State v. Moore

NO. COA14-244

NORTH CAROLINA COURT OF APPEALS

Filed: 7 October 2014

STATE OF NORTH CAROLINA

v. Scotland County
No. 12 CRS 50906
SHAWN MOORE,
Defendant.

Appeal by defendant from judgment entered 31 October 2013

by Judge Richard Brown in Scotland County Superior Court. Heard

in the Court of Appeals 26 August 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Jill F. Cramer, for the State.

Parish & Cooke, by James R. Parish, for defendant-
appellant.

BRYANT, Judge.

Where the prior statement of a witness did not differ

significantly from the witness’ trial testimony, the trial court

did not abuse its discretion in admitting the statement for

corroborative purposes.

On 24 June 2013, defendant Shawn Moore was indicted by a

Scotland County grand jury for robbery with a dangerous weapon.

The matter came on for trial during the 28 October 2013 criminal
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session of Scotland County Superior Court, the Honorable Richard

Brown, Judge presiding. At trial, the State’s evidence tended

to show the following.

On 15 March 2012, Sergeant Jeffrey Cooke of the Scotland

County Sheriff’s Office responded to an emergency call. When

Sergeant Cooke arrived at the scene, he found Travis McLean

lying on the ground bleeding from a foot injury. McLean told

Sergeant Cooke that three men came to his house to look at some

electronic equipment. The men then grabbed McLean’s shotgun and

shot McLean in the foot before taking McLean’s cell phone and

fleeing in McLean’s car, a lavender-colored 1994 Cadillac

Fleetwood Brougham. McLean’s car was later found abandoned and

seriously damaged in Marlboro, South Carolina.

At trial, McLean testified that he knew one of the three

men who robbed him because his cousin once introduced the two

men. This man, defendant, was known to McLean as “Mook” or

“Mooky.” McLean stated that defendant and two other men, later

identified as Michael Liles and Ari Miles, came to McLean’s

house to buy a half pound of marijuana. McLean testified that

because he did not have enough marijuana to sell, he texted his

supplier “Scottie” to bring additional marijuana to his house.
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While the men waited for the marijuana, defendant noticed

McLean’s shotgun in the corner of the living room and asked if

he could buy it. After McLean declined to sell the shotgun,

defendant then asked if he could shoot it; McLean said yes.

After defendant fired the shotgun outside in the backyard,

defendant asked McLean to show him McLean’s car’s electronics.

McLean went to his car and turned it on to run the audio system.

After McLean turned on his car’s audio system, he stated

that he received a phone call and began to walk back towards his

house. McLean testified that as he walked back towards his

house, Ari Miles suddenly stepped in front of him, pointed the

shotgun at him, and demanded McLean give Miles his cell phone.

Miles then fired the shotgun towards McLean’s feet. McLean

threw his cell phone at Miles and began to run away but realized

that he had been shot in the left foot and ankle and was unable

to run. McLean testified that immediately after the shooting,

defendant got into McLean’s car and drove away. Liles and Miles

both left in Liles’ car. McLean stated that the shotgun damage

to his foot was so severe his Achilles tendon had to be removed.

The State also presented the testimony of Ari Miles at

trial. Miles was currently being held at the Scotland County

Correctional facility following his conviction for the armed
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robbery of McLean. Miles testified that he went with defendant

and Liles to McLean’s house to purchase marijuana and that while

McLean was trying to find more marijuana for them, defendant

told Miles he wanted to steal McLean’s car. Miles said

defendant threatened him by flashing a gun tucked into his

waistband and ordered Miles to use McLean’s shotgun for the

robbery. Miles testified that he did not want to hurt McLean

and that he thought he had only shot at the ground, rather than

hitting McLean’s left foot and ankle. Miles said that after the

robbery, he traded McLean’s cell phone to another person for a

different cell phone.

On 29 October 2013, defendant filed a motion in limine to

exclude/redact statements or exhibits. During the pre-trial

hearing, the trial court heard arguments from counsel regarding

two of the State’s exhibits: a statement made by Ari Miles on 28

March 2012; and a statement by Ari Miles made 9 October 2013.

The trial court denied defendant’s motion on grounds that the

two statements were not significantly different but noted that

if Miles testified at trial and his testimony changed

significantly from the prior statements, the trial court would

reconsider its decision.
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Ari Miles testified during trial as to his involvement with

defendant and the robbery of McLean. Defendant then objected

during the testimony of Investigator Laviner when Miles’ 28

March 2012 statement was read aloud to the jury. The trial

court, after reconsidering the arguments of counsel and the

statement in question, overruled defendant’s objection and

allowed the statement to be admitted for corroborative purposes.

The trial court also gave limiting instructions to the jury

regarding their consideration of Miles’ prior statement.

On 31 October, a jury convicted defendant of robbery with a

dangerous weapon. Defendant was found to be a prior record

level II and was sentenced to 59 to 83 months imprisonment.

Defendant appeals.

____________________________

In his sole issue on appeal, defendant argues that the

trial court erred in allowing Ari Miles’ 28 March 2012 statement

to be admitted for corroborative purposes, and that defendant

was prejudiced as a result. We disagree.

“The standard of review for this Court assessing

evidentiary rulings is abuse of discretion. A trial court may

be reversed for an abuse of discretion only upon a showing that

its ruling was so arbitrary that it could not have been the
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result of a reasoned decision.” State v. Cook, 193 N.C. App.

179, 181, 666 S.E.2d 795, 797 (2008) (citation and quotation

omitted). “The abuse of discretion standard applies to

decisions by a trial court that a statement is admissible for

corroboration.” State v. Tellez, 200 N.C. App. 517, 526, 684

S.E.2d 733, 739 (2009) (citations omitted).

Defendant contends the trial court erred in admitting

Miles’ 28 March 2012 statement into evidence because the

statement contained significant differences from Miles’ own

testimony during trial and these differences resulted in

prejudicial error entitling defendant to a new trial.

[C]orroborative testimony is testimony
which tends to strengthen, confirm, or make
more certain the testimony of another
witness. In order to be admissible as
corroborative evidence, a witness'[] prior
consistent statements merely must tend to
add weight or credibility to the witness's
testimony. Further, it is well established
that such corroborative evidence may contain
new or additional facts when it tends to
strengthen and add credibility to the
testimony which it corroborates. If the
previous statements are generally consistent
with the witness' testimony, slight
variations will not render the statements
inadmissible, but such variations . . .
affect [only] the credibility of the
statement. A trial court has wide latitude
in deciding when a prior consistent
statement can be admitted for corroborative,
non[-]hearsay purposes.
 -7-
Id. at 526—27, 684 S.E.2d at 740 (citations omitted). “The

trial court is [ultimately] in the best position to determine

whether the testimony of [one witness as to a prior statement of

another witness] corroborate[s] the testimony of [the latter].”

State v. Bell, 159 N.C. App. 151, 156, 584 S.E.2d 298, 302

(2003) (citation omitted). “Only if the prior statement

contradicts the trial testimony should the prior statement be

excluded.” Tellez, 200 N.C. App. at 527, 684 S.E.2d at 740

(citation omitted).

Ari Miles testified at trial that he went with Michael

Liles and defendant to McLean’s house to purchase marijuana.

Miles stated that defendant became interested in McLean’s

shotgun and that after discussing the marijuana purchase with

him and Liles, told Miles “he was going to give me the shotgun

for me to stick [McLean] up.” Miles said defendant then began

to ask McLean questions about McLean’s car, and McLean turned

the car and its audio system on. Miles stated that once McLean

began to walk away from the car, defendant signaled for Miles to

rob McLean. After Miles fired the shot gun at McLean, McLean

“threw his cell phone and ran” while defendant got into McLean’s

car. Miles stated that defendant threatened him by flashing a

gun tucked into defendant’s waistband before driving away.
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Miles further said that he gave the shotgun to Liles and fled in

Liles’ car, and traded McLean’s cell phone to another person for

a different type of cell phone.

During his testimony, Investigator Laviner read a statement

made by Ari Miles on 28 March 2012. In his statement, Miles

described his trip with Liles and defendant to McLean’s house to

purchase marijuana, defendant’s interest in McLean’s shotgun,

and defendant asking McLean to show him the audio system in

McLean’s car. Miles said in his statement that defendant said

he wanted to rob McLean and that if Miles did not shoot McLean,

defendant “would do [Miles.]” In his statement, Miles further

said that he shot at the ground and McLean threw his cell phone

at him in response; Miles then ran back to Liles’ car and left.

Defendant was described as taking the shotgun and driving the

car down to the sand hills.

Defendant’s contention that there were significant

differences between Miles’ testimony and prior statement is

without merit. In reviewing Miles’ testimony and prior

statement, the differences between the two are slight.

Moreover, both substantiate defendant’s participation in

McLean’s robbery, including defendant’s decision to rob McLean

for McLean’s car, defendant getting Miles to use the shotgun as
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part of the robbery by threatening Miles, and defendant leaving

the scene in McLean’s car. As such, the trial court did not

abuse its discretion in allowing Miles’ prior statement to be

admitted, as the differences between Miles’ testimony and prior

statement were slight and did not change Miles’ account of

McLean’s robbery. See State v. Lloyd, 354 N.C. 76, 104, 552

S.E.2d 596, 617 (2001) (“[P]rior consistent statements are

admissible even though they contain new or additional

information so long as the narration of events is substantially

similar to the witness' in-court testimony.” (citation

omitted)).

Defendant further contends the trial court erred in its

admission of Miles’ prior statement as corroborative evidence

based on our Supreme Court’s decisions in three cases: State v.

Frogge, 345 N.C. 614, 481 S.E.2d 278 (1997); State v. Warren,

289 N.C. 551, 223 S.E.2d 317 (1976); and State v. Fowler, 270

N.C. 468, 155 S.E.2d 83 (1967). However, these cases are not

applicable to the instant case.

In Frogge, Warren, and Fowler, the defendants were

convicted of first-degree murder. On appeal, the defendants

challenged the trial court’s admission of prior statements of

witnesses as corroborative evidence, arguing that the prior
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statements were so substantially different from testimony given

during the trial that the defendants were prejudiced as a

result. Our Supreme Court agreed, finding that in each case the

prior statements were contradictory to testimony given during

the trial and, because the evidence directly affected the first-

degree murder charges facing the defendants, the admission of

such evidence was indeed prejudicial. See Frogge, 345 N.C. at

616—18, 481 S.E.2d at 279—80 (ordering a new trial for the

defendant on grounds of prejudice caused by the improper

admission of corroborative evidence where “the inconsistencies

between [defendant’s] prior statement and his trial testimony

went to the heart of the prosecution's case for felony

murder[]”); Warren, 289 N.C. at 553—59, 223 S.E.2d at 319—22

(holding that corroborative evidence was prejudicial to the

defendant where the testimony “went beyond and contradicted”

other testimony that was essential to the defendant’s charged

offense of first-degree murder); Fowler, 270 N.C. at 469—72, 155

S.E.2d at 84—87 (ordering a new trial where the differences in

the corroborative testimony could account for the difference

between the defendant receiving life imprisonment and the death

penalty).
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Here, defendant was charged with the offense of robbery

with a dangerous weapon. As previously discussed, there were

only slight differences between Ari Miles’ testimony and his

prior statement. Further, Miles’ testimony and prior statement

were substantially consistent regarding defendant’s involvement

in McLean’s robbery including events leading up to, during, and

immediately after the robbery. Any “inconsistencies between

[Miles’] prior statement and his trial testimony [did not go] to

the heart of the prosecution's case for [robbery with a

dangerous weapon].” See Frogge, 345 N.C. at 616—18, 481 S.E.2d

at 279—80.

Defendant also argues that the trial court erred by

admitting as corroborative evidence Miles’ testimony and prior

statement because Miles’ prior statement “introduced a murderous

intent on the part of the defendant” and “this inadmissible and

highly prejudicial testimony resulted in prejudicial error

entitling the defendant to a new trial.” We disagree for, as

discussed above, the differences that existed between Miles’

testimony at trial and his prior consistent statement made

within days of the robbery were only slight and did not go to

the heart of defendant’s charged offense of robbery with a

dangerous weapon. Defendant is unable to demonstrate prejudice
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from the admission of Miles’ prior statement. See State v.

Gappins, 320 N.C. 64, 68, 357 S.E.2d 654, 657 (1987) (“The

burden is on the party who asserts that evidence was improperly

admitted to show both error and that he was prejudiced by its

admission. The admission of evidence which is technically

inadmissible will be treated as harmless unless prejudice is

shown such that a different result likely would have ensued had

the evidence been excluded.” (citations omitted)). We further

note that the evidence presented against defendant, particularly

the testimony of McLean, was overwhelming such that the

differences in Miles’ testimony and prior statement would not

affect the outcome of defendant’s trial. See State v. Moses, 52

N.C. App. 412, 421—24, 279 S.E.2d 59, 65—66 (1981) (holding that

the trial court did not abuse its discretion in admitting

evidence of corroborative statements where there were no

fundamental differences between the statements, nor did the

defendant receive an unfair trial where the defendant presented

no evidence and the State’s evidence against the defendant was

overwhelming). Accordingly, the trial court did not abuse its

discretion in admitting Miles’ prior statement for corroborative

purposes, where the statement tended to add weight and

credibility to Miles’ testimony at trial.
 -13-
No error.

Chief Judge McGEE and Judge STROUD concur.