cocaine was found in

defendant’s car and, upon testing at the hospital, in his blood. The driver of the Ford

died from his injuries sustained in the collision. Defendant was indicted for reckless

driving, misdemeanor hit and run, murder, and possession of a Schedule II controlled

substance. A jury found defendant guilty of second degree murder, misdemeanor hit

and run, and possession of cocaine, and the trial court entered judgments.1

Defendant appeals.

                                         II.     Photographs

      During defendant’s trial the State introduced five photographs for illustrative

purposes that showed the Impala behind the Ford lined up in the manner that Officer

Nicolas Bruining of the Huntersville Police Department believed the accident had

occurred. Defendant contends that

                the trial court erred by admitting irrelevant and unfairly
                prejudicial staged photographs of the Impala sedan and the
                Ford truck that were taken in a gravel parking lot years
                after the collision and under conditions that were not
                substantially similar to those existing at the time of the
                fatal automobile accident.


      1   The trial court dismissed the charge of reckless driving at the close of the State’s evidence.

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 (Original in all caps.) Defendant argues that

             [b]ecause the vehicles were no longer at the scene of the
             accident and the pictures were made in a gravel parking
             lot over two years later, the attempt to replicate the
             moment of impact was an improper demonstration or
             experiment. [Defendant] . . . argued at trial that he did not
             act with malice. . . . The trial court’s admission of the
             photographs was prejudicial error because the pictures
             were this evidence ([sic]) strengthened the state’s proof of
             malice.

      Evidence is relevant if it has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” N.C. Gen. Stat. § 8C–1, Rule 401

(2013). “Whether evidence is relevant is a question of law, thus we review the trial

court’s admission of the evidence de novo. Defendant bears the burden of showing

that the evidence was erroneously admitted and that he was prejudiced by the error.”

State v. Kirby, 206 N.C. App. 446, 456, 697 S.E.2d 496, 503 (2010) (citation omitted).

“Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or needless presentation

of cumulative evidence.” N.C. Gen. Stat. § 8C–1, Rule 403 (2013). “Whether or not

to exclude evidence under Rule 403 of the Rules of Evidence is a matter within the

sound discretion of the trial court and its decision will not be disturbed on appeal




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absent a showing of an abuse of discretion.” State v. McCray, 342 N.C. 123, 131, 463

S.E.2d 176, 181 (1995).

      Officer Bruining testified as an expert witness of crash investigation and

reconstruction and explained to the jury, without objection, that the Impala had

struck the Ford from behind, and thus the photographs are relevant as they served

as a visual aid to Officer Bruining’s expert testimony regarding how the accident

occurred. See generally N.C. Gen. Stat. § 8C-1, Rule 401. Furthermore, the trial

court provided a limiting instruction to the jury explaining that the photographs

were only allowed for the purpose of illustrating Officer Bruining’s testimony, so

defendant has not shown any unfair prejudice from the jury’s viewing of the

photographs.    See generally N.C. Gen. Stat. § 8C-1, Rule 403.        Therefore, this

argument is overruled.

                              III.     Officer’s Testimony

      During defendant’s trial, Ms. Carpenter testified that the vehicle that struck

her vehicle was a silver four-door compact car; Mr. Frank Fusco, an eyewitness who

saw Ms. Carpenter’s vehicle get hit, described the offending vehicle as a sedan; and

Ms. Lisa Henderson, an eyewitness who saw a vehicle driving the wrong way on the

road at issue testified that the vehicle she saw was a light-colored sedan. Over

objection, Officer Wilson testified that by taking the eyewitness accounts he came up

with a description of the vehicle as a silver late 1990s car, “four-door and possibly a



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Chevy Malibu or Toyota Camry.” Defendant contends that “the trial court erred by

allowing an officer to provide a composite description of the car that struck Marian

Carpenter’s truck, where that description was based on hearsay statements that did

not corroborate the testimony of any of the witnesses who saw the accident.”

(Original in all caps.) Defendant further argues that the admission of the description

was prejudicial as it “tended to link the two accidents, [and] supported the theory

that . . . [defendant] acted with malice and was guilty of murder as well as the hit-

and-run.”

     “When a defendant objects to the admission of evidence, we consider, whether

the evidence was admissible as a matter of law, and if so, whether the trial court

abused its discretion in admitting the evidence.” State v. Blackwell, 207 N.C. App.

255, 257, 699 S.E.2d 474, 475 (2010) (citation, quotation marks, and brackets

omitted). While defendant focuses on hearsay, Officer Wilson’s testimony was not

offered “to prove the truth of the matter asserted” but merely, as explained to the

jury, for corroborative purposes, and thus any hearsay argument is inapplicable. See

generally N.C. Gen. Stat. § 8C-1, Rule 801 (2011). As to corroboration,

            [t]his Court has long held that corroborative means to
            strengthen; to add weight or credibility to a thing by
            additional and confirming facts or evidence. It is not
            necessary that evidence prove the precise facts brought out
            in a witness’s testimony before that evidence may be
            deemed corroborative of such testimony and properly
            admissible.
                   The law does not require that Detective Grant’s


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             testimony about [the witness’] statements be in the exact
             words used by [the witness]. His testimony need only have
             tended to strengthen and confirm her testimony[.]

State v. Williamson, 146 N.C. App. 325, 338, 553 S.E.2d 54, 63 (2001) (citations,

quotation marks, and brackets omitted), disc. review denied, 355 N.C. 222, 560

S.E.2d 366 (2002).

       Here, Officer Wilson explained to the jury that he came up with a description

of the offending vehicle after speaking with three different individuals, and the jury

was provided a limiting instruction explaining that Officer Wilson’s testimony was

to be used “only for the purpose of corroborating the testimony of those other

witnesses[.]”     Indeed, Officer Wilson’s description did corroborate the other

witnesses’ testimonies as it added “weight” to their testimonies. Id. This argument

is overruled.

                                  IV.   Lay Opinion

       Lieutenant Andrew Dempski of the Huntersville Police Department testified

over objection that the damage to the back of defendant’s vehicle was not caused

from the collision with the Ford truck; defendant argues this implies the damage

was caused by the earlier collision with Ms. Carpenter’s vehicle. Defendant contends

that

             the trial court erred by admitting lay opinion testimony of
             Lieutenant Andrew Dempski that damage to the rear
             quarter panel of . . . [defendant’s] car was not caused by the
             collision with [the Ford] truck, as Dempski was not


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             qualified to give an expert opinion and his testimony was
             not helpful to the jury.

(Original in all caps.)    Again, “[w]hen a defendant objects to the admission of

evidence, we consider, whether the evidence was admissible as a matter of law, and

if so, whether the trial court abused its discretion in admitting the evidence.”

Blackwell, 207 N.C. App. at 257, 699 S.E.2d at 475.

      Even assuming arguendo, that it was error for Lieutenant Dempski to testify

that the collision with the Ford truck was not consistent with the damage on the rear

of defendant’s vehicle without first being accepted as an expert witness, Officer

Wilson testified to the exact same information without objection or argument on

appeal. In fact, Officer Wilson went a step further and testified that the damage to

the rear of defendant’s vehicle was consistent with the description he had been given

regarding the accident with Ms. Carpenter. Since another officer testified to the

same information without objection, we overrule defendant’s argument.            See

generally State v. Hunt, 325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989) (“This Court

frequently has held that when, as here, evidence is admitted over objection, but the

same or similar evidence has been previously admitted or is later admitted without

objection, the benefit of the objection is lost.”)

                                V.      Cumulative Effect

      Lastly, defendant contends that “the cumulative prejudice from the trial

court’s errors in admitting evidence requires a new trial.” (Original in all caps.)


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Since we have found no prejudicial error or no error in the evidence presented, there

cannot be any cumulative prejudicial effect, so this argument is without merit.

                                  VI.   Conclusion

     For the reasons stated above, we find no error in the defendant’s trial and

convictions.

     NO ERROR.

     Judges CALABRIA and INMAN concur.




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