STATE OF NORTH CAROLINA
v
.
Pitt County
No. 04 CRS 8482
KENNETH ALEXANDER BARNES,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Hilda Burnett-Baker, for the State.
McAfee Law, P.A., by Robert J. McAfee, for defendant-
appellant.
STEELMAN, Judge.
Talita Irizarry (Irizarry) is married to defendant. She had
been separated from defendant for nearly three months when, on 24
April 2004, at around 7:00 a.m., defendant showed up at her
apartment. According to statements Irizarry made shortly after
these events, defendant assaulted her that morning. Later that
day, Irizarry drove herself to the Pitt County Memorial Hospital,
where she was treated for injuries to her arms, breast, abdomen,
back and head. Irizarry had a cut to her eyebrow that required
stitches. Soon after the assault, Irizarry wrote a statement by
her own hand, which she signed, describing how her injuries
occurred. On 26 April 2004, this statement was sworn to in frontof a Pitt County Clerk of Court, and included in a complaint and
motion for a domestic violence protective order. In her statement,
Irizarry swore that:
On April 24th, 2004 Kenneth A. Barnes was
intoxicated laying on my couch in the living
room when I woke up at 7:00 a.m. I asked him
to leave my residence. He refused and told me
to leave him alone because he wasn't going
anywhere.
I told him that I would call the police and
have him removed, and he said, “If I go to
jail I'm going to jail for a reason” and
proceeded to beat on me. He began punching me
in my face and my arm. He bit my face and
finger.
He gave me a black eye on my right eye and he
head-butted me two times and busted my left
eye. Kenneth refused to let me leave the
house to get medical treatment. During that
time he was beating on me I was trying to
defend myself, so he did receive some
scratches. When he fell into a drunken sleep
while trying to hold me, I slipped away from
him and ran out of the back door with no shoes
on and drove myself to the Pitt County
Memorial Hospital E.D.
Treatment received, six stitches to the left
eye and prescribed 800 milligrams of
ibuprofen. I am afraid of him. He is a
mudslinger and he's trying to destroy my
reputation.
In addition, Irizarry made oral statements to hospital staff,
police officials, and prosecutors implicating defendant in the
beating.
Defendant was indicted for second-degree kidnapping and
assault inflicting serious bodily injury, and tried before a jury
on 16-17 November 2004. At the trial, Irizarry testified that she
had no memory of the events surrounding the injuries she sustainedon 24 April 2004. The State was permitted to treat her as a
hostile witness, and was further permitted, over defendant's
objection, to allow Irizarry to read the above portion of the
statement she signed on 26 April 2004.
The State also called Officer Robert Parker of the Greenville
County Police Department. Officer Parker testified that when he
arrived at the hospital, Irizarry was “out of it” and complaining
of pain in her head. He further testified that her bed was covered
in blood. Irizzary made statements to Officer Parker consistent
with her written statement implicating defendant. Officer Parker
also testified that as he was interviewing Irizarry, she was
“crying _ bordering on the side of sobbing, actually. She was
afraid, she was nervous, sitting there shaking. We had to keep
stopping because she would go into shaking and she was so scared
.... Of course, she had bruises all over her, she had a large gash
over her eye.”
Following the State's evidence, the trial court granted
defendant's motion to dismiss the felony charge of assault
inflicting serious bodily injury, but allowed the lesser included
offense of misdemeanor assault inflicting serious injury to be
submitted to the jury. The jury found defendant not guilty on the
kidnapping charge, but guilty of the misdemeanor assault. The
trial court found defendant to be a prior record level III, and
imposed a 150 day active sentence. From this judgment, defendant
appeals. In defendant's first argument, he contends that the trial
court erred in allowing certain evidence to be admitted at trial.
We disagree.
Defendant first contends that the trial court erred by
admitting into evidence the motion for a domestic violence
protective order and complaint, because “the victim refused to
admit making such application and did not admit the truth of any
statements in the application.”
“The standard of review for this Court assessing evidentiary
rulings is abuse of discretion.” State v. Boston, 165 N.C. App.
214, 218, 598 S.E.2d 163, 166 (2004). The trial court allowed
Irizarry to read a portion of the complaint pursuant to Rule 803(5)
of the North Carolina Rules of Evidence, titled “Hearsay
exceptions; availability of declarant immaterial” which states:
The following are not excluded by the hearsay
rule, even though the declarant is available
as a witness:
(5) Recorded Recollection. -- A memorandum or
record concerning a matter about which a
witness once had knowledge but now has
insufficient recollection to enable him to
testify fully and accurately, shown to have
been made or adopted by the witness when the
matter was fresh in his memory and to reflect
that knowledge correctly. If admitted, the
memorandum or record may be read into evidence
but may not itself be received as an exhibit
unless offered by an adverse party.
“In order to admit 'recorded recollection' pursuant to N.C. Gen.
Stat. § 8C-1, Rule 803(5), the party offering the recorded
recollection must show that the proffered document meets threefoundational requirements:” State v. Love, 156 N.C. App. 309, 314,
576 S.E.2d 709, 712 (2003).
(1) The document must pertain to matters about
which the declarant once had knowledge; (2)
The declarant must now have an insufficient
recollection as to such matters; (3) The
document must be shown to have been made by
the declarant or, if made by one other than
the declarant, to have been examined [and
adopted] . . . when the matters were fresh in
[her] memory.
Id. In the instant case, Irizarry testified that she could not
remember the events surrounding her hospitalization on 24 April
2004. She was shown the complaint, and admitted that the relevant
portion was in her handwriting and signed by her under oath on 26
April 2004. She further testified: “If I signed it and wrote it,
then I told the truth.” These facts satisfy the requirements for
admission under Rule 803(5). See State v. Leggett, 135 N.C. App.
168, 519 S.E.2d 328 (1999). The trial court did not abuse its
discretion by allowing Irizarry to read those portions of her
written statement implicating defendant in the assault.
Defendant includes two additional assignments of error in the
heading of this argument, but fails to argue them in his brief and
fails to cite any authority. Defendant has abandoned these
assignments of error.
State v. Hatcher, 136 N.C. App. 524, 526-27,
524 S.E.2d 815, 817 (2000)
; State v. Stevenson, 136 N.C. App. 235,
244, 523 S.E.2d 734, 739 (1999).
In defendant's second argument, he contends that the trial
court erred by “instructing the jury that [Officer Parker's]
testimony was offered to corroborate the victim's earliertestimony, where the victim had not earlier testified that she made
a written statement in a domestic violence protective order
application.” We disagree.
“It is well established that a witness' prior consistent
statements may be admitted to corroborate the witness' sworn trial
testimony but prior statements admitted for corroborative purposes
may not be used as substantive evidence.” State v. Gell, 351 N.C.
192, 204, 524 S.E.2d 332, 340 (2000). Defendant argues Irizarry's
testimony at trial was that she had no recollection of how she was
injured on 24 April 2004, and therefore Officer Parker's testimony,
though it may have corroborated the written statement of Irizarry
read into evidence at trial, did not corroborate her actual trial
testimony.
Irizarry testified that she could not remember the relevant
events of 24 April 2004. Irizarry read portions of her written
statement to the jury which described how defendant beat her on 24
April 2004 resulting in the injuries she sustained. She then
testified that because she wrote and signed the statement, it must
be the truth. We have held that this statement was properly read
into evidence pursuant to Rule 803(5). We hold that the contents
of this written statement, which were read into evidence and
adopted by Irizarry, constitute a portion of Irizarry's trial
testimony.
Officer Parker testified that Irizarry made a statement to him
in which she described the beating by defendant on 24 April 2004.
Officer Parker recounted that statement to the jury. Defendantmakes no argument that the prior statement of Irizarry testified to
by Officer Parker is inconsistent with the written statement she
adopted by her trial testimony. We hold that the trial court
properly admitted this prior consistent statement for the purpose
of corroboration. This argument is without merit.
In defendant's third argument, he contends that the trial
court erred “by denying defendant's motion to dismiss for
insufficiency of the evidence as to the charge of assault
inflicting serious injury ....” We disagree.
At the close of State's evidence, defendant moved to dismiss
the charge of second-degree kidnapping and the charge of “felonious
assault inflicting serious bodily injury.” Defendant argued to the
trial court that the “Courts have drawn a distinction between the
misdemeanor of inflicting serious injury and the felony of
inflicting serious bodily injury ....” Defendant argued that the
evidence presented by the State did not establish that Irizarry
suffered “serious bodily injury” as defined by N.C. Gen. Stat. §
14-32.4. The trial court denied defendant's motion to dismiss the
charge of second-degree kidnapping, but granted his motion to
dismiss the felony assault charge, stating: “I'm going to grant the
defendant's motion to dismiss so far as it relates to the charge of
assault inflicting serious bodily injury; however, I'm going to let
it go as to [the lesser included misdemeanor offense of] assault
inflicting serious injury.” Defendant presented evidence. At the
close of all the evidence, the trial court inquired if there were
any motions from the defendant, and defendant's counsel replied: “Ihave a motion to dismiss as to the kidnapping _ _ second-degree
kidnapping charge and commend my prior arguments to the Court.”
Assuming arguendo that defendant's motion to dismiss at the close
of State's evidence encompassed the misdemeanor assault charge,
because he did not renew his motion to dismiss this charge at the
close of all the evidence, he has failed to preserve this question
for appellate review. N.C. R. App. P. Rule 10(b)(3); State v.
Buchanan, __ N.C. App. __, 613 S.E.2d 356 (2005). This argument is
without merit.
NO ERROR.
Judges ELMORE and JACKSON concur.
Report per Rule 30(e).
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