STATE OF NORTH CAROLINA
v
.
Guilford County
No. 02 CRS 91930-32
FORREST KRISTENSEN CHAPPELL
Attorney General Roy Cooper, by Emery E. Milliken, Assistant
Attorney General, for the State.
William D. Auman, for defendant-appellant.
MARTIN, Chief Judge.
Defendant Forrest Chappell appeals from judgments imposing
consecutive active sentences of imprisonment entered after his
conviction by a jury of second-degree kidnaping and felonious
assault with a deadly weapon with intent to kill inflicting serious
injury. Evidence presented by the State at trial tended to show
that defendant moved in with Cynthia Chappell in July 2002.
Defendant and Cynthia Chappell were married but had been separated
since September 2001. Ms. Chappell told defendant he could stay
with her while he was looking for a job, but could not drink
alcohol or consume drugs while he stayed with her.
On 19 July 2002, Ms. Chappell went home for lunch and found
defendant “very drunk and very beat up” with cuts on his face, headand knees, having had a wreck on his bicycle. Ms. Chappell told
defendant to leave her house before she got home from work.
Defendant was not at the house when Ms. Chappell got home from work
at 5:15 p.m., but rode up on his bicycle between 6:00 and 6:15 p.m.
After an argument, Ms. Chappell called 911 and defendant left. Ms.
Chappell packed defendant's belongings in a duffle bag, which she
left on her front porch before going to sleep on her couch.
Ms. Chappell was awakened during the early morning of 20 July
by defendant banging on her door and demanding his belongings. She
told defendant “his stuff was on the porch.” Defendant then forced
his way into the house and began swinging a 2x4 board. Defendant
knocked the phone away from Ms. Chappell before she could call 911.
Defendant swung the board “like a baseball bat” and struck Ms.
Chappell's left heel, injuring her so that she could only hop or
crawl when she tried to move. Defendant told Ms. Chappell if she
screamed that he would kill her “faster than he intended to.” Ms.
Chappell tried to escape from defendant by crawling out the front
door into the yard, but defendant caught her and pulled her back
into the house by her hair. Defendant took Ms. Chappell into the
back bedroom of the house, hit her with a telephone and tried to
tie her up with the phone's cord. Defendant then forced Ms.
Chappell to have sexual intercourse with him.
Defendant told Ms. Chappell to pack some things because they
were going on a trip. Ms. Chappell drove, according to defendant's
instructions, towards Greensboro. After Ms. Chappell asked
defendant to let her stop and get a drink, he directed her to stopat a convenience store, where Ms. Chappell opened the car door,
jumped out of the car, hopped inside the store and begged the store
clerk to call 911 because her husband was trying to kill her.
Defendant pulled Ms. Chappell back to the car and placed her inside
on the passenger side. Ms. Chappell again escaped from the car and
went back inside the store, asking the clerk to call 911. The
police arrived while Ms. Chappell was in the store this second
time. Defendant was arrested and Ms. Chappell was transported to
a hospital emergency room.
Rober Arledge, a physician's assistant, performed a physical
examination of Ms. Chappell on 20 July 2002. He found a forehead
laceration, contusions on her chest and arms, abrasions to her
knees and feet, a swollen left ankle and a fractured heel. Mr.
Arledge found no vaginal contusions or lacerations during the
sexual assault examination, although the nurse who assisted with
the examination testified Ms. Chappell's vaginal area was tender
and slightly red.
At the close of the State's evidence, defendant's motion to
dismiss was denied. Defendant did not present any evidence, but
renewed his motion to dismiss at the close of all evidence, which
was again denied. Defendant was found not guilty of first-degree
rape, but guilty of second-degree kidnapping and felonious assault.
Defendant first argues that the trial court erred when it
permitted Ms. Chappell to testify regarding prior incidents in
which defendant had physically abused her. After hearing voir dire
testimony, the trial court permitted Ms. Chappell to testifyconcerning two prior incidents with defendant. In March 2002,
defendant injured Ms. Chappell's shoulder during a scuffle,
resulting in his conviction for assault on a female in August 2002.
Ms. Chappell also testified that defendant verbally abused her and
pointed a shotgun at her in the summer of 2001 when she tried to
lower the volume of his stereo. After her testimony regarding
these incidents was received, the trial court gave a limiting
instruction, as follows:
Members of the jury, if you find that
testimony about that incident to be credible,
you may only consider that with respect to the
issue about whether her will had been overcome
in the rape charge and the kidnapping charge,
and for no other charges. You may not
consider it in the assault charge for any
purpose. There is going to be testimony,
which I have heard out of your presence, about
another incident, and the same instruction
applies to the testimony about the incident,
should you find the testimony to be credible.
Defendant contends the jury must have considered this evidence in
relation to the assault charge despite the trial court's limiting
instruction. Defendant also argues the probative value of this
evidence was outweighed by its prejudicial effect, since the prior
events were dissimilar to the facts in evidence and not
sufficiently proximate in time.
“Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person” but may be “admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake,
entrapment or accident.” N.C. Gen. Stat. § 8C-1, Rule 404(b).
“Rule 404(b) state[s] a clear general rule of inclusion of relevantevidence of other crimes, wrongs or acts by a defendant, subject to
but one exception requiring its exclusion if its only probative
value is to show that the defendant has the propensity or
disposition to commit an offense of the nature of the crime
charged.” State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54
(1990), cert. denied, 421 S.E.2d 360 (1992). “The admissibility of
evidence under this rule is guided by two further constraints -
similarity and temporal proximity.” State v. Lynch, 334 N.C. 402,
412, 432 S.E.2d 349, 354 (1993). “On appeal, defendant must
demonstrate that the [404(b)] evidence would not be admissible for
any purpose.” State v. McKoy, 317 N.C. 519, 525, 347 S.E.2d 374,
378 (1986). Our Supreme Court has held that “evidence of a
victim's awareness of prior crimes allegedly committed by the
defendant may be admitted to show that the victim's will had been
overcome by her fears for her safety where the offense in question
requires proof of lack of consent or that the offense was committed
against the will of the victim.” State v. Young, 317 N.C. 396,
413, 346 S.E.2d 626, 636 (1986).
In the present case, the trial court admitted the challenged
testimony solely for the purpose of determining whether Ms.
Chappell's will was overcome with regard to the kidnaping and rape
charges against defendant, both of which required proof of her lack
of consent. Although the previous incidents in the summer of 2001
and March 2002 were not committed in the exact same manner as the
alleged assault and rape in this case, enough similarities between
the incidents existed so that we are unable to say that the trialcourt erred by admitting this evidence. In all three situations,
the defendant threatened Ms. Chappell with great bodily harm or
death, was verbally abusive so that she feared defendant, and that
fear caused her to react by trying to escape or avoid defendant.
The testimony concerning the two incidents was therefore probative
of whether Ms. Chappell was afraid of defendant so that her will
would be overcome. In addition, we hold that the two events were
sufficiently proximate in time to be probative. One of the
earlier incidents about which Ms. Chappell testified occurred
approximately one year before the events at issue in this case; the
other occurred only about four months earlier than the present
incident. These events were not so distant in time as to remove
all probative value from the evidence of their occurrence.
Defendant's argument that the jury did not follow the trial
court's limiting instruction and considered the 404(b) evidence
with regard to the assault charge is also unpersuasive. Our
appellate courts must assume that the jury follows the instructions
the trial court gives it. See State v. Jennings, 333 N.C. 579,
618, 430 S.E.2d 188, 208 (citing Francis v. Franklin, 471 U.S. 307,
324 n.9, 85 L. Ed. 2d 344, 360 n.9 (1985)), cert. denied, 510 U.S.
1028, 126 L. Ed. 2d 602 (1993). Because the trial court adequately
instructed the jury that the testimony concerning the prior
incidents was to be considered only when determining whether Ms.
Chappell's will was overcome during the alleged kidnaping and rape,
we must assume that the jury did not erroneously consider thisevidence in regard to the assault charge against defendant. This
assignment of error is overruled.
Defendant next assigns error to the trial court's failure to
conduct a voir dire examination of a juror after the juror had
contact with a potential witness in defendant's trial. At the end
of a recess during trial, the following exchange occurred outside
the presence of the jury:
THE COURT: Mr. Swanson Chappell, the gentleman
in the blue shirt, did you talk to one of the
jurors outside?
MR. S. CHAPPELL: We were standing side by
side; yes, sir.
BAILIFF: Sir, stand up, please.
THE COURT: And you talked to him?
MR. S. CHAPPELL: Yes, sir. He was asking me
about a business plan.
THE COURT: You are a potential witness in this
case. I'm sure you heard my instruction to
the jurors that you are not to talk to
potential witnesses. If I hear of that
happening again, you will be in serious
trouble with this Court.
MR. S. CHAPPELL: Okay, sir.
After identifying the juror that had the conversation with Swanson
Chappell, the jury was returned to the room and the trial court
gave a further instruction:
The bailiff has reported to me that one of the
jurors had some conversation with the
potential witness who is seated behind the
defendant in the blue shirt. I instructed you
all not to talk to any of these witnesses, and
that person was here yesterday, and I mean it.
I understand that nothing was talked about
this case, so I'm not going to do anything
about it. But I am instructing you, it's rarethat it happens, but jurors can be found in
contempt of court for disobeying the Court's
orders also, and so obey those orders. Do not
talk to anybody involved in this case; that
is, the lawyers, the defendant, or any of the
potential witnesses that have been identified
to you. I understand some of them weren't
here, but a lot of them are here today. Don't
talk about anything.
Defense counsel made no request for a voir dire of the juror; nor
any objection to the trial court's handling of this matter. The
potential witness, Swanson Chappell, did not testify at defendant's
trial. On appeal, defendant contends that the contact between the
juror and potential witness constituted plain error that the trial
court failed to address adequately with its curative instruction.
The trial court must instruct members of the jury not to talk
to witnesses, parties or counsel during the trial. N.C. Gen. Stat.
§ 15A-1236(a)(5)(2003). However, failure to provide this
instruction is not constitutional error. See State v. Chambers, 52
N.C. App. 713, 280 S.E.2d 175 (1981). Plain error has been defined
as “fundamental error, something so basic, so prejudicial, so
lacking in its elements that justice cannot have been done or . .
. where the error is such as to seriously affect the fairness,
integrity, or public reputation of judicial proceedings” or error
that probably impacted the outcome of the trial. State v. Odom,
307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)(quoting United States
v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). Our Supreme
Court has held that plain error review is limited and should not be
applied “to issues which fall within the realm of the trial court's
discretion[.]” State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18(2000); cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001). A
trial court has “no absolute affirmative duty to investigate juror
conduct absent reports of prejudicial misconduct. Both the
existence of misconduct and the effect of misconduct are
determinations within the trial court's discretion.” State v.
Marila, 349 N.C. 573, 599-600, 509 S.E.2d 752, 767-68 (1998)(citing
State v. Harrington, 335 N.C. 105, 115-16, 436 S.E.2d 235, 240-41
(1993)), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999).
Defendant here failed to object to the trial court's handling of
the juror communication issue and preserve it for review for
prejudicial error. We do not analyze the issue under the plain
error standard of review because it was a matter within the trial
court's discretion. Therefore, defendant has waived this
assignment of error by failure to object to the trial court's
actions.
Finally, defendant contends that the trial court committed
reversible error by failing to grant defendant's motion to dismiss
for insufficiency of the evidence. Defendant argues the State
failed to present evidence of restraint to sustain the kidnaping
charge against defendant. We disagree.
“When a defendant moves for dismissal, the trial court is to
determine whether there is substantial evidence (a) of each
essential element of the offense charged, or of a lesser offense
included therein, and (b) of defendant's being the perpetrator of
the offense. If so, the motion to dismiss is properly denied.”
State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52,(1982). “Substantial evidence is 'such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.'”
Earnhardt, 307 N.C. at 66, 296 S.E.2d at 652 (quoting State v.
Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). “In ruling
on a motion to dismiss the trial court is to consider the evidence
in the light most favorable to the State. In so doing, the State
is entitled to every reasonable intendment and every reasonable
inference to be drawn from the evidence; contradictions and
discrepancies do not warrant dismissal of the case - they are for
the jury to resolve.” Earnhardt, 307 N.C. at 67, 296 S.E.2d at
652-53 (citations omitted).
Defendant was indicted for three separate offenses: second-
degree kidnaping, assault with a deadly weapon with intent to kill
inflicting serious injury, and first-degree rape. The jury found
defendant to be not guilty of the rape charge, so defendant's
arguments regarding the trial court's failure to dismiss that
charge are moot.
“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.” State v. Lucas, 353 N.C. 568, 582-83, 548
S.E.2d 712, 722 (2001)(citing N.C. Gen. Stat. § 14-39(a)). If the
victim is not sexually assaulted nor seriously injured, and is
released in a safe place, the kidnaping is of the second degree.
N.C. Gen. Stat. § 14-39(b)(2003). Restraint has been defined as
“restriction by force, threat or fraud with or withoutconfinement.” State v. Washington, 157 N.C. App. 534, 538, 579
S.E.2d 463, 465-66 (2003)(citation omitted). Defendant argues that
the State did not prove the element of restraint as an act separate
from the restraint necessary to show the commission of first-degree
rape. Defendant contends that the State violated the prohibition
against double jeopardy, by using the same action to constitute an
element of two crimes.
According to Ms. Chappell's testimony, taken in the light most
favorable to the State, defendant entered her home after awakening
her and began to beat her with a 2x4 board, hitting her ankle and
rendering her unable to walk or run quickly, thus preventing or
increasing the difficulty of her escape. Defendant did not allow
Ms. Chappell to leave her home, injuring her with household items
such as a telephone cord and a flashlight, in addition to the 2x4
board. Ms. Chappell's restraint in her home provided defendant an
opportunity to continue to assault her for several hours, until
defendant forced Ms. Chappell to drive to a store where she
escaped. Defendant's double jeopardy argument does not prevail
because the restraint element of the kidnapping charge is not one
of the elements of assault. In addition, the State presented ample
evidence from which the jury could find a restraint separate and
apart from that restraint necessary to complete the rape with which
defendant was charged. Viewing the evidence in the light most
favorable to the State, sufficient evidence exists to support the
second-degree kidnaping charge. Defendant also presents several arguments regarding the
inconsistency of the jury charge with the wording of the indictment
in relation to the kidnaping charge. Defendant failed to object to
the jury instruction at trial and did not except to the
instructions in his assignments of error. Therefore, these
arguments are deemed waived on appeal.
The elements of the crime of assault with a deadly weapon with
intent to kill inflicting serious injury are (1) an assault, (2)
with a deadly weapon, (3) with intent to kill, (4) inflicting
serious injury, (5) not resulting in death. State v. Reid, 335
N.C. 647, 654, 440 S.E.2d 776, 780 (1994); see N.C. Gen. Stat. §
14-32(a)(2003). Defendant argues that the physical evidence does
not support Ms. Chappell's testimony about the intensity with which
she was injured. Specifically, defendant contends that no physical
evidence supported Ms. Chappell's testimony that she was choked
with a phone cord or hit in the head with the 2x4 board. However,
defendant's arguments are merely examples of possible conflicts
within Ms. Chappell's testimony and other evidence presented at
trial. It is not this Court's duty to weigh the conflicting
evidence; instead, we must review the cause to determine whether
substantial evidence of each element of the crime exists when the
evidence is viewed in the light most favorable to the State. Here,
resolving the conflicts in the evidence to the benefit of the
State, there is sufficient evidence to sustain the trial court's
denial of defendant's motion to dismiss the assault charge. As a
result, this assignment of error is overruled. For the reasons stated, we hold that defendant received a fair
trial, free from prejudicial error.
No error.
Judges TIMMONS-GOODSON and HUNTER concur.
Report per Rule 30(e).
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