An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-360

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

STATE OF NORTH CAROLINA

v. Wake County

No. 11 CRS 214093

FLOYD JAMAR JOHNSON,

Defendant.

Appeal by defendant from judgment entered 16 May 2012 by 

Judge Michael J. O'Foghludha in Wake County Superior Court. 

Heard in the Court of Appeals 23 September 2013.

Attorney General Roy Cooper, by Assistant Attorney General 

Thomas D. Henry, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate 

Defender Jon H. Hunt, for defendant-appellant.

GEER, Judge.

Defendant Floyd Jamar Johnson appeals from his conviction 

of assault with a deadly weapon with the intent to kill, first

degree burglary, misdemeanor child abuse, and misdemeanor 

assault by pointing a gun. On appeal, defendant primarily

argues that the trial court committed plain error by admitting 

testimony recounting unsworn statements of a witness taken on 
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the night of the alleged crime when, defendant asserts, the 

statements did not corroborate the witness' in-court testimony. 

Although the unsworn statement differed slightly from the incourt testimony of the witness, both accounts were substantially 

the same, and the unsworn statement tended to add weight and 

credibility to the witness' account. The testimony regarding 

the unsworn statement was, therefore, admissible corroborative 

evidence. 

Facts

The State's evidence tended to show the following facts.

Defendant was married to Saroya Johnson with whom he had two 

children. In February 2011, their marriage was experiencing 

difficulties, and Ms. Johnson moved out of the marital home.

She began a relationship with Floyd Farrow, her co-worker.

In March 2011, defendant learned of the relationship 

between Ms. Johnson and Mr. Farrow. One evening in April 2011, 

defendant waited outside Ms. Johnson's home and upon seeing Ms. 

Johnson return to the house with Mr. Farrow, charged Mr. Farrow 

and took swings at him. Mr. Farrow responded by rushing to his 

truck to get his gun. The situation de-escalated when Mr. 

Farrow realized who defendant was and asked defendant to talk 

"man to man." Defendant agreed and asked Mr. Farrow to put away 

his gun, which he did. Mr. Farrow offered to "back off" from 
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Ms. Johnson if defendant wanted to make their relationship work, 

but defendant replied "Nah, nah, she's yours." The two men 

shook hands before defendant left. Between April and June 2011, 

defendant had no further contact with Mr. Farrow. 

On the night of 20 June 2011, defendant was driving back to 

Raleigh from Elizabeth City with his nine-year-old son. Over 

the weekend, defendant had called Ms. Johnson several times, and 

the final call had ended abruptly when Ms. Johnson's phone went 

dead. Ms. Johnson was staying at Mr. Farrow's apartment that 

night. Around 12:15 a.m., defendant knocked on Mr. Farrow's 

apartment door, and Mr. Farrow's roommate, Kenneth Hamlin, 

answered. Defendant asked if Mr. Farrow was at home. Mr. 

Hamlin was unsure, so he knocked on Mr. Farrow's bedroom door. 

When he did not get a response, he told defendant that Mr. 

Farrow was not home. Defendant asked, "So that's not his truck 

outside?" Mr. Hamlin replied, "I guess so, man, but nobody came 

to his door so nobody's there." When defendant asked whether 

his wife was inside, Mr. Hamlin replied that he did not know.

Sensing that defendant was upset, Mr. Hamlin then tried to close 

the door. However, defendant blocked the door and entered the 

apartment with his gun pointed at Mr. Hamlin, saying, "Where the 

fuck are they?"
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Meanwhile, Mr. Farrow and Ms. Johnson had heard the knock 

at the door from inside the bedroom. Ms. Johnson recognized 

defendant's voice and told Mr. Farrow "[t]hat's Jamar." Mr. 

Farrow called 911 and grabbed his gun because he "knew nothing 

good was going to happen." Ms. Johnson retreated to the 

bathroom. 

Mr. Farrow then opened his bedroom door to peek out and 

found defendant standing in front of the bedroom. He attempted 

to shut the door on defendant who started pushing on the door 

from the hallway, trying to gain entry into the bedroom. Mr. 

Farrow saw defendant's arm come around the door and saw that 

defendant had a gun. Mr. Farrow dropped to the ground, aimed 

his gun at defendant, and fired five shots at defendant, 

thinking "[i]t's either him or me."

Defendant was hit in the neck and chest. He fired one shot 

from his gun, but it did not strike Mr. Farrow. Police found 

five 40 caliber shells and one 45 caliber shell at the scene. 

After the shots were fired and defendant lay incapacitated on 

the floor, Mr. Farrow took control of both guns, released the 

magazine from his gun, unloaded defendant's gun, placed them 

both on the kitchen counter, and redialed the police. Ms. 

Johnson heard her nine-year-old son screaming outside the 

apartment and ran to comfort him. 
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On 12 September 2011, defendant was indicted for assault 

with a deadly weapon with intent to kill, first degree burglary, 

misdemeanor child abuse, and misdemeanor assault by pointing a 

gun. The jury found defendant guilty of all the indicted 

offenses. The trial court consolidated the offenses for 

sentencing and sentenced defendant to one presumptive-range term 

of 60 to 81 months imprisonment. Defendant filed a written 

notice of appeal and a petition for writ of certiorari. 

Discussion

We first address this Court's jurisdiction to hear this 

appeal. Defendant filed a written pro se notice of appeal on 31 

May 2012, 15 days after judgment was entered. The notice of 

appeal was filed one day late. See N.C.R. App. P. 4(a), (b).

Our Supreme Court has held that a jurisdictional default, such 

as a failure to comply with Rule 4 of the Rules of Appellate 

Procedure, "precludes the appellate court from acting in any 

manner other than to dismiss the appeal." Dogwood Dev. & Mgmt. 

Co. v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 

365 (2008). Because defendant's notice of appeal was untimely, 

we must dismiss his appeal. Defendant has, however, filed a 

petition for writ of certiorari pursuant to Rule 21(a)(1) of the 
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Rules of Appellate Procedure. We exercise our discretion to 

allow the petition and address the merits of this appeal.1

I

Defendant first argues that the trial court erred by 

admitting testimony regarding prior unsworn statements of Ms. 

Johnson to the police on the night of the incident when those 

statements did not corroborate Ms. Johnson's testimony at trial.

Because defendant did not object to the admission of this 

evidence at trial, we review for plain error. Our Supreme Court 

has explained:

For error to constitute plain error, a 

defendant must demonstrate that a 

fundamental error occurred at trial. To 

show that an error was fundamental, a 

defendant must establish prejudice -- that, 

after examination of the entire record, the 

error had a probable impact on the jury's 

finding that the defendant was guilty. 

Moreover, because plain error is to be 

applied cautiously and only in the 

exceptional case, the error will often be 

one that seriously affect[s] the fairness, 

integrity or public reputation of judicial 

proceedings[.]

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) 

(internal citations and quotation marks omitted).

"A witness's prior consistent statements may be admitted to 

corroborate the witness's courtroom testimony." State v. 

 

1We note that the State has not responded to defendant's 

petition and did not move to dismiss the appeal.
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Harrison, 328 N.C. 678, 681, 403 S.E.2d 301, 303 (1991). An 

out-of-court statement will not be admitted, however, if it is 

inconsistent with or contradicts the declarant's substantive 

testimony at trial. State v. Stills, 310 N.C. 410, 416, 312 

S.E.2d 443, 447 (1984). Moreover, if the statement "'contains 

additional evidence going beyond [the declarant's] testimony, 

the State is not entitled to introduce the "new" evidence under 

a claim of corroboration . . . .'" State v. Warren, 289 N.C. 

551, 557, 223 S.E.2d 317, 321 (1976) (quoting State v. Brooks, 

260 N.C. 186, 189, 132 S.E.2d 354, 356 (1963)). 

On the other hand, "if the testimony offered in 

corroboration is generally consistent with the witness's 

testimony, slight variations will not render it inadmissible."

Id. Where the testimony is substantially similar, "[slight] 

variations affect only the credibility of the evidence which is 

always for the jury." Id. Moreover, "[n]ew information 

contained within the witness' prior statement, but not referred 

to in his trial testimony, may also be admitted as corroborative 

evidence if it tends to add weight or credibility to that 

testimony." State v. Garcell, 363 N.C. 10, 40, 678 S.E.2d 618, 

637 (2009) (quoting State v. Davis, 349 N.C. 1, 28, 506 S.E.2d 

455, 469-70 (1998)). 

At trial, Ms. Johnson testified to the following: 
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Q. When you looked out of the 

bathroom, what did you see?

A. I just seen him coming in the 

door.

Q. When you say him, who are you 

talking about?

A. The defendant, Floyd.

Q. You saw him come in the door? Of

what door?

A. Orlando's bedroom door.

Q. You saw him come into the bedroom 

door?

A. Uh-huh.

Q. Did you see anything prior to 

that?

A. No.

Q. And what was the next thing that 

you -- did you see whether or not the 

defendant had anything in his hands?

A. I did see him, like, with a gun in 

his hand.

Q. I can't hear you.

A. I seen him with a gun in the hand 

when the door opened and he came in.

Q. You saw him with a gun in his hand 

and the door open?

A. Uh-huh.

Q. What were you thinking at that 

point?
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A. I wasn't. Like, I just went 

blank. I just --

Q. What's the next thing that you 

recall after seeing him come into the 

bedroom with a gun?

A. I just seen fire.

Q. When you say fire, what do you 

mean?

A. Just seen, I guess, gunshots.

Later, to corroborate Ms. Johnson's testimony, Detective 

Doug Bacon testified as follows: 

Q. And did [Ms. Johnson] tell you 

what she saw from the bathroom?

A. She stated that she was standing 

at the -- in the bathroom, and when she saw 

her husband pushing on the door, which he 

finally got open, she stated that her 

husband entered the room with a gun in his 

hand.

Q. And what did she tell you that she 

saw next?

A. Ms. Johnson stated that she saw 

her husband fire the gun in the bedroom, and 

then she heard her son screaming, at which 

time she took off running out of the bedroom 

and ran out into the parking lot looking for 

him.

Defendant argues that the detective's testimony that Ms. 

Johnson "saw her husband fire the gun in the bedroom" adds 

additional information to her trial testimony that she merely 

saw "fire" or "gunshots" when her husband entered the bedroom 
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with his gun, and was, therefore, inadmissible to corroborate 

her testimony. However, "a statement that merely contains 

additional facts is not automatically barred." Harrison, 328 

N.C. at 682, 403 S.E.2d at 304. The dispositive question is 

whether the testimony is sufficiently similar such that it tends 

to strengthen and add credibility to the witness' testimony. 

Id. at 682-83, 403 S.E.2d at 304.

This test was applied in State v. Rogers, 299 N.C. 597, 264 

S.E.2d 89 (1980), which we find analogous to this case. In 

Rogers, a passenger in the defendant's vehicle testified at 

trial that he saw the defendant pull the victim out of the car 

and onto the bridge, heard someone say, "'Man, . . . don't throw 

that boy in that cold-ass water'" and then heard a splash. Id.

at 600, 264 S.E.2d at 91-92. The detective then testified that 

the witness had told him the defendant threw the victim over the 

bridge. Id., 264 S.E.2d at 92. Our Supreme Court noted that 

although the witness never testified that he actually saw the 

defendant throw the victim over the bridge, "the clear 

implication of [the witness'] testimony is that defendant did 

precisely that act." Id. at 601, 264 S.E.2d at 92. Further, 

the fact that the witness "did not mention one act which was 

clearly a component of a series of interrelated acts does not in 

any way serve to abridge the probative force of the rest of his 
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testimony." Id. The Court concluded that the detective's 

testimony was admissible as corroborative evidence because of 

the substantial similarity of the testimony. Id.

Here, as in Rogers, the detective's testimony was 

substantially similar to Ms. Johnson's. The prosecutor's line 

of questioning focused on what Ms. Johnson had observed with 

respect to her husband. There were no questions about and no 

mention of Mr. Farrow at this point in the testimony. Ms. 

Johnson testified, with respect to her husband, that she saw him 

enter the room with his gun, and the next thing she saw was 

"fire" or "gunshots." A reasonable juror could, given the 

context, infer that Ms. Johnson meant that she saw "fire" or 

"gunshots" from defendant's gun.

Any additional precision in the detective's testimony

regarding Ms. Johnson's out-of-court statement was no different 

than the added detail in Rogers. It amounted to nothing more 

than what a reasonable juror would have been able to infer from

the witness' testimony alone, and, by the same token, tended to 

add weight and credibility to her testimony. We, therefore, 

hold that it was admissible corroborative evidence. See also 

State v. Lloyd, 354 N.C. 76, 104, 552 S.E.2d 596, 617 (2001) 

(holding detective's testimony that witness told him "'Willie 

shot my mama'" was "an admissible shorthand statement of fact" 
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corroborating witness' testimony that he "heard defendant and 

the victim arguing, heard shots, saw the victim bleeding and 

lying on the porch, and saw defendant fleeing the crime scene"). 

Even if it were error to admit the statement, it was not 

prejudicial. Defendant argues that this evidence had a probable 

impact on the jury's finding of guilt because it was a closely 

contested case and the out-of-court statement was the only 

testimony that a witness saw or heard defendant fire his gun. 

Defendant contends that the out-of-court statement undercut his 

claims that he fired only after Mr. Farrow began shooting and 

that he did not intentionally fire his weapon.

However, it was undisputed at trial that defendant in fact 

fired his gun once, although Mr. Farrow fired his gun five 

times. Ms. Johnson's out-of-court statement only arguably added 

that she saw him fire the gun, a fact immaterial to defendant's 

defense. It indicated neither who fired first nor whether 

defendant intentionally squeezed the trigger. Indeed, Detective 

Bacon expressly noted the lack of witnesses regarding who fired 

first:

Q. Detective, you were asked as far 

as whether Orlando Farrow knew who fired 

first. Does anybody know who fired first?

A. I don't think so. From everything 

I know of, Ms. Johnson doesn't. She says 

that she knows that her husband did fire. 

It's obvious that Mr. Farrow did fire as 
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well because Mr. Johnson got struck.

Further, the jury was instructed to use Detective Bacon's 

testimony only to assess the credibility of Ms. Johnson, and

Detective Bacon explained at trial that he was testifying based 

on his report of the incident and that he was not repeating Ms. 

Johnson's words exactly. "My report is basically a paraphrased 

statement of what the individual had told me. I can't recall 

exactly the specifics and therefore do not want to give 

untruthful testimony in court so therefore I utilize my notes 

that -- directly what I wrote, not what somebody else has 

written." 

Because (1) the jury knew that the statement was 

paraphrased by the detective, (2) it did not undermine the 

defense's theory of how the events occurred, and (3) the jury 

was instructed to use the evidence only to assess the 

credibility of Ms. Johnson, we hold that the testimony did not 

have a probable impact on the jury's finding of guilt. 

II

Defendant next argues that the trial court committed plain 

error in its instruction on the first element of first degree 

burglary, which required the jury to find beyond a reasonable 

doubt: 

First, that the defendant broke and 

entered a dwelling house. A breaking need 
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not be actual, that is, the defendant need 

not physically remove a barrier. The 

defendant may, by a threat of force, inspire 

such fear as to induce the occupant to allow 

entry. In this situation, the defendant 

would have constructively broke, and such 

constructive breaking is a sufficient 

breaking for the purposes of this offense. 

Defendant does not contend that this is an incorrect statement 

of the law. Rather, he argues that this jury instruction was 

improper because it amounted to both (1) an impermissible 

opinion by the trial court and (2) a peremptory instruction that 

an element of the offense had been proven beyond a reasonable 

doubt.

"In instructing the jury, the judge shall not express an 

opinion as to whether or not a fact has been proved . . . ."

N.C. Gen. Stat. § 15A-1232 (2013). This prohibition is 

mandatory. State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 

(1989). Our courts review the totality of the circumstances to 

determine whether the judge expressed an improper opinion.

State v. Foye, ___ N.C. App. ___, ___, 725 S.E.2d 73, 81 (2012).

"'Whether the judge's language amounts to an expression of 

opinion is determined by its probable meaning to the jury, not 

by the judge's motive.'" Id. at ___, 725 S.E.2d at 81 (quoting 

State v. McEachern, 283 N.C. 57, 59–60, 194 S.E.2d 787, 789 

(1973)).
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Defendant contends that instructing the jury that "[i]n 

this situation, the defendant would have constructively broke" 

specifically referred to defendant and expressed the trial 

court's opinion that defendant in fact constructively broke into 

the apartment. However, "a charge must be construed as a whole, 

and isolated portions of a charge will not be held to be 

prejudicial where the charge as a whole is correct and free from 

objection." State v. Slade, 291 N.C. 275, 283, 229 S.E.2d 921, 

926 (1976). "'It is not sufficient to show that a critical 

examination of the judge's words, detached from the context and 

the incidents of the trial, are capable of an interpretation 

from which an expression of opinion may be inferred.'" Id.

(quoting State v. Gatling, 275 N.C. 625, 633, 170 S.E.2d 593, 

598 (1969)).

When viewed in context, "[i]n this situation" refers to the 

previous two sentences which state that "[a] breaking need not 

be actual, that is, the defendant need not physically remove a 

barrier. The defendant may, by a threat of force, inspire such 

fear as to induce the occupant to allow entry." In other words, 

"[i]n this situation" refers to a hypothetical situation where 

the defendant -- any defendant -- breaks and enters through nonphysical means. In that event, "the defendant would have

constructively broke." (Emphasis added.) The use of "would 
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have" instead of "has" indicated that the trial court was not 

referring to defendant specifically, but rather to the law 

generally.

Additionally, before listing the elements, the judge stated

"[f]or you to find the defendant guilty of [first degree 

burglary], the State must prove five things beyond a reasonable

doubt." After stating the elements, he instructed the jury "if 

you find from the evidence beyond a reasonable doubt that on or 

about the alleged date the defendant [committed all the elements 

of the offense], it would be your duty to return a verdict of 

guilty of first-degree burglary. If you do not so find or have 

a reasonable doubt as to one or more of these things, you will 

not return a verdict of guilty." Finally, the judge stated that 

"[t]he law requires the presiding judge to be impartial. You 

should not infer from anything I have done or said that the 

evidence is to be believed or disbelieved, that a fact has been 

proved, or what your findings ought to be. It is your duty to 

find the facts and render a verdict reflecting the truth."

When viewed in context, the judge's instruction regarding 

first degree burglary did not constitute an improper expression 

of opinion or amount to an instruction that an element of the 

offense had been proven beyond a reasonable doubt. Defendant 
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has, therefore, failed to show any error in the jury 

instructions.

No error.

Chief Judge MARTIN and Judge STROUD concur.

Report per Rule 30(e).