                                         NO. COA14-100

                           NORTH CAROLINA COURT OF APPEALS

                               Filed:         21 October 2014

STATE OF NORTH CAROLINA

      v.                                               Mecklenburg County
                                                       No. 10 CRS 251563
ELLIS EUGENE ROYSTER



      Appeal by defendant from judgment entered 29 May 2013 by

Judge    W.       Robert   Bell     in       Mecklenburg     County     Superior        Court.

Heard in the Court of Appeals 11 August 2014.


      Attorney General Roy Cooper, by Special                           Deputy       Attorney
      General Amar Majmundar, for the State.

      Law Office of Margaret C. Lumsden PLLC, by Margaret C.
      Lumsden, for defendant-appellant.


      McCULLOUGH, Judge.


      Defendant        Ellis      Eugene          Royster   appeals    from     a    judgment

entered based upon his conviction for first degree murder.                                  For

the     following      reasons,         we     find    no    error    in      part   and     no

prejudicial error in part.

                                    I.        Background

      On      1    November     2010,         a     Mecklenburg      County     Grand      Jury

indicted      defendant        on   a     charge       of   murdering      Amias      Bernard

Robinson on 12 August 2010.
                                             -2-
       Defendant’s case came on for trial during the 20 May 2013

Criminal      Session    of    Mecklenburg             County    Superior      Court,     the

Honorable W. Robert Bell, Judge presiding.

       The State’s evidence at trial tended to show the following:

Alvin Alexander testified that at 4:00 p.m. on 12 August 2010,

he met his friend Randall Henry (otherwise known as “Randy”) at

defendant’s     residence       on    Eastbrook          Road     in   Charlotte,       North

Carolina.       Defendant lived with his grandmother “Miss D” and

grandfather “Mr. D.”           “Miss D” was known in the neighborhood as

the “Candy Lady.”             Alvin went into defendant’s bedroom where

defendant     and   Randy      played    a     video      game     while     Alvin      smoked

marijuana.       Sometime      thereafter,             Alvin,   Randy,       and   defendant

went   outside      to   the    end     of     defendant’s         driveway        to   smoke

cigarettes.          Shariff         Baker,        a     resident       of     defendant’s

neighborhood, approached Alvin, Randy, and defendant and told

them   that    “a   couple     guys     took       his    money    from      him.”       Alvin

testified that Shariff had stated that “[h]e was going to buy

some weed from them, and they just pulled off with his money.”

       Shariff testified that on 12 August 2010, he tried to buy

$10.00 worth of marijuana from Jadarius McCall, otherwise known

as “J.D.”      Shariff was standing in front of a house on Eastbrook

Road when J.D. drove by in a blue car.                      Three other people were
                                   -3-
in the car with him – a man by the name of Delehay, Tim, and an

unidentified male.      Shariff gave $10.00 to Delehay, the group

told Shariff to get out of their way, and J.D. drove off without

giving Shariff marijuana or returning his money.               Shariff was

upset and began walking towards defendant’s residence.                Once

Shariff saw defendant, he told defendant that J.D., Delehay, and

Tim had taken his money.        Defendant told Shariff that he “would

get it back for me.”

    Alvin testified that he knew Tim’s stepfather, Chris, and

that he told Shariff that he would talk with Chris.            Alvin drove

to Chris’ house, “told Chris that his stepson had just took one

of the guy’s money out of the neighborhood. And [Chris] said he

would take care of it.”         After their conversation, Alvin then

drove back to defendant’s residence.           Several people from the

neighborhood were standing outside.           A group of three to four

teenage girls, including the victim’s cousins, were pushing a

baby stroller holding the victim, Amias Robinson.

    Alvin   testified    that    while   he   was   in   the   driveway   of

defendant’s residence, he saw a blue Oldsmobile drive past them.

Shariff also testified that “J.D.’s car came down the street.”

Randy pointed out the vehicle and stated, “[t]here he go right
                                       -4-
there.”     Shariff testified that Randy’s comment meant, “[t]hat

those are the people that took my money.”

     Defendant was standing at the end of the driveway when he

pulled a gun from his rear waistband area.                   Alvin and Shariff

witnessed defendant start firing shots “up the street” towards

J.D.’s vehicle.       Alvin heard approximately ten shots and then

heard a girl scream “[y]ou shot my cousin; you shot my cousin.”

Defendant repeatedly stated “I’m going to jail” and Randy asked

defendant, “[w]hy did you start shooting[?]”                 Shariff testified

that,   after   the    shooting,     defendant    stated,      “I   f***ed     up.”

Thereafter,     defendant     walked    quickly       down    the   street      and

returned within a couple of minutes without a gun.                   Alvin left

the scene in his vehicle soon after the shooting.

     Sergeant Michael Abbondanza with the Charlotte Mecklenburg

Police Department (“CMPD”) testified that, on 12 August 2010, he

was dispatched in response to a call that a baby had been shot

and was the first officer to arrive on the scene.                        Sergeant

Abbondanza testified that, when he arrived at a residence on

Eastbrook    Road,    there   were   fifteen     to   twenty    people    in    the

street.     Thereafter, he found the victim lying on the front

porch with what appeared to be a gunshot wound through his neck.
                                   -5-
     The victim of the stray bullet, Amias Robinson, was born on

8   July    2008.    In   August   2010,   Amias’    mother   had   made

arrangements with her cousins to watch Amias in Charlotte, North

Carolina.    She received a phone call on 12 August 2010, urging

her to go to the hospital because Amias had been shot after he

had been taken to the “Candy Lady.”         Amias died on 16 August

2010 as the result of a gunshot wound to the neck.

     Todd Norhoff, an expert in the field of firearms and tool

mark analysis with the Charlotte-Mecklenburg Crime Laboratory,

testified that he analyzed eleven (11) spent shell casings found

at the scene of the crime.     The casings were 9 millimeter Luger

Remington Peters casings.    All eleven casings were found to have

been discharged from the same firearm.

     Defendant testified on his own behalf. On 12 August 2010,

defendant lived with his grandmother, the “Candy Lady,” at 5826

Eastbrook Road.     Defendant picked up Randy and Alvin and went to

defendant’s residence to play video games.          Around 5:00 p.m. or

6:00 p.m., the three went outside and stood in the driveway,

waiting on someone to bring them marijuana.         The “weed man” came

by defendant’s residence, sold them $80.00 worth of marijuana,

and left.     Defendant testified that he gave Randy half of the

marijuana and then     went inside his house, leaving Randy and
                                      -6-
Alvin outside.         Defendant was inside the house with his baby’s

mother,       uncle,   grandmother,       and    grandfather.           Twenty-five

minutes later, defendant testified that he heard 10 gunshots.

He had not seen Randy or Alvin during this period of time.

After    he    heard   the    gunshots,     defendant,       his    baby’s   mother,

uncle, grandmother, and grandfather met at the front door of the

house.        Defendant’s     grandmother    saw   the   victim       bleeding    and

started to perform CPR on the victim.

       Defendant testified that earlier that day, he had had a

conversation with Shariff.           Shariff told defendant that he had

been    robbed    by   J.D.     Defendant       tried   to    call    J.D.   to   get

Shariff’s money back but because J.D. did not answer his phone

calls, defendant sent him a text message that read “Man, I ain’t

about to be blowing up your phone like a b****. Bring that

n***** money back or stay out of my hood.”                         Defendant denied

shooting a gun at J.D., shooting a gun at J.D.’s vehicle, or

shooting a gun “up in the air or down on the ground to scare

J.D.”

       Testimony from        the following      witnesses demonstrated that

they had initially implicated Alvin Alexander as the shooter:

Shariff Baker; Porchia Glenn; Kyshonna Williams; and Kourtney

Williams.
                                            -7-
      On    29    May     2013,    the    jury     returned     a   verdict       finding

defendant       guilty    of   first      degree     murder.        The       trial   court

sentenced defendant to life imprisonment without parole.

      Defendant gave notice of appeal in open court.

                                    II.    Discussion

      On appeal, defendant argues that the trial court erred by

(A)   allowing      the    admission        of    testimony    about      9    millimeter

ammunition and a gun found in defendant’s grandmother’s house;

(B) not ordering a mistrial after a profane outburst from the

victim’s father in the presence of the jury; (C) releasing an

out-of-state       witness        from    his    subpoena     and   forcing       defense

counsel to elect whether to call the witness with only a few

hours’ notice; (D) refusing defendant’s request to instruct the

jury concerning flight as an indication of the guilt of another

person; and (E) allowing the admission of inadmissible hearsay

and cumulative evidence consisting of a witness’ self-serving

statements implicating defendant.

                    A.     Weapon and Ammunition Testimony

      In his first argument on appeal, defendant contends that

the trial court erred by allowing the admission of testimony

concerning 9 millimeter ammunition and a gun found during the

search     of    defendant’s       house.        Specifically,      defendant         argues
                                          -8-
that the challenged evidence was not relevant, in violation of

Rule 401 of the North Carolina Rules of Evidence.                                Defendant

also asserts that, if the evidence was relevant, the prejudice

to    defendant    outweighed     the     probative     value       of     the    evidence

under Rule 403 of the North Carolina Rules of Evidence.                                  We

disagree.

       “The admissibility of evidence is governed by a threshold

inquiry    into     its    relevance.      In   order       to   be      relevant,      the

evidence must have a logical tendency to prove any fact that is

of consequence in the case being litigated.”                        State v. Griffin,

136 N.C. App. 531, 550, 525 S.E.2d 793, 806 (2000) (citation and

quotation marks omitted); see also N.C. Gen. Stat. § 8C-1, Rule

401    (2013)     (“‘Relevant     evidence’       means      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.”).                                 "All

relevant evidence is admissible, except as otherwise provided by

the Constitution of the United States, by the Constitution of

North    Carolina,    by    Act   of     Congress,     by     Act     of   the     General

Assembly or by these rules. Evidence which is not relevant is

not   admissible."         N.C.   Gen.    Stat.    §   8C-1,        Rule    402    (2013).

Nevertheless, under Rule 403, relevant evidence “may be excluded
                                      -9-
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).

                  Although the trial court's rulings on
             relevancy technically are not discretionary
             and therefore are not reviewed under the
             abuse of discretion standard applicable to
             Rule 403, such rulings are given great
             deference on appeal.     Because the trial
             court is better situated to evaluate whether
             a particular piece of evidence tends to make
             the existence of a fact of consequence more
             or less probable, the appropriate standard
             of review for a trial court's ruling on
             relevancy pursuant to Rule 401 is not as
             deferential as the "abuse of discretion"
             standard which applies to rulings made
             pursuant to Rule 403.

Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004)

(internal quotations and citation omitted).

      At trial, a hearing was held prior to admission of the

challenged evidence.        Detective Miguel Santiago, a witness for

the State, found a 9 millimeter machine-gun style pistol during

a   search   of     defendant’s   home.      The     gun   had    nineteen     (19)

Winchester 9 millimeter bullets and fifteen (15) Remington 9

millimeter    bullets.      The   State     wanted    to   introduce    evidence

regarding     the    9   millimeter   ammunition       that      was   found     at
                                      -10-
defendant’s    house    to   show    that    defendant      possessed    the       same

caliber and brand of ammunition as the shell casings that had

been found at the crime scene and were used to kill the victim.

The State did not intend to introduce the 9 millimeter gun.

Over defendant’s objection, the trial court allowed the State to

present the following evidence about the 9 millimeter ammunition

found in the house:

            [State:] . . . Did you assist with executing
            a search warrant on [defendant’s] home on
            October 27th, 2010?

            [Santiago:] Yes, I did.

            [State:] And yes or no, Detective, during
            that search, did you find any 9 millimeter
            ammunition?

            [Santiago:] Yes, I did.

    In order to dispel any suggestion that defendant possessed

the 9 millimeter gun used in the shooting, defendant elicited

testimony that a 9 millimeter gun also found in his house, in

which the 9 millimeter ammunition was found, was not the murder

weapon.       Thereafter,     based    on    a   trial      court    ruling        that

defendant     had   “opened    the     door”,    on    re-direct        the    State

introduced    further    evidence     concerning      the    gun    found     in   the

house, including photographs.          Defendant later testified that he

only owned the 9 millimeter gun found during the search.
                                      -11-
      After    thoughtful      review,    we    hold   that     the     evidence

concerning     the   9   millimeter      ammunition    that    was    found    in

defendant’s     home     was   relevant      because   it    tended    to     link

defendant to the scene of the crime, where eleven shell casings

of the same brand and caliber were found, thus allowing the jury

to   infer    that   defendant   was     the   perpetrator     of    the    crime.

Because evidence of the 9 millimeter ammunition was probative of

defendant’s connection to the crime and the danger of unfair

prejudice did not outweigh the probative value of the evidence,

we hold that the trial court did not err by admitting this

evidence.

      Next, we address the admission of evidence regarding the

gun that was found pursuant to a search of defendant’s home.                    We

note that the trial court ruled that evidence of the gun found

in defendant’s home would not be admissible.                However, defendant

“opened the door” to the admission of this evidence.                  “The State

has the right to introduce evidence to rebut or explain evidence

elicited by defendant although the evidence would otherwise be

incompetent or irrelevant.”            State v. Johnston, 344 N.C. 596,

605, 476 S.E.2d 289, 294 (1996) (citation omitted).                    “The law

has long been that, even where [t]he type of testimony is not

allowed[,] . . . when a party first raises an issue, it opens
                                        -12-
the door to questions in response to that issue and cannot later

object to testimony regarding the subject raised.”                         State v.

Wilson,   151    N.C.   App.   219,     226,    565   S.E.2d     223,    228   (2002)

(citations      and   quotation       marks    omitted).         Since    he   first

introduced      evidence    about     the     gun   found   in    his    residence,

defendant cannot now challenge the admission of testimony that

he first elicited.         Defendant’s arguments are overruled.

                                 B.     Mistrial

    In his second argument on appeal, defendant contends that

the trial court erred by failing to declare a mistrial after an

outburst by the victim’s father in the presence of the jury.

    During the testimony of Sergeant Abbondanza of the CMPD

describing the victim’s injuries, the victim’s father, stated

“[m]otherf***** -- my baby. You shot my mother f***** baby –

(unintelligible).”         Shortly thereafter, as the court concluded

for the day, the trial judge addressed the jury concerning the

outburst:

            Finally, I can't let go -- or can't let it
            go   without   saying   something   about the
            outburst of the gentleman a moment ago.    If
            you'll recall before we started, I said, you
            know, this is when we start; this is when we
            end; that these trials take on a life of
            their own.    We're dealing with -- this is
            not television.     These are the real facts
            and   real   tragedies.      He   clearly was
            emotional.   But it's your responsibility as
                                      -13-
            a juror and as a finder of fact to base your
            decision on the law and on the evidence and
            not on emotion.   I don't know whether this
            gentleman will be back.   I can promise you
            if he is back, he will not act like that
            again in this courtroom.

The following morning, the trial judge again addressed the issue

with the jury at the request of the defense.

            We're going to start in just a moment with
            the cross-examination of this witness by the
            defendant.     But I do have one final
            instruction for you concerning the incident
            that occurred yesterday afternoon.    I'm not
            sure exactly what Mr. Robinson said.      But
            regardless of what he said or what you may
            have thought he said or remember him to have
            said, that is not evidence and should not be
            considered by you as evidence and should
            have no bearing upon your deliberations.

    Defendant       concedes   in    his     brief    that   “defense       counsel

failed to seek a mistrial” and thus contends that the proper

standard of review is plain error.                 The North Carolina Supreme

Court   has    restricted      review      for      plain    error   to      issues

“involv[ing] either errors in the trial judge’s instructions to

the jury or rulings on the admissibility of evidence.”                     State v.

Cummings,     346   N.C.   291,     314,     488    S.E.2d   550,    563     (1997)

(citation omitted).        Because plain error review is not available

to defendant, this issue is not properly preserved for appeal.

See State v. McCall, 162 N.C. App. 64, 70, 589 S.E.2d 896, 900

(2004) (where the defendant failed to move for a mistrial after
                                       -14-
individuals in the courtroom signaled to the victim during her

testimony, plain error review was not available and the argument

was waived).

                 C.    Defendant’s Sixth Amendment Rights

    Defendant         next   argues    that   the   trial   court    erred   by

releasing   an    out-of-state        witness,   Shariff    Baker,   from    his

subpoena, forcing the defense to elect whether to call him as a

witness with only a few hours’ notice.              Specifically, defendant

argues that the trial court violated his confrontation rights as

secured by the Sixth Amendment of the United States Constitution

and Article I Section 23 of the North Carolina Constitution.                 We

find defendant’s arguments meritless.

    Defendant relies on State v. Barlowe, 157 N.C. App. 249,

578 S.E.2d 660 (2003) to support his argument.                  Our Court in

Barlowe stated the following:

            The right to present evidence in one’s own
            defense is protected under both the United
            States and North Carolina Constitutions. As
            noted by the United States Supreme Court . .
            . [t]he right of an accused in a criminal
            trial to due process is, in essence, the
            right to a fair opportunity to defend
            against the State’s accusations. The rights
            to confront and cross-examine witnesses and
            to call witnesses in one’s own behalf have
            long been recognized as essential to due
            process.   In addition, the right to face
            one’s accusers and witnesses with other
            testimony   is  guaranteed   by   the  sixth
                                   -15-
            amendment   to  the  federal constitution,
            applicable   to  the  states through   the
            fourteenth amendment, and by Article I,
            sections 19 and 23 of the North Carolina
            Constitution.

Id. at 253, 578 S.E.2d at 663 (citations and quotation marks

omitted).

    “The     standard   of     review     for     alleged   violations   of

constitutional rights is de novo.               Once error is shown, the

State bears the burden of proving the error was harmless beyond

a reasonable doubt.”    State v. Graham, 200 N.C. App. 204, 214,

683 S.E.2d 437, 444 (2009) (citing State v. Tate, 187 N.C. App.

593, 599, 653 S.E.2d 892, 897 (2007) and N.C. Gen. Stat. § 15A-

1443(b)).

    In the case sub judice, the State, pursuant to N.C. Gen.

Stat. § 15A-811 et seq., summoned Shariff Baker from New York to

testify at the trial.    On 22 - 23 May 2013, Baker testified and

defendant had an opportunity to cross-examine him.             After Baker

stepped down from the        witness stand,       the State   informed   the

trial court judge that the defense had attempted to serve a

subpoena on Baker the day before.           The State argued that the

subpoena was invalid.        Baker refused to speak with the defense

out-of-court and the trial court required the defense to decide

whether to call Baker as a witness before 2:00 p.m. that day.
                               -16-
When the defense indicated it had not yet decided whether it

would be calling Baker as a witness at 2:00 p.m., the trial

court judge released Baker from the summons.

    After reviewing the record, we are unable to agree with

defendant that his confrontation rights regarding the State’s

witness, Shariff Baker, were violated.      Baker was available at

trial and defendant had the opportunity to conduct a cross-

examination of Baker.   Moreover, we note that Baker was summoned

as an out-of-state witness by the State.     Pursuant to N.C. Gen.

Stat. § 15A-814,

         [i]f a person comes into this State in
         obedience to a summons directing him to
         attend and testify in this State he shall
         not, while in this State pursuant to such
         summons, be subject to arrest or the service
         of process, civil or criminal, in connection
         with matters which arose before his entrance
         into this State under the summons.

N.C. Gen. Stat. § 15A-814 (2013).      Thus, the subpoena served

upon Baker during trial was invalid because Baker was in North

Carolina pursuant to the State’s summons.    As such, we hold that

the trial court did not err by releasing Baker from his summons

after he testified as a witness for the State.          Based on the

foregoing reasons, we reject defendant’s contentions.

            D.     Jury Instruction Concerning Flight
                                       -17-
     In     the   fourth     issue    raised        by    defendant    on     appeal,

defendant argues      that the trial court erred in refusing his

request to instruct the jury concerning flight as an indication

of Alvin Alexander’s guilt.           Defendant contends that the failure

of   the    trial   court     to     deliver        the   requested    instruction

concerning flight was a violation of his constitutional rights

pursuant to the Sixth, Eighth, and Fourteenth Amendments of the

United States Constitution and Article I, Sections 18, 19, 24,

and 27 of the North Carolina Constitution.

     “[Arguments]         challenging       the      trial   court’s        decisions

regarding    jury    instructions       are    reviewed      de    novo,     by   this

Court.”     State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d

144, 149 (2009) (citation omitted).

     In the present case, Alvin testified that he left the scene

of the crime after the shooting because he “didn’t want to be

around when the police showed up” since he was in possession of

“crack.”    The defense requested a special instruction concerning

the flight of Alvin from the crime scene.                         The trial court

denied the request for the instruction, but allowed the defense

to argue the point.

     Defendant      now    argues    that     the    trial   court    should      have

delivered an instruction concerning the flight of Alvin as an
                                         -18-
indication of his guilt.           Defendant contends that the evidence

at trial suggested that Alvin “might have been the shooter” and

that his flight from the scene of the crime “in fear of the

police is particularly incriminating.”

    It is well established that “[e]vidence of a defendant’s

flight    following    the   commission         of    a   crime   may   properly    be

considered by a jury as evidence of guilt or consciousness of

guilt.”        State v. King, 343 N.C. 29, 38, 468 S.E.2d 232, 238

(1996) (citation omitted).

    Assuming arguendo that it was error for the trial court to

refuse    to    instruct   the    jury    that       it   would   consider   Alvin’s

flight    as    evidence   that    he,    rather       than    defendant,    was   the

perpetrator of the crime, we do not believe that this decision

amounted to prejudicial error.             According to N.C. Gen. Stat. §

15A-1443(a), “[a] defendant is prejudiced by errors relating to

rights arising other than under the Constitution of the United

States when there is a reasonable possibility that, had                            the

error in question not been committed, a different result would

have been reached at the trial out of which the appeal arises.”

N.C. Gen. Stat. § 15A-1443(a) (2013).1                        Here, the record is



1
 Although defendant argues in his brief that his constitutional
rights were violated, he failed to advance any constitutionally
based arguments in support of his request for the delivery of a
                                 -19-
replete with evidence from which a jury could find defendant

guilty of first degree murder.          At trial, several witnesses

testified that defendant fired the shots that resulted in the

victim’s death.    Witnesses also testified that defendant made

highly   incriminating   statements   after   the    shooting.   On   the

other hand, although several witnesses initially told officers

that Alvin fired the shots that killed the victim, the testimony

at trial was devoid of any direct evidence tending to show that

Alvin was the perpetrator of the crime.             In addition, despite

the fact that Alvin testified that he left the scene of the

crime after the shooting because he had drugs on his person, he

testified that he returned after learning that officers were

searching for him.       Based on the foregoing, we are unable to

hold that there is a reasonable possibility that a different

result would have been reached at trial had the trial court

delivered defendant’s requested third party flight instruction.

Therefore, we find no prejudicial error.

           E.   Admission of Alvin Alexander’s Testimony


third party flight instruction before the trial court. Because
our Court does not consider constitutional issues raised for the
first time on appeal, State v. Hunter, 305 N.C. 106, 112, 286
S.E.2d 535, 539 (1982) (stating that “a constitutional question
which is not raised and passed upon in the trial court will not
ordinarily be considered on appeal”), we apply the applicable
prejudice standard applicable to non-constitutional errors to
defendant’s claim.
                                    -20-


      In the final issue that he has raised on appeal, defendant

argues that the trial court erred by admitting evidence of phone

calls made by Alvin Alexander to his friends which were “self-

serving    statements    implicating      defendant.”     Defendant         argues

that this evidence amounted to hearsay and was cumulative.                      We

disagree.

      “Hearsay” is defined as “a statement, other than one made

by   the   declarant    while   testifying    at   the   trial      or    hearing,

offered in evidence to prove the truth of the matter asserted.”

N.C. Gen. Stat. § 8C-1, Rule 801(c) (2013).                   Hearsay is not

admissible. N.C. Gen. Stat. § 8C-1, Rule 802 (2013).                     The trial

court’s determination       about whether an out-of-court statement

constitutes hearsay is reviewed de novo.             State v. Miller, 197

N.C. App. 78, 87-88, 676 S.E.2d 546, 552 (2009).                         The trial

court’s determination concerning whether there is a “needless

presentation of cumulative evidence” pursuant to Rule 403 of the

North Carolina Rules of Civil Procedure is reviewed for an abuse

of discretion.       State v. Jacobs, 363 N.C. 815, 823, 689 S.E.2d

859, 864 (2010).

      The challenged evidence, which consisted of recordings of

phone calls made by Alvin while he was in jail, was admitted

during     Alvin’s   testimony.     The    substance     of   the    recordings
                                               -21-
indicated    that    Alvin         did    not    shoot    at    the    vehicle    and    that

defendant was the shooter on 12 August 2010.

    Defendant argues that Alvin’s credibility was a key issue

at trial and that allowing the tapes to bolster his testimony

was prejudicial to defendant.                     Without the repeated statements

by Alvin, defendant argues that the jury could have reached a

different result.

    After conducting de novo review of the challenged evidence,

we hold that the recordings of Alvin’s conversations did not

amount to hearsay.            In order to constitute hearsay, it must be

“[a]n    assertion       of     one      other    than    the    presently       testifying

witness”    and     must      be    offered        for   the    truth    of    the    matter

asserted.        State     v.      Sibley,       140   N.C.    App.    584,    587-88,       537

S.E.2d 835, 838 (2000) (citation omitted).                             In the case sub

judice,    the    recordings          were       admissible      for    the    non-hearsay

purpose    of    corroborating           Alvin’s       testimony,      which   means     that

they were not used for the truth of the matter asserted.                                      In

addition, the recordings were not a needless presentation of

cumulative evidence because the statements Alvin made in the

recordings       corroborated            his     testimony,      excluded       him     as    a

suspect, and established defendant as the perpetrator of the

crime.     For these reasons, we are unable to hold that the trial
                                -22-
court   abused   its   discretion   by   admitting   the   challenged

testimony as a needless presentation of cumulative evidence.

                          III. Conclusion

    Based on the reasons discussed above, we find no error in

part and no prejudicial error in part.

    Judges ERVIN and DILLON concur.
