An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced
NORTH CAROLINA COURT OF APPEALS
Filed: 21 December 2004
STATE OF NORTH CAROLINA
Nos. 01 CRS 40375
01 CRS 62182
RAYMOND LEE PATRICK, JR., 02 CRS 20683
Appeal by defendant from judgment entered 19 July 2002 by
Judge L. Todd Burke in Forsyth County Superior Court. Heard in the
Court of Appeals 10 June 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Kathryn J. Thomas, for the State.
Marjorie S. Canaday, for defendant-appellant.
Defendant Raymond Lee Patrick, Jr. was convicted of second
degree kidnapping, robbery with a dangerous weapon, and possession
of a firearm by a felon; he pled guilty to having obtained the
status of habitual felon. As the State concedes, the trial court
erred in instructing the jury as to a different purpose for the
kidnapping than that alleged in the indictment. Defendant is,
therefore, entitled to a new trial on the charge of kidnapping.
Because the trial court consolidated all of the charges forsentencing, we must also remand for a new sentencing hearing.
The State's evidence tended to show the following. On the
night of 23 November 2001, defendant approached Gaston Watlington
while George Patrick and Torez Black sat in a nearby car.
Defendant forced Watlington at gunpoint into the back seat of the
car. Defendant held the gun on Watlington while Patrick drove for
45 minutes to an hour. When Patrick stopped the car, defendant
robbed Watlington of $50.00 and hit him in the face. Patrick then
drove them for another 45 minutes. Patrick ultimately stopped the
car a second time on a dark, dead-end street, where no houses or
businesses were located. After removing him from the car, the
three men (defendant, Patrick, and Black) beat Watlington with
fists and guns, stripped him naked, and left him on the road.
Watlington walked down the road until he found a house. The
homeowner gave him a blanket to cover himself and called the
police. When the police arrived, Watlington told them he
recognized Black from school and that he thought defendant was
Black's uncle. Watlington identified defendant and Black in a
photographic identification lineup. He also identified defendant
in court as the person who held a gun on him, beat him, and took
Defendant was indicted with robbery with a dangerous weapon,second degree kidnapping, and possession of a firearm by a felon.
He was separately indicted as having attained the status of
habitual felon. Following conviction on all three felony charges,
defendant pled guilty to having obtained the status of habitual
felon. At sentencing, the trial court heard evidence regarding
aggravating and mitigating factors, but ultimately consolidated the
three felonies and sentenced defendant within the presumptive range
to a term of 111 months to 143 months in prison.
Second Degree Kidnapping
Defendant contends _ and the State concedes _ that the trial
court erred by giving the jury an instruction on second degree
kidnapping that recited a purpose for the kidnapping that did not
match the purpose identified in the indictment. The indictment
charged that defendant "unlawfully, willfully and feloniously did
confine and restrain Gaston [Watlington] . . . without his consent
and against his will by force and for the purpose of terrorizing
him." The court instructed the jury, however, that the State was
required to prove:
First, that the defendant unlawfully
either restrained the person _ that is,
restricted his freedom of movement _ or
removed the person from one place to another.
Second, that the person did not consent to
this restraint or removal. Third that the
defendant restrained or removed the person for
the purpose of facilitating the commission of
armed robbery, which I've already defined foryou those seven elements of armed robbery.
And, fourth, that this restraint or removal
was a separate, complete act independent of
and apart from the armed robbery.
So I charge that if you find from the
evidence beyond a reasonable doubt that on or
about the alleged date the defendant, acting
either by himself or acting together with
other persons, unlawfully restrained a person
or removed a person from one place to another,
that the person did not consent to the
restraint or removal and that this was done
for the purpose of facilitating the commission
of armed robbery and that this restraint or
removal was a separate and complete act
independent of and apart from the armed
robbery, it will be your duty to return a
verdict of guilty of second degree kidnaping.
(Emphasis added.) Thus, the indictment charged defendant with
kidnapping the victim for the purpose of terrorizing him, but the
jury instruction stated that the purpose was for facilitating the
commission of an armed robbery.
As the State acknowledges, this variance between the
indictment and the instructions as to the purpose of the kidnapping
is error. Our Supreme Court "has held such error to be prejudicial
when the trial court's instruction as to the defendant's underlying
intent or purpose in committing a kidnapping differs from that
alleged in the indictment." State v. Tirado, 358 N.C. 551, 574-75,
599 S.E.2d 515, 532 (2004). See State v. Brown, 312 N.C. 237, 247,
321 S.E.2d 856, 862 (1984) (new trial required as to first degree
kidnapping charge when trial court instructed the jury that it mustfind that the defendant kidnapped the victim "for the purpose of
terrorizing her," but the indictment charged that the purpose of
the kidnapping was facilitation of commission of a felony); State
v. Dammons, 293 N.C. 263, 272, 237 S.E.2d 834, 841 (1977) (new
trial required where trial court instructed that defendant could be
convicted if he kidnapped the victim for the purposes of ransom,
obtaining a hostage, sexually assaulting the victim, or
facilitating flight, but the indictment charged kidnapping for the
purpose of terrorizing and feloniously assaulting the victim).
Accordingly, we hold that defendant is entitled to a new trial on
the charge of second degree kidnapping.
Defendant has also pointed out that the trial court's
kidnapping instructions varied from the indictment in another
respect that constitutes error. The indictment alleged that
defendant kidnapped the victim by "confin[ing] and restrain[ing]"
him while the court instructed the jury that defendant could be
found guilty of kidnapping if he "restrained" or "removed" the
victim. This variance _ like the variance as to purpose _
improperly would permit the jury to convict upon a theory not
supported by the bill of indictment. See State v. Lucas, 353 N.C.
568, 586, 548 S.E.2d 712, 725 (2001) (trial court erred when
kidnapping indictment charged confinement, but trial court
instructed only on removal; no plain error); State v. Tucker, 317N.C. 532, 537, 346 S.E.2d 417, 420 (1986) (new trial required when
defendant was indicted for removing the victim, but the trial court
instructed the jury that defendant could be found guilty for
restraining the victim); State v. Smith, 162 N.C. App. 46, 53, 589
S.E.2d 739, 744 (2004) (new trial required when indictment charged
kidnapping by removal, while instructions allowed conviction based
on "confining, restraining, or removing").
In the new trial as to the kidnapping charge, the trial court
must take care to ensure that the jury instructions match the
indictment. The instructions should address only the purpose and
the method of kidnapping identified in the indictment.
Possession of Firearm by a Felon
In order to establish that defendant was a felon for purposes
of the charge of possession of a firearm by a felon, the State
introduced evidence of defendant's 1996 conviction of the felony of
possession of a firearm by a felon. Relying on Old Chief v. United
, 519 U.S. 172, 174, 136 L. Ed. 2d 574, 584, 117 S. Ct. 644,
647 (1997), defendant contends that the trial court erred in
admitting evidence of his prior conviction when defendant was
willing to stipulate to the fact that he was a felon. In Old
, the United States Supreme Court held, applying Rule 403 of
the Federal Rules of Evidence:
Subject to certain limitations, 18 USC §922(g)(1) . . . prohibits possession of a
firearm by anyone with a prior felony
conviction, which the Government can prove by
introducing a record of judgment or similar
evidence identifying the previous offense.
Fearing prejudice if the jury learns the
nature of the earlier crime, defendants
sometimes seek to avoid such an informative
disclosure by offering to concede the fact of
the prior conviction. The issue here is
whether a district court abuses its discretion
if it spurns such an offer and admits the full
record of a prior judgment, when the name or
nature of the prior offense raises the risk of
a verdict tainted by improper considerations,
and when the purpose of the evidence is solely
to prove the element of prior conviction. We
hold that it does.
Here, although counsel for defendant offered to stipulate to
the 1996 conviction, he also stated he had no objection to
admission of the evidence
. Counsel never mentioned Rule 403 of the
North Carolina Rules of Evidence. As a result, the question before
this Court is whether the trial court committed plain error in (1)
not exercising its discretion to accept defendant's proposed
stipulation and (2) not excluding the evidence of defendant's prior
conviction. Before granting relief under the plain error rule,
"the appellate court must be convinced that absent the error the
jury probably would have reached a different verdict." State v.
, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). Based on our
review of the record, we do not believe that there is anylikelihood that the jury would have found defendant not guilty of
possession of a firearm if the trial court had admitted only the
In order for the jury to render a guilty verdict on the charge
of possession of a firearm by a felon, the jury was required to
find: (1) that defendant had previously been convicted of a felony
and (2) that he had a handgun in his possession, custody, or
control. N.C. Gen. Stat. § 14-415.1 (2003). At the trial below,
there was no dispute that defendant had previously been convicted
of a felony. If the trial court had accepted defendant's proposed
stipulation to that fact _ as defendant argues it should have _
then the jury would have been instructed that defendant had
stipulated to the first element. In applying the plain error
doctrine, we must determine whether the admission of defendant's
1996 conviction of the felony of possession of a firearm by a felon
likely caused the jury to determine that defendant had a handgun in
his possession, custody, or control. Given the testimony of
Watlington, Black, and George Patrick _ each stating that defendant
had a gun in his possession during the commission of the crimes _
we do not believe that admission of defendant's 1996 conviction
tilted the scales so as to cause the jury to reach its verdict.
, 316 N.C. at 39, 340 S.E.2d at 83
("[T]he appellate court
must determine that the error in question 'tilted the scales' andcaused the jury to reach its verdict convicting the defendant.").
We, therefore, find no error in defendant's conviction of
possession of a firearm by a felon.
(See footnote 1)
Defendant next argues that the trial court erred in allowing
the 1996 conviction for possession of a firearm to be used both to
prove the "felon" element of the firearm-possession charge for
which he was being tried and as a basis for the habitual felon
charge. State v. Glasco, 160 N.C. App. 150, 585 S.E.2d 257, disc.
review denied, 357 N.C. 580, 589 S.E.2d 356 (2003) resolves this
[D]efendant argues that he was impermissibly
subjected to double jeopardy because the court
used the offense of possession with intent to
sell and deliver cocaine to support both the
underlying substantive felony (the "felon"
portion of the offense of felon in possession
of a firearm) and the habitual felon
indictment. Our courts have determined that
elements used to establish an underlying
conviction may also be used to establish a
defendant's status as a habitual felon. State
v. Misenheimer, 123 N.C. App. 156, 158, 472
S.E.2d 191, 192-93 (1996), cert. denied, 344
N.C. 441, 476 S.E.2d 128 (1996). As the
relevant statutes do not indicate otherwise,
we are bound to follow this ruling and rejectdefendant's argument.
Id. at 160, 585 S.E.2d at 264. Because we are bound by Glasco,
this assignment of error is overruled.
Since the trial court consolidated all of the charges for
sentencing and we have ordered a new trial as to the kidnapping
charge, there will necessarily need to be a new sentencing hearing.
We nonetheless address defendant's assignments of error regarding
sentencing in order to ensure that these errors are not repeated.
We are concerned that the trial judge's remarks could suggest
that he gave defendant a harsher punishment because he chose to
proceed to trial rather than enter into a plea agreement. A
defendant has the right to plead not guilty, and he should not and
cannot be punished for exercising that right. State v. Gantt
N.C. App. 265, 271, 588 S.E.2d 893, 897 (2003), disc. review
, 358 N.C. 157, 593 S.E.2d 83 (2004).
Prior to trial _ and before the State offered defendant the
opportunity to enter into a plea agreement _ the judge made clear
that he would consider a sentence in the mitigated range if
defendant entered into a plea agreement, but that he would be
sentenced in the presumptive range if he chose to go to trial.
Later, during the sentencing phase, the following exchange
occurred: THE COURT: . . . Now, I took my time with
you before the trial, didn't I?
DEFENDANT: Yes, sir.
THE COURT: I told you that the mitigated
range, if you go to trial, you just wave bye-
bye to that. I told you that, didn't [I]?
THE COURT: So you know I'm not going to
sentence you in the mitigating range. You
already know that, don't you?
DEFENDANT: Yes, sir.
THE COURT: I told you in advance. And
you're charged with three felonies. If the
jury went back there and said well, he may
have did this, he may have did that, but he
didn't do all of them, we'll just find him
guilty of one, if they only find you guilty of
one felony, you're still in the same boat as
if you've been found guilty of all three of
them, because of your prior record. You're an
habitual felon and regardless to how
incredulous [sic] you may have thought these
witnesses may be, you're just gambling with
too much, with too much to go to trial on
charges like these.
The trial court announced defendant's sentence of 111 months to 143
months, then said the following:
That's a ten year sentence and I think that's
a substantial break considering what you could
have been looking at. And also the fact that
I gave you an opportunity that you could have
served less but you wanted us to sit here for
the past couple of days knowing the evidence
that was going to be presented against you.
. . . .
. . . But, you know, there's nothing I
can do. The Court's hands are tied when you
have a record like yours and you've been
indicted as an habitual felon and the jury
returns a verdict of guilty as to a felony,
the Court's hands are tied in matters like
this. Nothing I can do for you. I've done
about as much as I can do. I gave you an
opportunity. I could have done you better.
Excuse my English. But you decided to go to
This colloquy suggests that the trial court may have based
defendant's sentence, at least in part, on defendant's decision to
be tried by a jury. That would be improper. See State v. Boone
293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977) ("The statement of
the trial judge, expressed by him in open court, indicated that the
sentence imposed was in part induced by defendant's exercise of his
constitutional right to plead not guilty and demand a trial by
jury. This we cannot condone.").
We also are concerned with the trial court's refusal to allow
defendant to speak in his own behalf prior to sentencing. N.C.
Gen. Stat. § 15A-1334(b) (2003) provides: "The defendant at the
hearing may make a statement in his own behalf." The statute
"expressly gives a non-capital defendant the right to 'make a
statement in his own behalf' at his sentencing hearing," provided
he effectively requests that opportunity to be heard. State v.
, 133 N.C. App. 607, 613, 515 S.E.2d 748, 752 (1999)
(quoting N.C. Gen. Stat. § 15A-1334(b) (1999)). In this case,defendant asked immediately before sentence was imposed, "Can I say
something, Your Honor?" The judge replied, "No, you don't need to
say anything. You can't say anything that's going _ at all." The
trial court should have allowed defendant to make a statement
In conclusion, we remand for a new trial on second degree
kidnapping, but find no error as to the convictions of robbery with
a dangerous weapon and possession of a firearm by a felon. Because
the charges were consolidated for sentencing, we also remand for a
new sentencing proceeding.
New trial in part, no error in part, and remand for
Judges HUDSON and THORNBURG concur.
Report per Rule 30(e).
Since we have ordered a new trial on the kidnapping charge,
we need not address the effect on that charge of the admission of
the 1996 conviction. We observe that this conviction will not, in
any event, be admissible in any retrial unless defendant should
choose to testify.
*** Converted from WordPerfect ***