by Roshawn Thompson from judgment entered 24 March 2016 by
Judge Marvin K. Blount, III in Pitt County No. 14 CRS
059021Superior Court. Heard in the Court of Appeals 19 April
Attorney General Joshua H. Stein, by Assistant Attorney
General Harriet F. Worley, for the State.
Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for
Thompson ("Defendant") appeals from his conviction
for robbery with a dangerous weapon. On appeal, he contends
that the trial court erred by (1) sustaining the State's
objection to Defendant's use of an unauthenticated
screenshot during cross-examination of the victim; (2)
permitting the State to introduce a picture of Defendant
making "the middle finger" gesture for illustrative
purposes; (3) causing cumulative prejudice from evidentiary
rulings; (4) finding that the offense involved criminal
street gang activity pursuant to N.C. G.S. § 14-50.25
(2015); and (5) violating his rights under the Fifth and
Sixth Amendments to the United States Constitution by making
the criminal street gang activity finding without a finding
by the jury. After careful review, we hold that the trial
court did not abuse its discretion in sustaining the
State's objection to Defendant's use of an
unauthenticated screenshot during cross-examination of the
victim, or in permitting the State to introduce a picture of
Defendant making "the middle finger" gesture for
illustrative purposes. Since the trial court did not err in
its evidentiary rulings, issues (1) and (2) did not create
cumulative prejudice. While we decline to reach the
constitutionality of N.C. G.S. § 14-50.25, we agree with
Defendant that the trial court erred in finding that the
offense involved criminal street gang activity and we remand
for resentencing on the underlying felony without the
criminal street gang activity finding.
November 2014, Mr. Kendall Rascoe, Jr. ("Rascoe")
traveled to Greenville to go to a shopping mall and to see
his cousin, LaToya. As he left the mall, he saw his other
cousin, Defendant, at a stop sign. Rascoe spoke with
Defendant, who agreed to drive him to his brother's
house. After Rascoe got in the car, Defendant received a
phone call, after which Defendant told Rascoe he needed to
pick up Andre Grey ("Grey"). Rascoe rode with
Defendant to pick up Grey. Defendant then drove to a dead
end, and Grey pulled a gun on Rascoe, directing him to
"give everything up." Defendant instructed Rascoe
"to give everything up or he was going to [be
shot.]" Defendant reached into Rascoe's pockets and
removed Rascoe's money, identification, cell phone, and
global cash card with Grey's gun still pressed against
Rascoe's neck. Defendant and Grey got out of the car and
opened Rascoe's passenger door. Rascoe got out and Grey
pulled Rascoe's coat hood over his head and put the gun
to his forehead. Defendant punched Rascoe in the face and
left with Grey. Rascoe called law enforcement from a nearby
home. Rascoe met with Detective Gillen and identified
Defendant and Grey through Defendant's Facebook page.
Subsequently, Defendant was charged with robbery with a
was convicted of robbery with a dangerous weapon. During
sentencing, the State requested "gang restrictions"
and Defendant's Judgment reflects a finding that the
"offense(s) involved criminal street gang
activity." Defendant gave oral notice of appeal.
Unauthenticated Screenshot of a Facebook Message
trial, during Rascoe's cross-examination, Defendant's
counsel elicited testimony that Rascoe had spoken on Facebook
with Defendant on the offense date, 7 November 2014.
Defendant's counsel then asked Rascoe if he went to
Greenville that day to buy marijuana and whether he contacted
Defendant to buy marijuana. Rascoe replied no to both
questions. Defendant's counsel then asked to approach the
judge outside the jury's presence. Outside the jury's
presence, Defendant's counsel described a screenshot of
what he alleged was a Facebook message between Defendant and
Rascoe the day of the incident in question. Defendant
explained that he did not seek to admit the document, he only
wanted to use it to "hit [Rascoe's] incredibility,
impeach his testimony and ask him some questions." The
State had not received this screenshot pursuant to reciprocal
discovery. The State expressed that it seriously doubted the
screenshot was admissible, but that the trial court would see
if it was if the Defendant put it on as evidence. Until then,
Defendant's counsel could ask Rascoe questions, but was
stuck with the answers. Judge Blount instructed that
Defendant's counsel could not hold the screenshot in his
hand. Judge Blount made it clear that Defendant could
continue to ask questions, which his counsel did.
argues that the trial court abused its discretion by
sustaining the State's objection to the introduction of
an unauthenticated screenshot to impeach Rascoe's
credibility. We disagree.
scope of cross-examination is within the discretion of the
trial judge. State v. Forte, 360 N.C. 427, 442, 629
S.E.2d 137, 147 (2006). A trial judge abuses his discretion
when a ruling "is manifestly unsupported by reason or is
so arbitrary that it could not have been the result of a
reasoned decision." State v. Whaley, 362 N.C.
156, 160, 655 S.E.2d 388, 390 (2008) (quoting State v.
Peterson, 361 N.C. 587, 602-03, 652 S.E.2d 216, 227
(2007)). In reviewing whether a trial judge abused his
discretion, "we consider not whether we might disagree
with the trial court, but whether the trial court's
actions are fairly supported by the record."
Id. at 160, 655 S.E.2d at 390.
witness's character or propensity for telling the truth
is subject to impeachment through cross-examination about
prior inconsistent statements[.]" State v.
Mitchell,169 N.C.App. 417, 420, 610 S.E.2d 260, 263
(2005). "Whether a foundation must be laid before a
prior inconsistent statement may be shown depends on whether
the prior inconsistency relates to a matter pertinent and
material to the pending inquiry, or is merely
collateral." State v. Mack, 282 N.C. 334, 340,
193 S.E.2d 71, 75 (1972) (emphasis and citations omitted).
For material matters, "statement[s] may be shown by
other witnesses without the necessity of first laying a
foundation therefor by cross-examination." Id.
at 334, 194 S.E.2d at 75. When the impeachment about prior
inconsistent statements involves only a collateral matter,
the witness' answers are conclusive and extrinsic
evidence may not be presented to contradict the witness.
Mitchell, 169 N.C.App. at 420, 610 S.E.2d at 263.
"The proper test for determining what is material and
what is collateral is whether the evidence offered in