An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-330


Filed: 20 April 2004


v .                         Mecklenburg County
     No. 01 CRS 133522, 133524,
ANTONIO GAINES                         133526

    Appeal by defendant from judgments dated 9 August 2002 by Judge J. Gentry Caudill in Superior Court, Mecklenburg County. Heard in the Court of Appeals 27 January 2004.
    Attorney General Roy Cooper, by Assistant Attorney General Diane Martin Pomper, for the State.

    James N. Freeman, Jr. for defendant-appellant.

    McGEE, Judge.

    Antonio Gaines (defendant) was convicted of second degree sexual offense, misdemeanor larceny, and second degree rape. He was sentenced to 130 to 165 months in prison for second degree sexual offense and misdemeanor larceny and a consecutive term of 130 to 165 months in prison for second degree rape.
    The State's evidence at trial tended to show that Linda Vanlandingham saw defendant around midday on 18 March 2001 at the boarding house in Charlotte where she shared a room with her adult son. Defendant was looking for his brother, Hubert Reape (Reape), a tenant of the boarding house. Vanlandingham informed defendant that Reape had left for work and she permitted defendant to stay inher room until Reape arrived back at the boarding house. Defendant entered Vanlandingham's room and asked her where he could purchase drugs. Vanlandingham, a drug abuser, told defendant that because it was Sunday, it might be difficult to obtain drugs, but that she knew a place that might be selling drugs. Vanlandingham had not used drugs that day; she asked defendant how much he wanted to spend and invited him to walk with her to purchase drugs. Upon their arrival at an apartment house specified by Vanlandingham, defendant gave her the purchase money, she entered the apartment alone and returned with some crack cocaine.
    Defendant asked Vanlandingham if she wanted to return to her room to smoke the crack cocaine, but she declined since her son was still at home. At Vanlandingham's suggestion, she and defendant decided to go to the home of Vanlandingham's friend, Randy Cook (Cook). Vanlandingham, defendant, and Cook smoked the crack cocaine at Cook's home. Vanlandingham took one "hit" of the crack cocaine and told the two men to finish what was left. She testified she did not feel high or out of control at the time. After Cook and defendant finished smoking, defendant and Vanlandingham returned to her room at the boarding house.
    While at the boarding house, defendant purchased more crack cocaine from a tenant and smoked it in Vanlandingham's room. Defendant complained the crack cocaine was poor quality. He called his sister and asked her to bring his gun to him at the boarding house. Vanlandingham allowed defendant to wait in her room until the gun was delivered, but defendant's sister never arrived at theboarding house.
    Around 5:00 p.m., Vanlandingham and her neighbor, Marie Davis, believing that defendant had left the boarding house, discussed how pleased they were that defendant was gone. However, defendant overheard this discussion and was angry. He pushed Vanlandingham into her room, ordered her to close the curtain, and tried to lock the door. Defendant turned up the volume on the television. He ordered Vanlandingham to remove her top and she did as directed. Defendant threatened her, saying that he could hang her with a coat hanger and leave her for her son to find when he returned home from work. Vanlandingham removed her pants and underwear as defendant ordered her to do, crying as she did so. Defendant directed Vanlandingham to lay on her stomach and then raped her. Defendant forced her to perform oral sex on him. She attempted to dress, but he told her not to because he would "want some more." Defendant left Vanlandingham's room, taking her keys and telephone.
    Vanlandingham went to the home of her neighbor, Tanya Louise Hamilton (Hamilton). A relative of Hamilton contacted the police. Laboratory results from a rape kit performed on Vanlandingham matched defendant's DNA.
    Defendant first argues that the trial court erred in permitting Detective Carol Owens (Detective Owens) to read to the jury select portions of Vanlandingham's statement to Detective Owens. Defendant contends the portions Detective Owens read did not corroborate the testimony of Vanlandingham but instead weresupplemental, and at times contradictory, to Vanlandingham's testimony, and were therefore inadmissible.
    Our Courts have long recognized that
        [i]n order to be admissible as corroborative evidence, a witness's 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.

State v. Farmer, 333 N.C. 172, 192, 424 S.E.2d 120, 131 (1993) (citations omitted). So long as the prior statement is generally consistent with the trial testimony, "slight variations will not render the statement[] inadmissible[.]" State v. Martin, 309 N.C. 465, 476, 308 S.E.2d 277, 284 (1983). However, those variations may impact the credibility of the statement. Id. Even if evidence that was inadmissible was erroneously admitted, in order to prevail on appeal, the defendant must demonstrate "'that a reasonable possibility exists that a different result would have been reached absent the error.'" State v. Smith, 357 N.C. 604, 610, 588 S.E.2d 453, 458 (2003) (quoting State v. Weeks, 322 N.C. 152, 170, 367 S.E.2d 895, 906 (1988)).
    In the case before this Court, defendant objected to Detective Owen's reading of Vanlandingham's prior statement regarding several of her recollections of defendant's remarks and actions during the attack. Defendant argues that those alleged embellishments and contradictions were essential to the State's case in proving the use of force by defendant and therefore key to the State's proof ofthe criminal charges against defendant.
    After comparing Detective Owen's testimony as to Vanlandingham's statement with Vanlandingham's trial testimony, this Court concludes that the trial court did not err. Vanlandingham's statement and her trial testimony were consistent and any variation was inconsequential. In addition, the trial court properly instructed the jury that in considering the prior statement:
            You will not consider such statement as evidence of the truth of what was said, at the earlier time; because, it was not made, under oath.
            If you believe such earlier statement was made; and, it was consistent or does conflict with the testimony of the witness at [trial], you can consider this, together with other facts and circumstances, bearing upon the witness' truthfulness. And, for no other purpose.

There was no error by the trial court in allowing Detective Owen to read portions of Vanlandingham's statement, and the trial court appropriately instructed the jury as to the limited use of such evidence. Finally, even assuming arguendo that Detective Owen's testimony as to Vanlandingham's statement was inadmissible, the State presented overwhelming evidence as to the force used by defendant in the commission of the offenses and thus defendant failed to demonstrate that the result of the trial would have been different had the evidence been excluded. Defendant's assignment of error number four is without merit.
    Defendant next argues that the trial court erred in failing to allow defendant to cross-examine Vanlandingham about the nature ofher relationship with Cook. Defendant's theory at trial was that the sexual encounter between defendant and Vanlandingham was consensual and was the outcome of an agreement between Vanlandingham and defendant to have intercourse in exchange for drugs purchased by defendant. Defendant maintained that Vanlandingham's relationship with Cook was based on a similar agreement and that evidence of her relationship with Cook was admissible pursuant to N.C. Gen. Stat. § 8C-1, Rule 412(b)(3) (2003).
    N.C.G.S. § 8C-1, Rule 412(b)(3), in pertinent part, provides that sexual behavior of the victim is regarded as irrelevant to the prosecution of the defendant, unless that behavior
        [i]s evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented[.]

N.C.G.S. § 8C-1, Rule 412(b)(3) (emphasis added). The general purpose of Rule 412 is "'to protect the witness from unnecessary humiliation and embarrassment while shielding the jury from unwanted prejudice that might result from evidence of sexual conduct which has little relevance to the case and has a low probative value.'" State v. Ginyard, 122 N.C. App. 25, 31, 468 S.E.2d 525, 529 (1996) (quoting State v. Younger, 306 N.C. 692, 696, 295 S.E.2d 453, 456 (1982)). To be admissible under Rule 412(b)(3), "[t]he pattern may establish either that (1) the complainant consented to have sex with this defendant, because ofthe manner in which their sexual encounter took place or (2) because of the complainant's pattern, this defendant reasonably believed the complainant consented to have sex with him." Ginyard, 122 N.C. App. at 32, 468 S.E.2d at 530. However, this Court will not reverse the decision of a trial court to exclude such evidence absent an abuse of discretion by which the trial court's decision was utterly arbitrary and could not be the outcome of a reasoned decision. State v. Lloyd, 354 N.C. 76, 90-91, 552 S.E.2d 596, 609 (2001).
    During the voir dire examination of Vanlandingham, she admitted that she had had a sexual relationship with Cook, that she had smoked crack cocaine with him, and that the crack cocaine had been supplied by Cook. Defendant presented no evidence at trial that he was aware of any alleged pattern of behavior in which Vanlandingham exchanged intercourse for drugs; he therefore could not have reasonably inferred consent based on knowledge of any alleged pattern of behavior. Furthermore, defendant failed to establish that there was a distinct pattern to Vanlandingham's behavior that would indicate she consented. Defendant presented only isolated instances where Vanlandingham had intercourse with Cook and smoked crack cocaine purchased by Cook. There was no evidence as to any agreement between Cook and Vanlandingham regarding an exchange of drugs for intercourse. Defendant's evidence was insufficient to qualify as an exception to Rule 412 and defendant's assignment of error number two is overruled.
    In defendant's final argument, he contends the trial courterred in sustaining the State's objection to defendant's general question to Vanlandingham about where she went in the neighborhood to purchase drugs. Defendant alleges the testimony was relevant to the issue of whether Vanlandingham consented to intercourse with defendant and was relevant for impeachment purposes.
    The question posed by defendant to Vanlandingham had no bearing on the incidents of 18 March 2001 and we are unable to discern that an answer would have had "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 (2003) (defining relevant evidence). An answer would not be relevant as to whether Vanlandingham had consented to intercourse with defendant nor would it pertain to her credibility as a witness. Defendant was free to pursue any discrepancies in Vanlandingham's testimony as to her drug use in order to impeach her. Thus, we find defendant's assignment of error number one to be without merit.
    N.C.R. App. P. 28(b)(6) provides that "[a]ssignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority is cited, will be taken as abandoned." Accordingly, defendant's assignments of error numbers three, five and six are deemed abandoned.
    No error.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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