An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-1465

NORTH CAROLINA COURT OF APPEALS

Filed: 2 January 2007

STATE OF NORTH CAROLINA

v .                         Guilford County
                            Nos. 03CRS24477; 03CRS86195
DERRICK LYNN HENDRICKS

    Appeal by Defendant from judgments dated 17 December 2004 by Judge Michael E. Helms in Superior Court, Guilford County. Heard in the Court of Appeals 10 October 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General Daniel S. Johnson, for the State.

    Joseph E. Zeszotarski, Jr. for Defendant-Appellant.

    McGEE, Judge.

    Derrick Lynn Hendricks (Defendant) was convicted on 17 December 2004 of attempted first degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. The trial court sentenced Defendant to a term of 282 months to 348 months in prison on the attempted murder charge. The trial court sentenced Defendant to a consecutive term of 151 months to 191 months in prison on the assault charge. Defendant appeals.
    At trial, Perry Barrino (Mr. Barrino) testified that he was a long-distance bus driver and that he was at the Paradise Restaurant (the restaurant) in Greensboro on 14 March 2003. Mr. Barrino was wearing his bus driver uniform, which looked similar to a police uniform. Mr. Barrino saw Defendant, who had dreadlocks, having analtercation with the owner of the restaurant, Alwyn Gentles (Mr. Gentles). When Defendant saw Mr. Barrino, Defendant called Mr. Barrino "Babylon," which is slang for police, and said that "Babylon must die." Defendant began shouting at Mr. Barrino and touched his shoulder. Defendant then grabbed a switchblade knife from his back pocket. Mr. Barrino managed to take the knife away from Defendant and dragged Defendant to the door of the restaurant. Defendant left the restaurant but, shortly thereafter, walked back into the restaurant. Mr. Gentles got a gun, pointed the gun at Defendant, and told Defendant to leave. Defendant looked at Mr. Gentles and said, "I'll tell you what. I'm going to leave. But I'm coming back to get you." Defendant left the restaurant.
    Janette Whitner (Ms. Whitner) testified that in March 2003 she owned a clothing store next to the restaurant. Ms. Whitner testified that on 14 March 2003, she saw Mr. Gentles and Mr. Barrino struggling with Defendant, who had long dreadlocks and was holding a knife. After the altercation, Ms. Whitner saw Defendant leave the restaurant and heard him say that "somebody's going to die today."
    Mr. Gentles testified that he owned the restaurant and that prior to 14 March 2003, Defendant had been a regular customer at the restaurant for about two years. Mr. Gentles testified that on 14 March 2003, Defendant got involved in an argument with Mr. Barrino and called Mr. Barrino "Babylon." While Mr. Gentles was preparing food in the back of the restaurant, he heard people fighting in the restaurant. Mr. Gentles came out of the kitchenand saw Mr. Barrino fighting with Defendant, who had a knife. Mr. Barrino removed Defendant from the restaurant and Defendant left.
    Mr. Gentles testified that after this altercation, his employee, Linval White (Mr. White), arrived at the restaurant for work. Mr. Gentles was in the back of the restaurant with Mr. White when he heard a customer enter the restaurant. He went to the front of the restaurant, and while he was speaking with the customer, Defendant opened the door and came into the restaurant. Defendant came towards Mr. Gentles with a gun in his hand and shouted, "You and your son is a bitch." Defendant then fired five or six shots at Mr. Gentles, hitting him four times. Mr. Gentles further testified that Mr. White came up to the front of the restaurant. Mr. Gentles told Mr. White that the person who shot him was "the same dread that was fighting with Mr. Barrino."
    Mr. White testified that he was working at the restaurant the day Mr. Gentles was shot. When Mr. White arrived at work, Mr. Gentles told him there had been a problem with a customer earlier in the day, and Mr. Gentles described the customer as having "light complexion, gold teeth, . . . dreadlocks, and funny-looking eyes." Mr. White knew who Mr. Gentles had described, and Mr. White identified that customer in open court as Defendant. While Mr. White was working in the back of the restaurant, he heard shots fired and went towards the front of the restaurant. Mr. White heard Mr. Gentles moaning and saw him bleeding. He testified that Mr. Gentles said "the guy came back and he shot [me]." Mr. White testified that he called 911 and then called Mr. Gentles' son,Dwayne Gentles, and left a message on his answering machine.
    Dwayne Gentles testified as follows:
        Q What, if anything, did Mr. White tell you about what he knew?

        A He was like, he was in the back, when he heard shooting ring off. And then he came out, my father was on the floor. And then he was like -- I was asking him, "So, who did it?" And he was like, "Crazy Dreads."

            [DEFENDANT]: Objection, Your Honor.

        A And I'm like, "Who's Crazy Dreads?" He was like --

            THE COURT: Overruled. Restate your answer.

        [DWAYNE GENTLES]: Huh?

        THE COURT: You said, "Who did it?" What did he say?

        A He was like, "Crazy Dreads did it."

        Q And what was your response?

        A I was like, "I know who that is," because I had an altercation with him on Monday.

        Q With who?

        A With . . . [D]efendant.

            [DEFENDANT]: Objection, Your Honor.

            THE COURT: Overruled.
The trial court gave the jury the following limiting instruction immediately preceding this line of questioning: "Ladies and gentlemen, again, this is for the purpose of corroborating the prior testimony of Mr. White, only to that -- only for that purpose, and only to the extent that it does."
    Michael Bitner (Officer Bitner) testified that he was a policeofficer with the Greensboro Police Department and that he responded to a shooting at the restaurant on 14 March 2003. Officer Bitner spoke with Mr. White on the day of the shooting and testified as follows about that conversation:
        Mr. White stated he heard someone ask him what he wanted, and then he heard someone state, "What? What? What?" Mr. White stated he saw smoke, and saw the victim holding his stomach, crying. Mr. White stated he saw a cloud of smoke, and he peeked around the corner, and he saw the suspect, and he was firing.

The trial court gave the jury the following limiting instruction prior to Officer Bitner's testimony: "All right. Ladies and gentlemen, I will allow this for the purpose of corroborating the prior testimony of Mr. White, only to the extent that it does, and only for that purpose."
    D.S. Atkins (Officer Atkins) testified that he was on duty as an officer with the Greensboro Police Department on 22 May 2003 and that police received an anonymous call that a burglary was in progress at 3606 Temple Street. Defendant objected and the trial court instructed the jury as follows:
        The objection is well taken. However, ladies and gentlemen, I will allow this testimony, not for the truth of the matter asserted by the call, but to show why this officer and perhaps the other officer did or did not do what they did or did not do, if you understand what I mean[;] only to show why they reacted, if they did.

    Officer Atkins also testified, over Defendant's objection, that the anonymous call received by police "stated that [there] was a burglary in progress, [and] stated that the suspect was also the shooter in the incident that happened at the Paradise Restaurant." The trial court then sustained Defendant's objection and instructed the jury to disregard the portion of the anonymous call that identified the burglary suspect as the shooter in the restaurant shooting. Officer Atkins testified that he encountered Defendant at 3606 Temple Street and that Defendant produced a Washington, D.C. identification card. The identification card bore the name Jarold Asburn and had a photograph of Defendant with long, thick dreadlocks. Officer Atkins also testified that he had been briefed regarding the suspect in the restaurant shooting and that the suspect was a black male with dreadlocks, gold in his teeth, and a Jamaican accent. At this point, the trial court engaged Officer Atkins in the following colloquy:
            THE COURT: . . . . Now, in addition, you had been told something else, that I told the jury to strike from their mind [a while] ago. Is that a "yes" or "no"? You were told something else when you received the call?

            [OFFICER ATKINS]: Yes.

            THE COURT: Did that play also in your decision to do whatever you then did?

            [OFFICER ATKINS]: Yes, it did.

            THE COURT: I will allow that, ladies and gentlemen, what I previously told you to disregard, being the second part of the information he was given, that was allowed to be stated, to show why he did as he did. I'll allow you to consider that at this time. If you want to review that with him . . . since I've told him earlier to --

            [THE STATE]: Yes, Your Honor.

        Q What was the full nature of the call that you received on the police radio?
        A The full nature of the call stated [there] was a burglary in progress at this address at 3606 Temple Street. It also stated that the suspect from the Paradise Restaurant shooter --

            [DEFENDANT]: Objection --

        A -- was the --

            [DEFENDANT]: -- Your Honor. Hearsay.

            THE COURT: Overruled. I'm allowing it for that limited purpose.

        A -- was the suspect in the break-in.
After Officer Atkins testified to the substance of the anonymous call, the following colloquy occurred:
        Q And based on your encounter with . . . [D]efendant and your opportunity to speak with him and to be given this identification bearing the picture with the dreadlocks, what did you do next?

        A I contacted the lead investigator, Detective Edwards, for the shooting case.

        Q And did Detective Edwards respond to the scene where you were?

        A He did.

I.

    Defendant argues the trial court erred by allowing testimony regarding pretrial statements made by Mr. White, where such pretrial statements did not corroborate Mr. White's trial testimony. "It is well-settled that a witness' prior consistent statements are admissible to corroborate the witness' sworn trial testimony." State v. McGraw, 137 N.C. App. 726, 730, 529 S.E.2d 493, 497, disc. review denied, 352 N.C. 360, 544 S.E.2d 554 (2000). Testimony is corroborative if it tends to "strengthen, confirm, ormake more certain the testimony of another witness." State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92 (1980). "Corroborative evidence need not mirror the testimony it seeks to corroborate, and may include new or additional information as long as the new information tends to strengthen or add credibility to the testimony it corroborates." McGraw, 137 N.C. App. at 730, 529 S.E.2d at 497. However, a witness' prior statements which contradict the witness' trial testimony are not corroborative and are inadmissible. Id.
    Specifically, Defendant argues that Officer Bitner's testimony that Mr. White said he "saw the suspect, and he was firing" contradicted Mr. White's trial testimony because Mr. White never claimed to have seen the shooter.
    However, "'[i]n a noncapital case, where portions of a statement corroborate and other portions are incompetent because they do not corroborate, the defendant must specifically object to the incompetent portions.'" State v. Jones, 110 N.C. App. 169, 173, 429 S.E.2d 597, 600 (1993) (quoting State v. Harrison, 328 N.C. 678, 682, 403 S.E.2d 301, 304 (1991)), cert. denied, 336 N.C. 612, 447 S.E.2d 407 (1994). "'Where a defendant in a noncapital trial makes only a broadside objection to the allegedly incompetent corroborative testimony, the assignment of error is waived.'" State v. Holliman, 155 N.C. App. 120, 128, 573 S.E.2d 682, 688 (2002) (quoting Jones, 110 N.C. App. at 173, 429 S.E.2d at 600).
    In the present case, Defendant did not specifically challenge the portion of the testimony at trial that he now challenges onappeal. Therefore, Defendant has waived this assignment of error. See Holliman, 155 N.C. App. at 128, 573 S.E.2d at 688. Even assuming, arguendo, that the trial court erred by admitting this testimony, the error was not prejudicial. The trial court instructed the jury to consider the testimony only to the extent it corroborated Mr. White's trial testimony. Moreover, there was substantial other evidence that Defendant was the shooter. Mr. Gentles testified that he had known Defendant for years as a customer in his restaurant and identified Defendant as the person who shot him on 14 March 2003. Mr. Barrino and Ms. Whitner also identified Defendant as the man who fought with Mr. Barrino earlier in the day and threatened to kill someone and return to "get" Mr. Gentles.
    Defendant also challenges testimony of Dwayne Gentles regarding a conversation Dwayne Gentles allegedly had with Mr. White on the day of the shooting. Defendant argues this testimony did not corroborate Mr. White's trial testimony because Mr. White never testified that he spoke with Dwayne Gentles on the day of the shooting; Mr. White only testified that he left a message on Dwayne Gentles' answering machine. Defendant argues this was prejudicial because Mr. White's pretrial statement "create[d] a second eyewitness" to the shooting.
    Assuming, arguendo, this was error, it was not prejudicial. The trial court instructed the jury only to consider Dwayne Gentles' testimony to the extent that it corroborated Mr. White's trial testimony. Additionally, as stated above, there wassubstantial evidence that Defendant was the shooter. Moreover, Defendant's claim of prejudice is that Mr. White's statements to Dwayne Gentles created a second eyewitness. However, while he did not testify that he witnessed the shooting, Mr. White did identify Defendant as the shooter during his testimony. Mr. White testified that Mr. Gentles identified the shooter to Mr. White. Mr. White also testified he recognized the description as that of Defendant, whom he then identified in open court. Accordingly, we overrule this assignment of error.
II.

    Defendant argues the trial court erred by allowing Officer Atkins to testify that the Greensboro police received an anonymous tip that the suspect in the burglary had been the shooter in the restaurant shooting incident. Specifically, Defendant argues this testimony was inadmissible hearsay. Defendant also contends that if the evidence was properly admitted for a non-hearsay purpose, it should have been excluded pursuant to N.C. Gen. Stat. § 8C-1, Rule 403.
    "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801(c) (2005). Although hearsay is generally inadmissible evidence, N.C. Gen. Stat. § 8C-1, Rule 802 (2005), "statements are not hearsay if they are made to explain the subsequent conduct of the person to whom the statement was directed." State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473,cert. denied, Gainey v. North Carolina, 537 U.S. 896, 154 L. Ed. 2d 165 (2002).
    In Gainey, the State's evidence showed that on 3 March 1998, the defendant and another person lured the victim "to Norrington Church on the pretext that [the defendant] would receive headlight covers to put on his new black Mustang GT." Id. at 82, 558 S.E.2d at 470. The defendant killed the victim, disposed of his body, and "cleaned" the victim's vehicle. Id. The victim's father testified that he received an anonymous call on 10 March 1998 that the victim's vehicle would be driven on Highway 87 in Spring Lake the next morning around 10:00 a.m. Id. at 83, 558 S.E.2d at 470. The victim's father informed the Sheriff's Department and several officers waited for the vehicle. Id. The officers stopped the vehicle when it passed and found the defendant driving the vehicle. Id. Our Supreme Court held that the victim's father's testimony
        was not offered to prove the truth of the matter asserted, but rather to explain his subsequent actions. Without [the victim's father's] statement, it would have been difficult for jurors to understand why deputies were staked out in Spring Lake the next morning, waiting for the victim's car. Accordingly, this testimony was proper nonhearsay evidence, and the trial court did not err in admitting it.

Id. at 87, 558 S.E.2d at 473.
    In the present case, as in Gainey, Officer Atkins' testimony was not offered to prove the truth of the matter asserted. Rather, Officer Atkins' testimony was offered to explain his actions in contacting the lead investigator in the restaurant shooting. As in Gainey, without this statement it would have been difficult for thejury to understand why Officer Atkins contacted the lead investigator in the restaurant shooting case. Therefore, the challenged testimony was properly admitted as non-hearsay.
    Defendant also argues that even if the content of the anonymous call was admissible as non-hearsay, the testimony should have been excluded pursuant to N.C. Gen. Stat. § 8C-1, Rule 403. Defendant argues that "what led the police to investigate [Defendant] was not an issue in the case -- the only issue was the identity of the shooter, and whether [Defendant] was in fact the shooter." Pursuant to N.C. Gen. Stat. § 8C-1, Rule 403 (2005), "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." "Whether to exclude relevant but prejudicial evidence under Rule 403 is a matter left to the sound discretion of the trial court." State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554 (1992). "A trial court may be reversed for abuse of discretion only upon a showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision." State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986).
    In the present case, the trial court instructed the jury to consider the challenged evidence only for the limited purpose of explaining Officer Atkins' subsequent conduct. There is a presumption that a jury has followed the trial court'sinstructions. State v. Watts, 357 N.C. 366, 375, 584 S.E.2d 740, 747 (2003), cert. denied, Watts v. North Carolina, 541 U.S. 944, 158 L. Ed. 2d 370 (2004). Under these facts, we find no abuse of discretion. However, even assuming error, Defendant was not prejudiced. "The admission of evidence which is technically inadmissible will be treated as harmless unless prejudice is shown such that a different result likely would have ensued had the evidence been excluded." State v. Gappins, 320 N.C. 64, 68, 357 S.E.2d 654, 657 (1987). In the present case, there is no possibility that a different result would have ensued had the challenged evidence been excluded. Mr. Gentles identified Defendant as the person who shot him on 14 March 2003, and Mr. Barrino and Ms. Whitner also identified Defendant as the man who fought with Mr. Barrino earlier in the day and threatened revenge against Mr. Gentles.
    Defendant has failed to set forth arguments pertaining to his remaining assignments of error and has thereby abandoned them. See N.C.R. App. P. 28(b)(6).
    No error.
    Judges WYNN and McCULLOUGH concur.
    Report per Rule 30(e).

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