Opinion
No. COA12–1172.
2013-07-16
STATE of North Carolina v. Ronald Montrell JIGGETTS.
Attorney General Roy Cooper, by Special Deputy Attorney General Richard L. Harrison, for the State. Parish & Cooke, by James R. Parish, for Defendant.
Appeal by Defendant from judgments entered 10 February 2012 by Judge James G. Bell in Robeson County Superior Court. Heard in the Court of Appeals 28 February 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Richard L. Harrison, for the State. Parish & Cooke, by James R. Parish, for Defendant.
DILLON, Judge.
Ronald Montrell Jiggetts (Defendant) appeals from judgments entered upon jury verdicts convicting him of one count of first degree murder, one count of first degree burglary, two counts of robbery with a dangerous weapon, two counts of assault with a deadly weapon with intent to kill, and seven counts of second degree kidnapping. The instant appeal concerns only Defendant's kidnapping convictions. Defendant contends (1) that the trial court erred by denying his motion to dismiss the kidnapping charges for insufficiency of the evidence; and (2) that the trial court committed plain error by instructing the jury that it could convict Defendant of second degree kidnapping upon concluding that Defendant had either confined or restrained a named victim, when the State's evidence failed to demonstrate confinement. We hold that the trial court did not err in denying Defendant's motion to dismiss, and, in light of our Supreme Court's recent ruling in State v. Boyd, ––– N.C. ––––, 742 S.E.2d 798 (2013), we hold that the trial court's jury instruction did not constitute plain error.
I. Factual & Procedural Background
On the evening of 7 December 2007, Trudy Chavis (Trudy) hosted a social gathering at her home in Pembroke, North Carolina. Trudy's guests included seven adults and two children as follows: Michael Clark (Michael), Beth Clark (Beth), Arvin Oxendine (Arvin), Kenneth Emanuel (Kenneth), Courtney Brayboy (Courtney), Clayton Brayboy (Clayton), Heather Carter (Heather) and Heather's two children, aged four and seven. After dinner, Arvin and Kenneth stood in the kitchen while the other adults conversed in the living room; Heather's children were in a bedroom watching television.
There was a knock at the front door. Trudy answered the door and greeted a woman who explained that her car had broken down and asked if she could use Trudy's telephone to call for help. Trudy obliged, and the woman proceeded to make a telephone call. The woman then informed Trudy that help was coming and asked whether she could wait in the house because it was cold outside. Trudy again obliged. Shortly thereafter, the woman opened the front door and two males—Defendant and Rashawn Thompson (Thompson)—entered the house wielding firearms. The woman, brandishing her own firearm, joined Defendant and Thompson in ordering Trudy and her guests to “get down.... Nobody move.... Get down on the ground. This is a robbery.”
Chaos ensued, and Arvin, Kenneth, and Clayton fled out the side door of the house, while Heather retreated into a bedroom. Trudy and Courtney also attempted to flee through the side door, but Trudy tripped over a chair obstructing their path, causing her to fall to the floor. When Trudy looked up, Thompson pointed a pistol at her and said, “You're not going anywhere.” Beth and Michael also tried to escape, but the female intruder grabbed Beth by the hair and dragged her into the kitchen, and Defendant placed his shotgun on Michael's right shoulder and instructed him to crawl to the kitchen. Heather and her two children were also directed into the kitchen at gunpoint.
While the female intruder remained in the kitchen with Trudy, Courtney, Beth, Michael, Heather, and Heather's children, the two male intruders ransacked the bedrooms, evidently searching for cocaine and cash that they believed to be in the house. During this time, the intruders repeatedly threatened to kill Trudy and her friends and falsely represented that they had caught and subdued Alvin, Kenneth, and Clayton outside the house.
Alvin, who had escaped with Kenneth and Clayton, was able to reach his father, Andy Oxendine (Andy), by telephone and informed him about the home invasion. Andy armed himself with a firearm and headed to Trudy's house. When Andy entered through the front door, the female intruder observed that Andy was armed and shouted “he's got a gun.” Defendant fired two rounds from his shotgun into Andy's chest, fatally wounding him. The three intruders quickly fled from the house after the shooting.
Defendant was subsequently arrested and indicted on a multitude of charges, including one count of first degree murder, one count of first degree burglary, two counts of robbery with a dangerous weapon, two counts of assault with a deadly weapon with intent to kill, and seven counts of second degree kidnapping. These matters came on for trial in Robeson County Superior Court on 30 January 2012, at which time the State presented evidence tending to establish the factual account set forth above. At the close of the State's evidence, defense counsel moved to dismiss the kidnapping charges for insufficiency of the evidence, and the trial court denied these motions. Defendant did not present any evidence.
Defendant also challenged the sufficiency of the State's evidence with respect to several other charges, which are not relevant for purposes of this appeal.
On 9 February 2012, the jury returned verdicts convicting Defendant of the aforementioned charges. The trial court sentenced Defendant to life imprisonment without parole for the first degree murder conviction and to an additional 64 to 86 months for each of the two counts of robbery convictions. The trial court consolidated the remaining convictions, which included the seven counts of kidnapping, into an additional sentence of 64 to 86 months to be served consecutively with the sentences for the murder and robbery convictions. Defendant now appeals from the judgments entered upon his kidnapping convictions.
The jury returned its verdict convicting Defendant of first degree murder on the following day, 10 February 2012.
II. Analysis
A. Sufficiency of the Evidence
Defendant first contends that the trial court erred by denying his motion to dismiss the seven kidnapping charges. We review the State's evidence to determine whether there was substantial evidence (1) supporting each element of the charged offense and (2) identifying Defendant as the perpetrator of the offense. State v. Allred, 131 N.C.App. 11, 19, 505 S.E.2d 153, 158 (1998). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980).
Defendant was convicted of kidnapping under N.C. Gen.Stat. § 14–39, which provides, in pertinent part, as follows:
a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person ... without the consent 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....
N.C. Gen.Stat. § 14–39(a)(2) (2011). Defendant argues that a conviction under N.C. Gen.Stat. § 14–39 requires that “any restraint, removal or confinement be separate and apart from that which is an inherent and inevitable part of the commission of another charged felony such as armed robbery.” Defendant does not contend that the seven victims were not restrained when they were held at gunpoint in the kitchen while the house was being ransacked. Rather, Defendant contends that the restraint employed was inherent in the robbery and was thus insufficient to support separate convictions for kidnapping.
The State argues that the removal of certain victims into the kitchen and the restraint of all seven victims therein were not “inherent” in the underlying robbery. Because the trial court did not instruct the jury on the theory of removal, however, we confine our analysis to determining whether there was substantial evidence of restraint as to each of the seven victims.
In determining whether there is substantial evidence to support a kidnapping conviction apart from a conviction for a felony committed contemporaneously with the purported kidnapping, this Court has held as follows:
A defendant is guilty of the offense of second-degree kidnapping if he (1) ... restrains ... (2) a person (3) without the person's consent, (4) for the purpose of facilitating the commission of a felony. Our Supreme Court, however, has recognized that “certain felonies (e.g., forcible rape and armed robbery) cannot be committed without some restraint of the victim” and has held that restraint “which is an inherent, inevitable feature of [the] other felony” may not be used to convict a defendant of kidnapping. “The key question ... is whether the kidnapping charge is supported by evidence from which a jury could reasonably find that the necessary restraint for kidnapping ‘exposed [the victim] to greater danger than that inherent in the armed robbery itself.’ “
Allred, 131 N.C.App. at 19–20, 505 S.E.2d at 158–59 (citations omitted) (alterations in original).
Our Supreme Court has defined “restraint” for purposes of kidnapping under N.C. Gen.Stat. § 14–39 as follows:
The term “restraint,” while broad enough to include a restriction upon freedom of movement by confinement, connotes also such a restriction, by force, threat or fraud, without confinement.
State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978).
Our Supreme Court has held, however, that “a person cannot be convicted of kidnapping when the only evidence of restraint is that which is an inherent, inevitable feature of another felony[.]” State v. Prevatte, 356 N.C. 178, 252, 570 S.E.2d 440, 481 (2002) (citations and quotation marks omitted). Thus, holding a victim at gunpoint, without more, is insufficient to demonstrate restraint sufficient to sustain a conviction for kidnapping apart from a conviction for armed robbery. See, e.g., State v. Beatty, 347 N.C. 555, 559–60, 495 S.E.2d 367, 370 (1998) (holding (1) that there was insufficient evidence to support kidnapping conviction where the victim was held at gunpoint during robbery but was not harmed or otherwise moved; and (2) that there was sufficient evidence to support kidnapping conviction as to a second victim who was forced to lie on floor with his wrists and mouth bound with duct tape and was kicked twice in the back). However, “evidence of actions constituting additional restraint can support such a conviction[,] ... [and such] additional restraint may consist of actions that increase the victim's helplessness and vulnerability.” Prevatte, 356 N.C. at 252, 570 S.E.2d at 481 (emphasis added). For instance, in State v. Pigott, 331 N.C. 199, 415 S.E.2d 555 (1992), the victim was threatened at gunpoint and subsequently bound at his hands and feet. Id. at 210, 415 S.E.2d at 561. Our Supreme Court held that “all the restraint necessary and inherent to the armed robbery was exercised by threatening the victim with the gun.” Id. Nevertheless, the Pigott court upheld the defendant's kidnapping conviction, reasoning that “[w]hen defendant bound the victim's hands and feet, he ‘exposed [the victim to a] greater danger than that inherent in the armed robbery itself.’ “ Id. (citation omitted) (second alteration in original).
In the instant case, the record reveals that the victims were restrained as follows: The seven victims were held at gunpoint in the kitchen area while the intruders, including Defendant, searched the residence for cash and drugs; the intruders threatened to shoot the victims if they attempted to move from the kitchen floor; the intruders also threatened to shoot the victims if the children were not kept quiet; and the intruders falsely represented that they had captured the three guests who had managed to escape and had tied them up outside the house. While we recognize that the intruders restrained the victims in the kitchen area in order to carry out an unimpeded search of other rooms in the house, we believe that a jury could reasonably infer under these circumstances—in which the intruders persistently brandished their weapons, threatened to shoot the victims (including two young children), and deceived the victims into believing that their friends had been captured—that the intruders exposed the victims to “greater danger than that inherent in the armed robbery itself[,]” id., and “increase[d each] victim's helplessness and vulnerability[,]” Prevatte, 356 N.C. at 252, 570 S.E.2d at 481. Accordingly, we hold that the trial court did not err in denying Defendant's motion to dismiss.
B. Jury Instruction
The trial court instructed the jury that in order to find Defendant guilty of second degree kidnapping, it was required to find beyond a reasonable doubt “that the defendant confined or restrained [each named victim] for the purpose of facilitating the defendant's ... commission of robbery.” (Emphasis added). Defendant argues that the instruction allowed the jury to convict Defendant on alternative theories, namely that Defendant either “confined” each victim or, alternatively, “restrained” each victim. Defendant contends that this instruction, therefore, amounted to plain error because even though the State presented evidence that the victims had been “restrained,” the State failed to present any evidence that the victims had been “confined.” Because we believe that our Supreme Court's recent decision in State v. Boyd, –––N.C. ––––, 742 S.E.2d 798, controls our disposition of this issue, we overrule Defendant's contention without making any determination whether the evidence below supported a separate instruction on the theory of confinement.
The plain error standard of review applies because Defendant failed to object to the contested jury instruction at trial. N.C. R.App. P. 10(a)(2) (2013); State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996) (providing that “unpreserved issues [are reviewed] 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”).
In Boyd, the trial court instructed the jury that it could convict the defendant of second degree kidnapping upon finding that the defendant had confined, restrained, or removed the victim, despite the fact that the State had presented no evidence of removal at trial. State v. Boyd, –––N.C.App. ––––, ––––, 730 S.E.2d 193, 198,writ of supersedeas allowed,––– N.C. ––––, 731 S.E.2d 178 (2012). On appeal, this Court held that the trial court's disjunctive jury instruction constituted plain error because it was not possible to determine whether the jury had unanimously convicted the defendant based upon a theory supported by the evidence. Id. Citing our Supreme Court's ruling in State v. Lawrence, 365 N.C. 506, 723 S.E.2d 326 (2012), and the “overwhelming” evidence of restraint, Judge Stroud dissented as follows:
I do not believe that defendant has shown “that, absent the error, the jury probably would have returned a different verdict. Thus, he cannot show the prejudicial effect necessary to establish that the error was a fundamental error. In addition, the error in no way seriously affects the fairness, integrity, or public reputation of judicial proceedings.” See Lawrence, 365 N.C. at [515], 723 S.E.2d at 335. The omission of approximately ten words relating to “removal” from the above jury instructions would, under the facts of this particular case, make no difference at all in the result. Therefore, I would find no plain error as to the trial court's instructions as to second-degree kidnapping.
Boyd, ––– N.C.App. at ––––, 730 S.E.2d at 201 (Stroud, J., dissenting), adopted per curiam,––– N.C. ––––, 742 S.E.2d 798 (2013). On appeal, our Supreme Court reversed this Court's decision for the reasons set forth in the dissenting opinion. Boyd, ––– N.C. at ––––, 742 S.E.2d at 799.
As set forth in Part II(A), supra, we hold that the State's evidence was sufficient to submit the case to the jury under the theory of restraint. We further hold that the evidence of restraint was sufficient such that the jury probably would have reached the same verdict, even absent the trial court's instruction that the jurors could convict Defendant of second degree kidnapping under the alternative theory of confinement. See Lawrence, 365 N.C. at 518, 723 S.E.2d at 334. Thus, any error committed by the trial court in instructing the jury on the theory of confinement did not amount to plain error.
III. Conclusion
In light of the foregoing, we find no error.
NO ERROR. Judges STEPHENS and STROUD concur.
Report per Rule 30(e).