              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                       No. COA18-337

                              Filed: 18 September 2018

New Hanover County, Nos. 16CRS 6866-67, 57399

STATE OF NORTH CAROLINA

             v.

DOUGLAS NELSON EDWARDS


      Appeal by defendant from judgments entered 21 September 2017 by Judge

Phyllis M. Gorham in New Hanover County Superior Court. Heard in the Court of

Appeals 7 August 2018.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General L.
      Michael Dodd, for the State.

      Marilyn G. Ozer for defendant.


      ARROWOOD, Judge.


      Douglas Nelson Edwards (“defendant”) appeals from judgments entered on his

convictions for attempted first degree murder, statutory sex offense with a child by

an adult, assault with deadly weapon inflicting serious injury (“AWDWISI”), first

degree kidnapping, and taking indecent liberties with a child. For the following

reasons, we find no prejudicial error.

                                  I.       Background
                                 STATE V. EDWARDS

                                  Opinion of the Court



      On 14 November 2016, a New Hanover County Grand Jury indicted defendant

on one count of attempted first degree murder, one count of statutory sex offense with

a child by an adult, one count of statutory rape of a child by an adult, one count of

AWDWISI, one count of first degree kidnapping, and two counts of indecent liberties

with a child. Additionally, on 20 February 2017, a New Hanover County Grand Jury

indicted defendant on one count of intimidating a witness and one count of felony

obstruction of justice.

      Defendant’s case was tried in New Hanover County Superior Court before the

Honorable Phyllis M. Gorham beginning on 11 September 2017. The evidence at trial

tended to show that shortly before 5:00 p.m. on 14 September 2016, defendant

abducted a six-year-old girl (the “juvenile”) from in front of her home in the Royal

Palms Mobile Home Park. Defendant drove with the juvenile on his moped to a

wooded area, assaulted the juvenile, and bound the juvenile to a tree with a chain

around her neck. Based on witnesses who either saw the defendant in the mobile

home park, saw the abduction, or recognized defendant when they saw him driving

on the moped with the juvenile, law enforcement was quickly able to identify

defendant as a suspect.

      Within a short time from the abduction, law enforcement stopped defendant

twice. During the second stop, defendant agreed to go to the sheriff’s office to be

interviewed. During the interview on 14 September 2016, defendant denied knowing



                                         -2-
                                  STATE V. EDWARDS

                                   Opinion of the Court



anything about the abduction. When law enforcement became convinced defendant

was not going to confess, law enforcement took defendant to his aunt’s house and

released him under surveillance with the hope that defendant would return to the

location where he left the juvenile.

       Law enforcement continued to search for the juvenile through the night. Based

on witnesses’ recollections, cell phone tracking, and gps and video from a school bus

that passed defendant while he was pulled to the side of the road, law enforcement

was able to use canines to locate and rescue the juvenile the following morning.

       After the juvenile was rescued, defendant, who was still being surveilled by

law enforcement, was arrested. Defendant was unware the juvenile had been rescued

at the time. During defendant’s post-arrest interrogation on 15 September 2016,

defendant admitted to the abduction and took law enforcement to the location where

he left the juvenile and from where the juvenile was rescued. Defendant learned the

juvenile had been rescued after he could not find the juvenile where he left her.

       Acknowledging there was insufficient evidence of statutory rape, the State

voluntarily dismissed the rape charge at the close of the State’s evidence. The State

also conceded there was no evidence of intent with deceit for felony obstruction of

justice and requested that the jury be instructed on misdemeanor obstruction of

justice.




                                          -3-
                                  STATE V. EDWARDS

                                   Opinion of the Court



      On 20 September 2017, the jury returned verdicts finding defendant guilty of

attempted first degree murder, statutory sex offense with a child by an adult,

AWDWISI, first degree kidnapping, and two counts of indecent liberties with a child.

The jury returned verdicts finding defendant not guilty of intimidating a witness and

obstruction of justice. The trial court entered judgment on the not guilty verdicts on

20 September 2017.

      Pursuant to a notice of aggravating factors filed by the State on 22 June 2017,

the State argued to the jury on 21 September 2017 that the offenses were “especially

heinous, atrocious, or cruel” and that “[t]he victim was very young.”          The jury

determined both aggravating factors applied to each offense.            The trial court

determined an aggravated sentence was justified for each offense based on the jury’s

determination that each offense was “especially heinous, atrocious or cruel.” The trial

court arrested judgment on one of the indecent liberties with a child convictions and

entered separate judgments for each of the other convictions sentencing defendant as

a prior record level IV to consecutive terms, each at the top of the aggravated range

for each offense, totaling 970 to 1,320 months of imprisonment. The trial court also

ordered defendant to register as a sex offender for life following his release. The trial

court postponed its determination on satellite-based monitoring. Defendant gave

notice of appeal in open court following sentencing. Appellate entries were received

on 25 September 2017.



                                          -4-
                                   STATE V. EDWARDS

                                   Opinion of the Court



      Defendant subsequently filed a Motion for Appropriate Relief (“MAR”) on

29 September 2017 challenging the aggravated sentences.               By order filed

13 November 2017, the trial court denied defendant’s MAR. Appellate entries related

to the MAR were received on 28 November 2017.

                                   II.    Discussion

      On appeal, defendant challenges the trial court’s decision to disallow cross-

examination of the State’s witnesses regarding his post-arrest interrogation and the

trial court’s denial of his MAR.

                              1.     Cross-Examination

      Defendant first argues his constitutional rights to due process, a fair trial, and

the right to silence were violated when the trial court limited his opening statement

and prevented him from cross-examining the State’s witnesses concerning his

admission and his attempt to help investigators rescue the juvenile during his post-

arrest interrogation. Defendant asserts that

             [b]ecause [he] was charged with attempted first degree
             murder and assault with a deadly weapon with intent to
             kill, both of which required the State to prove that [he]
             intended the child would die, it was critical to the defense
             to be able to show the jurors that [he] did tell the officers
             where she was located and actually led them to the site.

Defendant claims he was forced to testify because of the trial court’s erroneous

evidentiary rulings. As a result of the alleged errors and constitutional violations,




                                          -5-
                                        STATE V. EDWARDS

                                         Opinion of the Court



defendant contends he is entitled to a new trial on the attempted first degree murder

and assault with a deadly weapon with intent to kill charges. We disagree.

       At the outset, we note that defendant was not charged with assault with a

deadly weapon with intent to kill, as defendant asserts. Defendant was charged with

and convicted of assault with a deadly weapon inflicting serious injury; therefore,

intent to kill was not at issue for the assault offense.1

       Moreover, a review of the record shows the trial court did not grant a motion

by the State to limit defendant’s opening statement and did not order defendant not

to mention his post-arrest interrogation in his opening statement, as defendant avers.

In fact, the State never made such a motion. Prior to the opening statements, the

State indicated that it would not be introducing all of defendant’s statements to law

enforcement and argued it was not required to do so under Rule 106 because the pre-

and post-arrest interviews were discrete. The State explained that it was raising the

issue prior to opening statements because it did not want the defense to mention

evidence that may not be introduced during the presentation of the State’s case.

Specifically, the State asserted that “while [the defense] certainly can make whatever

opening they want to do, they do that at their peril of either not being able to back up




       1  A review of the records reveals the trial court entered judgment in count 3 of file number 16
CRS 6867 for “AWDW intent to kill” in violation of N.C. Gen. Stat. § 14-32(c). This appears to be a
clerical error as defendant was indicted, the jury was instructed, and defendant was convicted of
AWDWISI in violation of N.C. Gen. Stat. § 14-32(b). Both felony assaults have the same punishment
class and remand is appropriate to correct the clerical error.

                                                 -6-
                                  STATE V. EDWARDS

                                   Opinion of the Court



what they say or having to put on a case that they might not otherwise have wanted

to.”   After additional clarification of the State’s position—that the State’s

presentation of evidence from the interview of defendant on 14 September 2016 did

not open the door to cross-examination by the defense regarding the post-arrest

interrogation of defendant on 15 September 2016—the State further explained that,

preemptively,

             [it] just wanted to give [the defense] the warning that [it]
             believe[s], . . . that if [the defense] makes any opening
             statement to promises [the jury will] hear [evidence
             regarding defendant’s post arrest interrogation], that’s
             going to be requiring [the defense] to put on a case which
             they’re not constitutionally required at this point to do.
             And I didn’t want that trial strategy to be something that
             the defendant said he was forced into doing because of
             some utterance by his attorney during opening, which is, of
             course, not evidence.

             . . . . [The State didn’t] want [defendant] to claim that this
             is a trial strategy that he did not endorse and agree with
             . . . and he is now forced to go down that road because he’s
             been placed there by his attorneys.

Although the defense disagreed with the State’s position that the post-arrest

interrogation was a discrete interview, the defense acknowledged that it understood

the State’s argument that “unless [the defense is] prepared to put on some evidence,

[it] [could not] say to the jury in [its] opening the [defendant] later took them to that

scene.” The trial court simply replied, “[y]ou would be doing that at your own risk.”

       Because the trial court did not actually limit the defense’s opening statement,

the issues to be addressed are whether the trial court erred by disallowing the

                                          -7-
                                  STATE V. EDWARDS

                                   Opinion of the Court



defense’s cross-examination of the State’s witnesses and whether defendant was

prejudiced thereby.

      In this case, the State elicited testimony from law enforcement officer’s about

defendant’s   statements     during    road-side     stops   and   an   interview    on

14 September 2016. The State, however, did not elicit any testimony regarding the

post-arrest interrogation of defendant on 15 September 2016 and sought to prevent

defendant from introducing any evidence from its witnesses regarding the post-arrest

interrogation during cross-examination. The trial court sided with the State and

disallowed the defense from questioning the State’s witnesses concerning defendant’s

post-arrest interrogation. However, in order to fully address the issue, it is necessary

to understand how the issue was repeatedly raised during defendant’s trial.

      The State called attention to the issue just prior to calling Detective Lisa

Hudson to testify. The State informed the court that it “intend[ed] to introduce

through Detective Hudson a recorded video and audio interview that was conducted

by Detective Hudson of this defendant on the night of September 14, 2016.” At that

time, the State asserted the same argument that it did prior to opening arguments,

that the questioning of defendant on 14 September 2016 was separate from the post-

arrest interrogation of defendant on 15 September 2016. The State further argued

that case law stood for the proposition that defendant is not entitled to elicit

testimony from the State’s witnesses as to self-serving declarations made by



                                          -8-
                                 STATE V. EDWARDS

                                  Opinion of the Court



defendant during an interview on a later date about which the State had not

questioned the witnesses. The State maintained that, “as long as we don’t mention

the fact that he was interviewed by New Hanover County sheriff’s detectives after his

arrest on September 15th, [the defense] cannot -- they cannot ask any of our

witnesses on cross-examination about that even if we talk about the prior night’s

interview.” After further discussion and disagreement, the parties agreed the State

should proceed with its direct examination of Detective Hudson and that the issue

would be revisited at a later time when the jury was not waiting.

      Before the jury returned to the court room the following morning, the defense

made an offer of proof. On voir dire, Detective Hudson testified that during the post-

arrest interrogation of defendant on 15 September 2016,

             [defendant] admitted to what he done and he took us to the
             location where he took [the juvenile] and tied her to the
             tree and explained everything, told us on the way there
             everything that we needed to know as far as getting the
             locks off and what we needed. He gave us some specific
             directions exactly to where she was . . . .

Detective Hudson testified that defendant stated he hoped the juvenile was okay and

that he was sorry. Upon conclusion of the voir dire testimony of Detective Hudson,

the defense argued the State’s Rule 106 argument was a red herring because this was

not a Rule 106 issue. The defense asserted that “[w]hat the State is trying to do is

circumvent [defendant’s] right to cross-examine this witness” and “[defendant] has a

right to ask [Detective Hudson] questions about what happened after he was


                                         -9-
                                  STATE V. EDWARDS

                                   Opinion of the Court



arrested.” The defense explicitly stated it “[was] not trying to admit statements or

recording.”

      Upon hearing the arguments, the trial court ruled the defense could not cross-

examine Detective Hudson regarding the post-arrest interrogation of defendant on

15 September 2016. The trial court explained, “I find that the [15 September 2016]

interview was a separate interview from the [14 September 2016] interview; and,

therefore, I will not allow the defense to ask this witness any questions . . . about the

[15 September 2016] interview.” The trial court noted the defense’s objection, and

when the defense questioned Detective Hudson how many times she interviewed

defendant, the State’s objection was sustained.

      The State later called Detective Michael Sorg, who led the surveillance of

defendant on the morning of 15 September 2016 until defendant’s arrest, as a

witness. Upon completion of the State’s direct examination, the defense put on an

offer of proof. Detective Sorg testified on voir dire that, on 15 September 2016,

defendant took law enforcement to the location where he left the juvenile. Detective

Sorg also testified that defendant stated he was planning to go back to the location to

bring the juvenile water. After the voir dire testimony, the defense renewed its

arguments that the defense should be able to cross-examine the witness regarding

the post-arrest interrogation of defendant.        In response, the State argued that

defendant would be required to take the stand if he wanted the evidence admitted.



                                          - 10 -
                                 STATE V. EDWARDS

                                  Opinion of the Court



The State argued the evidence was inadmissible because it was self-serving hearsay

and because the post-arrest interrogation on 15 September 2016 was separate from

the interview of defendant on 14 September 2016. The trial court again ruled the

defense could not cross-examine the State’s witness concerning the post-arrest

interrogation.

      Prior to the defense’s cross-examination of Detective Sorg on the third morning

of evidence, the defense again requested to question Detective Sorg about defendant

taking law enforcement to the location where the juvenile was found. The defense

argued that disallowing the evidence would mislead and deceive the jury. The trial

court denied the defense’s request and explained that, “[m]y understanding based

upon everything that I heard about that last interview on [15 September 2016], that

there’s not been any testimony about that last interview by Detective Sorg; therefore,

you will not question him about anything that has to do with that interview.”

      Upon the conclusion of the State’s evidence, the issue of the defense presenting

evidence regarding the 15 September 2016 post-arrest interrogation of defendant

arose again. The State argued the defense could not get around the trial court’s prior

rulings by calling Detective Sorg as a defense witness. The defense responded that it

understood the trial court’s prior rulings to exclude testimony of defendant’s hearsay

statements on cross-examination and explained that it was not seeking to introduce

hearsay statements. Nevertheless, the trial court ruled that the defense could not



                                         - 11 -
                                  STATE V. EDWARDS

                                   Opinion of the Court



question Detective Sorg on anything related to the post-arrest interrogation of

defendant on 15 September 2016. The State reiterated that the testimony was a self-

serving statement by defendant, was in a completely different interview, and is

hearsay. The State also reasserted its position that “[i]f they want to present evidence

about what the defendant said and did during those interviews, [defendant] is going

to have to take the stand and testify himself.” The trial court agreed and disallowed

the defense from questioning Detective Sorg about anything related to the post-arrest

interrogation on 15 September 2016. The defense made another offer of proof from

Detective Sorg to preserve the issue.

      Defendant then took the stand to testify in his own defense.           Defendant

testified about his post-arrest interrogation on 15 September 2016.

      In arguing the trial court erred in disallowing cross-examination of the State’s

witnesses concerning defendant’s post-arrest interrogation on 15 September 2016,

defendant first contends the cross-examination should have been allowed under Rule

106 of the North Carolina Rules of Evidence in order to prevent the jury from being

misled or deceived by the evidence presented of the 14 September 2016 interview.

Defendant’s argument is misplaced.

      Rule 106 provides that, “[w]hen a writing or recorded statement or part thereof

is introduced by a party, an adverse party may require him at that time to introduce

any other part or any other writing or recorded statement which ought in fairness to



                                          - 12 -
                                 STATE V. EDWARDS

                                  Opinion of the Court



be considered contemporaneously with it.” N.C. Gen. Stat. § 8C-1, Rule 106 (2017).

This Court has explained that

             Rule 106 codifies the standard common law rule that when
             a writing or recorded statement or a part thereof is
             introduced by any party, an adverse party can obtain
             admission of the entire statement or anything so closely
             related that in fairness it too should be admitted. The trial
             court decides what is closely related. The standard of
             review is whether the trial court abused its discretion. The
             purpose of the “completeness” rule codified in Rule 106 is
             merely to ensure that a misleading impression created by
             taking matters out of context is corrected on the spot,
             because of the inadequacy of repair work when delayed to
             a point later in the trial.

State v. Thompson, 332 N.C. 204, 219-220, 420 S.E.2d 395, 403-404 (1992) (internal

quotation marks and citations omitted).

      Below, the State argued, and the trial court determined, the post-arrest

interrogation was discrete from the 14 September 2016 interview, from which the

State introduced transcripts and recordings. Therefore, the trial court determined

Rule 106 did not require the admission of evidence regarding the post-arrest

interrogation of defendant.

      Defendant argues the trial court erred in this determination because a break

in time between the interview on 14 September 2016 and the post-arrest

interrogation on 15 September 2016 is not determinative. Citing Thompson, 332 N.C.

at 220, 420 S.E.2d at 404, defendant contends the trial court should have determined

whether the post-arrest interrogation was explanatory or relevant and whether there


                                         - 13 -
                                  STATE V. EDWARDS

                                   Opinion of the Court



was a nexus between the prior interviews and the post-arrest interrogation. In

Thompson, however, the Court held there was no nexus between a prior exculpatory

interview that the defendant sought to admit under Rule 106 at the time the State

introduced tapes and transcripts of inculpatory telephone conversations between

defendant and an informant. Id. 220-21, 420 S.E.2d at 404. Thus, the trial court did

not abuse its discretion in denying the defendant’s attempt to introduce a transcript

of the prior exculpatory interview. Id. at 221, 420 S.E.2d at 404. The Thompson

Court noted, “[i]t was defendant’s responsibility, not the State’s, to introduce evidence

about his exculpatory interview.” Id. at 220-21, 420 S.E.2d at 404.

      Similarly, in State v. Broyhill, __ N.C. App. __, 803 S.E.2d 832 (2017), disc.

review denied, 370 N.C. 694, 811 S.E.2d 588 (2018), which defendant also relies on,

this Court held the trial court did not err in excluding transcripts of two custodial

interviews that the defendant sought to have admitted contemporaneously with a

tape and a transcript of a subsequent custodial interview. This Court explained in

Broyhill as follows:

             the trial court correctly applied Rule 106 in its decision to
             exclude the first two statements at trial. After reviewing
             all three recorded statements and comparing the contents
             thereof, the court concluded that defendant made no
             statement during the first or second interview that under
             Rule 106 ought, in fairness, to be considered
             contemporaneously with the statements of April 26. The
             court found no instance where the statements in the
             April 26 interview require further explanation by any
             excerpts from the April 23 or the April 25 interview, and


                                          - 14 -
                                     STATE V. EDWARDS

                                     Opinion of the Court



              no instance where the statements in the [April 26]
              interview were rendered out of context or misleading in the
              absence of excerpts from the April 23 or April 25 interview.
              Defendant harps on the temporal connection and
              interrelated nature of the statements but fails to explain
              precisely how the first two statements would enhance the
              jury’s understanding of the third. And upon our review of
              the interview transcripts, we conclude defendant has failed
              to show that the court abused its discretion in excluding
              defendant’s first two statements at trial.

Id. at __, 803 S.E.2d at 844 (internal quotation marks omitted).

      As     in    Thompson    and    Broyhill,      there   is   no    nexus    between   the

14 September 2016 interview of defendant and the 15 September 2016 post-arrest

interrogation of defendant that would require evidence of the post-arrest

interrogation to explain or add context to the 14 September 2016 interview. Thus,

the trial court did not err in determining the 14 September 2016 interview and the

15 September 2016 post-arrest interrogation were discrete.               That determination,

however, is of no consequence in this case.

      By its terms, Rule 106 only applies to the introduction of a “writing or recorded

statement”        by   defendant   “which    ought      in   fairness    to     be   considered

contemporaneously” with a writing or recorded statement introduced by the State.

N.C. Gen. Stat. § 8C-1, Rule 106. The commentary to Rule 106 explains that, “[f]or

practical reasons, the rule is limited to writings and recorded statements and does

not apply to conversations.”       See Advisory Committee Notes to Rule 106.               The

commentary also notes that “[t]he rule does not in any way circumscribe the right of


                                            - 15 -
                                  STATE V. EDWARDS

                                   Opinion of the Court



the adversary to develop the matter on cross-examination or as part of his own case.”

Id.

      In both Thompson and Broyhill, the defendants sought to introduce transcripts

of interviews under Rule 106 at the same time that the State introduced transcripts

and recordings of phone calls, see Thompson, 332 N.C. at 219, 420 S.E.2d at 403, and

another interview, see Broyhill, __ N.C. App. at __, 803 S.E.2d at 838. In contrast to

those cases, the defense does not argue that it attempted to introduce a transcript or

recording of the post-arrest interrogation at the time the State introduced recordings

of the 14 September 2016 interview. The defense explained and put on offers of proof

showing that it simply wanted to question the State’s witnesses about the post-arrest

interrogation of defendant during cross-examination.

      Rule 106 neither provides for the admission or exclusion of such testimony

during the defense’s cross-examination of the State’s witnesses in this case.

      It is Rule 611 of the North Carolina Rules of Evidence that addresses the scope

of cross-examination. The pertinent portion of Rule 611 provides that “[a] witness

may be cross-examined on any matter relevant to any issue in the case, including

credibility.” N.C. Gen. Stat. § 8C-1, Rule 611(b) (2017). Our appellate courts have

referred to this rule as “ ‘the “wide-open” rule of cross-examination, so called because

the scope of inquiry is not confined to those matters testified to on direct

examination.’ ” State v. Singletary, 247 N.C. App. 368, 374, 786 S.E.2d 712, 717



                                          - 16 -
                                  STATE V. EDWARDS

                                   Opinion of the Court



(2016) (quoting State v. Penley, 277 N.C. 704, 708, 178 S.E.2d 490, 492 (1971)). “But,

the defendant’s right to cross-examination is not absolute.” State v. Guthrie, 110 N.C.

App. 91, 93, 428 S.E.2d 853, 854, disc. review denied, 333 N.C. 793, 431 S.E.2d 28

(1993).   “[A]lthough cross-examination is a matter of right, the scope of cross-

examination is subject to appropriate control in the sound discretion of the court.”

State v. Coffey, 326 N.C. 268, 290, 389 S.E.2d 48, 61 (1990); see also N.C. Gen. Stat. §

8C-1, Rule 611. “Absent a showing of an abuse of discretion or that prejudicial error

has resulted, the trial court’s ruling will not be disturbed on review.”       State v.

Maynard, 311 N.C. 1, 10, 316 S.E.2d 197, 202-203, cert. denied, 469 U.S. 963, 83 L.

Ed. 2d 299 (1984), dismissal of habeas corpus aff'd, 943 F.2d 407 (1991), cert. denied,

502 U.S. 1110, 117 L. Ed. 2d 450 (1992).

      Although defendant does not specifically cite Rule 611, defendant does make

the argument that testimony regarding his post-arrest interrogation that the defense

sought to elicit from the State’s witnesses during cross-examination was relevant.

We agree. “Relevant evidence” is broadly defined as “evidence having 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 (2017). In this case, there is no question that the

defendant’s post-arrest interrogation, during which defendant admitted to the

abduction of the juvenile and took law enforcement to the location where he left the



                                          - 17 -
                                  STATE V. EDWARDS

                                  Opinion of the Court



juvenile chained to a tree, was relevant. The issue this Court must decide is whether

the trial court’s exclusion of the relevant evidence was an abuse of discretion.

      As shown above in the summary of the defense’s attempts to cross-examine the

State’s witnesses regarding the 15 September 2016 post-arrest interrogation and the

State’s counter arguments to exclude the testimony, the State argued the cross-

examination was improper for a number of reasons, including that the post-arrest

interrogation was separate from the interview of defendant on 14 September 2016 for

purposes of Rule 106, the testimony the defense sought to elicit included self-serving

declarations by defendant, the State had not elicited any evidence about the post-

arrest interrogation, and the testimony was hearsay.       In denying defendant the

opportunity to elicit testimony concerning the post-arrest interrogation from the

State’s witnesses, the trial court accepted the reasons argued by the State. The court

explained at different times that “the [15 September 2016] interview was a separate

interview from the [14 September 2016] interview; and, therefore, I will not allow the

defense to ask this witness any questions . . . about the [15 September 2016]

interview[,]” and “[m]y understanding based upon everything that I heard about that

last interview on [15 September 2016], that there’s not been any testimony about that

last interview by [the witness]; therefore, you will not question [the witness] about

anything that has to do with that interview.”




                                         - 18 -
                                 STATE V. EDWARDS

                                 Opinion of the Court



      When the trial court’s reasons for disallowing the defense from cross-

examining the State’s witnesses regarding the 15 September 2016 post-arrest

interrogation is considered in light of the law on Rule 106 and Rule 611, it is clear

that the trial court abused its discretion in disallowing the evidence. As determined

above, Rule 106 is inapplicable in this case and Rule 611 does not limit cross-

examination to those matters raised during direct examination.

      Generally, “[e]videntiary errors are harmless unless a defendant proves that

absent the error a different result would have been reached at trial.”       State v.

Ferguson, 145 N.C. App. 302, 307, 549 S.E.2d 889, 893, disc. review denied, 354 N.C.

223, 554 S.E.2d 650 (2001); see also N.C. Gen. Stat. § 15A-1443(a) (2017). Defendant,

however, argues the error in this case amounted to a violation of his constitutional

rights and, therefore, the State must prove the error was harmless beyond a

reasonable doubt. See N.C. Gen. Stat. § 15A-1443(b) (2017) (“A violation of the

defendant’s rights under the Constitution of the United States is prejudicial unless

the appellate court finds that it was harmless beyond a reasonable doubt. The burden

is upon the State to demonstrate, beyond a reasonable doubt, that the error was

harmless.”).

      We hold the trial court’s error in this case was harmless under either prejudice

standard given the overwhelming evidence of defendant’s guilt, see State v. Harris,

136 N.C. App. 611, 617, 525 S.E.2d 208, 212 (“ ‘Overwhelming evidence of guilt will



                                        - 19 -
                                  STATE V. EDWARDS

                                  Opinion of the Court



render even a constitutional error harmless.’ ”) (quoting State v. Welch, 316 N.C. 578,

583, 342 S.E.2d 789, 792 (1986)), appeal dismissed and disc review denied, 351 N.C.

644, 543 S.E.2d 877 (2000), and the fact that the evidence the defense sought to admit

on cross-examination was ultimately admitted into evidence, albeit through

defendant’s own testimony, see State v. Durham, 74 N.C. App. 159, 164, 327 S.E.2d

920, 924 (1985) (“The rule in North Carolina is that where a trial court erroneously

refuses to allow cross-examination of a witness, and then the evidence sought to be

admitted by cross-examination is admitted later by another witness, the error is

harmless.”). Because the jury had the opportunity to consider the overwhelming

evidence against defendant, including testimony by those who either witnessed the

abduction or saw defendant with the juvenile, testimony by the victim about the

abduction and the assault, testimony by law enforcement about the investigation and

the rescue of the juvenile from being left chained by the neck to a tree overnight,

testimony from medical personnel who examined the juvenile, and testimony by

defendant about his post-arrest interrogation on 15 September 2016, and because the

jury unanimously found defendant guilty of attempted first degree murder, we hold

the defendant was not prejudiced by the trial court’s erroneous rulings limiting cross-

examination.

                                     2.      MAR




                                          - 20 -
                                  STATE V. EDWARDS

                                   Opinion of the Court



      On appeal, defendant also argues that the trial court erred in denying his

motion for appropriate relief. We disagree.

      “When considering rulings on motions for appropriate relief, we review the

trial court’s order to determine ‘whether the findings of fact are supported by

evidence, whether the findings of fact support the conclusions of law, and whether

the conclusions of law support the order entered by the trial court.’ ” State v. Frogge,

359 N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (quoting State v. Stevens, 305 N.C. 712,

720, 291 S.E.2d 585, 591 (1982)). “ ‘When a trial court’s findings on a motion for

appropriate relief are reviewed, these findings are binding if they are supported by

competent evidence and may be disturbed only upon a showing of manifest abuse of

discretion. However, the trial court’s conclusions are fully reviewable on appeal.’ ”

State v. Lutz, 177 N.C. App. 140, 142, 628 S.E.2d 34, 35 (2006) (quoting State v.

Wilkins, 131 N.C. App. 220, 223, 506 S.E.2d 274, 276 (1998)).

      In the MAR filed on 29 September 2017, defendant argued the State erred by

failing to allege aggravating factors in the indictments and by failing to narrowly

define the aggravating factors. In bringing the MAR, defendant sought to have the

sentences for the aggravated offenses vacated and to be resentenced to non-

aggravated sentences.      The trial court denied defendant’s MAR by order on

13 November 2017.




                                          - 21 -
                                  STATE V. EDWARDS

                                   Opinion of the Court



      Defendant does not challenge the trial court’s findings, but instead argues the

trial court erred in its application of the relevant law. First, defendant argues that

the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466,

147 L. Ed. 2d 435 (2000), should apply in this instance and asks this Court to hold for

the first time that, “in order to be convicted of an aggravated crime, the indictment

must include the element of the aggravated crime.” In Apprendi, the Supreme Court

held that a New Jersey “hate crime” law that allowed a trial judge to impose an

extended term of imprisonment “based upon the judge’s finding, by a preponderance

of the evidence, that the defendant’s ‘purpose’ . . . was ‘to intimidate’ [the] victim on

the basis of a particular characteristic the victim possessed” violated the Due Process

Clause of the Fourteenth Amendment. 530 U.S. at 491, 147 L. E. 2d at 456. The

Supreme Court explained that “any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt” and “[i]t is unconstitutional for a legislature to remove from the

jury the assessment of facts that increase the prescribed range of penalties to which

a criminal defendant is exposed.” Id. at 490, 147 L. Ed. 2d at 455 (internal quotation

marks and citations omitted).

      Relying on Apprendi, defendant argues the aggravation of an offense is “a new,

separate, and greater crime” and, therefore, aggravating factors must be alleged in

an indictment.



                                          - 22 -
                                  STATE V. EDWARDS

                                   Opinion of the Court



      However, our Supreme Court held in State v. Wallace, 351 N.C. 481, 528 S.E.2d

326 (2000), that “the Fourteenth Amendment does not require the listing in an

indictment of all the elements or facts which might increase the maximum

punishment for a crime.”       351 N.C. at 508, 528 S.E.2d at 343.            Defendant

acknowledges Wallace, but seeks to have the issue reconsidered in light of Apprendi.

We decline to do so as Apprendi and Wallace are not at odds.

      In North Carolina, N.C. Gen. Stat. § 15A-1340.16 governs aggravated and

mitigated sentences and places the burden on the State to prove to a jury beyond a

reasonable doubt that an aggravating factor exists if the defendant does not admit to

the aggravating factor. See N.C. Gen. Stat. § 15A-1340.16(a) and (b) (2017). The

statute also contains a list of statutory aggravating factors, see N.C. Gen. Stat. § 15A-

1340.16(d), and specifically provides that “[a]ggravating factors set forth in

subsection (d) . . . need not be included in an indictment or other charging

instrument[,]” N.C. Gen. Stat. § 15A-1340.16(a4). Instead, the statute requires that

             [t]he State must provide a defendant with written notice of
             its intent to prove the existence of one or more aggravating
             factors under subsection (d) of this section . . . at least 30
             days before trial or the entry of a guilty or no contest
             plea. . . . The notice shall list all the aggravating factors
             the State seeks to establish.

N.C. Gen. Stat. § 15A-1340.16(a6).

      It appears the State complied with the requirements of N.C. Gen. Stat. § 15A-

1340.16 in this case. In accordance with N.C. Gen. Stat. § 15A-1340.16(a6), the State


                                          - 23 -
                                  STATE V. EDWARDS

                                   Opinion of the Court



filed a written notice of aggravating factors on 22 June 2017, months before trial.

That notice informed defendant that the State sought to prove two statutory

aggravating factors, that “[t]he offense was especially heinous, atrocious, or cruel[,]”

see N.C. Gen. Stat. § 15A-1340.16(d)(7), and that “[t]he victim was very young[,]” see

N.C. Gen. Stat. § 15A-1340.16(d)(11). Pursuant to the procedure for a bifurcated trial

set forth in N.C. Gen. Stat. § 15A-1340.16(a1), after the jury convicted defendant of

the underlying offenses, the court allowed the State to proceed on the aggravating

factors. Upon consideration of the evidence and arguments, the jury found that each

offense was especially heinous, atrocious, or cruel and that the victim was very young.

      We hold the State complied with N.C. Gen. Stat. § 15A-1340.16 in all respects

and that the procedure prescribed by the statute satisfies the mandate in Apprendi,

that “any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455.

      In addition to defendant’s argument that the aggravating factors should have

been alleged in the indictments, defendant argues the trial court erred in denying his

MAR because the North Carolina jury instruction issued by the trial court for

“heinous, atrocious, or cruel” is unconstitutionally vague.      Our Supreme Court,

however, has previously rejected that argument and held the jury instruction for

heinous, atrocious, or cruel provides constitutionally sufficient guidance to the jury.



                                          - 24 -
                                STATE V. EDWARDS

                                 Opinion of the Court



See State v. Syriani, 333 N.C. 350, 391-92, 428 S.E.2d 118, 140-41 (1993). We are

bound by our Supreme Court’s decision.

                                 III.    Conclusion

      For the reasons discussed, we hold defendant received a trial free from

prejudicial error. However, remand is necessary to correct the clerical error in the

judgment entered on defendant’s conviction for AWDWISI.

      NO PREJUDICIAL ERROR; REMAND.

      Judge CALABRIA concurs.

      Judge MURPHY concurs in result only.




                                        - 25 -
