State v. ThompsonÂ, 254 N.C. App. 220

Background

On November 7, 2014, Kendall Rascoe rode with Roshawn Thompson (Defendant) to pick up Andre Grey; at a dead end Grey pulled a gun and both men robbed and assaulted Rascoe, taking money, ID, phone, and card.
Rascoe identified Defendant (and Grey) via a Facebook photo; Defendant was charged with robbery with a dangerous weapon and convicted by a jury.
At trial Defendant attempted to impeach Rascoe with an unauthenticated screenshot of a Facebook message and cross-examined Rascoe about whether he contacted Defendant that day to buy marijuana; the court barred use of the screenshot without foundation but allowed questioning.
The State introduced a printed photograph (snipped from Facebook) showing Defendant making a middle-finger gesture for illustrative identification purposes; the court admitted it and instructed the jury on its limited purpose.
At sentencing the court (after the State’s comment that Defendant had been “validated” as a gang member) found the offense involved criminal street gang activity under N.C.G.S. § 14-50.25 and imposed gang-related restrictions; no trial evidence supported that gang-finding.
Defendant appealed, challenging the rulings on the screenshot, the photograph, cumulative error, the gang finding, and the constitutionality/Fifth–Sixth Amendment implications of the gang-finding procedure.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument	Held
Trial court sustained State objection to use of unauthenticated Facebook screenshot on cross-examination	Screenshot was not properly authenticated and was not produced in discovery; trial court acted within discretion to require foundation before admitting extrinsic evidence	Screenshot could be used to impeach Rascoe’s credibility; exclusion was abuse of discretion	No abuse of discretion. Defendant could question Rascoe about the content but could not introduce the unauthenticated screenshot as extrinsic evidence without foundation; trial court’s ruling supported by record
Admission of photograph showing Defendant making middle-finger gesture (State’s exhibit for identification)	Photo was used illustratively to show how Rascoe identified Defendant; authenticated by detective and admitted under Rule 901 and N.C.G.S. § 8-97	Photo was irrelevant and unduly prejudicial (demeaning image) and should have been excluded	No plain error. Photo was relevant to identification, authenticated, admitted for limited illustrative purpose, and not unduly prejudicial
Cumulative error from evidentiary rulings	Individual evidentiary rulings were proper, so cumulative-error claim fails	Combined rulings deprived Defendant of a fair trial	No cumulative error; no individual error warranting reversal
Trial court finding offense involved criminal street gang activity under N.C.G.S. § 14-50.25	The State suggested gang affiliation at sentencing; argued the gang notation was clerical if erroneous	No evidence supported a gang-activity finding; judge’s determination was judicial, not clerical, and thus erroneous; constitutional challenge reserved	Judicial error: trial judge abused discretion by making a gang-activity finding without evidence. Remanded for resentencing without the gang finding. Court declined to reach constitutionality of § 14-50.25

Key Cases Cited

State v. Forte, 360 N.C. 427 (discretionary scope of cross-examination)
State v. Whaley, 362 N.C. 156 (standard for abuse of discretion review)
State v. Mack, 282 N.C. 334 (distinguishing material vs. collateral prior inconsistent statements)
State v. Long, 280 N.C. 633 (test for materiality of prior inconsistent statements)
State v. Lawrence, 365 N.C. 506 (plain-error review for unpreserved evidentiary issues)
State v. Brady, 299 N.C. 547 (admissibility of photographs to illustrate identification)
State v. Dubose, 208 N.C. App. 406 (finding that gang-activity notation is a substantive change to judgment)
State v. Riddick, 315 N.C. 749 (abuse-of-discretion reversal where ruling is unsupported by evidence)