Opinion
No. COA12–189.
2012-10-2
STATE of North Carolina v. Darryl ALLEN.
Attorney General Roy Cooper, by Assistant Attorney General Christopher H. Wilson, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.
Appeal by defendant from judgments entered 18 August 2011 by Judge Jay D. Hockenbury in Wayne County Superior Court. Heard in the Court of Appeals 29 August 2012. Attorney General Roy Cooper, by Assistant Attorney General Christopher H. Wilson, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.
CALABRIA, Judge.
Darryl Allen, Jr. (“defendant”) appeals from judgments entered upon jury verdicts finding him guilty of first-degree kidnapping and assault with a deadly weapon (“AWDW”) inflicting serious injury. We find no error.
I. Background
The State presented evidence that on 3 October 2010, Aaron Allen (“Allen”), defendant's brother, had a party at his home in Goldsboro, North Carolina. Charles Farmer (“Farmer”), Allen's neighbor, attended the party where alcohol and drugs were consumed and Farmer admitted smoking crack cocaine. Farmer and defendant, along with other men, including Isaiah Martin (“Martin”), were talking. At that time, Farmer disclosed an incident regarding a sexual encounter he had with his thirteen or fourteen-year-old stepdaughter when he was nineteen years old (“the sexual encounter”). Farmer's story apparently upset Martin because sometime later, Martin forced Farmer into a chair, cut off his hair, then hit Farmer with a baseball bat. When defendant asked Martin, “What are you doing[,]” Martin stopped hitting Farmer. At that point, Farmer attempted to leave, but Martin threatened Farmer that if he tried to leave, he would shoot him, Farmer's girlfriend, her daughter, and his dog.
Subsequently, defendant left but Farmer, Martin, Allen and two other individuals remained. When defendant returned to Allen's house, Martin hit Farmer again with the bat. Defendant also hit Farmer with a bat and a hammer. Defendant forced Farmer to remove his clothing and instructed him to go into the kitchen where both defendant and Martin injured him with a razor and defendant urinated on him. Farmer was then bound with a cable cord and a bandana and forced into a closet. Martin placed a couch in front of the closet door. Sometime later, the couch was removed. Farmer showered and napped at Allen's home and then walked home with the aid of another man.
Farmer's girlfriend called law enforcement and Farmer was transported to the hospital where he received treatment for nasal and facial bone fractures, fractures to both arms, and lacerations on his right leg as well as the right side of his chest. Farmer underwent surgery for his injuries. At the hospital, Farmer was interviewed by law enforcement and reported that he had been assaulted by both Martin and defendant.
At trial, defendant testified on his own behalf. According to defendant's testimony, he did not participate in Farmer's assault. Defendant admitted that both he and Farmer were present at Allen's house, and that Martin was very upset when Farmer disclosed the information about the sexual encounter. Defendant claimed that he did not witness Martin assaulting Farmer with a bat. Defendant suggested that Farmer should leave Allen's house, but Farmer chose to stay. Defendant also claimed that he attempted to diffuse the situation. However, defendant witnessed another physical confrontation between Martin and Farmer when Farmer continued discussing the sexual encounter. Finally, Allen became upset, asked everyone to leave and by about 1:30 a.m. everyone left Allen's home. Defendant testified that he was not the person who struck Farmer, locked him in a closet, urinated on him, or cut his hair. He also claimed he did not encourage Martin to harm Farmer.
Subsequently, defendant was arrested and indicted for first-degree kidnapping and AWDW with intent to kill inflicting serious injury. Although the trial court's instructions to the jury varied from the indictment for first-degree kidnapping, defendant did not object to the jury instruction for first-degree kidnapping.
The jury returned verdicts finding defendant guilty of first-degree kidnapping and the lesser-included offense of AWDW inflicting serious injury. Defendant was sentenced to a minimum of 83 and a maximum of 109 months for the offense of first-degree kidnapping and his sentence for the offense of AWDW inflicting serious injury, a minimum of 29 and a maximum of 44 months, was to be served at the expiration of the first-degree kidnapping sentence. Both sentences were to be served in the North Carolina Department of Correction. Defendant appeals.
II. Indictment and Instruction on First–Degree Kidnapping
Defendant argues that the trial court committed plain error by instructing the jury on first-degree kidnapping based on a theory that was not alleged in the indictment. We disagree.
Defendant was tried for first-degree kidnapping under N.C. Gen.Stat. § 14–39 which provides:
(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person, or any other person under the age of 16 years without the consent of a parent or legal custodian of such person, shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:
...
(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or
(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person; or
...
(b) There shall be two degrees of kidnapping as defined by subsection (a). If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree....
N.C. Gen.Stat. § 14–39 (2011). The indictment for the first-degree kidnapping of Farmer, in pertinent part, stated defendant kidnapped Farmer “for the purpose of facilitating the commission of felonious assault ... and to terrorize him. [Farmer] was seriously injured. The defendant did not release [Farmer] in a safe place.” The trial court instructed the jury that to establish first-degree kidnapping they must find that defendant kidnapped Farmer for “the purpose of facilitating his commission of an assault with a deadly weapon with intent to kill inflicting serious injury or doing serious bodily injury upon the person or terrorizing that person.” Defendant alleges the trial court erred by instructing the jury on a theory not alleged in the indictment: that the kidnapping was committed for the purpose of doing serious bodily injury but he did not object at trial.
It is well-established in North Carolina that error occurs when the jury instructions fail to match the indictment, and this error is usually prejudicial. State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980).
Since kidnapping is a specific intent crime, the State must prove that the defendant unlawfully confined, restrained, or removed the person for one of the ... purposes set out in the statute. The indictment in a kidnapping case must allege the purpose or purposes upon which the State intends to rely, and the State is restricted at trial to proving the purposes alleged in the indictment.
State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986). In State v. Brown, the first-degree kidnapping indictment included the theory of facilitation of a felony and that the victim was not released in a safe place. 312 N.C. 237, 247, 321 S.E.2d 856, 862 (1984). However, the trial court's instruction to the jury differed from the indictment because the instruction was that the victim was terrorized and sexually assaulted. Id. The Court determined that the judge's erroneous instructions which allowed the jury to “predicate guilt on theories of the crime which were not charged in the bill of indictment” amounted to plain error. Id. at 249, 321 S.E.2d at 863.See also State v. Tirado, 358 N.C. 551, 575, 599 S.E.2d 515, 532 (2004) (where the Court found that it was error for the trial court to instruct on purposes not included in the indictment where the purpose listed in the indictment alleged “facilitating the commission of a felony” and the jury charge stated the purpose could be “commission of robbery with a firearm or doing serious bodily injury to the person so removed”); State v. Bell, 166 N.C.App. 261, 263, 602 S.E.2d 13, 15 (2004).
The State argues that although the wording in the jury instructions differed from the indictment, “doing serious bodily injury” and AWDW with intent to kill inflicting serious injury both fall under the general category of “felonious assault” that was alleged in the indictment. The State relies on State v. McKinnon, contending that the trial court can add or refine the language of the indictment in its instruction to the jury, as long as “the language stays within the theory of the indictment.” 306 N .C. 288, 300, 293 S.E.2d 118, 126 (1982) (where the Court found no error in the trial court's instruction on rape and sexual offenses when “the trial court had at length explained the underlying elements of the crimes of rape and sexual offense just prior to the final mandate” and there was “no reasonable cause to believe that the jury was misled or misinformed by failure of the trial court to repeat these elements.”)
Defendant's response to the State's argument is that there was error because the indictment and jury instructions included different purposes of the kidnapping. The indictment alleged Farmer was kidnapped “for the purpose of facilitating the commission of felonious assault ... and to terrorize him.” When instructing the jury, the trial court added the clause, “the purpose of ... doing serious bodily injury.” Such a variance, between the indictment and the jury charge, is error. See Tirado, 358 N.C. at 575, 599 S.E.2d at 532.
Therefore, we must determine whether the trial court's addition of the clause, “the purpose of ... doing serious bodily injury” can be characterized as plain error. Generally, a party may not assign as error a portion of the jury charge unless an objection is made at trial, before the jury retires to consider the verdict. State v. Cartwright, 177 N.C.App. 531, 537, 629 S.E.2d 318, 323 (2006). Absent an objection, the Court determines whether or not plain error occurred. Id. at 537–38, 629 S.E.2d at 323. The North Carolina Supreme Court “has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). Plain error arises when the error is “ ‘so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]’ “ State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation omitted). “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
Whether the addition of the clause, “the purpose of ... doing serious bodily injury” amounts to “plain error depends on the nature of the evidence introduced at trial.” Bell, 166 N.C.App. at 263, 602 S.E.2d at 15. In Bell, the Court found plain error occurred where the evidence was “highly conflicting” as there were only two witnesses to the event, both witnesses gave different accounts and the evidence did not support the victim's statement. Id. at 264–65, 602 S.E.2d at 15–16;see also State v. Smith, 162 N.C.App. 46, 52, 589 S.E.2d 739, 743 (2004) (finding plain error where there was conflicting evidence on removal, which was alleged in the indictment, but stronger evidence for confinement or restraint, which was submitted to the jury, because the instructional error “likely ‘tilted the scales' and resulted in the guilty verdict”); Compare State v. Gainey, 355 N.C. 73, 94–95, 558 S.E.2d 463, 477–78 (2002) (where the Court held there was no plain error because the evidence in the case was not highly conflicting and given the strength of the evidence against the defendant, the Court could not “conclude that any different combination of the terms ‘confine,’ ‘restrain’ or ‘remove’ [that were included] in the instruction would have altered the result”).
In the instant case, the evidence was conflicting. According to Farmer's version of the events, both Martin and defendant assaulted him with a baseball bat, hammer, metal chair and razor blade, forced him to remove his clothing, instructed him to go into the kitchen, urinated on him, then bound and gagged him and forced him in a closet. In contrast to Farmer's testimony, defendant and several eyewitnesses testified that defendant never assaulted Farmer. In addition, the baseball bat, hammer, razor and chair were never located to support Farmer's theory.
However, we do not find that the instructional error was prejudicial to defendant, resulting in the guilty verdict. The indictment alleged confining, removing and restraining Farmer for the purpose of felonious assault and terrorizing him. The jury instruction stated the purpose of the kidnapping was “facilitating his commission of an assault with a deadly weapon with intent to kill inflicting serious injury or doing serious bodily injury upon the person or terrorizing that person....” If the jury believed defendant's theory of the case, and the testimonies of his eyewitnesses, then the jury would have returned a verdict finding that defendant was not guilty. Although the evidence here was conflicting, it was not highly conflicting as to the theory charged in the indictment. See Smith, 162 N.C.App. at 52, 589 S.E.2d at 743. In contrast to Bell and Smith, where the instructional error resulted in a guilty verdict, here if the jury believed Farmer's evidence, as it appears they did, the evidence supported the verdict for any one of the three theories and a different instruction would not have “altered the result.” Gainey, 355 N.C. at 95, 558 S.E.2d at 478. We find no plain error.
III. Whether the Evidence Supported the Jury Instruction
Defendant also argues that the trial court erred by instructing the jury disjunctively on theories of first-degree kidnapping that were not supported by the evidence. Specifically, defendant contends that there was no evidence that defendant confined, removed or restrained Farmer for the purpose of injuring him or of committing AWDW with intent to kill inflicting serious injury. We disagree.
When the “trial court erroneously submits the case to the jury on alternative theories, one of which is not supported by the evidence” and “it cannot be discerned from the record upon which theory or theories the jury relied in arriving at its verdict, the error entitles defendant to a new trial.” State v. Boyd, ––– N .C.App. ––––, ––––, 714 S.E.2d 466, 471 (2011); see also State v. Johnson, 183 N.C.App. 576, 582, 646 S.E.2d 123, 127 (2007) (recognizing that “where the trial court instructs disjunctively [as to various alternative acts that establish an element of the offense], there must be evidence to support all of the alternative acts that will satisfy the element”). “A defendant's failure to object at trial to a possible violation of his right to a unanimous jury verdict does not waive his right to appeal on the issue, and it may be raised for the first time on appeal.” State v. Mueller, 184 N.C.App. 553, 575, 647 S.E.2d 440, 456 (2007).
“Although the indictment may allege more than one purpose for the kidnapping, the State has to prove only one of the alleged purposes in order to sustain a conviction of kidnapping.” Moore, 315 N.C. at 743, 340 S.E.2d at 404. In Moore, the defendant was granted a new trial when three purposes were submitted to the jury to consider as the basis for kidnapping, but only two of them were supported by the evidence. Id. at 749, 340 S.E.2d at 408. The Court found that it could not “say that the verdict was not based upon the purpose erroneously submitted.” Id.
In the instant case, defendant contends that Farmer was not bound, gagged and locked in a closet until after the alleged assault and injury and therefore, the instruction allowing conviction “based on confinement, restraint, or removal for the purpose of inflicting injury or committing assault was unsupported.” However, the State presented evidence that Farmer was confined, restrained or removed prior to being placed in the closet.
“Confine” as used in the statute “connotes some form of imprisonment within a given area, such as a room, a house or a vehicle.” State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). “Restraint” includes confinement, but also means “restriction, by force, threat or fraud, without a confinement. Thus, one who is physically seized and held ... or who, by the threatened use of a deadly weapon, is restricted in his freedom of motion, is restrained within the meaning of this statute.” Id.
In the instant case, the trial court instructed the jury that defendant could be found guilty of kidnapping if “[d]efendant [, ] acting either by himself or acting together with [Martin] ... confined, restrained or removed [Farmer]....” In addition, the trial court explained this to the jury by instructing that:
[f]or a person to be guilty of a crime it is not necessary that he personally do all the acts necessary to constitute the crime. If two or more persons join in the common purpose to commit first degree kidnapping each of them, if actually or constructively present, is not only guilty of that crime if the other person commits the crime but he is also guilty of any other crime committed by the other in pursuance of the common purpose to commit first degree kidnapping....
Farmer testified that after the initial confrontation with Martin, he attempted to leave Allen's residence. However, Martin told him “you're not going nowhere right now ... if you try to leave, I'm going to shoot you in your back and then we're going to shoot ... up your house, your girlfriend, her daughter, your dog ... so ... I stayed there.” Farmer apparently decided that it was better for him to remain at Allen's house because Martin threatened to kill him and his girlfriend if he left. Therefore, Farmer was confined to Allen's house and his “freedom of movement” was restricted. Farmer's testimony was sufficient for the jury to reasonably conclude that he was confined and restrained at Allen's home. Farmer's later testimony, that after remaining at the house, defendant called Martin, initiating the assault, then returned and actively participated in the assault, was sufficient evidence to show that the purpose of Martin's threat was to keep Farmer at the house to inflict serious bodily injury and assault him.
Furthermore, Farmer testified that when Martin and defendant assaulted him later, they required him to move from one room into the kitchen:
[State]: And what happened next?
[Farmer]: He tells [sic] me to get up and come in the kitchen, so I'm standing up in the kitchen. The next thing you know he takes a swing and hits me with the bat, and so I falls [sic] to the floor.
[State]: Okay. And who hit you that time?
[Farmer]: [Defendant] hit me again.
...
[Farmer]: ... [defendant] reaches in the kitchen drawer, I don't see what he has in his hands, the next thing I know I feel a sting on my right side. [Defendant] had done [sic] cut me across my right side....
Once Farmer was removed to the kitchen, he was injured with a razor. This evidence was sufficient to show, not only that Farmer was removed, but that Farmer was removed to the kitchen for the purpose of further assaulting him and inflicting serious bodily injuries. See Boyd, ––– N.C.App. at ––––, 714 S.E.2d at 472 (recognizing that forcing a victim to move from one room to another within the same home may constitute “removal” under the kidnapping statute). Therefore, we find no error.
IV. Conclusion
The trial court erred by instructing the jury on a purpose not alleged in the indictment. The judge instructed the jury that to establish first-degree kidnapping, they must find that defendant kidnapped Farmer for “the purpose of facilitating his commission of an assault with a deadly weapon with intent to kill inflicting serious injury or doing serious bodily injury upon the person or terrorizing that person.” However, we find that the error did not amount to plain error. In addition, the trial court's instruction to the jury, that defendant confined, removed or restrained Farmer for the purpose of injuring him or of committing AWDW with intent to kill inflicting serious injury, was supported by the evidence.
No error. Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).