Opinion
No. COA12–1214.
2013-05-21
STATE of North Carolina v. Brandon L. McCULLERS.
Attorney General Roy Cooper, by Special Deputy Attorney General Scott T. Slusser, for the State. William D. Spence for defendant.
Appeal by defendant from judgment entered 3 May 2012 by Judge Michael J. O'Foghludha in Wake County Superior Court. Heard in the Court of Appeals 26 February 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Scott T. Slusser, for the State. William D. Spence for defendant.
HUNTER, ROBERT C., Judge.
Defendant Brandon L. McCullers appeals from judgment entered upon a jury finding him guilty of assault inflicting serious bodily injury, common law robbery, first-degree kidnapping, and conspiracy to commit first-degree kidnapping. On appeal, defendant argues that the trial court erred: (1) in denying his motion to dismiss the charges of (i) first-degree kidnapping, (ii) conspiracy to commit first-degree kidnapping, and (iii) common law robbery; (2) in sentencing defendant for both the crimes of assault inflicting serious bodily injury and first-degree kidnapping, in violation of his right to be free from double jeopardy; and (3) in improperly instructing the jury on second-degree kidnapping and failing to list false imprisonment on the verdict sheet as an alternative verdict. After careful review, we find no prejudicial error.
Background
At trial, the State's evidence tended to establish the following facts: Ernest Lee Kincy (“Mr.Kincy”) testified that he lived at 1615 Malta Avenue in Raleigh where he ran a “liquor house” out of his home; that is, people would come to his house to drink and play cards. On 15 September 2009, Clifton Batts (“Mr.Batts”) stopped by Mr. Kincy's house to play cards but left when there was no one else there to play. Shortly thereafter, Mr. Kincy awoke when he heard a loud thump on the outside wall of his house. As he stepped onto his front porch to investigate, Mr. Kincy saw three men in his yard punching and kicking a man who appeared to be unconscious; the victim was later identified to be Mr. Batts. Mr. Kincy recognized the three assailants and identified them as defendant, Brian Boozer, and Delshaun Covington. Mr. Kincy testified that during the assault, defendant picked up a bicycle and “slammed it” down on Mr. Batts multiple times as he lay on the ground. When Mr. Kincy yelled for the men to stop, defendant told Boozer and Covington to stop beating Mr. Batts and said, “Let's get him out of the yard.” Defendant searched Mr. Batts's pockets, removed his wallet, looked through the wallet, and then through it to the ground. The three men then picked up Mr. Batts and tried to put him in a garbage can. When they could not lift Mr. Batts into the garbage can, the three men threw him “down into” a ditch nearby and then fled in a car.
Mr. Kincy's son, Jonathan Kincy, testified that he was living at his father's house on the night in question and also witnessed the attack on Mr. Batts. Jonathan testified that when his father yelled for the three men to stop beating Mr. Batts, one of the men said “Let's go” before they attempted to put Mr. Batts into the garbage can.
Shortly thereafter, Officer Eric Wilson of the Raleigh Police Department responded to a report of a person lying in a ditch off of Malta Avenue. When the officer arrived on the scene, he found Mr. Batts lying in a six-foot-deep ditch, unconscious, with blood gurgling from his mouth and nose. The ditch contained large rocks and six to eight inches of water. Mr. Batts's mouth was approximately half of an inch above the water level. EMS arrived and transported Mr. Batts to the hospital where he was in a coma for a day, suffered from a broken jawbone, nose, collarbone, and facial bones, and required reconstructive surgery.
The police were able to recover a palm print from the top bar of the bicycle, which matched the left palm of defendant. Mr. Batts testified that he could only remember being hit in the back of the head as he was leaving Mr. Kincy's house and then waking up in the hospital. Mr. Batts was missing a cellphone and $20–$40 cash that he had in his wallet before the attack.
At the close of all of the evidence, defendant moved to dismiss all charges for insufficient evidence. The motions were denied. The jury found defendant guilty of assault inflicting serious bodily injury, assault inflicting serious injury, common law robbery, first-degree kidnapping, and conspiracy to commit first-degree kidnapping. Because the two assault convictions were based on the same conduct (the assault with the bicycle), the trial court arrested judgment on the conviction for assault inflicting serious injury. Defendant was sentence to a term of imprisonment of 120 to 153 months. Defendant appeals.
Boozer and Covington were also charged with multiple crimes stemming from the attack on Mr. Batts. Both men were convicted of assault inflicting serious injury, common law robbery, and first-degree kidnapping. On appeal, this Court found no error as to Boozer and no prejudicial error as to Covington. State v. Boozer, 210 N.C.App. 371, 387, 707 S.E.2d 756, 768 (2011), review denied,––– N.C. ––––, 720 S.E.2d 667 (2012).
Discussion
I. First–Degree Kidnapping
Defendant argues that the trial court erred in denying his motion to dismiss the charge of first-degree kidnapping for insufficient evidence. We disagree.
We review the trial court's denial of a motion to dismiss de novo. State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). In doing so, we must determine “whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v.. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). 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, 78–79, 265 S.E.2d 164, 169 (1980). When considering defendant's motion to dismiss, “the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,515 U.S. 1135, 132 L.Ed.2d 818 (1995).
Defendant was convicted of kidnapping under N.C. Gen.Stat. § 14–39, which in pertinent part provides:
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 ... 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[.]
N.C. Gen.Stat. § 14–39(a), (a)(2)-(3) (2011) (emphasis added). Subsection (b) further provides that if the person kidnapped was not released by the defendant in a safe place, was seriously injured, or was sexually assaulted, the offense is first-degree kidnapping. Id . at § 14–39(b).
“[K]idnapping is a specific intent crime and the State must show that the confinement, restraint, or removal of the victim was for one of the purposes listed in the statute.” Boozer, 210 N.C.App. at 375, 707 S.E.2d at 761. “A defendant's intent is rarely susceptible to proof by direct evidence; rather, it is shown by his actions and the circumstances surrounding his actions.' “ Id. (quoting State v. Rodriguez, 192 N.C.App. 178, 187, 664 S.E.2d 654, 660 (2008)).
Defendant contends that there was insufficient evidence that defendant confined, restrained, or removed Mr. Batts for the purpose of facilitating his flight from the scene or for the purpose of doing serious bodily injury to Mr. Batts. The sufficiency of the evidence of defendant's intent to cause serious bodily injury to the victim is not determined by the extent of the physical damage to the victim. Id. at 376,707 S.E.2d at 761. Rather, “[t]he question is whether [the] defendant's actions could show a specific intent on his part to do serious bodily harm to [the victim].” Id. (quoting State v. Washington, 157 N.C.App. 535, 539, 579 S.E.2d 463, 466 (2003)).
The evidence admitted at trial established that defendant participated in beating Mr. Batts until he was unresponsive and then threw him into a ditch containing large rocks and standing water. Defendant argues there is no evidence to establish that defendant knew of the dangers presented by the ditch or that Mr. Batts was unconscious and could not “protect himself” when thrown in the ditch. That defendant suggests Mr. Batts would need to protect himself from injury when he was thrown in the ditch demonstrates the lack of merit to defendant's argument.
Moreover, the evidence is sufficient to establish that prior to being thrown into the ditch Mr. Batts had sustained sufficient injuries to render him unconscious, or at least unresponsive. As Mr. Batts had sustained such injuries prior to being confined, restrained, or removed, a reasonable jury could conclude that defendant intended to cause Mr. Batts additional serious bodily harm by attempting to put Mr. Batts in a garbage can and then throwing him into the ditch. At a minimum, placing Mr. Batts in a garbage can could make any attempt to render medical care more difficult and the act of throwing him in a ditch, however shallow, could compound injuries already inflicted.
Additionally, the evidence is sufficient to establish that defendant confined, restrained, or removed Mr. Batts to facilitate his flight from the scene. There was testimony that one of the three men attacking Mr. Batts said “Let's go” immediately before the men threw Mr. Batts into the ditch and fled the scene in a car. Defendant contends that he was merely removing Mr. Batts from Mr. Kincy's property. However, the jury could have reasonably concluded that the evidence establishing that defendant threw Mr. Batts down into a ditch was a means of confining, restraining, or removing Mr. Batts for the purpose of facilitating defendant's flight from the scene. Defendant's argument is overruled.
II. Double Jeopardy
Defendant next argues that the trial court violated his right to be free from double jeopardy by sentencing him for assault inflicting serious bodily injury and first-degree kidnapping based on the same act. We disagree.
We note that defendant did not object at trial to this alleged error. Generally, by failing to make a timely objection, a defendant waives his right to raise the alleged error on appeal, even if the alleged error arises under the United States Constitution. State v. Martin, ––– N.C.App. ––––, ––––, 729 S.E.2d 717, 721,review denied,––– N.C. ––––, 735 S.E.2d 187 (2012). Defendant acknowledges his failure to object at trial and asks this court to review the alleged error for plain error. But, plain error applies only to jury instructions and evidentiary rulings, not to an alleged double jeopardy error. See State v. Williams, 201 N.C.App. 161, 172, 689 S.E.2d 412, 418 (2009). Pursuant to N.C. Gen.Stat. § 15A–1446, however, this Court has the discretion to review defendant's argument despite his failure to preserve the issue for review. N.C. Gen.Stat. § 15A–1446 (d), (d)(18) (2011) (providing that an alleged error may be reviewed despite the lack of objection at the trial court if the error alleged is that “[t]he sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law”); Martin, ––– N.C.App. at ––––, 729 S.E.2d at 722 (concluding that, despite the defendant's failure to object at trial, N.C. Gen.Stat. § 15A–1446(d)(18) permitted review of defendant's double jeopardy argument). Accordingly, we address defendant's argument.
The prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, and which has been deemed a part of the North Carolina Constitution through the “law of the land” provision of Article I, Section 19, prohibits a defendant from receiving multiple punishments for the same offense.
Williams, 201 N.C.App. at 173, 689 S.E.2d at 418. Defendant contends that to convict him of first-degree kidnapping, the jury, pursuant to the trial court's charge, was required to find that Mr. Batts was confined, restrained, or removed for the purpose of doing “serious bodily injury,” not just “serious injury.” Because, defendant argues, the jury was also required to find Mr. Batts suffered “serious bodily injury” to convict defendant of the assault charge, he was punished twice for the same offense.
We have rejected a similar argument in Williams, 201 N.C.App. at 182, 689 S.E.2d at 423, where we concluded that the defendant's conviction for first-degree kidnapping and assault inflicting serious bodily injury did not constitute double jeopardy because each crime required proof of an element the other crime did not.
First degree kidnapping contains the additional element of restraint or confinement that is not statutorily required for conviction of the offense of assault inflicting serious bodily injury. N.C. Gen.Stat. § 14–39 (2007); N.C. Gen.Stat. § 14–32.4(a) (2007). In order to elevate second degree kidnapping to first degree kidnapping, the jury in this case was required to find that the victim was seriously injured. Assault inflicting serious bodily injury requires additional proof of “serious bodily injury” beyond the “serious injury” needed to prove first degree kidnapping.
Id. at 181–82, 689 S.E.2d at 423.
As we noted in Williams, there is a similarity between the jury instructions for first-degree kidnapping and assault inflicting serious bodily injury, id. at 182, 689 S.E.2d at 423–24, that appears to be the source of defendant's confusion that the two crimes both require finding “serious bodily injury.” The trial court instructed the jury that to find defendant guilty of first-degree kidnapping it was required to find that Mr. Batts was confined, restrained, or removed “for the purpose of” facilitating flight or doing serious bodily injury. While this instruction is similar to the jury instruction for assault inflicting serious bodily injury (“that the [d]efendant inflicted serious bodily injury” on Mr. Batts), there is a significant distinction: “for the purpose of' and the actual act of committing serious bodily injury are two different elements, the latter being more serious than the former.” Id. at 182, 689 S.E.2d at 424. Accordingly, defendant's conviction for first-degree kidnapping and assault inflicting serious bodily injury did not amount to double jeopardy, and defendant's argument is overruled.
III. Conspiracy to Commit First–Degree Kidnapping
Defendant next contends that the trial court erred in denying his motion to dismiss the charge of conspiracy to commit first-degree kidnapping because there was insufficient evidence that defendant entered into an agreement with Boozer and Covington to commit the crime. We disagree.
A criminal conspiracy is “an agreement, express or implied, between two or more persons, to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means.” State v. Gell, 351 N.C. 192, 209, 524 S.E.2d 332, 343 (2000). “The existence of a conspiracy may be shown with direct or circumstantial evidence.” State v. Lawrence, 352 N.C. 1, 25, 530 S.E.2d 807, 822 (2000). A conspiracy “may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.” State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933).
Criminal conspiracy is complete upon “a meeting of the minds,” ... when the parties to the conspiracy “(1) give sufficient thought to the matter, however briefly or even impulsively, to be able mentally to appreciate or articulate the object of the conspiracy, the objective to be achieved or the act to be committed, and (2) whether informed by words or by gesture, understand that another person also achieves that conceptualization and agrees to cooperate in the achievement of that objective or the commission of the act.”
State v. Sanders, 208 N.C.App. 142, 146, 701 S.E.2d 380, 383 (2010) (citations omitted).
Here, the evidence tended to establish that after severely beating Mr. Batts and being told to stop by Mr. Kincy, defendant told Boozer and Covington to stop the assault. One of the three men was then heard to say “Let's go” immediately before all three men picked up Mr. Batts, threw him in the ditch, and jumped in a car to flee. That defendant, Boozer, and Covington may have formed their plan suddenly does not prevent the finding of a conspiracy. See id. (“The spontaneity of the plan does not belie the conspiracy.”) Viewed in the light most favorable to the State, this evidence is sufficient to allow a reasonably jury to conclude that defendant came to an implied agreement with Boozer and Covington to restrain and remove Mr. Batts either to cause serious bodily injury or to aid in their flight from the scene. Defendant's argument is overruled.
IV. Common Law Robbery
Defendant argues that the trial court erred in denying his motion to dismiss the charge of common law robbery because the evidence was insufficient to establish that defendant took Mr. Batts personal property with the intent to permanently deprive him of it. We disagree.
Common law robbery is defined as the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear. The felonious taking element of common law robbery requires a taking with the felonious intent on the part of the taker to deprive the owner of his property permanently and to convert it to the use of the taker.
State v. Herring, 322 N.C. 733, 739–40, 370 S.E.2d 363, 368 (1988) (internal citations and quotation marks omitted).
Defendant argues that Mr. Batts testimony that he had some money in his wallet and a cell phone before the attack, which were missing after the attack, is insufficient to establish that defendant took the items. However, Mr. Kincy and his son Jonathan testified that, as Mr. Batts was lying on the ground, defendant removed Mr. Batts's wallet from his pocket, removed some papers and cards from the wallet, and threw it all on the ground.
Because Mr. Batts's wallet was immediately discarded, defendant further argues the evidence is insufficient to show that defendant intended to permanently deprive Mr. Batts of his property. Yet, our Supreme Court has held that “the intent to permanently deprive an owner of [his] property could be inferred where there was no evidence that the defendant ever intended to return the property, but instead showed a complete lack of concern as to whether the owner ever recovered the property.' “ State v. Mann, 355 N.C. 294, 304, 560 S.E.2d 776, 783 (2002) (analyzing the sufficiency of the evidence for robbery with a dangerous weapon which also requires establishing the defendant's intent to permanently deprive the owner of the property at the time of the taking) (citation omitted). Additionally, when a defendant abandons another's property, the defendant “puts it beyond his power to return the property and shows a total indifference as to whether the owner ever recovers it.' “ Id. (citation omitted); see State v. Kemmerlin, 356 N.C. 446, 474, 573 S.E.2d 870, 889 (2002) (“ [T]he intent to permanently deprive need not be established by direct evidence but can be inferred from the surrounding circumstances.”)
The evidence tended to show that defendant assaulted Mr. Batts, took Mr. Batts's wallet from his pocket, looked through it, and immediately discarded the wallet and its contents on the ground. Viewed in the light most favorable to the State, the evidence is sufficient to allow a reasonable jury to conclude that defendant took Mr. Batts's wallet from his person and without his consent, by means of violence, with the intent to permanently deprive him of the property. Defendant's argument is overruled.
V. Jury Instruction for Second–Degree Kidnapping
Lastly, defendant argues that the trial court erred in instructing the jury on second-degree kidnapping and by failing to submit false imprisonment to the jury as a possible verdict. Because of these errors, defendant contends, the jury was denied the opportunity to find defendant guilty of either lesser offense and, for this reason, found him guilty of first-degree kidnapping. We disagree.
“Whether a jury instruction correctly explains the law is a question of law, reviewable by this Court de novo.” State v. Barron, 202 N.C.App. 686, 694, 690 S.E.2d 22, 29,disc. review denied,364 N.C. 327, 700 S.E.2d 926 (2010). “However, an error in jury instructions is prejudicial and requires a new trial only if there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.' “ State v. Castaneda, 196 N.C.App. 109, 116, 674 S.E.2d 707, 712 (2009) (quoting N.C. Gen.Stat. § 15A–1443(a) (2007)).
Because defendant did not object to the jury instruction, defendant bears the burden of demonstrating not only that the court's instruction was error but that it was plain error. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).
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[.]
Id. (emphasis added) (internal citations and quotation marks omitted).
The trial court instructed the jury on second-degree kidnapping based upon the pattern jury instruction N.C.P.I.Crim. 210.25 but omitted a portion of the pattern instruction as follows (the italicized text was omitted from the jury instruction):
Second degree kidnaping differs from first degree kidnaping only in that it is unnecessary for the State to prove that the person was not released by the [d] efendant in a safe place or had been seriously injured.
So if you find from the evidence beyond a reasonable doubt that on or about the alleged date, the [d]efendant, acting either by himself or acting with Brian Boozer and Delshaun Covington, unlawfully confined, restrained or removed a person from one place to another and that the person did not consent to this confinement, restraint or removal, and that this was done for the purpose of facilitating the [d]efendant.s flight after committing robbery and assault, or doing serious bodily injury to the person, and that this confinement, restraint or removal was a separate, complete act, independent of and apart from the intended robbery and assault,[ it would be your duty to return a verdict of guilty of second degree kidnapping. If you do not so find or have a reasonable doubt as to one or more of these things ] you would not return a verdict of second degree kidnaping, but you must then consider whether the [d]efendant is guilty of false imprisonment.
In addition to omitting the italicized text, the trial court failed to include “false imprisonment” on the verdict sheet but, instead, included “felonious restraint.” Following these instructions, the trial court reviewed the verdict sheet for the jury explaining each verdict option for each charge. The trial court explained that if the jurors had a reasonable doubt as to the elements of first-degree kidnapping they were to consider second-degree kidnaping, and if they had a reasonable doubt as to the elements of second-degree kidnapping they were to consider felonious restraint.
In light of the entire jury charge and the overwhelming evidence to support defendant's conviction for first-degree kidnapping, we conclude that trial court's error in the jury instruction and on the verdict sheet did not have a probable impact on the jury's verdict. See Lawrence, 365 N.C. at 519, 723 S.E.2d at 335 (holding that error in the jury instruction was not plain error because the defendant could not show that, absent the error, the jury would have returned a different verdict in light of the overwhelming evidence of the defendant's guilt). Accordingly, the error did not rise to the level of plain error, and defendant's argument is overruled.
Conclusion
For the reasons stated above, we find no prejudicial error.
NO PREJUDICIAL ERROR. Judges McCULLOUGH and DAVIS concur.
Report per Rule 30(e).