STATE OF NORTH CAROLINA
v
.
Mecklenburg County
Nos. 00 CRS 8825, 8826
ZACHARY HOWZE
Attorney General Roy Cooper, by Special Deputy Attorney
General Hal F. Askins, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender
Julie Ramseur Lewis, for defendant-appellant.
WALKER, Judge.
Defendant appeals his conviction on two counts of discharging
a weapon into occupied property. The State's evidence tends to
show that defendant is the owner of the Plaza Car Care Center (Car
Care Center) in Charlotte. At approximately 6:50 p.m. on 18
September 1999, Melvin Hoskins (Hoskins), an employee of defendant,
drove into the Car Care Center in order to collect his pay for the
week.
After he arrived, Hoskins exited his vehicle and entered
defendant's office. Defendant gave Hoskins a check along with a
statement which showed that taxes had been withheld from his pay.
Thereafter, an argument ensued over whether the two had previouslyagreed that defendant would not withhold taxes from Hoskins' pay.
Defendant ordered Hoskins out of his office and the two continued
to exchange words as Hoskins returned to his vehicle. Defendant
followed, reached inside of Hoskins' vehicle and punched him.
Hoskins then began to back up his vehicle while defendant ran into
his office. According to Hoskins, defendant returned with a silver
handgun and proceeded to fire a number of rounds in the direction
of Hoskins' vehicle as he was leaving. Hoskins testified that
bullets struck his vehicle in the right rear tire and the trunk
area.
In his first assignment of error, defendant contends the trial
court erred by admitting into evidence a statement made by a
State's witness to police. The record shows that Antrice Mitchell
(Mitchell) testified as to what she observed at the Car Care Center
on 18 September 1999. Mitchell stated that while she was waiting
in the lobby the “manager” came inside and went into the garage
area. He quickly returned carrying a silver handgun in his right
hand. Mitchell stated that a few moments later she heard “two or
three shots” but acknowledged that she did not actually see the
“manager” fire the silver handgun.
After Mitchell's testimony, Officer Theodore Castano (Officer
Castano) of the Charlotte-Mecklenburg Police Department testified
that following the incident, Mitchell “indicated [to him] that she
saw the Defendant fire one shot . . . .” Defendant's objection was
overruled by the trial court; however, at defendant's request, the
trial court excused the jury. Defendant then argued that hisobjection was based on Officer Castano's testimony that Mitchell
had previously indicated to him that she had seen “the Defendant
fire one shot.” The prosecutor next conducted a voir dire and
agreed to limit his questioning of Officer Castano to how Mitchell
had described the handgun. After the jury returned, Officer
Castano continued his testimony stating, over defendant's
objection, “She indicated that during the shooting incident she
observed the owner with the silver handgun.”
Defendant maintains the trial court erred in admitting this
portion of Officer Castano's testimony for the reason that
Mitchell's prior statement to him contradicts her in-court
testimony in which she stated that she did not actually see
defendant fire the silver handgun. It is well settled that
“[p]rior consistent statements of a witness are admissible as
corroborative evidence even when the witness has not been
impeached. However, the prior statement must in fact corroborate
the witness' testimony. Slight variations between the
corroborating statement and the witness' testimony will not render
the statement inadmissible.” State v. Riddle, 316 N.C. 152, 157,
340 S.E.2d 75, 78 (1986)(citations omitted). Nevertheless, a
witness' prior statement which tends to add “new” information to
his in-court testimony is inadmissible as corroborative evidence.
See State v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 573-74
(1986). Additionally, a new trial is warranted only in cases where
the erroneous introduction of the prior statement has prejudiced
the defendant. See generally, State v. Burton, 322 N.C. 447, 368S.E.2d 630 (1988); and State v. Reynolds, 91 N.C. App. 103, 370
S.E.2d 600 (1988); see also N.C. Gen. Stat. § 15A-1443(a)(2001).
Here, assuming arguendo, that Officer Castano's testimony
regarding Mitchell's prior statement was inadmissible to the extent
that it did not corroborate her in-court testimony, defendant has
failed to show how he was sufficiently prejudiced by its admission
to warrant a new trial. Indeed, the victim testified that, as he
was leaving the Car Care Center, he observed defendant fire several
shots towards his vehicle with a silver handgun. Mitchell's in-
court testimony that she had witnessed the manager of the Car Care
Center carrying a silver handgun and moments later heard shots
being fired corroborates this testimony. Therefore, we conclude
any error in the admission of testimony that did not corroborate
Mitchell's testimony did not prejudice defendant as to warrant a
new trial. Defendant's assignment of error is overruled.
Next, defendant contends his conviction on two counts of
discharging a weapon into occupied property violates his
constitutional right to protection against double jeopardy.
However, our Supreme Court has previously held that an indictment
for multiple counts of discharging a firearm into occupied property
does not violate the constitutional guarantees against double
jeopardy provided that each count relates to a “separate and
distinct” act. State v. Rambert, 341 N.C. 173, 176, 459 S.E.2d
510, 512 (1995).
In Rambert, the State's evidence showed the defendant was
riding in an automobile which pulled into a parking space next toa space where the victim was sitting in his automobile. After
words were exchanged, the defendant pulled out a handgun and fired
a bullet which hit the front windshield of the victim's automobile.
The victim drove forward and a second bullet struck the passenger
door. Finally, the defendant fired a third shot which hit the rear
bumper. In upholding the defendant's indictment for three counts
of discharging a firearm into occupied property, the Court noted:
“Each shot . . . required that defendant employ his thought
processes each time he fired the weapon. Each act was distinct in
time, and each bullet hit the vehicle in a different place.” Id. at
176-77, 459 S.E.2d at 512-13.
Here, the State's evidence showed defendant had fired at least
two shots into Hoskins' vehicle as Hoskins drove out of defendant's
parking lot--one striking a tire and the other striking the trunk.
As in Rambert, each shot was distinct in time, hit a separate area
of the victim's vehicle, and required defendant to employ his
thought processes each time he fired the handgun. Accordingly, we
conclude defendant's conviction for two counts of discharging a
firearm into occupied property did not violate his constitutional
right to protection against double jeopardy.
Lastly, defendant contends the trial court committed plain
error in the calculation of his sentence by finding, as an
aggravating factor, that he “knowingly created a great risk of
death to more than one person . . . .” He maintains this finding
does not comport with this Court's prior holdings that non-
automatic rifles and handguns are not normally dangerous to thelives of more than one person. See State v. Bethea, 71 N.C. App.
125, 129-30, 321 S.E.2d 520, 523 (1984); and State v. Jones, 83
N.C. App. 593, 605, 351 S.E.2d 122, 129 (1986), disc. rev. denied,
319 N.C. 461, 356 S.E.2d 9 (1987). However, the record also shows
the trial court found, as mitigating factors, that defendant
“supports his family” and has “a positive employment history.” The
trial court then determined that the mitigating factors outweighed
any aggravating factors and defendant received concurrent mitigated
sentences of 30 to 45 months in prison.
The State contends this issue is not properly before this
Court, arguing that defendant is not entitled to a direct appeal of
a sentence imposed within the mitigated range. We agree.
Pursuant to N.C. Gen. Stat. § 15A-1444(a1):
A defendant who has been found guilty . . . is
entitled to appeal as a matter of right the
issue of whether his or her sentence is
supported by evidence introduced at the trial
and sentencing hearing only if the minimum
sentence of imprisonment does not fall within
the presumptive range for the defendant's
prior record or conviction level and class of
offense. Otherwise, the defendant is not
entitled to appeal this issue as a matter of
right but may petition the appellate division
for review of this issue by writ of
certiorari.
N.C. Gen. Stat. § 15A-1444(a1).
This Court has recently noted that a defendant sentenced
within the presumptive range is not entitled as a matter of right
to appeal his sentence. See State v. Brown, 146 N.C. App. 590,
593, 553 S.E.2d 428, 430 (2001). Although defendant's sentence
falls below the presumptive range, we do not interpret N.C. Gen.Stat. § 15A-1444(a1) as entitling a defendant sentenced in the
mitigated range to a direct appeal. “[T]he decision to depart from
the presumptive range is in the discretion of the court.” N.C.
Gen. Stat. § 15A-1340.16(a). Thus, a trial court is not required
to sentence a defendant in the mitigated range, even in situations
where mitigating factors may be present. As defendant has not
petitioned for a writ of certiorari, we conclude the issue of
whether the trial court committed plain error in finding an
aggravating factor is not properly before this Court.
We conclude defendant received a trial free from prejudicial
error.
No error.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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