STATE OF NORTH CAROLINA
v
.
Lenoir County
Nos. 02 CRS 53017-19
CARL LEE HOOKER, JR.
Attorney General Roy Cooper, by Special Deputy Attorney
General Susan K. Nichols, for the State.
Jeffrey Evan Noecker, for defendant-appellant.
CALABRIA, Judge.
Carl Lee Hooker, Jr. (“defendant”) appeals from judgment
entered 6 February 2003 on jury verdicts finding defendant guilty
of attempted first-degree rape, first-degree burglary, second-
degree kidnapping, and misdemeanor assault inflicting serious
injury. We find no error.
The State's evidence at trial tended to show that defendant
and Kamisha Koonce (the “victim”) were previously involved in a
failed romantic relationship. During the early morning hours of 23
June 2002, the victim saw defendant at a nightclub with some
acquaintances and left because he had been drinking and she did not
want to be around him. The victim returned to the rooming house in
which she lived. The rooming house had a front door equipped witha lock that served as a general entry way into a hall from which
each resident's living quarters were accessible. Entry into each
resident's room required a separate key.
At some point between 2:00 and 5:13 in the morning, defendant
broke through the front door and began knocking loudly on the
victim's door. When a neighbor came into the general hallway to
investigate the noise, defendant claimed he was there to retrieve
some clothes. Donald Fikes (“Fikes”), a resident and manager of
the rooming house, also came out to investigate the noise. When
Fikes informed defendant that he was going to call the police,
defendant pushed Fikes into his room, held him down on the bed, and
began hitting his head and face. After inflicting approximately
seven blows with his fists, defendant warned Fikes to stay in his
room and then left, closing the door behind him. Defendant
returned to the victim's door and, when the victim cracked open the
door to determine who was outside, defendant forced his way in her
apartment by overpowering the victim's attempts to close the door.
Defendant held the victim down on her bed and threatened to kill
her with a knife. Subsequently, defendant announced his intention
to have sexual intercourse with the victim and tried to remove her
undergarments.
In the meantime, Fikes had crawled out of a window in his room
and found a telephone to call the police. When the police arrived
and announced their presence, defendant unsuccessfully tried to
escape out of a window and then hid in the victim's closet. The
victim permitted the police to enter and informed them thatdefendant was hiding in the closet. Defendant was subsequently
apprehended.
Defendant presented evidence, in relevant part, that he went
to the victim's house during the daytime of 23 June 2002 to
retrieve some clothes he previously left at her residence. The
front door leading into the general hallway was broken at the time
he arrived. After knocking on the victim's door, Fikes pushed him
in the back, and defendant retaliated by hitting Fikes.
Thereafter, the victim opened her door and invited defendant
inside. Once inside, the victim threatened defendant with a knife.
When the police arrived, defendant hid in the closet because Fikes
had threatened to kill him.
At the close of the State's evidence, defendant moved to
dismiss the charges against him. The trial court dismissed a
charge of first-degree burglary of Fikes' residence but denied
defendant's motion with respect to all other charges. Defendant
renewed his motion to dismiss at the close of all the evidence, and
the trial court again denied his motion. During the State's
closing argument, defendant's objections to certain portions of the
prosecutor's closing argument were overruled. The jury convicted
defendant on all charges. The trial court consolidated the charges
into one judgment and sentenced defendant, as a record level IV
offender, to a term of 240 to 297 months' imprisonment. Defendant
appeals.
On appeal, the issues are whether (I) the indictment charging
defendant with rape is a proper short-form indictment, (II) thetrial court erred by denying defendant's request for a jury
instruction on misdemeanor breaking and entering, and (III) the
trial court erred in allowing portions of the prosecutor's closing
argument.
I. Indictment
In his first assignment of error, defendant contends that if
the indictment is a short-form indictment, the trial court erred in
failing to instruct the jury as to attempted second-degree rape and
assault on a female. On the other hand, defendant asserts that if
the indictment is not a short-form indictment, the indictment is
fatally deficient for failure to allege defendant used or displayed
a dangerous weapon.
Count II of the indictment, entitled “attempted first degree
rape,” states, in pertinent part, “that on or about the 23rd day of
June, 2002 . . . [defendant] unlawfully, willfully, and feloniously
did attempt to ravish and carnally know Kamisha Koonce, by force
and against the victim's will.” North Carolina General Statutes §
15-144.1 (2003) lists the elements that are required in a bill of
indictment for rape. The applicable provision is found in
subsection (a), which provides, in pertinent part, as follows:
In indictments for rape it is not necessary to
allege every matter required to be proved on
the trial; but in the body of the indictment .
. . it is sufficient in describing rape to
allege that the accused person unlawfully,
willfully, and feloniously did ravish and
carnally know the victim, naming her, by force
and against her will and concluding as is now
required by law. Any bill of indictment
containing the averments and allegations
herein named shall be good and sufficient in
law as an indictment for rape in the firstdegree and will support a verdict of guilty of
rape in the first degree, rape in the second
degree, attempted rape or assault on a female.
The indictment in the instant case contains the elements required
by the statute. Nonetheless, defendant contends the indictment is
not a short-form indictment because “a 'true' short form indictment
would not allege in the body [or title] of the indictment that the
defendant attempted the rape, since the statute states that a short
form indictment will support a verdict of guilty of rape or
attempted rape.” We disagree.
There are no statutory mandates regarding how a short-form
indictment for rape must be titled and, moreover, the title in this
indictment directly refers to the statutory provision for first-
degree rape, N.C. Gen. Stat. § 14-27.2. Regarding the use of the
word “attempt” in the body of the indictment, we agree with the
State's assertion that the use of the word “attempt” merely
provides defendant with notice more specifically tailored to the
criminal act with which he has been charged. While N.C. Gen. Stat.
§ 15-144.1(a) does, by its own terms, allow the short-form
indictment to apply to attempted rape without specifying “attempt”
in the body of the indictment, we regard its use in the instant
case as mere surplusage that may be ignored.
Defendant argues alternatively that, even if the indictment is
a proper short-form indictment, the trial court failed to apply the
right standard in denying defendant's jury instruction requests
regarding the lesser-included offenses of attempted second-degree
rape and assault on a female. The trial court, in denyingdefendant's request stated: “I believe all of the evidence
indicated in the light most favorable to the State that a weapon
was displayed and used. The Defendant's evidence was that this
occurrence never took place.”
A trial court is required to instruct a jury on all lesser-
included offenses that are supported by the evidence regardless of
whether defendant requests the instruction; and the failure to so
instruct constitutes reversible error even if the jury returns a
verdict of guilty of the greater offense. State v. Lawrence, 352
N.C. 1, 19, 530 S.E.2d 807, 819 (2000). However, when a defendant
denies having committed the complete offense for which he is being
prosecuted, and evidence is presented by the State of every element
of the offense, and there is no evidence to negate these elements
other than defendant's denial that he committed the offense, then
no lesser-included offense need be submitted to the jury. State v.
Stinson, 127 N.C. App. 252, 258, 489 S.E.2d 182, 186 (1997). Here,
the trial court did refer to the evidence “in the light most
favorable to the State.” Nonetheless, read as a whole, the trial
court correctly contrasted the State's evidence (that defendant's
conduct amounted to attempted first-degree rape) with defendant's
evidence (that there was no sexual assault of any kind).
Defendant's denial, standing alone, is not sufficient evidence to
negate the elements shown by the State and warrant the submission
of lesser-included defenses to the jury under Stinson.
Accordingly, this assignment of error is overruled. Defendant asserts, for preservation of the issue, that the
short-form indictment for rape is unconstitutional. Defendant
concedes our Supreme Court has upheld the short-form indictment.
See State v. Wallace, 351 N.C. 481, 504, 528 S.E.2d 326, 341, cert.
denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). We find nothing
in our previous cases or in defendant's argument that persuades us
the short-form indictment in this case was constitutionally infirm.
II. Misdemeanor Breaking and Entering
Defendant asserts, in his second assignment of error, that the
trial court erred in failing to include a jury instruction
regarding non-felonious breaking or entering. The trial court
instructed only on first-degree burglary and the lesser-included
offense of felonious breaking or entering. The jury found
defendant guilty of first-degree burglary. Defendant asserts that
his testimony and the testimony of one of the residents at the
rooming house tended to show he had no intent to commit a crime in
the victim's residence but only desired to retrieve his clothes.
Defendant contends that this presented conflicting evidence
regarding his intent.
We find our holding in State v. Shaw, 106 N.C. App. 433, 417
S.E.2d 262 (1992) instructive. In Shaw, the State's evidence
tended to show that defendant Shaw entered Gibson's residence at
night without permission through a window that was previously
closed while Gibson was at home. Once inside, defendant Shaw
demanded money from Gibson. By way of contrast, defendant Shaw
testified Gibson invited him in her home and he did not have theintent to steal anything. This Court considered the defendant's
testimony a “deni[al] [of] having committed the offense of first
degree burglary” and held the trial court did not err in refusing
to instruct the jury on misdemeanor breaking and entering because
“mere denial of the charges by the defendant does not require
submission of a lesser included offense[.]” Id., 106 N.C. App. at
440, 417 S.E.2d at 267 (citations omitted).
Likewise, in the instant case, the State's evidence
established that prior to 5:13 a.m. on the night in question,
defendant, without permission, forced entry into the victim's
residence by overpowering her when she cracked the door to see who
was there. This constitutes positive evidence of the first five
elements of burglary. See State v. Person, 298 N.C. 765, 768, 259
S.E.2d 867, 868 (1979) (describing the constituent elements of
first-degree burglary as: “(1) the breaking (2) and entering (3) in
the nighttime (4) into a dwelling house or a room used as a
sleeping apartment (5) which is actually occupied at the time of
the offense (6) with the intent to commit a felony therein”). The
State also presented testimony that, once inside, defendant stated
he was going to kill the victim, threatened her with a knife, and
attempted to rape her. The jury could infer from this evidence
that defendant had the requisite intent to commit a felony at the
time of the breaking and entering. See State v. Williams, 330 N.C.
579, 585, 411 S.E.2d 814, 818 (1992) (observing “[t]he criminal
intent of the defendant at the time of breaking or entering may be
inferred from the acts he committed subsequent to his breaking orentering the building”). By way of contrast, defendant's evidence
indicated the victim invited him into her residence and he had no
intent to rape her. As in Shaw, we hold defendant's evidence
constitutes merely a denial that he committed the offense of first-
degree burglary. Accordingly, the trial court was not required to
submit the lesser-included offenses to the jury. This assignment
of error is overruled.
III. Closing Argument
In his final assignment of error, defendant asserts that the
trial court erred in failing to correct improper statements made by
the prosecutor in the closing argument. Specifically, defendant
asserts the following statements were improper: (1) “defendant . .
. is a brute who takes what he wants, when he wants it. And if you
get in his way, he'll take his fist and hit you in the face[;]” (2)
the prosecutor's suggestion that, had defendant's fingerprints been
found on the knife, defendant would have contended “she threw the
knife at me and I picked it up off the floor so she couldn't get
it[;]” and (3) “[y]ou can explain away anything. And don't you
think that men have been trying to take advantage of women sexually
from time in memoriam and there have been cases like this that have
happened -- that have had to have been decided by people[.]”
Defendant did not object to the first statement but did object to
the latter two statements.
Our Supreme Court “has repeatedly warned that closing
arguments must be kept within the bounds of civility.” State v.
Matthews, 358 N.C. 102, 112, 591 S.E.2d 535, 542 (2004) (citingState v. Walters, 357 N.C. 68, 105, 588 S.E.2d 344, 366, cert.
denied, ___ U.S.___, 157 L. Ed. 2d 320 (2003); State v. Jones, 355
N.C. 117, 126, 558 S.E.2d 97, 103 (2002). “'When the prosecutor
becomes abusive, injects his personal views and opinions into the
argument before the jury, he violates the rules of fair debate.'”
Jones, 355 N.C. at 130, 558 S.E.2d at 105 (quoting State v. Smith,
279 N.C. 163, 166, 181 S.E.2d 458, 460 (1971)).
A well-reasoned, well-articulated closing
argument can be a critical part of winning a
case. However, such argument, no matter how
effective, must: (1) be devoid of counsel's
personal opinion; (2) avoid name-calling
and/or references to matters beyond the
record; (3) be premised on logical deductions,
not on appeals to passion or prejudice; and
(4) be constructed from fair inferences drawn
only from evidence properly admitted at trial.
Jones, 355 N.C. at 135, 558 S.E.2d at 108.
Regarding the first statement presented by defendant on
appeal, defendant's failure to object at trial limits our review
“'to an examination of whether the argument was so grossly improper
that the trial [court] abused [its] discretion in failing to
intervene ex mero motu.'” State v. Smith, 357 N.C. 604, 614, 588
S.E.2d 453, 460 (2003) (quoting State v. Gladden, 315 N.C. 398,
417, 340 S.E.2d 673, 685, cert. denied, 479 U.S. 871, 93 L. Ed. 2d
166 (1986)). The prosecutor's resort to name-calling was clearly
inappropriate under previous decisions of our appellate courts;
however, “the prosecutor's one-time description of defendant as ['a
brute'] was not so improper as to require action by the trial court
ex mero motu.” State v. Braxton, 352 N.C. 158, 204, 531 S.E.2d
428, 455 (2000) (holding the same regarding the disparaging remark“that thing” which was directed towards the defendant by the
prosecutor during closing arguments). We find no error in the
remainder of the statement because the prosecutor was merely
generally characterizing the evidence at trial: defendant
attempted to take what he wanted and reacted with violence when
opposed. Given the standard of review, coupled with the wide
latitude given to attorneys during closing arguments, see State v.
Scott, 343 N.C. 313, 343, 471 S.E.2d 605, 623 (1996), we find no
abuse of discretion by the trial court in not intervening ex meru
moto with regards to this statement.
Defendant did object to the remaining statements. “The
standard of review for improper closing arguments that provoke
timely objection from opposing counsel is whether the trial court
abused its discretion by failing to sustain the objection.” Jones,
355 N.C. at 131, 558 S.E.2d at 106. A prosecutor's closing
argument is entirely proper when consistent with the facts in
evidence; however, a closing argument ceases to be proper when
counsel presents arguments that place before the jury incompetent
or prejudicial matters based on his own beliefs and not supported
by the evidence. State v. Locklear, 294 N.C. 210, 217, 241 S.E.2d
65, 69 (1978). The State's suppositions as to how defendant would
have explained fingerprints that were neither tested for nor found
on the knife are irrelevant and fail to assist the jury in making
a determination on the evidence before it. Such speculation
improperly casts aspersions on defendant's credibility by implying
defendant's account of the events on the night in question wastailored to minimize inculpatory evidence. However, we note that,
during his testimony, defendant repeatedly equivocated and
contradicted his version of the events occurring on 23 June 2002.
Viewed in context and given the wide latitude afforded attorneys in
jury arguments, we cannot say any error in allowing this argument
rises to the level of prejudicial error necessary to warrant a new
trial. See State v. Burr, 341 N.C. 263, 299, 461 S.E.2d 602, 621
(1995) (holding that the trial court's failure to sustain an
objection “does not rise to the level of prejudicial error that
would require a new trial” unless the “inappropriate prosecutorial
comment . . . so infected the trial with unfairness as to make the
resulting conviction a denial of due process”) (internal quotation
marks and citations omitted).
Regarding the last of the challenged statements by the
prosecutor, defendant, in his brief, asserts the statement was
“improper and the defense objections should have been sustained.”
However, defendant has produced no argument or reasoning in support
of this bare assertion. Accordingly, we find defendant has
abandoned his assignment of error with respect to this statement.
See N.C.R. App. P. 28(b)(6)(2004) (“Assignments of error . . . in
support of which no reason or argument is stated or authority
cited, will be taken as abandoned”). This assignment of error is
overruled.
No error.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).
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