Opinion
No. COA11–1285.
2012-06-5
STATE of North Carolina v. Kareem Abdullah KIRK.
Roy Cooper, Attorney General, by Sherri G. Horner, Assistant Attorney General, for the State. Michael E. Casterline, for the defendant.
Appeal by defendant from judgments entered 27 April 2011 by Judge Christopher M. Collier in Mecklenburg County Superior Court. Heard in the Court of Appeals 7 March 2012. Roy Cooper, Attorney General, by Sherri G. Horner, Assistant Attorney General, for the State. Michael E. Casterline, for the defendant.
THIGPEN, Judge.
Kareem Abdullah Kirk (“Defendant”) appeals from judgments convicting him of one count of abduction of a child and four counts of statutory sexual offense, arguing the trial court erred by denying him the right to represent himself and by incorrectly calculating his prior record level. Defendant also argues the trial court committed plain error by failing to instruct the jury on jurisdiction, and that Defendant received ineffective assistance of counsel. We find no error at trial and remand for resentencing.
I: Procedural and Factual Background
The evidence of record tends to show the following: In 2005, thirteen-year-old I.H.C., who lived in Springfield, Massachusetts, started an online relationship with Defendant, who was twenty-eight years old and lived in Charlotte, North Carolina. They met while chatting on a Yahoo Messenger service. I.H.C. initially told Defendant she was seventeen years old. Defendant and I.H.C. chatted every day, and after some time, I.H.C. and Defendant also called each other on the telephone and texted each other. Defendant told I.H.C. he loved her.
In November 2005, I.H.C. sent Defendant a message admitting to Defendant that she was actually only fourteen years old. I.H.C. said, when she told Defendant, he was “surprised but he wasn't angry.”
Defendant and I.H.C. continued their online conversations, and began talking about sex. They also sent pictures to each other. I.H.C. said Defendant would sometimes show her pictures of his penis.
Defendant and I.H.C. began making plans for the two of them to be together. They decided Defendant would pick up I.H.C. in Massachusetts in July 2007, and he would take her back to North Carolina to be with him. Defendant told I.H.C. to be sure that there were no references to or mention of Defendant anywhere on her computer or in her house. I.H.C. shredded letters they had written to each other and told her friends goodbye.
On 3 July 2007, when no one was home, Defendant picked up I.H.C. at her house in Springfield, Massachusetts. I.H.C. and Defendant left the house and drove towards North Carolina. During the trip to North Carolina, Defendant and I.H.C. stayed overnight in a hotel in Virginia where they engaged in oral sex.
I.H.C. was fifteen years old at this time.
Defendant then took I.H.C. to a duplex in Charlotte, North Carolina, where Defendant had anal sex with I.H.C. on two different occasions. Defendant and I.H.C. also engaged in oral sex at the duplex. However, Defendant and I.H.C. never engaged in vaginal intercourse.
When I.H.C.'s mother realized her daughter was missing, she used her daughter's passwords to open files on the family's computer. This information led police to look for I.H.C. in Charlotte, North Carolina, with Defendant. I.H.C.'s mother discovered email messages between I.H.C. and Defendant discussing her move to Charlotte to be with him. Moreover, GPS tracking on Defendant's cell phone revealed he had traveled from North Carolina northward to Massachusetts and back to North Carolina on 3 July 2007 through 5 July 2007.
On 7 July 2007, Officer Krista Dodd (“Officer Dodd”) of the Charlotte Mecklenburg Police Department, received a call from Detective James McCoy of the Springfield, Massachusetts, Police Department requesting that Officer Dodd locate I.H.C. and Defendant at Defendant's residence on Berrybrook Lane in Charlotte, North Carolina. Officer Dodd immediately responded to the address and found Defendant's four children, ages 8 to 16 years old, at the residence alone. Defendant's wife, Crystal Smith, gave the police the address for the duplex; however, I.H.C. was not at the duplex.
Police eventually made contact with Defendant at his Berrybrook Lane residence, and Defendant initially denied knowing I.H.C.'s whereabouts. Later, however, Defendant revealed that I.H.C. might be located at the Boardwalk on J.W. Clay Boulevard. Officer Christopher Walters (“Officer Walters”) went to the Boardwalk and saw I.H.C. sitting on a park bench facing the water. I.H.C. was visibly upset and crying.
I.H.C. was taken to the police department where officers questioned her about her relationship with Defendant. I.H.C. denied having had sex with Defendant. I.H.C. was released to her godmother, Clara, and I.H.C.'s mother flew to Charlotte to pick up I .H.C. the next day.
Officer Craig Stevenson Davis (“Officer Davis”) executed a search warrant for Defendant's house and the contents of his computer on 7 July 2007. The computer was seized and submitted to be examined by forensics expert Sergeant Walt Suarez (“Sergeant Suarez”). Sergeant Suarez located multiple chat messages between Defendant and I.H.C. and explicit photographs and videos that were exchanged between Defendant and I.H.C. between 15 August 2005 and 2 July 2007.
Defendant was indicted on one count of abduction of a child and four counts of statutory sexual offense. Defendant was found guilty of all counts. The trial court consolidated the sex offense convictions, and entered judgments sentencing Defendant to 384 to 470 months incarceration on the sex offense convictions and 24 to 29 months incarceration for the abduction of a child conviction. From these judgments, Defendant appeals.
II: Self–Representation
In Defendant's first argument on appeal, he contends the trial court erred by denying Defendant the right to represent himself. We disagree.
“The standard of review for alleged violations of constitutional rights is de novo.” State v. Graham, 200 N.C.App. 204, 214, 683 S.E.2d 437, 444 (2009), disc. review denied,363 N.C. 857, 694 S.E.2d 766 (2010) (citation omitted).
“[T]he Sixth and Fourteenth Amendments guarantee the right to assistance of counsel[,] and ... a criminal defendant likewise has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.” State v. Lane, 365 N.C. 7, 19, 707 S.E.2d 210, 218 (2011) (quotation omitted). “[A]s with any constitutional right, a defendant must knowingly and voluntarily waive its benefits.” Id. (citation omitted). With regard to a defendant's right to proceed pro se, our Supreme Court has held that an inquiry pursuant to N.C. Gen.Stat. § 15A–1242 (2011), satisfies any constitutional requirements. State v. Fulp, 355 N.C. 171, 175, 558 S.E.2d 156, 159 (2002) (citations omitted). N.C. Gen.Stat. § 15A–1242 provides the following:
A defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant:
(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
(2) Understands and appreciates the consequences of this decision; and
(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.
Id. “[T]he defendant's waiver must be expressed clearly and unequivocally [,][and] ... the trial court must ensure that the defendant's waiver is knowing, voluntary, and intelligent.” State v. Reid, 151 N.C.App. 379, 385, 565 S.E.2d 747, 752 (citation omitted), disc. review denied, 356 N.C. 622, 575 S.E.2d 522 (2002).
When the defendant requests appointment of substitute counsel, rather than asking to proceed without counsel, “the trial court may properly deny the request if it appears that the original counsel is reasonably competent to present defendant's case and the nature of the conflict between defendant and counsel is not such as would render counsel incompetent or ineffective to represent that defendant[.]” State v. Cobb, 150 N.C.App. 31, 36, 563 S.E.2d 600, 605 (2002) (emphasis and quotation omitted).
While it is a fundamental principle that an indigent defendant in a serious criminal prosecution must have counsel appointed to represent him, an indigent defendant does not have the right to have counsel of his choice appointed to represent him. This does not mean, however, that a defendant is never entitled to have new or substitute counsel appointed. A trial court is constitutionally required to appoint substitute counsel whenever representation by counsel originally appointed would amount to denial of defendant's right to effective assistance of counsel, that is, when the initial appointment has not afforded defendant his constitutional right to counsel.
State v. Thacker, 301 N.C. 348, 351–52, 271 S.E.2d 252, 255 (1980) (citations and footnote omitted) (emphasis in original).
In this case, Defendant made contradictory statements concerning his right to counsel and self-representation. The following lengthy exchange occurred between Defendant and the trial judge regarding Defendant's request to proceed without counsel and for appointment of substitute counsel:
DEFENDANT: He is sitting here making the actual continuance of this issue while I am sitting here telling him that I don't want to have nothing to do with him. He has no power of attorney. I'm representing myself. Under my Sixth Amendment right I'll represent myself. I'm not having this man—he has no power of attorney here. Plain and simple. He has no documentation or fiduciary. There is nothing on file with the IRS.
...
MS. MILLER: Your Honor, I apologize for any further delay. I believe now that Mr. Kirk has asserted his Sixth Amendment right and has told the Court that he wants to represent himself that the Court needs to make inquiry about whether or not Mr. Kirk should represent himself. Mr. Nwauwa can always remain as standby counsel
MR. KIRK: I don't want stand-by counsel.
...
THE COURT: Mr. Kirk, do you want a lawyer to represent you?
MR. KIRK: Do I want a lawyer to represent me? ... I'm representing myself. I'm the authorized representative of the property that you're trying to charge. Plain and simple.
...
THE COURT: Stand up, Mr. Kirk. I'm going to ask you a few questions.
MR. KIRK: You can ask from here, Your Honor, I'm not in your jurisdiction.
THE COURT: I'm going to ask you some questions. Stand up. Stand up.
MR. KIRK: I'm not going to stand up. I'm not in your jurisdiction until you show me a contract that is valid, where I signed, and that this man is [not] my attorney. If not I cannot be in contempt of court of anything. I'm not in your jurisdiction. That flag clearly shows that I'm not in your jurisdiction. I know the jurisdiction. You're not going to sit here and bamboozle me
THE COURT: I want to talk to you about this lawyer issue. Now when you address the Court you stand up.
DEFENDANT: No; it's my court, not yours.
I'm not in your jurisdiction. I'm the creditor in fact
THE COURT: Mr. Kirk, do you want a lawyer to represent you? Mr. Kirk, do you want a lawyer to represent you?
DEFENDANT: Do I want a lawyer to represent me?
THE COURT: Yes, sir.
DEFENDANT: I'm representing myself. I'm the authorized representative of the property that you're trying to charge. Plain and simple. Unless you can show me any authority that anyone has a claim in this courtroom as an injured party, that I have injured you or caused you loss, then come forward. If they do not do that, if no one does, then there is no issue here today. I know what is going on. I know what we are operating under. Unless you can tell me on your commercial liability that is, Your Honor, that this is admiralty court law, that this is common law jurisdiction, not statutory law, that is not a valid criminal or a criminal jurisdiction for the United States Constitution. You cannot convict me. You cannot operate. You cannot proceed under any other jurisdiction for a criminal conviction in the United States other than common law and admiralty law. It's not common law. It's obvious no one has stood up and said they have a claim against Kareem, K-a-r-e-e-m, K-i-r-k, against me.
...
DEFENDANT: I'm not proceeding pro se for the record, Your Honor.
THE COURT: He's not proceeding pro se. You don't want to proceed pro se, Mr. Kirk?
DEFENDANT: It's not properly signed. You know what that word is, Your Honor. That's of my own will and right. I don't need no help from any defense counsel for the State—who represents the State, oath is with the State, it's not with me. He shows no documentation of power of attorney. There is no contract with me or this Court for that matter as well. I'm placing that on the record....
Finally, after an extended colloquy, the trial court stated the following:
I have engaged in considerable dialogue with the defendant this morning. He will not answer the questions of the Court. I attempted to inquire of his desire regarding counsel. And I do not understand his response. It's apparent to the Court that there's a high likelihood he will be removed and have to participate via closed circuit television. So for that reason I want him to have a lawyer here. So your motion to withdraw is denied. If he's requesting that you be removed that motion is denied.
MR. KIRK: Is the motion denied to represent myself?
THE COURT: Stand up, Mr. Kirk. I'm attempting to find out whether or not you want a lawyer.
MR. KIRK: Your Honor, he is not my lawyer. You have not—the Courts have not proven the affidavit of indigency. By you telling me to stand up and coming into your jurisdiction so you can question me as to what I need, benefits from the Courts, I
...
THE COURT: All right. Mr. Kirk, I'll try this one more time. At this point you have a lawyer whether you recognize the authority to represent you or not. Do you want to proceed with a lawyer or do you want to represent yourself?
DEFENDANT: Your Honor, I don't understand. What do you mean by whether I recognize him as my attorney—whether I recognize him as my attorney or not, shouldn't it be whether the Court recognizes him as my attorney? Does the Court recognize him
THE COURT: At this point I recognize him as your attorney. Let me make the question simple. Do you want a lawyer? It's a yes or no question.
DEFENDANT: Do I want a lawyer?
THE COURT: Yes, sir.
DEFENDANT: I mean there is a lawyer sitting here. This man has shown no documentation for the Court to ask me if I want a lawyer. But I don't want because this lawyer does not have lawful power of attorney. He is not lawfully appointed.
The trial court then began to enter an order on Defendant's right of self-representation as follows:
THE COURT: All right. The Court[,] based on his colloquy with the defendant for the last forty five minutes has attempted on numerous occasions to determine whether or not the defendant wants to proceed with his lawyer or represent himself. And the defendant will not give a direct answer to the Court.
...
DEFENDANT: I'm representing myself.
THE COURT: Sir
DEFENDANT: I'm representing myself.
THE COURT: You do not want a lawyer, is that correct?
DEFENDANT: I do not want a lawyer? If the Court is going to appoint me a lawyer—I mean this man is not lawfully appointed my lawyer. Yes, I will take a lawyer.
THE COURT: All right. I'll continue with the order before I was interrupted.
DEFENDANT: If not then I'm representing myself.
...
THE COURT: The Court is finding based on its discourse with the defendant that to the extent he wishes to represent himself he's forfeited that right at trial and cannot be tried with his continued outbursts. So we will proceed in that vein. Now I don't want you to be removed from the courtroom. I want you here for the whole trial. But I'm going to warn you one last time, if you continue this conduct you will be taken to another room.
...
DEFENDANT: I just told the Court—I just told you, Your Honor, that I'm representing myself; it's my Sixth Amendment right to represent myself. You asked me if I wanted a lawyer—did I want a lawyer. And I told you if the Court would appoint one lawfully, yes, but not him. That's not my lawyer. If I have to proceed with him then I'm representing myself. I made that clear as my Sixth Amendment right.... That is the Sixth Amendment, my right to counsel or to represent myself. And I'm representing myself for the record.
THE COURT: You do not want a court-appointed lawyer, is that correct?
DEFENDANT: I don't understand the question, Your Honor. I have made myself clear that I'm representing myself. This man is not my lawyer.
THE COURT: All right. The Court is going to stand by the ruling. He's forfeited the right to represent himself by his obstructive conduct.
Defendant refused to clearly and unequivocally answer the trial court's questions regarding whether he wanted to proceed without an attorney. Defendant also made contradictory statements regarding whether he wanted a lawyer to represent him. Defendant stated that he did not want Mr. Nwuawa to represent him; however, an indigent defendant does not have the right to have counsel of his choice appointed to represent him. Thacker, 301 N.C. at 351–52, 271 S.E.2d at 255.
We believe this Court's decision in State v. Leyshon, ––– N.C.App. ––––, 710 S.E.2d 282 (2011), is authoritative on the question at issue in this case. In Leyshon, the defendant refused to adequately answer the trial court's questions, made contradictory statements regarding his right to counsel and self-representation, and repeatedly challenged the jurisdiction of the court. Id. at ––––, 710 S.E.2d at 285. Because of the defendant's failure to adequately respond to the questions of the trial court as the trial court attempted to discern whether the defendant wanted to be represented by counsel, this Court held, “the trial court did not err by appointing counsel at the 14 July 2008 hearing because Defendant had not clearly and unequivocally waived his right to counsel.” Id. at ––––, 710 S.E.2d at 287. Based on this Court's decision in Leyshon, we conclude the trial court did not err in allowing Defendant's appointed counsel to continue to represent him because Defendant did not clearly and unequivocally waive his right to counsel.
III: Prior Convictions
In Defendant's second argument on appeal, he contends he is entitled to a new sentencing hearing because the trial court's finding of five prior felony convictions is not supported by the evidence as required by N.C. Gen.Stat. § 15A–1340.14(f) (2011). We agree, and the State concedes that Defendant is entitled to a new sentencing hearing.
In reviewing a challenge to the determination of a defendant's prior record level, “our standard of review is whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing.” State v. Jeffery, 167 N.C.App. 575, 578, 605 S.E.2d 672, 674 (2004) (quotation omitted). “The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction.” N.C. Gen.Stat. § 15A–1340.14(f). Prior convictions may be proven by any one of the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of the prior conviction.
(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.
(4) Any other method found by the court to be reliable.
Id.N.C. Gen.Stat. § 15A–1340.14(d) provides that “[f]or purposes of determining the prior record level, if an offender is convicted of more than one offense in a single superior court during one calendar week, only the conviction for the offense with the highest point total is used.” Id.
In this case, Defendant specifically argues the trial court erred by finding that Defendant had five prior record level points, and was a Level IV offender, for felony sentencing purposes. Defendant did not stipulate to the alleged five prior convictions. The State presented the court with a prior record level felony sentencing worksheet and a DCI report listing out-of-state convictions for Defendant. The State contended Defendant had five prior felony convictions in the State of Pennsylvania, and presented to the court a sentencing worksheet stating that the dates for the convictions were 26 April 1993, 27 May 1993, 30 July 1993, 12 October 1994, and 26 January 1995. However, the foregoing dates were the dates of offense, not the dates of disposition. The DCI report shows that the dates of disposition for the offenses were as follows: two felony convictions—criminal conspiracy and theft by unlawful taking—on 20 December 1993; one felony conviction—receiving stolen property—on 12 May 1994; and two felony convictions—burglary and receiving stolen property—on 14 September 1995.
It appears from the record that the trial court calculated Defendant's record level points based on the sentencing worksheet, which showed different dates for five felonies, based on the date of the offense. However, as the DCI report shows that the disposition for only three felonies occurred outside one calendar week in a single court, N.C. Gen.Stat. § 15A–1340.14(d) requires that we remand for a new sentencing hearing, at which time the trial court must calculate Defendant's prior record level based on the dates of conviction for the Pennsylvania felonies, not the dates of the offenses.
IV: Ineffective Assistance of Counsel
In Defendant's next argument, he contends his constitutional right to effective assistance of counsel was violated when his attorney “conceded critical facts necessary to the State's case.” We disagree.
“A defendant's right to counsel includes the right to the effective assistance of counsel.” State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985) (citation omitted). “When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness[;] ... [i]n order to meet this burden defendant must satisfy a two part test.” Id. at 561–62, 324 S.E.2d at 248 (citation omitted).
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 562, 324 S.E.2d at 248 (quotation omitted) (emphasis in original).
In this case, Defendant argues that in his attorney's opening statement to the jury, the attorney “concede[d] critical facts about this case[,]” including acknowledging “an exchange of sexual material and conversations about sex [,]” and that “[t]hese concessions ... greatly reduced the State's burden to prove the case[.]” Defendant cites State v. Perez, 135 N.C.App. 543, 547, 522 S.E.2d 102, 106 (1999), disc. review denied, 351 N.C. 366, 543 S.E.2d 140 (2000), for the proposition that “[a] concession of guilt by a defendant's counsel has the same practical effect as a guilty plea, because it deprives the defendant of his right against self-incrimination, the right of confrontation and the right to trial by jury.” Defendant argues that his attorney conceded guilt without the knowing and voluntary consent of Defendant. We find Defendant's argument unconvincing because we do not believe the statements made by Defendant's counsel during his opening argument amounted to a “concession of guilt.”
Defendant's attorney made the following statements during his opening argument, which Defendant contends amount to ineffective assistance of counsel:
The evidence will show that my client was a businessman. And that there was telephone calls. The evidence will show that during the course of these telephone calls [I.H.C.] on her own against the consent of my client was sending explicit photos of herself. She admitted that I sent it myself. I was not asked to send it. When Mr. Kirk told her you're not supposed to be sending me this[,] materials evidence will show that he—she sent him what she called—once more giving him the rules, that she is going to do whatever she wants to do. He must accept whatever exists. Now, evidence will show that. At no point did he instruct her to send him anything sexual. Evidence will show that he is a Muslim. He said I cannot have any sexual relationship with any person until marriage. That's what the evidence will show. Now, what the State is going to be alleging is how this young girl brings sexual experience—I want to have sex with you. Now if there is evidence it's up to them to prove it. What I'm saying the evidence is going to show that whatever this young girl did she did on her own. We have no coercion. And at the end of the case the only reason—you're going to find out that the only reason that this case is before you is not because of my client, he didn't ask the young girl to do anything wrong but because of her age. He's the victim of this relationship. That's what the evidence is going to show.
Defendant specifically says the foregoing statements by his counsel amounted to ineffective assistance of counsel because “[b]efore the first witness was called, the jury already knew that [Defendant] was involved in a relationship of a sexual nature with someone who was too young.” We find this argument unconvincing. While the opening argument does make concessions concerning various pieces of probative evidence, it nonetheless largely beseeches the jury to find that I.H.C.. acted unilaterally, outside the consent or coercion of Defendant. Contrary to Defendant's argument on appeal, Defendant's attorney does not concede the existence of a sexual relationship or the occurrence of conversations about sex initiated by Defendant. In fact, in the closing argument, Defendant's attorney explicitly said, “[I.H.C.] herself told Detective Davis that no sex took place. [I.H.C.] has admitted on the stand that Muslims say there is no sex until marriage. There was no marriage. And the state does not really believe there was sex involved[.]”
Because we do not believe the statements Defendant complains of on appeal amount to “concessions of guilt[,]” and because we do not believe counsel's representation was deficient, or that the defense was prejudiced, we conclude that Defendant's ineffective assistance of counsel argument must fail.
V: Jurisdiction
In Defendant's final argument on appeal, he contends the trial court committed plain error by failing to instruct the jury that the State was required to prove jurisdiction beyond a reasonable doubt. We disagree.
At trial, Defendant did not request that the trial court give the foregoing jury instruction; therefore, we review for plain error. See State v. Campbell, 340 N.C. 612, 640, 460 S.E.2d 144, 159 (1995) (stating, “Defendant failed to request an instruction; therefore, our review is for plain error”).
“Plain error analysis applies to evidentiary matters and jury instructions.” State v. Garcell, 363 N.C. 10, 35, 678 S.E.2d 618, 634,cert. denied,––– U.S. ––––, 175 L.Ed.2d 362, 130 S.Ct. 510 (2009) (citation omitted). “A prerequisite to our engaging in a plain error analysis is the determination that the instruction complained of constitutes error at all[;][t]hen, [b]efore deciding that an error by the trial court amounts to plain error, the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.” State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468,cert. denied,479 U.S. 836, 93 L.Ed.2d 77, 107 S.Ct. 133 (1986) (quotations omitted). Our Courts have further stated, with regard to plain error review, the following:
[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quotation omitted) (emphasis in original). Defendant bears the burden of showing that an error arose to the level of plain error. State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
“North Carolina courts have jurisdiction over a crime if any of the essential acts forming the offense occurred in this State.” State v. White, 134 N.C.App. 338, 339–40, 517 S.E.2d 664, 666 (1999). “When a defendant moves to challenge the State's jurisdiction over a particular crime, the burden is placed upon the State to prove beyond a reasonable doubt that the crime occurred in North Carolina.” Id. at 340, 517 S.E.2d at 666.
In this case, Defendant was convicted of one count of abduction of a child in violation of N.C. Gen.Stat. § 14–41 (2011) and four counts of statutory sexual offense in violation of N.C. Gen.Stat. § 14–27.7A(a) (2011).
Pursuant to N.C. Gen.Stat. § 14–41, “[a]ny person who, without legal justification or defense, abducts or induces any minor child who is at least four years younger than the person to leave any person, agency, or institution lawfully entitled to the child's custody, placement, or care shall be guilty of a Class F felony.” The indictment charging Defendant with one count of abduction of a child in this case stated the following: “[O]n or about the 8th day of July, 2007, in Mecklenburg County, [Defendant] did unlawfully, willfully and feloniously ... induce I.H.C., a minor who was at least four (4) years younger than the defendant, to leave that child's father, mother, and/or guardian.” The evidence of record tends to show that Sergeant Suarez performed a forensic analysis of Defendant's computer, which was taken from his home in Mecklenburg County on 7 July 2007. Sergeant Suarez testified that some of the messages on Defendant's computer stated, “I think I love you[,]” and “I'm coming to get you.” We believe the chat and email exchanges on Defendant's computer discussing I.H.C.'s coming to North Carolina, which Defendant sent from his home in Mecklenburg County, are sufficient to show that the “essential act” of “induc[ing][a] minor child ... to leave” occurred in the State of North Carolina. Therefore, the North Carolina courts had jurisdiction over this crime. See White, 134 N.C.App. at 339–40, 517 S.E.2d at 666.
Pursuant to N.C. Gen.Stat. § 14–27.7A(a), “[a] defendant is guilty of a Class B1 felony if the defendant engages in vaginal intercourse or a sexual act with another person who is 13, 14, or 15 years old and the defendant is at least six years older than the person, except when the defendant is lawfully married to the person.” Each of the indictments charging Defendant with statutory sexual offense stated the following: “[O]n or about and between the 5th day of July, 2007, and the 6th day of July, 2007, in Mecklenburg County, [Defendant] did unlawfully, willfully, and feloniously engage in a sexual act with I.H. C., a person of the age of fifteen (15) years. At the time of the offense, the defendant was at least six (6) years older than the victim and was not lawfully married to the victim.” The evidence tends to show that Defendant had sex with I.H.C.. while she stayed at the Duplex in Charlotte. Specifically, Defendant and I.H.C.. engaged in anal sex twice, and oral sex twice. This evidence, we believe, is sufficient to show that the “essential act” of “engag [ing] in ... a sexual act” occurred in the State of North Carolina for all four counts of statutory sexual offense. SeeN.C. Gen.Stat. § 14–27.1(4) (2011) (defining “sexual act” as including “cunnilingus, fellatio, analingus, or anal intercourse”). Therefore, the North Carolina courts had jurisdiction over these crimes. See White, 134 N.C.App. at 339–40, 517 S.E.2d at 666.
Because the North Carolina courts had jurisdiction over the crimes in this case, we do not believe the trial court committed plain error by failing to instruct the jury on jurisdiction. We are not convinced that had the trial court instructed the jury on jurisdiction, the jury probably would have reached a different verdict.
NO ERROR, at trial; REMANDED for resentencing. Judges CALABRIA and ERVIN concur.
Report per Rule 30(e).