{ "id": 4034013, "name": "STATE OF NORTH CAROLINA v. DEWAYNE AVENT, Defendant", "name_abbreviation": "State v. Avent", "decision_date": "2012-08-07", "docket_number": "No. COA11-1506", "first_page": "147", "last_page": "160", "citations": [ { "type": "official", "cite": "222 N.C. App. 147" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "707 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "opinion_index": 0 }, { "cite": "365 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "year": 2011, "opinion_index": 0 }, { "cite": "707 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "673" } ], "opinion_index": 0 }, { "cite": "527 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "46" } ], "opinion_index": 0 }, { "cite": "351 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155934 ], "year": 2000, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0448-01" ] }, { "cite": "693 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "148", "parenthetical": "citations and quotation marks omitted" }, { "page": "148" } ], "opinion_index": 0 }, { "cite": "203 N.C. App. 718", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176301 ], "year": 2010, "pin_cites": [ { "page": "724", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/203/0718-01" ] }, { "cite": "549 S.E.2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 530", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135626, 135694, 135888, 135573, 135767 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0530-03", "/nc/353/0530-05", "/nc/353/0530-02", "/nc/353/0530-01", "/nc/353/0530-04" ] }, { "cite": "542 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "pin_cites": [ { "page": "322-24" }, { "page": "322-23" }, { "page": "323" }, { "page": "323" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 298", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440769 ], "pin_cites": [ { "page": "302-04" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0298-01" ] }, { "cite": "432 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "111 N.C. App. 40", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520504 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/111/0040-01" ] }, { "cite": "319 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681279 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0656-01" ] }, { "cite": "521 S.E.2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "135 N.C. App. 504", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241799 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/135/0504-01" ] }, { "cite": "368 S.E.2d 624", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517272 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0452-01" ] }, { "cite": "706 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "814" }, { "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "700 S.E.2d 928", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "694 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "504" } ], "opinion_index": 0 }, { "cite": "204 N.C. App. 591", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176489 ], "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/nc-app/204/0591-01" ] }, { "cite": "353 U.S. 53", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6159521 ], "weight": 6, "year": 1957, "pin_cites": [ { "page": "62" }, { "page": "646" } ], "opinion_index": 0, "case_paths": [ "/us/353/0053-01" ] }, { "cite": "244 S.E.2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574594, 8574566, 8574510, 8574546, 8574524 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0737-05", "/nc/294/0737-04", "/nc/294/0737-01", "/nc/294/0737-03", "/nc/294/0737-02" ] }, { "cite": "240 S.E.2d 475", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 53", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547131 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0053-01" ] }, { "cite": "313 S.E.2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 17, "year": 1984, "pin_cites": [ { "page": "558-59" }, { "page": "599-600" }, { "page": "558-59", "parenthetical": "quotation marks omitted" }, { "page": "558-59", "parenthetical": "citations, quotation marks, and ellipses omitted" }, { "page": "598" }, { "page": "559" }, { "page": "599" }, { "page": "559" }, { "page": "559" }, { "page": "599-600" }, { "page": "559" }, { "page": "598-600" }, { "page": "559" } ], "opinion_index": 0 }, { "cite": "310 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2396898 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "598-600" }, { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0596-01" ] }, { "cite": "689 S.E.2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "596" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 524", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4174846 ], "year": 2010, "pin_cites": [ { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/nc-app/202/0524-01" ] } ], "analysis": { "cardinality": 1076, "char_count": 31263, "ocr_confidence": 0.739, "pagerank": { "raw": 6.642137631490024e-08, "percentile": 0.4050940807745934 }, "sha256": "cc0049a0c8294517706a142f8426170b1ef4d2f3bebcfd05f0aa47d94a57c266", "simhash": "1:8769e02317ee0c70", "word_count": 5131 }, "last_updated": "2023-07-14T20:23:21.020165+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DEWAYNE AVENT, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant was convicted of first degree murder and appeals. For the following reasons, we find no error.\nI. Background\nThe State\u2019s evidence tended to show that around 5:00 p.m. on 27 December 2009, Ms. Jessie Lynch and her boyfriend, Mr. Tronyale Daniel, were riding in a vehicle in Rocky Mount. Mr. Daniel got out of the vehicle to speak with some people and defendant walked up and shot him. Later, Ms. Lynch identified defendant as the shooter to the police through photographs. Mr. Daniel died from \u201ca gunshot wound to the chest.\u201d On or about 3 May 2010, defendant was indicted for first degree murder. After a trial by jury, defendant was found guilty of first degree murder and sentenced to life imprisonment without parole. Defendant appeals.\nII. Motion to Amend Indictment\nDefendant first contends that\nthe trial court erred when it granted the State\u2019s motion to amend the date of the indictment from December 28 to December 27 when time was of the essence where the defendant relied on an alibi defense and such error deprived the defendant of an opportunity to adequately present his defense[.]\n(Original in all caps.) We review the trial court\u2019s granting of the State\u2019s motion to amend the indictment de novo. State v. White, 202 N.C. App. 524, 527, 689 S.E.2d 595, 596 (2010).\nIn State v. Price, our Supreme Court considered a similar argument as to an amendment to an indictment which also changed the date on the indictment. 310 N.C. 596, 598-600, 313 S.E.2d 556, 558-59 (1984). The Court determined that where time is not of the essence as to the offense charged, an amendment of the date on the indictment is not prohibited by N.C. Gen. Stat. \u00a7 15A-923(e) as this change does \u201cnot substantially alter the charge set forth in the indictment.\u201d Id. at 599-600, 313 S.E.2d at 558-59 (quotation marks omitted). The Court noted that although N.C. Gen. Stat. \u00a7 15A-923(e)\nprovides that [a] bill of indictment may not be amended[, t]his statute fails to include a definition of the word amendment. The North Carolina Court of Appeals has ruled upon the interpretation of this subsection in State v. Carrington, 35 N.C. App. 53, 240 S.E.2d 475, cert. denied, 294 N.C. 737, 244 S.E.2d 155 (1978). That court defined the term amendment to be any change in the indictment which would substantially alter the charge set forth in the indictment. We believe the Court of Appeals, in its diligent effort to avoid illogical consequences, correctly interpreted this statute\u2019s subsection.\nThis change of the date of the offense, as permitted by the trial court, did not amount to an amendment prohibited by N.C. Gen. Stat. \u00a7 15A-923(e), because the change did not substantially alter the charge set forth in the indictment. The change merely related to time, which in this particular case was not an essential element of the charge.\nGenerally, when time is not of the essence of the offense charged, an indictment may not be quashed for failure to allege the specific date on which the crime was committed . . .\nThe State may prove that an offense charged was committed on some date other than the time named in the bill of indictment. Thus, pursuant to section 15-155, it was not necessary for the district attorney in the case sub judice to move to change the indictment date. Although not necessary, the correction was proper.\nId. at 598-99, 313 S.E.2d at 558-59 (citations, quotation marks, and ellipses omitted).\nHere, the date of the murder was not an essential element of the charge and thus could be amended under N.C. Gen. Stat. \u00a7 15A-923(e). See id. at 598, 313 S.E.2d at 559. Defendant argues that because he raised an alibi defense, the date of the offense was essential to his defense. As the Court also noted in Price, \u201c[a] variance as to time, however, becomes material and of the essence when it deprives a defendant of an opportunity to adequately present his defense.\u201d Id. at 599, 313 S.E.2d at 559. In Price, the defendant did not rely upon an alibi defense nor did he contest his presence near the scene of the murder on the date of the crime. Id. The Court also noted that\nprior to his indictment for murder, defendant had been indicted for armed robbery of Miller\u2019s Grocery, which was the transaction out of which the fatal shooting of Milton Ferrell occurred. Defendant cannot claim surprise and resulting prejudice from the change of dates. In this case, the date on the indictment for murder, if erroneous, was not an essential element of the offense.\n310 N.C. at 599, 313 S.E.2d at 559. Unlike the defendant in Price, defendant here did rely on an alibi defense. See id. We must therefore determine whether the change of the offense date \u201cdeprive [d] . . . defendant of an opportunity to adequately present his defense.\u201d Id.\nDuring trial, defendant\u2019s alibi witness, Mr. Quincy Johnson, testified that he picked up defendant on 27 December 2009 at approximately 3:00 or 3:30 p.m in Rocky Mount. Mr. Johnson and defendant arrived in Tarboro around 4:00 p.m., and Mr. Johnson \u201cwaited until [defendant] was settled. . . . [They] smoked a little[,] and . . . [Mr. Johnson] waited until [defendant] was settled and got in the house. Until somebody came to the door and then [Mr. Johnson] had to leave to take [his] girl to work.\u201d The next morning, when Mr. Johnson came back to the house, defendant was still there in his pajamas. The State\u2019s evidence tended to show that Mr. Daniel was shot around 5:00 p.m. on 27 December 2009 in Rocky Mount. Thus, defendant presented his alibi defense and was not deprived \u201cof an opportunity to adequately present his defense.\u201d Id.\nThough defendant argues that \u201c[a]s a result of the amendment granted by the trial [c]ourt, the [defendant was then faced at trial with defending himself on not one date but then two dates[,]\u201d in. actuality, the State amended the indictment to only the date of 27 December 2009. Thus, defendant only needed, a defense for 27 December 2009, and he provided this through the testimony of Mr. Johnson. Defendant also contends that \u201conly one witness for the defense was presented\u201d but fails to make any arguments regarding what other witnesses he would have presented had the indictment not been amended. Furthermore, the State\u2019s evidence included two eyewitness statements and Mr. Daniel\u2019s autopsy report which all noted the date of the murder as 27 December 2009; defendant makes no argument that he was not aware of this evidence well before the date of trial. Accordingly, also as in Price, \u201c[defendant cannot claim surprise and resulting prejudice from the change of dates.\u201d Id. at 599-600, 313 S.E.2d at 559. As the date is not an essential element for murder, and defendant has not shown surprise or prejudice but instead did present his alibi defense for the correct date, we find no error in the trial court\u2019s granting of the State\u2019s motion to amend the indictment. See id. at 598-600, 313 S.E.2d at 559. This argument is overruled.\nIII. Motion to Compel\nDefendant next contends that\nthe trial court erred in denying the defendant\u2019s motion to compel disclosure of the identity of a confidential informant utilized by law enforcement to identify the alleged cellular phone number location of the defendant on the grounds that the failure to do so violated North Carolina law, the defendant\u2019s right to due process as provided to him by the Fifth Amendment and the defendant\u2019s Sixth Amendment right to cross examine and confront the witnesses against him.\n(Original in all caps.) \u201cA violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.\u201d N.C. Gen. Stat. \u00a7 15A-1443(b) (2009).\nDefendant directs this Court\u2019s attention to Roviaro v. United States, 353 U.S. 53, 1 L.Ed. 2d 639 (1957) arguing for disclosure of the confidential informant. However, in Roviaro, the United States Supreme Court stated that\nno fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual\u2019s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer\u2019s testimony, and other relevant factors.\n353 U.S. at 62, 1 L.Ed. 2d at 646. In interpreting Roviaro this Court has stated,\nThe state is privileged to withhold from a defendant the identity of a confidential informant, with certain exceptions. Roviaro v. United States, 353 U.S. 53, 1 L.Ed. 2d 639 (1957), sets forth the applicable test when disclosure is requested. The trial court must balance the government\u2019s need to protect an informant\u2019s identity (to promote disclosure of crimes) with the defendant\u2019s right to present his case. However, before the courts should even begin the balancing of competing interests which Roviaro envisions, a defendant who requests that the identity of a confidential informant be revealed must make a sufficient showing that the particular circumstances of his case mandate such disclosure.\nTwo factors weighing in favor of disclosure are (1) the informer was an actual participant in the crime compared to a mere informant, and (2) the state\u2019s evidence and defendant\u2019s evidence contradict on material facts that the informant could clarify. Factors which weigh against disclosure include whether the defendant admits culpability, offers no defense on the merits, or the evidence independent of the informer\u2019s testimony establishes the accused\u2019s guilt.\nState v. Dark, 204 N.C. App. 591, 593, 694 S.E.2d 502, 504 (emphasis added) (citations, quotation marks, and brackets omitted), disc. review denied, 364 N.C. 327, 700 S.E.2d 928 (2010).\nAs to the two factors which would favor disclosure, defendant has shown neither. Defendant has neither shown nor even alleged that \u201cthe informer was an actual participant in the crimef.]\u201d Id. Furthermore, the State\u2019s evidence and defendant\u2019s evidence do not appear to contradict as to any \u201cmaterial facts\u201d save that the State claimed defendant was the shooter and defendant claimed he was not at the scene of the crime at the time in question, but defendant has not shown how the identity of the person who provided his phone number would be relevant to these facts. One of the three factors which may weigh against disclosure does exist, as \u201cthe evidence independent of the informer\u2019s testimony establishes the accused\u2019s guilt.\u201d Id. Ms. Lynch\u2019s eyewitness testimony that she saw defendant shoot Mr. Daniel \u201cestablishes the accused\u2019s guilt.\u201d Id. While we acknowledge that defendant did not \u201cadmit[] culpability\u201d and has offered an alibi witness as a defense, we conclude that defendant has not \u201cma[d]e a sufficient showing that the particular circumstances of his case mandate . . . disclosure\u201d of a confidential informant who merely provided defendant\u2019s phone number to law enforcement, and thus the trial court did not err by refusing to compel this disclosure. This argument is overruled.\nIV. Inconsistent Statements\nDuring defendant\u2019s trial, Mr. Xavier Hicks testified that he was at the scene of the crime but did not see defendant. The State then introduced a statement Mr. Hicks had written for the police the day after the incident which stated, \u201cThen DeWayne came up smoking a cigarette and walked up to the dude in the black hoodie and said what are you trying to say, pulled out a handgun and shot the boy and ran[.]\u201d Mr. Jamal Porter also testified that he was at the scene of the crime but did not see defendant. The State then introduced a statement Mr. Porter had written for the police the day after the incident which stated,\n[T]hat\u2019s when the victim was walking back towards his car and began to pass a few words with DeWayne and then the victim\u2019s girlfriend was telling the victim to come on let\u2019s go and then I seen the victim trying to smack the gun out of DeWayne\u2019s hand and that\u2019s when I heard the shot being fired.\nDefendant argues\nthe trial court erred by admitting the prior unsworn written inconsistent statements of witness Hicks and witness Porter into evidence and by publishing it to the jury where Hicks and Porter testified on the stand that each lied in that unsworn statement thereby allowing the State to impeach its own witness and allowing the State to get that statement into evidence and before the jury in violation of N.C.G.S. 8C-1, Rule 607[,]\nand\nthe trial court erred in allowing into evidence and by publishing to the jury prior written inconsistent statements of witness Hicks and witness Porter whose probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues and did mislead the jury in violation of N.C.G.S. 8C-1, Rule 403 of the Rules of Evidence.\n(Original in all caps.)\nOur standard of review as to North Carolina Rules of Evidence 403 and 607 is abuse of discretion. State v. Banks, _N.C. App. _,_, 706 S.E.2d 807, 814 (2011).\nOur review of the trial court\u2019s decision to admit or exclude evidence pursuant to N.C.R. Evid. 403 is for abuse of discretion. Rulings by the trial court concerning whether a party may attack the credibility of its own witness are reviewed for an abuse of discretion.\nSimilarly, our standard of review for rulings made by the trial court pursuant to Rule 607 of the North Carolina Rules of Evidence is abuse of discretion.\nAbuse of discretion occurs where the court\u2019s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\nId. (citations and quotation marks omitted).\nA. Rule 607\nNorth Carolina Rule of Evidence 607 provides that \u201c[t]he credibility of a witness may be attacked by any party, including the party calling him.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 607 (2009). In State v. Riccard, this Court thoroughly analyzed the applicability of Rule 607 in a situation similar to the one presented in this case:\nOn appeal, defendant contends that the trial court committed reversible error by allowing the State to impeach Barnes and Reid on a collateral matter with extrinsic evidence. We are not persuaded.\nUnder certain circumstances a witness may be impeached by proof of prior conduct or statements which are inconsistent with the witness\u2019s testimony. Such statements are admissible under North Carolina Rule of Evidence 607 for the purpose of shedding light on a witness\u2019s credibility. In State v. Williams, 322 N.C. 452, 368 S.E.2d 624 (1988), our Supreme Court set out the basic principle of this area of evidence:\nA witness may be cross-examined by confronting him with prior statements inconsistent with any part of his testimony, but where such questions concern matters collateral to the issues, the witness\u2019s answers on cross-examination are conclusive, and the party who draws out such answers will not be permitted to contradict them by other testimony.\nThus, under Williams, it is clear a prior inconsistent statement may not be used to impeach a witness if the questions concern matters which are only collateral to the central issues. What is sometimes unclear, however, is what is material and what is collateral. Generally speaking, material facts involve those matters which are pertinent and material to the pending inquiry, while collateral matters are those which are irrelevant or immaterial to the issues before the court.\nHere, defendant relies upon State v. Williams, State v. Hunt and State v. Jerrells to support his argument that Barnes and Reid were improperly impeached on collateral matters with extrinsic evidence. In each of the three cases relied upon by defendant our courts held that once a witness denies having made a prior statement, the State may not impeach that denial by introducing evidence of the prior statement. The rationale behind these holdings is that once the witness denies having made a prior inconsistent statement the prior statement concerns only a collateral matter, i.e., whether the statement was ever made. Here, unlike the situations presented in Williams, Hunt and Jerrells, both Barnes and Reid admitted making statements to Wilson on 7 July. Accordingly, these cases are inapposite.\nWhere the witness admits having made the prior statement, impeachment by that statement has been held to be permissible. In State v. Wilson, 135 N.C. App. 504, 521 S.E.2d 263 (1999) two witnesses testified as to the events of the night of 22 February 1997 when defendant was involved in an assault. Both witnesses also admitted making statements to the police regarding the assault. Over defendant\u2019s objection, the State was permitted to examine these witnesses about their prior inconsistent statements to the police. On appeal we held that since neither witness denied making the prior statements, their introduction was not collateral and therefore the trial court properly allowed the State to use these witnesses\u2019 prior statements for impeachment purposes.\nLikewise, where there is testimony that a witness fails to remember having made certain parts of a prior statement, denies having made certain parts of a prior statement, or contends that certain parts of the prior statement are false, our courts have allowed the witness to be impeached with the prior inconsistent statement. In State v. Whitley, 311 N.C. 656, 319 S.E.2d 584 (1984) the witness testified that she did not remember making specific statements to the police which tended to inculpate defendant, and then denied having made those specific statements. Our Supreme Court held that because the prior statement with which the witness was impeached was inconsistent in part with her testimony and material in that it related to events immediately leading to the shooting, the witness could be impeached concerning the inconsistencies in her prior statement. Moreover, in State v. Minter, 111 N.C. App. 40, 432 S.E.2d 146 (1993) where the witness denied making certain statements before the grand jury and also claimed that some statements he made to the grand jury were false, we held it permissible for the State to impeach the witness with his prior inconsistent statements.\nAt trial both Barnes and Reid admitted making statements to Wilson in which they discussed details of the robbery and assault of the victim and implicated defendant. Barnes, however, testified that certain parts of his statement were inaccurate, and that he did not remember making certain parts of his statement. Reid also testified that certain parts of his statement were inaccurate. Thus, we conclude that under Whitley, Wilson and Minter the trial court did not err in allowing Barnes and Reid to be impeached concerning the inconsistencies in their prior statements.\nFinally, we note that while North Carolina Rule of Evidence 607 allows a party to impeach its own witness on a material matter with a prior inconsistent statement, impeachment is impermissible where it is used as a mere subterfuge to get evidence before the jury which is otherwise inadmissible. Circumstances indicating good faith and the absence of subterfuge have included the facts that the witness\u2019s testimony was extensive and vital to the government\u2019s case; that the party calling the witness was genuinely surprised by his reversal; or that the trial court followed the introduction of the statement with an effective limiting instruction.\nHere, the facts indicate good faith and an absence of subterfuge. The testimony of Barnes and Reid was extensive and vital to the State\u2019s case. Both witnesses testified to the events of 4 July 1998 leading up to the robbery and assault of the victim. Both witnesses testified that they watched a fireworks display and attended a party and later went riding in a Ford Escort. Both Barnes and Reid testified that they stopped at the car wash on Bessemer City Road to use the pay phone around 11:00 p.'m., and that defendant was out of their sight for a sufficient time to have committed these crimes. Moreover, there is no indication that the State anticipated that Barnes and Reid would contradict the statements they had given to Wilson on 7 July. Finally upon defendant\u2019s request, the trial court gave an effective limiting instruction to the jury before Wilson\u2019s testimony was elicited. Under the circumstances here, we cannot conclude that the impeachment of Barnes and Reid was used as a mere subterfuge to get evidence before the jury which is otherwise inadmissible. Accordingly, this assignment of error fails.\n142 N.C. App. 298, 302-04, 542 S.E.2d 320, 322-24 (emphasis added) (citations, quotation marks, ellipses, and brackets omitted), cert. denied, 353 N.C. 530, 549 S.E.2d 864 (2001).\nDuring defendant\u2019s trial, Mr. Hicks testified that he did not see defendant at the scene of the crime. The State presented Mr. Hicks with his 28 December 2009 written statement he had provided to the police, and Mr. Hicks acknowledged that it was his statement but claimed it was a \u201clie.\u201d Mr. Hicks statement said that defendant \u201cwalked up to the dude in the black hoodie and said what are you trying to say, pulled out a handgun and shot the boy and ran[.]\u201d Mr. Porter testified that he did not see defendant at the scene of the crime. The State presented Mr. Porter with his 28 December 2009 written statement he had provided to the police, and Mr. Porter acknowledged it was his statement and said \u201cI didn\u2019t really write a lie, but that\u2019s -- that\u2019s what [the police] wanted me to put, yeah.\u201d Mr. Porter\u2019s statement provided that \u201cthe victim [tried] to smack the gun out of [defendant\u2019s] hand and that\u2019s when I heard the shot being fired.\u201d Thus, both witnesses admitted having made prior statements to the police, and those statements differed greatly from their trial testimony.\nFirst, both Mr. Hicks\u2019 and Mr. Porter\u2019s statements to the police were material as the statements are concerning the credibility of two individuals who claimed they did not see defendant at the scene of the crime. See id. at 302, 542 S.E.2d at 322-23. Both Mr. Hicks\u2019 and Mr. Porter\u2019s testimonies were certainly regarding \u201cfacts involv[ing] those matters which are pertinent and material to the pending inquiry].]\u201d Id. at 302 542 S.E.2d at 323. Second, as both witnesses admitted having made the prior statements \u201cimpeachment by th[ose] statements] has been held to be permissible.\u201d Id. at 303, 542 S.E.2d at 323. Third, we do not believe \u201cmere shbterfuge\u201d took place on the part of the State: the credibility of the eyewitnesses\u2019 testimony was certainly \u201cvital to the government\u2019s case[;]\u201d although defendant contends \u201cthe State knew that witness Hicks and witness Porter were going to testify that any previous statement given by each was not the truth[,]\u201d defendant has not directed this Court\u2019s attention to any indication in the record that the State was not \u201cgenuinely surprised\u201d by the witnesses\u2019 denial of portion of their statements at trial; lastly, the trial court also \u201cfollowed the introduction of the statements] with an effective limiting instruction.\u201d Id. at 304, 542 S.E.d at 324. Accordingly, we conclude that the trial court did not abuse its discretion in allowing evidence of the witnesses\u2019 prior inconsistent statements.\nB. Rule 403\nDefendant also argues that even if the witnesses\u2019 prior inconsistent statements were admissible under Rule 607, they should have been excluded under Rule 403 as their \u201cprobative value [was] substantially outweighed by the danger of unfair prejudice, confusion of the issues and did mislead the jury[.]\u201d (Original in all caps.) North Carolina Rule of Evidence 403 provides that \u201c[although 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[.]\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2009).\nBefore Mr. Hicks\u2019 statement was read to the jury the trial court stated,\nLadies and gentlemen, I would like for y\u2019all to listen to me and I want you to listen to me carefully. When evidence has been received tending to show that at an earlier time a witness made a statement which may be consistent or may conflict with his testimony at this trial, you must not consider such earlier statement as evidence of the truth of what was said at the earlier time because it was not made under oath at this trial. If you believe that such earlier statement was made and that it is consistent or does conflict with the testimony of the witness at this trial, then you may consider this together with all other facts and circumstances bearing on the witness\u2019s truthfulness in deciding whether or not to believe or disbelieve the witness\u2019s testimony at this trial.\nThe trial court also gave a similar instruction before Mr. Porter\u2019s statement was read to the jury. Due to the instruction provided by the trial court which specifically instructed the jury not to consider Mr. Hicks\u2019 or Mr. Porter\u2019s prior inconsistent statements substantively but only for purposes of determining their credibility, defendant has not demonstrated that the \u201cprobative value [of the statements was] ... substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]\u201d Id. This argument is overruled.\nV. Motion to Dismiss\nLastly, defendant contends that\nthe trial court erred in denying the defendant\u2019s motion to dismiss the charge of first degree murder when the evidence viewed in the light most favorable to the State was insufficient to permit a reasonable juror to find beyond a reasonable doubt that the defendant committed premeditated and deliberate murder.\n(Original in all caps.)\nThe standard of review for a motion to dismiss is well known. A defendant\u2019s motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant\u2019s being the perpetrator of the charged offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The Court must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.\nState v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and quotation marks omitted). \u201cThe elements of first-degree murder are: (1) the unlawful killing, (2) of another human being, (3) with malice, and (4) with premeditation and deliberation.\u201d State v. Coble, 351 N.C. 448, 449, 527 S.E.2d 45, 46 (2000).\nPremeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. Premeditation and deliberation can be inferred from many circumstances, some of which include:\n(1) absence of provocation on the part of deceased, (2) the statements and conduct of the defendant before and after the killing, (3) threats and' declarations of the defendant before and during the occurrence giving rise to the death of the deceased, (4) ill will or previous difficulties between the parties, (5) the dealing of lethal blows after the deceased has been felled and rendered helpless, (6) evidence that the killing was done in a brutal manner, and (7) the nature and number of the victim\u2019s wounds.\nState v. Wiggins,___ N.C. App._,_, 707 S.E.2d 664, 673 (citations and quotation marks omitted), disc. review denied, 365 N.C. 189, 707 S.E.2d 242 (2011). The evidence does not demonstrate any \u201cprovocation on the part of\u2019 Mr. Daniel, and Ms. Lynch testified that defendant simply walked up to Mr. Daniel, shot him, and then ran. See id. Viewing \u201cthe evidence in the light most favorable to the State[,]\u201d there was substantial evidence to support the jury\u2019s determination that defendant had committed a premeditated and deliberate act in shooting Mr. Daniel. Johnson at 724, 693 S.E.2d at 148; see Wiggins, _N.C. App. at_, 707 S.E.2d at 673.\nVI. Conclusion\nFor the foregoing reasons, we find no error.\nNO ERROR.\nJudges CALABRIA and McCULLOUGH concur.\n. In one of defendant\u2019s headings he also argues that \u201cthe due process clause of the Fifth Amendment of the United States Constitution\u201d was violated. (Original in all caps.) However, defendant does not actually make any substantive constitutional arguments in his brief; therefore, we will address only defendant\u2019s arguments as to North Carolina Rules of Evidence 607 and 403. See N.C.R. App. P. 28(a).", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Laura E. Parker, for the State.", "Thomas R. Sallenger, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DEWAYNE AVENT, Defendant\nNo. COA11-1506\n(Filed 7 August 2012)\n1. Indictment and Information \u2014 first-degree murder\u2014 motion to amend granted \u2014 date not an essential, element of murder\nThe trial court did not err in a first-degree murder case by granting the State\u2019s motion to amend the date of the indictment from December 28 to December 27. The date was not an essential element of murder and defendant failed to show surprise or prejudice when he presented his alibi defense for the correct date.\n2. Discovery \u2014 refusal to compel disclosure of confidential informant \u2014 failure to show necessity\nThe trial court did not err in a first-degree murder case by refusing to compel disclosure of a confidential informant. Defendant did not make a sufficient showing that the particular circumstances of his case mandated disclosure of a confidential informant who merely provided defendant\u2019s phone number to law enforcement.\n3. Evidence \u2014 prior inconsistent statements \u2014 credibility\u2014 failure to show probative value outweighed unfair prejudice\nThe trial court did not abuse its discretion in a first-degree murder case by allowing evidence of two witnesses\u2019 prior inconsistent statements. The trial court specifically instructed the jury not to consider the statements substantively, but only for purposes of determining their credibility. Defendant failed to demonstrate that the probative value of the statements was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.\n4. Homicide \u2014 first-degree\u2014sufficiency of evidence \u2014 premeditation and deliberation\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of first-degree murder. Viewing the evidence in the light most, favorable to the State, there was substantial evi-' dence to support the jury\u2019s determination that defendant had committed a premeditated and deliberate act in shooting the victim.\nAppeal by defendant from judgment entered on or about 4 May 2011 by Judge Walter H. Godwin, Jr. in Superior Court, Nash County. Heard in the Court of Appeals 24 May 2012.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Laura E. Parker, for the State.\nThomas R. Sallenger, for defendant-appellant." }, "file_name": "0147-01", "first_page_order": 157, "last_page_order": 170 }