State v Velazquez, 162 NC App 548 (03-68) 02/03/2004

Appeal by defendant from judgment entered 30 January 2002 by Judge Dwight L. Cranford in Pitt County Superior Court. Heard in the Court of Appeals 29 October 2003.

Attorney General Roy A. Cooper, by Assistant Attorney General Thomas O. Lawton, III, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant.

    LEVINSON, Judge.

    The facts, taken in the light most favorable to the State, are summarized as follows: During the early morning of 9 February 2001, Marcos Antonio Velazquez (defendant) entered the apartment of Migdalia Alvarez. Defendant and Alvarez had been in a lengthy and turbulent relationship; they were never married and had three children together. The children lived with Alvarez. Defendant did not reside at Alvarez's apartment and had not been invited to enter.
    Alvarez was surprised to see defendant because she thought he was in New York. When she screamed, defendant covered her mouth and pushed her. When Alvarez told defendant to leave, he took herby the arm, put a knife at her back, and directed her to go down a hallway toward another room. He then directed the children to a bedroom and told one of them to “shut up or somebody was going to die.”
    Over the course of the next three hours, defendant forced Alvarez into a bedroom; threw her onto a bed and choked her; forced her to take off her clothes; tied her hands behind her back and tied her feet together; forced her to go into the room in which she kept her computer and log on to the internet so he could view the names on her “buddy list”; hit her in the face with the knife; forced her to kiss him; and forced her to have sexual intercourse several times. During this encounter, defendant forced Alvarez to move to different rooms within the apartment, including a hallway and different bedrooms in the apartment.
    At 10:30 a.m., approximately three hours after defendant entered the apartment, Alvarez convinced him to drive her to a church so that she and defendant could speak with a pastor or counselor. After speaking with the pastor, defendant attempted to convince Alvarez to leave the church with him. She refused, and defendant eventually left alone. At approximately midnight, Alvarez left the church and went to the police station to file a report, after which she sought medical attention.
    Defendant was arrested on 28 February 2003. He was taken to the hospital for unrelated injuries before being taken to the police department. Beginning in the hospital and continuing at the police station, defendant spoke with Detective Pat O'Callaghan ofthe Greenville Police Department. During this interview, defendant told O'Callaghan that he was upset that Alvarez was seeing another man and refused to let him see his children. He admitted entering Alvarez's apartment with a hidden knife and to displaying this knife to Alvarez because he wanted to scare her. Defendant further admitted to forcing Alvarez to undress; forcing her to move around the apartment; forcing her to kiss him; and to having intercourse with her after she told defendant that she did not want to have sex. Detective O'Callaghan typed a report of his interview with defendant in a document styled “Supplemental Investigation.”
    A Pitt County grand jury indicted defendant for the following offenses in relation to the incident on 9 February 2001: three counts of first-degree rape, kidnapping Alvarez, assault with a deadly weapon on Alvarez, and felonious breaking and entering. Defendant was also charged with two counts of violating a domestic violence protective order, based on incidents occurring later in 2001. Trial was held for all of these charges in January 2002. The trial court dismissed two of the first degree rape charges. A jury convicted defendant of second-degree rape, second-degree kidnapping, misdemeanor breaking and entering, simple assault, and two counts of violating a domestic violence protective order. For the felony rape and kidnapping convictions, the trial court determined that defendant had a prior record level III and imposed sentences in the presumptive range for both felonies. For the misdemeanor breaking and entering and protective order violations,defendant was sentenced as a prior record level II offender. The trial court granted a prayer for judgment continued on the assault.
    Defendant makes five arguments, each of which we shall address in turn. We conclude that defendant received a fair trial, free of prejudicial error, but that he is entitled to a new sentencing hearing.

    Defendant first argues that he is entitled to have his rape conviction set aside because the trial court erroneously failed to submit the verdict of not guilty to the jury. We do not agree.
    The trial court initially charged the jury at 1:15 p.m. on 28 January 2002. The charge specifically included the alternative of not guilty of second degree rape. Specifically, the trial court used the following language: “[I]f you do not so find or have a reasonable doubt as to one or more of these things, you would return a verdict of not guilty of second-degree rape.”
    Following the initial charge, the jury deliberated for four hours without reaching a verdict. Following an overnight recess, the jury returned on 29 January and deliberated for approximately half an hour, and then submitted a written note which said, “We need the clear elements for the rape charge. . . .” The trial court then recharged the jury as to elements of first and second degree rape. While recharging the jury as to second degree rape, after stating the elements of the offense, the trial court stated: “However if you do not so find or have a reasonable doubt as to oneor more of these things, you would not return a verdict of guilty of second-degree rape.”
    Defendant contends that the trial court's second charge to the jury erroneously failed to communicate to the jury that it could return a verdict of not guilty. Defendant did not object to the allegedly erroneous charge before the jury retired; however, in his assignment of error and in his brief, the defendant contends that the instruction amounts to plain error.
    “To constitute plain error, an instructional error must be 'so fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him.'” State v. Payne, 337 N.C. 505, 523, 448 S.E.2d 93, 103 (1994) (quoting State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993)). “When reviewing the instruction for error, we must construe it contextually. If the charge, read as a whole, is correct, isolated portions will not be held prejudicial.” Id.
    In the present case, we are unpersuaded that the trial court's instruction amounted to plain error. On 28 January, the jury was explicitly instructed that if it was not convinced of defendant's guilt beyond a reasonable doubt, it should return “a verdict of not guilty of second degree rape.” The trial court's instructions, read as a whole and in context, cannot be said to have prejudiced defendant. This assignment of error is overruled.

    We address next defendant's argument that his conviction for second-degree kidnapping must be vacated pursuant to State v.Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978), because there is insufficient evidence of removal of the victim apart from the removal necessarily exercised in the commission of the crime of rape. It follows, defendant urges, that he could not be convicted of both offenses. We do not agree.
    Kidnapping is defined as follows:
        (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 . . . shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:

            (1) Holding such other person for a ransom or as a hostage or using such other person as a shield; or

            (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

            (4) Holding such other person in involuntary servitude in violation of G.S. [§] 14-43.2.

        (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 . . . . If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree . . . .

N.C.G.S. § 14-39 (a) and (b) (2003). Our Supreme Court has construed the phrase “remove from one place to another” to require“a removal separate and apart from that which is an inherent, inevitable part of the commission of another felony.” State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981). However, a different result has obtained where the removal which forms the basis of the kidnapping conviction is not the type of removal which is inherent in the conduct which forms the basis of a rape or sexual assault conviction. See State v. Whittington, 318 N.C. 114, 122, 347 S.E.2d 403, 408 (1986).
    In the present case, defendant moved the victim at knife-point to several places in her apartment, including the living room, interior hallway, small bedroom, dining room, and master bedroom, where he finally raped her approximately an hour and a half after he entered her apartment. This removal of the victim is far more than was incidental to the commission of the rape of the victim. As was the case in Whittington, defendant could have perpetrated the sexual offense against the victim when he first threatened her with the knife. In further removing the victim, he subjected himself to prosecution for kidnapping. This assignment of error is overruled.

    This contention involves a report written by Detective O'Callaghan approximately an hour after interviewing defendant, styled “Supplemental Investigation.” Though the detective had taken a few notes during his discussion with defendant, he testified that the nature of their conversation precluded him from taking many notes and that he eventually stopped taking notes; therefore, the document prepared by Detective O'Callaghan was written in large part on the basis of the officer's recollection of what defendant said.
    On direct examination, Detective O'Callaghan read this document from the witness stand. During a bench conference, defense counsel argued that the detective was reading the document verbatim except when the exact wording favored the defendant, at which point he would paraphrase. Defense counsel then stated, “[I]f he's going to state it, I'd like for him to state it correctly.” Following the sidebar, the prosecutor asked the witness to read the document verbatim, and defense counsel cross- examined the detective concerning the portions of the document which allegedly had been paraphrased.
    Following the reading of the document from the stand, the prosecution sought to have the document admitted as evidence. Defendant made the following objection: “Your Honor, we would object to the statement.” The trial court overruled the objection. Defendant now contends that the trial court erred in admitting the document into evidence because it was defendant's “confession,” and the defendant did not in any way acknowledge the correctness of thewritten instrument. See State v. Walker, 269 N.C. 135, 139, 152 S.E.2d 133, 137 (1967) (holding that a defendant must in some manner indicate his acquiescence in the correctness of a written instrument tendered as his confession).
    “In order to preserve a question for appellate review, a party must have presented to the trial court a timely . . . objection . . . stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C.R. App. P. 10(b)(1). A general objection is insufficient to preserve a question for appellate review. State v. Moore, 152 N.C. App. 156, 162, 566 S.E.2d 713, 717 (2002).
    In the present case, defense counsel made a general objection to the admission of the Detective O'Callaghan's “Supplemental Investigation.” The particular ground for the objection was not stated and is not apparent from the context of the proceedings; therefore, the issue has not been preserved for appellate review. This assignment of error is overruled.

    We address next defendant's argument that he is entitled to a new trial on all charges because the trial court erroneously denied his motion to grant a continuation for the sentencing hearing pending an investigation of alleged juror misconduct. We do not agree.
    During the announcement of the guilty verdicts, the trial court, on its own initiative, polled the jury. All of the jurors responded affirmatively that they acquiesced in the verdicts. Thejurors were then discharged. The following morning, defense counsel made the following allegations of potential juror misconduct:
        [Y]esterday afternoon as I was leaving the courthouse, several of the jurors approached me and spoke with me, two of which were juror No. 11 who was the foreman, Ms. Tenika Carney, and juror No. 4, Ms. Savannah Barrett. At that time, they instructed me that the two of them were holdouts, that the jury was out for some period of time, and that they both had held a position of my client being not guilty- -specifically of the rape charge. . . . We spoke and I left. A short time after I arrived at my office, I received a telephone call from Ms. Tenika Carney. . . . Ms. Carney informed me at that time that she felt while she was in the process of deliberating in the jury room that she had been intimidated by juror No. 7, Mr. Randy Holloman. She stated that Mr. Holloman had raised his voice and yelled and had used profanity towards her and Ms. Barrett, and Ms. Carney stated that as a result of that, she felt intimidated and that her decision to change her vote was a result of the intimidation she felt by Mr. Holloman and not because of any change in attitude she had with regard to what she believed the evidence showed.

Defense counsel requested that “sentencing . . . be continued and that [he] be allowed to bring Ms. Carney and Ms. Barrett in for purposes of presenting testimony . . . with regard to what happened in the jury room . . . in terms of whether anything inappropriate occurred. . . .” After hearing from the prosecution, the trial court made the following ruling: “[W]e will proceed with the sentencing. The defendant of course may take such steps as he wishes.”
    The trial court's ruling did not resolve on the merits a motion concerning juror misconduct. Rather, the trial courtessentially denied defendant's motion for a continuation pending an investigation. “A motion for a continuance is ordinarily addressed to the sound discretion of the trial judge, and the ruling will not be disturbed absent a showing of abuse of discretion.” State v. Beck, 346 N.C. 750, 756, 487 S.E.2d 751, 755 (1997). Even assuming arguendo that the trial court's ruling was a denial of a motion to conduct an investigation of juror misconduct at that time, this did not constitute an abuse of discretion, especially since the jurors had already been excused and the ruling did not foreclose the possibility of subsequent relief.
    The trial court did not abuse its discretion. This assignment of error is overruled.

    Finally, we turn to defendant's contention that he is entitled to a new sentencing hearing for the rape and kidnaping offenses because the trial court's findings concerning his prior record level are not supported by the evidence and because the trial court mis-classified defendant's out-of-state misdemeanor convictions. We agree.
    During defendant's sentencing hearing, the State submitted a prior record level worksheet, which was accepted by the trial court, showing that defendant was previously convicted of the following offenses: possession of cocaine in North Carolina in 1998, criminal possession of a controlled substance in 1991 and 1998 in New York, and criminal possession of a weapon in 1992 in New York. The worksheet assigned seven points: four points for twoprior Class I felony convictions (two points each), two points for two prior Class 1 misdemeanor convictions (one point each), and one point because the offenses were committed while defendant was on escape, probation, parole, or post-release supervision.
    The record does not reveal that the court relied on any documentary evidence to prove prior offenses or to show similarities between prior offenses and those in North Carolina. It is unclear whether any prior criminal history was provided to the court. The State contends that its burden of proof with respect to the existence and classification of defendant's prior convictions was satisfied by the trial testimony of defendant and stipulations made by the defense.
    At trial, defendant testified that he had previously been convicted of “possession” of “marijuana and crack” and a misdemeanor “weapons possession.” On cross examination, defendant testified that he had another conviction for possession of a controlled substance in New York. While addressing the trial court concerning sentencing, defense counsel stated, “[I]t's obvious that [defendant] has a prior criminal record,” and added, “Of course obviously he has some misdemeanors as well.” With respect to the appropriate sentence, defense counsel said, “I think the State has alleged a Level III,” and requested a sentence in the presumptive range.
    “When a defendant assigns error to the sentence imposed by the trial court, our standard of review is 'whether [the] sentence is supported by evidence introduced at the trial and sentencinghearing.'” State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997) (quoting N.C.G.S. § 15A-1444(a1)). At a sentencing hearing, “[t]he 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.G.S. § 15A- 1340.14(f) (2003).
        A prior conviction shall be proved by any 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. Moreover, “[e]vidence presented by either party at trial may be utilized to prove prior convictions.” Id. Out of state crimes are classified pursuant to the provisions of N.C.G.S. § 15A-1340.14 (e) (2003). “There is no question that a worksheet, prepared and submitted by the State, purporting to list a defendant's prior convictions is, without more, insufficient to satisfy the State's burden in establishing proof of prior convictions.” State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002)
    In the instant case, there is no record evidence to support the trial court's classification of defendant's prior offenses, andthere is no evidence tending to show that defendant committed the crimes for which he was sentenced while on probation, parole, or escape from prison or while serving a sentence of imprisonment. Moreover, we conclude that the circumstances of the present case are not analogous to those cases which have held that a defendant stipulated to the State's assertion concerning prior record level. See, e.g., Eubanks, 151 N.C. App. at 506, 565 S.E.2d at 742-43 (holding that defendant stipulated to items on prior record level worksheet where defense counsel responded to trial court's inquiries by stating that he had reviewed the prior record level worksheet and had no objections to it). Rather, we conclude that defendant did not stipulate to the correctness of the prior record level worksheet submitted by the State. Accordingly, there is insufficient evidence to support five prior record level points assigned to defendant, and we must remand the rape and kidnapping cases for a new sentencing hearing.
    No error in trial. New sentencing hearing.
    Judges MARTIN and STEELMAN concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***