Opinion
No. COA11–1473.
2012-05-1
STATE of North Carolina v. Brian Keith OXENDINE.
Attorney General Roy Cooper, by Assistant Attorney General Jason T. Campbell, for the State. James H. Monroe for Defendant.
Appeal by Defendant from judgments dated 3 March 2011 by Judge Claire V. Hill in Robeson County Superior Court. Heard in the Court of Appeals 3 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Jason T. Campbell, for the State. James H. Monroe for Defendant.
STEPHENS, Judge.
Factual Background and Procedural History
On 16 March 2009, Defendant Brian Keith Oxendine was indicted on charges of robbery with a dangerous weapon and first-degree kidnapping. The charges arose from Defendant's robbery of Peter Hunt on the evening of 14 December 2007. About 10:30 p.m., Hunt ended his work shift at a Pizza Hut in Pembroke. As Hunt got into his pickup truck in the parking lot, Defendant entered the truck through the passenger-side door holding a switch-blade knife and said, “Do what I say and I won't hurt you.” Defendant demanded Hunt's valuables, including his wallet and then instructed Hunt to drive to the Lumbee Guaranty Bank. When they arrived at the bank, Defendant held the knife to Hunt's neck and side and ordered him to withdraw as much money as he could from the ATM. Hunt withdrew $40.00 and gave it to Defendant, who then ordered Hunt to drive to a restaurant parking lot. Once there, Defendant forced Hunt out of the truck at knifepoint and drove away.
The next day, a deputy with the Robeson County Sheriff's Department saw a truck matching the description of Hunt's pickup and attempted to pull the driver over. Instead, the driver fled, cutting through fields and a yard, after which the deputy lost contact with the truck. Later that day, the truck was found abandoned in a field, having crashed into a barn. A law enforcement K–9 unit picked up the scent of a person leading away from the truck and into a heavily wooded area nearby. Meanwhile, Officer Dwayne Hunt (no apparent relation to the victim) of the Pembroke Police Department received a phone call from a confidential informant. The informant instructed Officer Hunt to wait for him at a private residence, and about 40 minutes later, the informant arrived at the residence with Defendant in his van. Defendant appeared intoxicated and dirty, and his pants were full of briars. Officer Hunt arrested Defendant for kidnapping. Upon being arrested, Defendant volunteered that he “had not been driving the truck. The guy picked [him] up earlier.” Hunt identified Defendant in a photo lineup and again at trial as the man who had kidnapped and robbed him. The State also introduced evidence that Defendant's DNA was found on a cigarette butt recovered from Hunt's crashed and abandoned truck. Defendant did not present evidence.
On 3 March 2011, the jury found Defendant guilty of robbery with a dangerous weapon and second-degree kidnapping, and the trial court sentenced Defendant to terms of 94–122 months and 37–54 months, to be served consecutively. Defendant appeals.
Discussion
Defendant makes three arguments: that the trial court committed plain error in instructing the jury on a theory of kidnapping that was not alleged in the indictment; that he received ineffective assistance of counsel (“IAC”); and that the trial court's order of restitution was not supported by competent evidence. For the reasons discussed below, we find no error in Defendant's trial, but vacate the order of restitution and remand.
Jury Instructions
Defendant first argues that the trial court committed plain error in instructing the jury on a theory of kidnapping that was not alleged in the indictment. We disagree.
Here, Defendant was indicted for kidnapping under a theory of restraint, but the court instructed the jury under a theory of removal. Our Supreme Court has held such a variance between indictment and jury instructions constitutes error. See State v. Tucker, 317 N.C. 532, 537–38, 346 S.E.2d 417, 420 (1986). However, because Defendant did not object to the jury instruction at trial, he must show plain error to obtain relief.
Under this standard, [a] defendant must show that the instructions were erroneous and that absent the erroneous instructions, a jury probably would have returned a different verdict. The error in the instructions must be so fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him. We have observed that it is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.
State v. Lucas, 353 N.C. 568, 584, 548 S.E.2d 712, 723 (2001) (citations and quotation marks omitted), overruled in non-pertinent part by State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), withdrawn,360 N.C. 569, 635 S.E.2d 899 (2006).
In Allen, our Supreme Court considered the effect of Blakely v. Washington, 542 U.S. 296, 159 L.Ed.2d 403 (2004), on the State's Structured Sentencing Act. In so doing, the Court explicitly overruled language from Lucas “which defines ‘statutory maximum’ in a manner inconsistent with [the holdings of Blakely and Allen ]” and which required “sentencing factors which might lead to a sentencing enhancement to be alleged in an indictment[.]” Allen, 359 N.C. at 437, 438, 615 S.E.2d at 265. However, the North Carolina Supreme Court later withdrew Allen in light of the United States Supreme Court's decision in Washington v. Recuenco, 548 U.S. 212, 165 L.Ed.2d 466 (2006). Further, nothing in Allen affected the well-established legal principles of plain error review or the offense of kidnapping discussed in Lucas and this opinion.
“The elements of kidnapping are: (1) confinement, restraint, or removal from one place to another; (2) of a person; (3) without the person's consent; (4) for the purpose of facilitating the commission of a felony.” Id. at 582–83, 548 S.E.2d at 722 (citing N.C. Gen.Stat. § 14–39(a)). Thus, a kidnapping indictment must allege confinement, restraint, and/or removal of the victim by the defendant. “The term ‘restrain’ connotes restriction by force, threat or fraud with or without confinement. Restraint does not have to last for an appreciable period of time and removal does not require movement for a substantial distance.” State v. Brayboy, 105 N.C.App. 370, 375, 413 S.E.2d 590, 593,cert. denied, 332 N.C. 149, 419 S.E.2d 578 (1992).
As noted by our Supreme Court, kidnapping cases can present special challenges in drafting indictments and preparing jury instructions “[b]ecause kidnapping is an ongoing offense that often begins as a restraint or confinement and segues into a removal[.]” Lucas, 353 N.C. at 589, 548 S.E.2d at 727 (citation omitted). When faced with variances like that presented here, our appellate courts have consistently declined to find plain error where the evidence at trial would support a conviction under both the theory alleged in the indictment and that upon which the jury was instructed. Id. at 588, 548 S.E.2d at 726;see also State v. Lancaster, 137 N.C.App. 37, 527 S.E.2d 61,disc. rev. denied in part and allowed in part, 352 N.C. 680, 545 S.E.2d 723 (2000) (holding no plain error where the indictment charged kidnapping by confining, restraining and removing, but the court instructed on kidnapping by confinement, restraint or removal); State v. Raynor, 128 N.C.App. 244, 495 S.E.2d 176 (1998) (holding no plain error where the indictment alleged restraint, but the instructions allowed a conviction upon restraint or removal); State v. Clinding, 92 N.C.App. 555, 562, 374 S.E.2d 891, 895 (1989) (holding no plain error in instructing the jury on restraint when the indictment alleged only removal and confinement).
Here, Defendant's kidnapping of Hunt began “as a restraint [and] confinement and segue[d] into a removal[,]” Lucas, 353 N.C. at 589, 548 S.E.2d at 727, and as in the cases cited supra, the evidence at trial would have supported a conviction under both the theory alleged in the indictment (restraint) and that upon which the jury was instructed (removal). Thus, Defendant has failed to show that, “absent the erroneous instructions, a jury probably would have returned a different verdict.” Id. at 584, 548 S.E.2d at 723. Accordingly, we overrule this argument.
Ineffective Assistance of Counsel
Defendant next argues that he received IAC because his trial counsel failed to timely file a motion to suppress. We disagree.
[F]or assistance of counsel to be ineffective: 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.... The first element requires a showing that counsel made serious errors; and the latter requires a showing that, even if counsel made an unreasonable error, there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings.
State v. Banks, ––– N.C.App. ––––, ––––, 706 S.E.2d 807, 820–21 (2011) (internal citations and quotation marks omitted). Further, “if a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient.” State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985).
“If the State gives notice not later than 20 working days before trial of its intention to use evidence ..., the defendant may move to suppress the evidence only if its [sic] motion is made not later than 10 working days following receipt of the notice from the State.” N.C. Gen.Stat. § 15A–976(b) (2011).
Here, the State notified Defendant in August 2009 and September 2010 that it intended to introduce DNA evidence obtained during and as result of a warrantless search of Defendant. However, Defendant's trial counsel did not move to suppress the results of the search until 4 January 2011. Trial counsel explained that, while he was aware of the time limit in section 15A–976(b), previous motions he had made to suppress had been considered despite not being timely filed and he assumed the same would occur here. The trial court summarily denied the motion to suppress as not timely filed.
Defendant contends that his trial counsel's failure to timely file the motion constituted IAC because the motion to suppress would likely have been granted had its merits been considered by the trial court, and in turn, without the DNA evidence, the jury would likely have acquitted him. We are not persuaded. We first note that the motion to suppress which defense counsel filed was not “accompanied by an affidavit containing facts supporting the motion.” N.C. Gen.Stat. § 15A–977(a) (2011). The affidavit “may be based upon personal knowledge, or upon information and belief, if the source of the information and the basis for the belief are stated.” Id. The affidavit accompanying Defendant's motion was from his trial counsel and stated that Defendant did not consent to the DNA sample taken while he was in custody. This assertion was made only upon information and belief, and yet, the affidavit does not contain either the source of the information or the basis for the belief. Accordingly, the affidavit submitted in support of the motion to suppress did not comply with section 15A977(a) and the trial court would have summarily denied the motion on that basis. N.C. Gen.Stat. § 15A–977(c).
Further, even had the motion been timely filed and complied with section 15A–977(a), Officer Hunt testified at trial that Defendant consented to the DNA sample. If the trial court had accepted Officer Hunt's assertions on this point, it would have denied Defendant's motion to suppress.
Finally, even assuming arguendo that a timely-filed motion would have been granted and the DNA evidence suppressed, we do not believe that “the result of the proceeding would have been different[.]” Braswell, 312 N.C. at 563, 324 S.E.2d at 249. The evidence that Defendant's DNA matched that on a cigarette butt found in Hunt's truck established only that Defendant had been in Hunt's truck, a fact Defendant admitted to Officer Hunt when he was arrested. As noted supra, the victim, Peter Hunt, identified Defendant in a photo lineup and at trial as the man who kidnapped and robbed him. In light of the victim's positive identification of Defendant as the perpetrator, coupled with Officer Hunt's testimony that Defendant admitted to being a passenger in the truck, we do not believe that the DNA evidence from the cigarette butt was decisive in Defendant's conviction. In sum, even had Defendant's trial counsel timely filed the motion to suppress, we are unable to conclude that (1) the motion would have been granted, or (2) the jury would have reached a different result in the absence of the DNA evidence. Accordingly, we overrule this argument.
We decline to grant Defendant's alternate request that we dismiss this argument without prejudice to preserve his right to file a motion for appropriate review in the trial court. “IAC claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i .e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001). Here, no further investigation is needed to develop Defendant's claim, and thus, we are able to resolve its merits based on the record alone.
Order of Restitution
Defendant also argues that the trial court erred in ordering restitution in the amount of $1,063.00. We agree.
If a trial court orders a defendant to pay the victim restitution, “[t]he amount of restitution must be limited to that supported by the record [.]” N.C. Gen.Stat. § 15A–1340.36(a) (2011). “[T]he quantum of evidence needed to support a restitution award is not high. When ... there is some evidence as to the appropriate amount of restitution, the recommendation will not be overruled on appeal.” State v. Moore, 365 N.C. 283, 285, 715 S .E.2d 847, 849 (2011) (citation and quotation marks omitted). However, “there must be something more than a guess or conjecture as to an appropriate amount of restitution[.]” State v. Daye, 78 N.C.App. 753, 758, 338 S.E.2d 557, 561,affirmed per curiam,318 N.C. 502, 349 S.E.2d 576 (1986).
Here, the trial court ordered restitution in the amount of $1,063 .00. Hunt testified that he was robbed of $63.00. This testimony supports restitution in that amount. Hunt and Officer Hunt also testified that Hunt's truck was damaged when it was crashed into the barn and that the vehicle's radio and navigation system were stolen. However, neither witness offered even an estimate of the cost of repairs to the truck or the value of the stolen items. The additional $1,000.00 the trial court awarded appears to have been no more than a guess. As such, we must vacate the order of restitution and remand to the trial court for a new hearing to determine the appropriate amount of restitution. See, e.g., Moore, 365 N.C. at 286, 715 S.E.2d at 850 (remanding “to the trial court for a new hearing to determine the appropriate amount of restitution”).
NO ERROR IN PART; VACATED AND REMANDED IN PART. Judges MCGEE and HUNTER, JR., ROBERT N., concur.
Report per Rule 30(e).