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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA12-1388 NORTH CAROLINA COURT OF APPEALS Filed: 21 May 2013 STATE OF NORTH CAROLINA v. ANDRE DEVON WEEKS, Defendant. Wayne County No. 09 CRS 56993, 10 CRS 2859

Appeal by defendant from judgment entered 15 March 2012 by Judge Craig Croom in Wayne County Superior Court. Court of Appeals 11 April 2013. Attorney General Roy Cooper, by Special Deputy General Kathleen M. Waylett, for the State. M. Alexander Charns for defendant. ELMORE, Judge. Andre Devon Weeks (defendant) was charged with one count of felony assault inflicting serious bodily injury, one count of habitual misdemeanor assault on a female, and one count of Attorney Heard in the

habitual misdemeanor assault. all charges. misdemeanor

A jury found defendant guilty of

The trial court arrested judgment on the charge of habitual assault inflicting serious injury and

defendant admitted attaining habitual felon status.

Judge Croom

-2thereupon entered judgment upon the verdict and sentenced

defendant to appeals.

116 to After

149 months

imprisonment. we

Defendant now conclude that

careful

consideration,

defendant received a trial free from error. I. Background On 12 March 2012, a jury trial was commenced against

defendant in Wayne County Superior Court. Kenneth Gracie testified that on 27

At trial, Deputy November 2009 at

approximately 2:45 AM, he stopped a speeding vehicle driven by Tomika Best. from the club Best was transporting Shontae Edwards (Edwards) Brews and Cues (formerly Big Shots) to the

hospital.

Deputy Gracie observed Edwards holding a bloody rag

to her mouth and noted a laceration above her chin; Edwards told him that Gracie defendant, for her boyfriend, medical had punched her. and Officer Deputy Clifford

called

assistance,

Walker responded to the call. when he arrived at the scene,

Officer Walker testified that Edwards was having difficulty

speaking because her bottom teeth were lying on her tongue. The State called physician assistant Jeremiah Montgomery as an expert witness in emergency medicine. Montgomery treated

Edwards on 27 November 2009 and testified that she sustained

-3trauma to her eye, a laceration to the chin, and a broken

alveolar ridge, which caused severely displaced teeth. On 4 December the 2009, Edwards made she a written unable statement to speak.

detailing

incident

because

was

Thereafter, Edwards testified at trial over a two day period. On the first day, Edwards' testimony was vague; she stated that someone injured her eye and chin, but claimed that she was

unable to remember who because she was intoxicated. attempted statement. vague. to refresh After Edwards' it, memory with the 4

The State December remained

reviewing

Edwards'

testimony

On the second day of testimony, the State presented Edwards with the 4 December statement once more. testified that her memory was refreshed. This time Edwards The trial court

admitted the statement into evidence and allowed Edwards to read it into the record. November 2009 incident. II. Analysis A. Corroborative statement Defendant argues that the trial court erred in admitting Edwards' prior written statement. More specifically, defendant Thereafter, Edwards testified to the 27

asserts that the trial court erred by allowing the State to

-4impeach Edwards, its recollection. witness, under the guise of a recorded

We disagree.

"Under Rule 613 of the North Carolina Rules of Evidence, prior consistent sworn statements trial by a witness Where are a admissible to

corroborate

testimony.

witness's

prior

statement contains facts that manifestly contradict his trial testimony, however, such evidence may not be admitted under the guise of corroborating his testimony." State v. Alexander, 152

N.C. App. 701, 703-04, 568 S.E.2d 317, 319 (2002) (citations and quotations omitted). "Corroborative testimony is testimony

which tends to strengthen, confirm, or make more certain the testimony of another witness." 601, 264 S.E.2d 89, 92 (1980). State v. Rogers, 299 N.C. 597, Prior statements admitted for

corroborative purposes are not to be received as substantive evidence. 447 State v. Stills, 310 N.C. 410, 415, 312 S.E.2d 443, "[I]f are the previous statements with offered the in

(1984).

corroboration

generally

consistent

witness'

testimony, slight variations between them will not render the statements credibility inadmissible. of the evidence Such variations is always affect for only the the

which

jury."

State v. Brooks, 260 N.C. 186, 189, 132 S.E.2d 354, 357 (1963) (quotation omitted).

-5Here, the trial court admitted the 4 December statement for corroborative purposes and not under the guise of a recorded recollection, as defendant contends. As such, the trial court

issued a limiting instruction to the jury, explaining that said evidence was to be considered only as evidence bearing on

Edwards' character for truthfulness.

Additionally, the record

indicates that Edwards' prior written statement described the events of 27 November 2009 in a substantially similar manner as she testified during trial. Big Shots. Edwards wrote: I was in the club

[Defendant] walked up to me and hit me in the eye. . As I was walking to the car, he

. . I went outside to leave. came up to me[.] again."

Then he hit me in the mouth and beat me up

After reading the statement, Edwards testified: "[W]e

had had this little argument inside the club, about something. [H]e hit me in the eye. . . . So I was leaving [], and that's I was hit in my chin. And

when the second one happened. . . .

my teeth was like on my tongue and I couldn't really talk." Accordingly, we conclude that the trial court did not err in admitting purposes. B. Serious Bodily Injury the prior written statement for corroborative

-6Defendant next argues that the trial court erred in denying his motion to dismiss on the basis that the State failed to prove that Edwards sustained a serious bodily injury per N.C. Gen. Stat.

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