STATE OF NORTH CAROLINA
v. Cleveland County
No. 02CRS006737
WESLEY JERROD DOWDLE
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Dahr Joseph Tanoury, for the State.
David Q. Burgess for defendant-appellant.
HUNTER, Judge.
A jury found defendant guilty of discharging a firearm into an
occupied vehicle and assault with a deadly weapon. The trial court
consolidated the two offenses for judgment and sentenced him to an
active prison term of thirty-four to fifty months. Defendant filed
timely notice of appeal.
The State's evidence tended to show that April Denise Miller
(“Miller”) went to defendant's house to dry some clothes at 7:00
p.m. on 2 September 2002. Miller, who had been dating defendant
for approximately six months at the time, brought her four children
with her. More than twenty people were at defendant's residence
when she arrived. Defendant and Rodney Maddix (“Maddix”) wereinside “playing cards and drinking[.]” While she and her children
were waiting for the clothes to dry, Maddix suggested that he and
defendant ”go fight the dogs.” Defendant declined and stayed in
the house while Maddix went outside, where his dog was subsequently
killed in a dog fight. When Maddix came back inside threatening to
“go[] home [and] get his gun[,]” defendant asked him to leave.
Defendant then told Miller to leave with her children, because he
did not “know what[] [was] getting ready to jump off.”
As defendant and Miller were talking, Maddix telephoned and
had a conversation with defendant. Defendant became “very upset”
and “was saying that [Miller] had told [Maddix] something.”
Believing that alcohol “had a lot to do with” defendant's distress,
Miller told him, “[w]ell, you-all are drinking, let's talk about
this another day.” Defendant walked out with Miller as she
gathered her children into the van, but returned to the house when
his phone rang. As Miller was preparing to leave, defendant came
back outside and approached her van. Visibly angry, he said
something to Miller in a “raised” voice and punched out her van's
driver's side window. As defendant raised his arm to strike the
blow, Miller saw “a handgun tucked down his pants.” Miller
hurriedly put the van in reverse, and was backing into the road
when she saw “a lot of gunshots” coming from defendant's direction
in the front of the house and “from the side of the house also.”
When Miller arrived at a stop sign, she saw that her eight-year-old
daughter, Jasmine, had been shot in the left side of her abdomen.
Miller drove to Earl Depot and called paramedics, who took herdaughter to the hospital. Miller remained “good friends” with
defendant following the episode. Although they never discussed the
shooting, defendant told Miller that “if he did it he's sorry.”
Miller did not see anyone else with a gun at defendant's house on
the night in question.
At 10:45 p.m. on 2 September 2002, Cleveland County Sheriff's
Detective Gary Hogue was paged by his sergeant and responded to the
report of a shooting at 2814 Bettis Road. Hogue first went to Earl
Depot and examined Miller's van, which had a “flat tire on it, a
busted out window, and what appeared to be . . . a shattered window
right behind the driver's side window on the left side.” Hogue
then proceeded to 2814 Bettis Road, where he located a cluster of
five nine-millimeter shell casings in the driveway. He also found
clear shattered glass both on the driveway next to the residence
and “in the roadway just off of the driveway.” Hogue conducted “a
walk of the yard” and found a dead dog behind the residence, but
did not find any additional shell casings or evidence.
After leaving Bettis Road, Hogue spoke with Miller at
Cleveland Regional Medical Center. Miller told Hogue that
defendant “shot at the vehicle” as she was backing out of the
driveway.
In his first argument on appeal, defendant claims the trial
court erred in allowing Hogue to testify regarding Miller's out-of-
court statement that defendant shot at her vehicle while she was
backing out of his driveway. While acknowledging that a witness'
prior consistent statement is admissible for corroborativepurposes, defendant contends that Miller's statement to Hogue
actually contradicted her trial testimony and was erroneously
admitted under the guise of corroborative evidence.
Under North Carolina law, “a witness' prior consistent
statements may be admitted to corroborate the witness' 'trial'
testimony.” State v. Baity, 340 N.C. 65, 70, 455 S.E.2d 621, 624-
25 (1995) (citing State v. McDowell, 329 N.C. 363, 384, 407 S.E.2d
200, 212 (1991)). Such evidence is corroborative if it “tends to
strengthen, confirm, or make more certain the testimony of [the]
witness.” State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92
(1980). Where there is some variance between the witness' trial
testimony and the prior statement, the standard for admissibility
is as follows:
In order to be corroborative and
therefore properly admissible, the prior
statement of the witness need not merely
relate to specific facts brought out in the
witness's testimony at trial, so long as the
prior statement in fact tends to add weight or
credibility to such testimony. . . . However,
the witness's prior statements as to facts not
referred to in his trial testimony and not
tending to add weight or credibility to it are
not admissible as corroborative evidence.
Additionally, 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, 573-74 (1986)
(citations omitted) (emphasis omitted) (footnote omitted). Within
these general guidelines, the trial judge enjoys “wide latitude in
deciding when a prior consistent statement can be admitted forcorroborative, nonhearsay purposes.” State v. Call, 349 N.C. 382,
410, 508 S.E.2d 496, 513 (1998).
In State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001), a
prosecution witness, Jovanta, testified regarding the shooting of
his mother “that he heard defendant and [his mother] arguing, heard
shots, saw [her] bleeding and lying on the porch, and saw defendant
fleeing the crime scene.” Lloyd, 354 N.C. at 104, 552 S.E.2d at
617. Defendant argued on appeal that the trial court erred in
allowing into evidence Jovanta's out-of-court statement to police
that defendant “'shot my mama.'” Noting “the detail given in
Jovanta's testimony,” the Lloyd court concluded that “his comment
that '[defendant] shot my mama' is an admissible shorthand
statement of fact.” Id. at 104, 552 S.E.2d at 617 (citing State v.
Williamson, 333 N.C. 128, 136, 423 S.E.2d 766, 770 (1992)); State
v. Spaulding, 288 N.C. 397, 411, 219 S.E.2d 178, 187 (1975), death
sentence vacated, 428 U.S. 904, 49 L. Ed. 2d 1210 (1976)). The
court further ruled admissible Jovanta's prior statement that he
thought he heard three gunshots, which differed from his trial
testimony that he heard two shots. The court found that the prior
account “is not an explicit contradiction to his trial testimony
that he heard two shots, and . . . it corroborates his trial
testimony that he did hear shots.” Lloyd, 354 N.C. at 105, 552
S.E.2d at 618.
We find Miller's prior statement to Hogue to be consistent
with her trial testimony and, therefore, admissible for
corroborative purposes. Miller testified that defendant came outto her van with a handgun, and was so angry that he smashed her
window with his fist while saying something to her in a “raised”
voice. Miller further affirmed that, as she attempted to drive
away, she saw gunshots “come from the direction of [defendant].”
When she reached the end of the street, Miller noticed that Jasmine
had been shot. Miller also testified that defendant later told her
that “if he did it he's sorry.” Nothing in her out-of-court
statement that defendant “shot at the vehicle” contradicted her
trial testimony. As in Lloyd, Miller's statement to the detective
at the hospital was a “shorthand statement of fact” reasonably
drawn from her observations at defendant's residence, as detailed
in her trial testimony. Lloyd, 354 N.C. at 104, 552 S.E.2d at 617.
Contrary to defendant's assertion, Miller's statement to the
detective on the night of the shooting in no way contradicted her
trial testimony. Miller did not testify that defendant did not
fire his gun, that he fired it in a direction other than at her
van, or that she saw someone other than defendant fire the shots at
her van. See generally Baity, 340 N.C. at 70, 455 S.E.2d at 625.
Although Miller testified that she saw additional gunshots coming
from the side of the house, she did not testify that she did not
see who shot at her van. See State v. Francis, 343 N.C. 436, 439,
471 S.E.2d 348, 350 (1996). Accordingly, we overrule this
assignment of error.
Defendant next claims the admission of Miller's hearsay
statement to Hogue “constituted reversible error in that there was
a reasonable possibility that a different result would have beenreached had the pretrial statement not been admitted.” Because the
admission of the statement was not error, however, this Court need
not assess its potential prejudicial impact under the standard of
N.C. Gen. Stat. § 15A-1443 (2003). Defendant makes no argument
that this otherwise admissible evidence was unduly prejudicial
under N.C.R. Evid. 403, such that its admission was an abuse of the
trial court's discretion. To the extent defendant claims the
court's error “was compounded by the fact that no limiting
instruction as to corroborative testimony was given[,]” we note
that defendant did not request any limiting instruction at trial.
See State v. Joyce, 97 N.C. App. 464, 470, 389 S.E.2d 136, 140
(citing State v. Lankford, 31 N.C. App. 13, 228 S.E.2d 641 (1976)),
disc. review denied, 326 N.C. 803, 393 S.E.2d 902 (1990). Nor has
defendant assigned error, or plain error, to the court's failure to
give such an instruction. N.C.R. App. P. 10(a), (c). Moreover,
defendant expressly declined the trial court's proposal to give the
pattern jury instruction on “Impeachment or Corroboration by Prior
Statement” during the charge conference, see 1 N.C.P.I. Crim.
105.20 (Supp. Mar. 1986), and raised no objection to the court's
jury instructions as given. See N.C.R. App. P. 10(b)(2).
In his final argument on appeal, defendant avers the trial
court erred in denying his motion to dismiss, absent evidence
establishing his identity as the person who fired upon Miller's
van. In reviewing the denial of a motion to dismiss, we must
examine the evidence in the light most favorable to the State to
determine if there is substantial evidence of each essentialelement of the offense charged and of defendant's identity as the
perpetrator. See State v. Jacobs, 128 N.C. App. 559, 563, 495
S.E.2d 757, 760-61, disc. review denied, 348 N.C. 506, 510 S.E.2d
665 (1998). Our courts have defined “substantial evidence” as
evidence that would permit a reasonable juror to find a fact at
issue beyond a reasonable doubt. See State v. Etheridge, 319 N.C.
34, 47, 352 S.E.2d 673, 681 (1987). Such evidence “'need not
exclude every reasonable hypothesis of innocence in order to
support the denial of a defendant's motion to dismiss.'” Jacobs,
128 N.C. App. at 563, 495 S.E.2d at 761 (quoting State v. Parks, 96
N.C. App. 589, 594, 386 S.E.2d 748, 751 (1989)).
A person is guilty of discharging a firearm into an occupied
vehicle if he “intentionally, without legal justification or
excuse, discharges a firearm into an occupied [vehicle] with
knowledge that the [vehicle] is then occupied by one or more
persons or when he has reasonable grounds to believe that the
[vehicle] might be occupied by one or more persons.” State v.
Williams, 284 N.C. 67, 73, 199 S.E.2d 409, 412 (1973) (emphasis
omitted). Because specific intent is not an element of this
offense, see State v. Jones, 339 N.C. 114, 148, 451 S.E.2d 826, 844
(1994) (citing State v. Wheeler, 321 N.C. 725, 365 S.E.2d 609
(1988)), cert. denied, 515 U.S. 1169, 132 L. Ed. 2d 873 (1995), the
State was required to prove only that defendant (1) intentionally
fired his gun at Miller's van knowing it was occupied, or
intentionally fired at Miller, and (2) that one or more bullets
entered the occupied van. State v. Byrd, 132 N.C. App. 220, 222,510 S.E.2d 410, 412, disc. review denied, 350 N.C. 596, 537 S.E.2d
484 (1999).
We find the State's evidence sufficient to withstand
defendant's motion to dismiss. Miller testified that defendant
became “very upset” with her just before the shooting, because
Maddix “was saying that [she] had told [Maddix] something.”
Defendant's distress at Miller was fueled by his consumption of
alcohol, which appeared to Miller to have “a lot to do with” his
emotional state. After receiving a second phone call, an angry
defendant came out to his driveway with a handgun, said something
to Miller in a loud voice, and shattered her van's window with his
hand. As Miller backed out of defendant's driveway onto the
street, she saw gunshots coming from his direction. When she
arrived at a stop sign, she discovered that Jasmine was hit with a
bullet. Defendant later told Miller that “if he did it he's
sorry.” Police found a group of five nine-millimeter shell casings
on the driveway. Moreover, although Miller testified that she also
saw gunshots coming from the side of the house, she did not see
anyone else with a gun; and police found no gun, shell casings, or
other evidence of gunfire anywhere else in defendant's yard.
Viewed in their totality and in the light most favorable to the
State, these circumstances support a reasonable inference that
defendant fired the shot that entered Miller's vehicle.
Evidence that defendant fired his handgun in the direction of
the van and injured Jasmine with a bullet also supports the jury's
guilty verdict on the charge of assault with a deadly weapon,irrespective of his precise intentions. See State v. Newton, 251
N.C. 151, 155, 110 S.E.2d 810, 813 (1959) (“[d]efendant's guilt
does not depend upon whether, before firing his [gun], he took
precise aim at the [van] or any occupant thereof. 'It is an
assault, without regard to the aggressor's intention, to fire a gun
at another or in the direction in which he is standing'”) (citation
omitted); see also State v. Messick, 88 N.C. App. 428, 435, 363
S.E.2d 657, 661, cert. denied, 323 N.C. 368, 373 S.E.2d 553 (1988)
(“[d]efendant's ignorance regarding the number of occupants in the
car was immaterial since his actions were sufficient to constitute
an assault with a deadly weapon on both occupants”).
The record on appeal contains additional assignments of error
not addressed in defendant's brief to this Court. Pursuant to
N.C.R. App. P. 28(b)(6), we deem them abandoned.
No error.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).
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