An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-527


Filed: 4 March 2003


v .                         Wake County
                            No. 00 CRS 16804; 00CRS 21041


    Appeal by defendant from judgment entered 13 June 2001 by Judge Jack W. Jenkins in Wake County Superior Court. Heard in the Court of Appeals 29 January 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Meredith Jo Alcoke, for the State.

    Ligon and Hinton, by Lemuel W. Hinton, for the defendant.

    LEVINSON, Judge.

    Defendant appeals from judgment and conviction of assault with a deadly weapon inflicting serious injury.
    The events giving rise to this case occurred at the Circle K convenience store (the store), in Raleigh, North Carolina. The State's evidence tended to show, in pertinent part, the following: Just after midnight on 26 February 2000, Guy Bright drove to the store accompanied by his long-time friend, Brian Smith. Bright testified that he bought beer in the store, and when he came back out Smith was talking with Kwesi Holloway (defendant). Smith and defendant were arguing about $65.00 that Smith owed defendant for drugs. After Bright offered to pay the debt, defendant “calmed down.” Bright did not see defendant hit Smith; however, severalminutes after Smith's argument with defendant, Bright found Smith lying unconscious on the ground behind the van.
    Smith testified that when he and Bright stopped at the store, he waited in the van. While Bright was in the store, defendant approached and began “fussing at him” about the drug debt. As Smith got out of the van to speak further with defendant, one lens fell out of Smith's eyeglasses, and he bent to retrieve it. Smith testified that at that point he “blacked out,” and remembered nothing more until he awoke in the hospital some time later. Smith had serious head injuries, and remained in the hospital over two months.
    After Smith was injured, Bright asked store personnel to summon help. Detective Passley of the Raleigh City Police arrived shortly thereafter, and found Smith lying on the ground about 30 feet behind Bright's van, with “several large rocks” nearby. Later that night Passley spoke with John Bowman, Smith's cousin, who told him about the drug debt defendant was trying to collect from Smith. A warrant was issued for defendant's arrest. Among the arresting officers was Officer Nidiffer of the Raleigh City Police. Shortly after his arrest, defendant volunteered information about the incident to Nidiffer. He told Nidiffer that the news reports stating Smith had been hit by an “unspecified object” were erroneous and that, although he “didn't have anything to do with the attack” defendant knew Smith had been hit by a “concrete rock.”
    On 7 March 2000, Bright gave a statement about the incident to Detective Keith of the Raleigh City Police. Bright told Keith thefollowing: he and Smith originally went to the store hoping to buy drugs, although not from defendant. After Smith was taken to the hospital, Bright left the store parking lot. About 20 minutes later, defendant called him on his cellular phone and issued threats against Bright for buying drugs from someone else. Defendant also told Bright he “didn't hurt Brian that bad.” Bright knew defendant had “hit about three other people three or four months ago.”
    Dr. Koeleveld testified for the State that he had treated Smith for several months. Smith suffered a three-inch skull fracture and was in a coma for several weeks. His injuries required surgery and an extensive hospital stay. Dr. Koeleveld testified that it would require “a very substantial force” to create these injuries, and that it was “very unlikely” that Smith's head injuries could have been caused by a fall, or by a blow from someone's hand.
    Defendant presented two witnesses, Dena Dahir and Shana Clements, both of whom had been at the store parking lot around midnight on 26 February 2000. Each testified that she had not observed defendant in possession of a weapon, or seen defendant strike Smith, and that Smith had fallen backwards onto the ground.

    Defendant's first two arguments concern the statement that Bright gave to Detective Keith. Defendant argues first that the trial court committed plain error by allowing Keith to read Bright's statement into the record. Defendant contends that thestatement contradicted, and did not corroborate, Bright's trial testimony. We disagree.
    Defendant failed to object to Keith's testimony at trial, and thus did not preserve the error for appellate review. N.C.R. App. P. 10(b)(1) (“In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling . . . [and] obtain[ed] a ruling upon the party's request, objection or motion.”).
    Defendant, however, argues that admission of Bright's statement to Keith constituted plain error. Plain error is “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or . . . grave error which amounts to a denial of a fundamental right of the accused[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). “In order to prevail under a plain error analysis, a defendant must show: (1) there was error; and (2) without this error, the jury would probably have reached a different verdict.” State v. Smith, 152 N.C. App. 29, 37, 566 S.E.2d 793, 799, disc. review denied, 356 N.C. 311, 571 S.E.2d 208 (2002) (citation omitted).
    Bright's statement to Keith was admitted in corroboration of his trial testimony. “The law is well-settled that a witness's prior consistent statement may be admitted into evidence where the statements corroborate the witness's in-court testimony.” State v. Jones, 110 N.C. App. 169, 173, 429 S.E.2d 597, 599 (1993). “[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.” State v. Williamson, 333 N.C. 128, 136, 423 S.E.2d 766, 770 (1992). Thus, “if the previous statements offered in corroboration are generally consistent with the witness's testimony, slight variations between them will not render the statements inadmissible. Such variations affect only the credibility of the evidence which is always for the jury.” State v. Brooks, 260 N.C. 186, 189, 132 S.E.2d 354, 357 (1963) (citations omitted). “However, the witness's prior contradictory statements may not be admitted under the guise of corroborating his testimony.” State v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 574 (1986). See also State v. Frogge, 345 N.C. 614, 618, 481 S.E.2d 278, 280 (1997) (error to admit statement of witness where “prior statement contained information manifestly contradictory to his testimony at trial and did not corroborate the testimony”).
    In the instant case, Bright generally testified that he bought something in the store, came outside to find Smith and defendant arguing over a drug debt, then lost sight of Smith for a few minutes before discovering him unconscious on the ground. He readily admitted meeting with Detective Keith to discuss the events of 26 February 2000. Bright disputed the accuracy of only one aspect of his pretrial statement to Keith: whether during the two or three minutes between the argument and Bright's discovery of Smith, Bright was in his van or in the store. Inasmuch as Brightconcedes he did not see Smith or defendant during this brief time period, this discrepancy is insignificant and does not render the statement inadmissible.
    Defendant argues that Bright denied speaking with defendant by phone on the night Smith was injured. However, Bright testified at trial to receiving a phone call from defendant shortly after the incident, in which defendant stated he “didn't hurt [Smith] that bad.” Further, on redirect examination Bright expressly acknowledged making the following statement to Keith:
        [Defendant] called me about 20 minutes after I left the Circle K. He threatened me about buying drugs from someone other than him. He said he was going to [Smith's] grandmother's to get the money. He said he didn't hurt Brian that bad. I know he's hit about three or four other people about three or four months ago.

We conclude that Keith's summary of Bright's pretrial statement is not inconsistent with Bright's trial testimony, and hold that it was not error, or plain error, for the trial court to admit Bright's pretrial statement to Keith as corroborative evidence. This assignment of error is overruled.
    Defendant argues next that the trial court committed plain error by allowing Keith to read into the record the part of Bright's statement in which he said that he “knew [defendant] had hit about three other people three or four months ago[,]” and also by allowing Bright to testify that he was afraid of defendant.
    Defendant argues that the challenged evidence was inadmissible under N.C.G.S. § 8C, Rule 404(b) (2001). This statute provides:        Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident. . . .

“Rule 404(b) operates as a general rule of inclusion for relevant evidence but excludes evidence if its only probative value is to demonstrate the defendant's propensity to commit the crime.” State v. Taylor, __ N.C. App. __, __, 572 S.E.2d 237, 241 (2002).
    In the instant case, defendant argues that “the only purpose” for which the evidence was elicited “was to suggest to the jury that defendant was prone to violence and that he acted in accordance with that propensity in this case.” Assuming, arguendo, that defendant is correct in his analysis and that these statements were inadmissible, we hold that their admission does not constitute plain error.
    This Court has previously held that error in admitting evidence does not constitute plain error where there is ample evidence of defendant's guilt. See, e.g., State v. Perkins, __ N.C. App. __, __, 571 S.E.2d 645, 649 (2002) (where state presents “compelling evidence of defendant's guilt” this Court holds “trial court did not commit plain error in admitting evidence of defendant's prior bad acts”); State v. O'Hanlan, ___ N.C. App. ___, ___, 570 S.E.2d 751, 758-759 (2002) (although witness testimony that “victim was kidnapped and raped was improper” Court holds it is not plain error where record included “overwhelming evidence of defendant's guilt”); State v. McNair, 146 N.C. App. 674, 683, 554S.E.2d 665, 672 (2001) (“while it was error not to submit [question] to the jury . . . it was not plain error, because there is no 'reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial[.]'”) (quoting State v. Kelly, 120 N.C. App. 821, 825, 463 S.E.2d 812, 814 (1995)).
    In this case, evidence was presented at trial that (1) defendant was trying to collect a drug debt from Smith; (2) the two argued about the money in the store parking lot; (3) minutes later, Smith was found lying on the ground a few feet away with a fractured skull; (4) defendant called Bright twenty minutes later, and protested that he “hadn't hurt [Smith] that bad; (5) defendant told Nidiffer that he knew Smith had been struck with a concrete rock, and; (6) Smith's injuries were consistent with a blow from a piece of concrete, but inconsistent with a simple fall. In this evidentiary context, we conclude that there is no reasonable likelihood that, absent Bright's reference to defendant hitting other people or to being scared of defendant, the jury would have reached a different verdict. This assignment of error is overruled.
    Defendant next argues that the trial court committed plain error by failing to instruct the jury on the lesser included offense of misdemeanor assault inflicting serious injury. We disagree.
    Preliminarily, we note that defendant is in violation ofN.C.R. App. P. 9(a)(3)(f), which requires that the record “shall contain . . . where error is assigned to the . . . instructions to the jury, a transcript of the entire charge given[.]” However, in the interests of justice, and pursuant to our authority under N.C.R. App. P. 2, we will review the merits of defendant's argument.
    Defendant did not object at trial to the trial court's instructions to the jury. Under N.C.R. App. P. 10(b)(2), “[a] party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict.” However, defendant argues on appeal that the court's error was plain error.
    To constitute plain error, “[t]he error in the instructions must be so fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him . . . it is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” State v. Lucas, 353 N.C. 568, 584, 548 S.E.2d 712, 723-24 (2001) (citations omitted). Thus, “[i]n order to obtain relief under this doctrine, defendant must establish that the omission was error, and that, in light of the record as a whole, the error had a probable impact on the verdict.” State v. Bell, 87 N.C. App. 626, 634-35, 362 S.E.2d 288, 293 (1987) (citation omitted). In the case sub judice, we conclude that the trial court's failure to instruct on misdemeanor assault inflicting serious injury did not constitute plain error.     A defendant “is 'entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.'” State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000) (quoting Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847 (1973)). However, the trial court is required to instruct on a lesser included offense only when the record contains evidence “that the defendant might be guilty of [the] lesser-included offense[.]” State v. Collins, 334 N.C. 54, 58, 431 S.E.2d 188, 191 (1993). Therefore, “[i]f the State's evidence is clear and positive as to each element of the charged offense, and if there is no evidence of the lesser-included offense, there is no error in refusing to instruct on the lesser offense.” State v. Howie, 116 N.C. App. 609, 613, 448 S.E.2d 867, 869 (1994) (quoting State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985)).
    In the instant case, defendant argues that he was entitled to an instruction on misdemeanor assault inflicting serious injury. N.C.G.S. § 14-33(c)(1) (2001) defines misdemeanor assault inflicting serious injury as an assault in which the defendant either “[i]nflicts serious injury upon another person or uses a deadly weapon[.]” The offense is a lesser included offense of assault with a deadly weapon with intent to kill inflicting serious injury, with which defendant was charged. State v. Lowe, 150 N.C. App. 682, 564 S.E.2d 313 (2002) (where defendant charged with assault with a deadly weapon with intent to kill inflicting serious injury, the presence of “conflicting testimony” about the use of adeadly weapon required trial court to instruct on the lesser included offense of misdemeanor assault inflicting serious injury). Conviction of misdemeanor assault inflicting serious injury requires proof of either serious injury or use of a deadly weapon, whereas a felony assault requires proof of both. State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494 (1983).
    In the present case there is no evidence from which the jury reasonably could find that defendant committed misdemeanor assault. The evidence was uncontradicted that Smith suffered serious injuries. Regarding the use of a deadly weapon, the State presented evidence tending to show that defendant had intentionally assaulted Smith with a rock or some other object. The defense witnesses indicated that defendant had not struck Smith at all, and that Smith had passed out and injured himself by falling. However, no evidence was presented to support the theory that defendant assaulted Smith with something other than a deadly weapon.
    We conclude that the trial court did not commit error, much less plain error, by failing to instruct the jury on the offense of misdemeanor assault inflicting serious injury. This assignment of error is overruled.
    Defendant argues next that the trial court committed plain error by “permitting the state to amend the indictment to include a blunt object as a deadly weapon.” We do not agree.
    Defendant correctly cites the general rule that “[a] bill of indictment may not be amended.” N.C.G.S. § 15A-923(e) (2001). Theindictment “is considered to have been amended if there is 'any change in the indictment which would substantially alter the charge set forth in the indictment.'” State v. Grady, 136 N.C. App. 394, 396, 524 S.E.2d 75, 77 (2000)(quoting State v. Carrington, 35 N.C. App. 53, 58, 240 S.E.2d 475, 478, disc. review denied, 294 N.C. 737, 244 S.E.2d 155 (1978)). In the instant case, the indictment was never amended. However, while the indictment alleged that defendant assaulted Smith with “a piece of concrete,” the trial court instructed the jury that they could convict defendant if he committed the assault with either “a piece of concrete” or “a blunt object other than his hand.” Defendant apparently contends that this variation effectively amended the indictment. We disagree.
    “It has long been the law of this State that a defendant must be convicted, if convicted at all, of the particular offense charged in the . . . indictment.” “[T]he failure of the allegations to conform to the equivalent material aspects of the jury charge represents a fatal variance, and renders the indictment insufficient to support that resulting conviction.” State v. Williams, 318 N.C. 624, 628, 631, 350 S.E.2d 353, 356 (1986) (where defendant indicted for violation of N.C.G.S. § 14-27.2(a)(2) and N.C.G.S. § 14-27.3(a)(1), but jury was instructed on elements of N.C.G.S. § 14-27.2(a)(1), “the indictment under which defendant was brought to trial cannot be considered to have been a valid basis on which to rest the judgment”). This Court has previously held:
        In determining whether the variance of the trial court's charge from the precise allegations of the bill constituted prejudicial error requiring reversal, we mustlook to the purposes served by a bill of indictment. . . . [1] to identify the crime for which the defendant stands charged. . . . [2] to protect the defendant against being tried twice for the same offense. . . . [3] to provide a basis upon which the defendant may prepare his defense. . . . [and (4) to] guide[] the trial court in the imposition of sentence upon a determination of the defendant's guilt.

State v. Rhyne, 39 N.C. App. 319, 324, 250 S.E.2d 102, 105-106 (1979) (not error for trial court to instruct jury on assault with either lamp or figurine, despite language in indictment specifying that assault was committed with a lamp). Our appellate courts have generally held, as in Rhyne, that an instruction allowing the jury to convict for assault by a weapon different from that specified in the indictment does not constitute an amendment to the indictment, nor give rise to a fatal variance between the charge and the proof. See, e.g., State v. Donnell, 117 N.C. App. 184, 190, 450 S.E.2d 533, 537 (1994) (rejecting argument trial court committed plain error where instruction “tended to imply that any weapon was sufficient when the indictment required that the jury find the weapon in question was a gun”); State v. Hobbs, 216 N.C. 14, 17, 3 S.E.2d 431, 432 (1939) (no error where “evidence was that the missile thrown was 'a brick or a rock or what' and the charge in the warrant was an assault with a 'deadly weapon, to wit, a brick'”).
    In the instant case, defendant did not object to the court's instructions, so we review only for plain error. We conclude that the trial court's instruction that they could convict defendant for an assault with either a “piece of concrete” or a “blunt objectother than his hand” did not significantly change the nature of the charged offense so as to constitute a fatal variance from the indictment. Nor was this variation in language prejudicial. Defendant's theory of defense was that he had not struck or assaulted Smith with any object. Therefore the precise description of the object with which he denied committing an assault was irrelevant to his defense. We conclude that there is no reasonable likelihood that the trial court's inclusion of a “blunt object other than his hand” affected the outcome of the trial. This assignment of error is overruled.
    Finally, defendant argues that the trial court erred by not setting aside the verdict ex mero motu, on the grounds that “the jury was allowed to render a verdict that was not unanimous.”
    Defendant argues that because some jurors might have convicted him based on a belief that he committed an assault with a “piece of concrete” while others based their verdicts of guilty on an assault with “a blunt object other than his hand” that he was denied the right to a unanimous verdict.
    Defendant relies on State v. Lotharp, 148 N.C. App. 435, 599 S.E.2d 807 (2002), in which the defendant raised the same issue. However, the North Carolina Supreme Court has reversed this Court's ruling, see State v. Lotharp, 356 N.C. 420, 571 S.E.2d 583 (2002), holding that “defendant was not denied a unanimous verdict by the trial court's instruction permitting the jury to return a guilty verdict if it found beyond a reasonable doubt that defendantintentionally beat the victim with his hands and feet and/or with a chain, and that defendant's hands and feet and/or the chain were deadly weapons that inflicted serious injury.” We find Lotharp controlling on this issue. This assignment of error is overruled.
    For the reasons discussed above, we conclude that the defendant had a fair trial, free from prejudicial error.
    No error.
    Judges TIMMONS-GOODSON and TYSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***