1. Kidnapping--second-degree--failure to instruct on false imprisonment as lesser-
included offense
The trial court did not err by denying defendant's request to instruct the jury on the
charge of false imprisonment as a lesser-included offense of second-degree kidnapping, because:
(1) defendant's theory of the case is that a letter written by the victim accurately portrayed the
events of 20 August 2001 and negates a purpose to terrorize the victim at any point during that
time; (2) defendant's theory, if believed, eliminates not only the purpose element required for
second-degree kidnapping, but also the unlawful restraint element of both second-degree
kidnapping and false imprisonment; and (3) the jury would therefore have to find defendant
guilty of second-degree kidnapping if the victim's testimony was believed or not guilty of any
offense if the victim's letter was believed.
2. Constitutional Law--effective assistance of counsel--appointed counsel--necessary
experience--local rules--invited error
Defendant was not denied effective assistance of counsel in a second-degree kidnapping
and assault on a female case based on the fact that his appointed counsel did not have the
required experience in excess of three years for appointment to a second-degree kidnapping case
according to the rules in effect for appointment of counsel for the judicial district in which his
trial took place, because: (1) defendant cites no authority for the proposition that a violation of
local rules regarding the appointment of counsel denies a defendant the right to counsel; (2) even
if the premise were true, defendant failed to raise this constitutional issue to the trial court and it
is therefore waived; and (3) defendant's counsel was appointed for the assault charge as
permitted under the local rules and only after defendant expressed his desire that his counsel be
officially appointed to the second-degree kidnapping charge did his counsel move to be
appointed counsel of record on that charge.
3. Evidence--prior crimes or bad acts--assault
The trial court did not abuse its discretion in a second-degree kidnapping and assault on a
female case by admitting testimony under N.C.G.S. § 8C-1, Rule 404(b) by defendant's ex-
girlfriend concerning an alleged assault on her by defendant in the summer of 1999, because: (1)
in each instance, the evidence tended to show defendant isolated and abused the victims,
alternated between anger, repentance, and fear of going to jail, and caused an imminent fear of
death; (2) in each instance, defendant offered to procure medical aid for the victims; (3) after the
assaults, defendant continued to contact the victims and convinced them to accompany him to a
hotel where he again held them against their will; (4) the similarities indicate a common plan or
design on the part of defendant, and the witness's testimony served a purpose other than to show
mere propensity to commit the crime charged; and (5) the probative value of the evidence is not
substantially outweighed by the danger of unfair prejudice.
CALABRIA, Judge.
Marcus Elron Petro (“defendant”) appeals judgments entered on
jury verdicts of guilty of one count of second-degree kidnapping
and one count of assault on a female, which was enhanced as a
result of defendant's plea of guilty to habitual misdemeanor
assault. Defendant was sentenced to consecutive terms of a minimum
term of 34 months to a maximum term of 50 months and a minimum term
of 8 months to a maximum term of 10 months, respectively, in the
North Carolina Department of Correction. We find no error.
In the late spring of 2001, defendant and Amanda Chapman (the
“victim”) met at a bar where the victim was employed. They
developed a friendship that evolved into an intimate relationship.
Shortly thereafter, defendant moved into the victim's residence.
On or about 20 August 2001, defendant was involved in an
altercation where the victim worked. As a result, he was expelled
from the bar. Later that morning between three and four o'clock,
defendant and the victim returned to her residence and discussed
the earlier altercation. The discussion escalated into an argument
concerning previous disagreements. When the victim perceived
defendant was getting angry, she attempted to calm him, but
defendant told her to “shut up” and hit her in the head with his
hand, causing her to bleed. Defendant apologized and offered to
call 911 for help, but the victim asked for time to see how she
felt and decide whether she needed emergency assistance. Defendant
joined the victim in the bathroom and started “freaking out again.” Although he told the victim he was “mad at himself for hitting”
her, he “hit [the victim] on the other side of [her] head because
he was mad at himself.” This second blow caused dizziness and
bleeding.
The victim started crying and pleading with the defendant to
stop. This also angered defendant, and he warned her, “The more
you cry, the worse it's going to get.” He pulled the victim into
her bedroom, made sure there were no communication devices in the
room, and put her on the bed. Defendant became “frantic” with
concern that the incident would “get [him] in . . . trouble” and
“he would . . . [have to go to] jail.” Defendant then got on the
bed with the victim, straddled her, told her to “shut up,” and
started hitting her. Defendant got a pair of needle-nose pliers,
“reared back with the pliers like he was going to . . . put th[em]
in [the victim's] neck,” and told her, “[I]t will be okay in just
a couple of minutes. It will all be over.” After repeating these
actions a few times, defendant relented and tired. He placed his
legs over the victim when he went to sleep.
The next morning, the victim's mother (“Ms. Watkins”) came to
her residence because she was concerned when the victim failed to
pick up her daughter at the normal time. Ms. Watkins had a key to
the victim's residence but was unable to enter because the door was
latched. Defendant allowed the victim to open the door, whereupon
the victim left with her daughter and Ms. Watkins. Ms. Watkins
called the police, and defendant fled.
Defendant and the victim continued to communicate. Defendant
was apprehended, but the victim posted bail. The victim also wrote
a letter stating it was her belief she had been drugged and was
hallucinating on the night of 20 August 2001. She further statedher injuries were self-inflicted and she abused and threatened
defendant. The letter went on to assert that defendant's sole
motive in restraining her and staying up with her that night was to
prevent her from “caus[ing] harm to [her]self and quite possibly
others.” The victim's letter concluded that defendant spent the
night trying to help and calm her as opposed to hurting her.
Thereafter, the relationship between the victim and defendant
continued until they went to a hotel together, where defendant
again assaulted the victim. Subsequently, the victim terminated
the relationship and testified against defendant at trial.
At trial, the trial court admitted, over defendant's
objection, testimony from Crystal Woods (“Woods”) concerning her
previous relationship with defendant. This testimony, which
involved allegations of abuse and kidnapping, was admitted by the
trial court under Rule 404(b) as evidence of a common plan and
design. At the close of the State's evidence and again at the
close of all the evidence, defendant moved to dismiss the charges
against him. The trial court denied both motions. At the charge
conference, defendant requested an instruction on false
imprisonment based on the recounting of events set forth in the
victim's letter. The trial court denied submitting the false
imprisonment charge to the jury. The jury convicted defendant of
second-degree kidnapping and assault on a female. Defendant
appeals.
On appeal, defendant asserts the trial court erred by (I)
failing to instruct the jury on false imprisonment, (II) appointing
counsel with less experience than required by the applicable
provisions for the charges, and (III) admitting evidence pursuant
to Rule 404(b).I. Jury Instruction
[1] In his first assignment of error, defendant asserts the
trial court erred in denying his request to instruct the jury on
the charge of false imprisonment as a lesser included offense of
second-degree kidnapping. “The law is well settled that the trial
court must submit and instruct the jury on a lesser included
offense when, and only when, there is evidence from which the jury
could find that defendant committed the lesser included offense.”
State v. Boykin, 310 N.C. 118, 121, 310 S.E.2d 315, 317 (1984).
Second-degree kidnapping occurs when the victim is released in a
safe place without having been sexually assaulted or seriously
injured and the following elements, in relevant part, are met: “(1)
[unlawful] confinement, restraint, or removal from one place to
another; (2) of a person; (3) without the person's consent; (4) for
the purpose of [terrorizing the victim].” State v. Lucas, 353 N.C.
568, 582-83, 548 S.E.2d 712, 722 (2001); N.C. Gen. Stat. § 14-39
(2003). The elements of the lesser included offense of false
imprisonment are the (1) intentional and unlawful, (2) restraint or
detainment of a person, (3) without that person's consent. State
v. Miller, 146 N.C. App. 494, 505, 553 S.E.2d 410, 417 (2001).
Defendant's theory of the case is that the letter written by
the victim accurately portrayed the events of 20 August 2001, and
this evidence negates a purpose to terrorize the victim at any
point during that time. The State contends that defendant's
theory, if believed, eliminates not only the purpose element,
required for second-degree kidnapping, but also the unlawful
element of both second-degree kidnapping and false imprisonment;
therefore, the jury would have to find defendant guilty of second-
degree kidnapping if the victim's testimony was believed and wouldhave to find defendant not guilty of any offense if the victim's
letter was believed. We agree with the State.
A prominent expert on criminal law has observed that “[o]ne
who reasonably believes that a felony, or a misdemeanor amounting
to a breach of the peace, is being committed, or is about to be
committed, in his presence may use reasonable force to terminate or
prevent it.” 2 W. LaFave, Substantive Criminal Law § 10.7(c) (2d
ed. 2003). In the instant case, the victim's letter, if believed,
sets forth circumstances of violent actions resulting in pronounced
self-inflicted bodily injuries by an individual who admitted it was
“quite possibl[e]” she would have inflicted violence upon others
had she been allowed to leave. Under this set of facts, defendant
restrained a violent and hallucinating victim in the comfort of her
home and bedroom until she fell asleep without threats or violence.
The following morning when the victim had recovered her normal
faculties, defendant did nothing to prohibit her from leaving. We
are of the opinion that this restraint would not be unlawful in
light of the circumstances surrounding the detention and the nature
of the offense that could reasonably be expected to occur, given
the victim's state of mind and evidenced by the nature and extent
of her self-inflicted injuries. Accordingly, if the jury accepted
the recounting of events contained in the letter, defendant would
not have unlawfully restrained the victim; therefore, the trial
court did not err in rejecting defendant's instruction on the
lesser included offense. This assignment of error is overruled.
II. Right to Counsel
[2] In his second assignment of error, defendant asserts he
was denied his right to counsel because “his attorney was appointed
in violation of rules requiring experience in excess of three yearsfor appointment to [second-degree kidnapping,] a Class E felony.”
Defendant's assertion is premised on the rules in effect for
appointment of counsel for the judicial district in which his trial
took place, which precluded defendant's counsel from representing
him on a Class E felony due to insufficient experience. As to any
constitutional argument, defendant cites no authority for the
proposition that a violation of local rules regarding the
appointment of counsel denies a defendant of the right to counsel,
nor are we persuaded it does so. Moreover, even if we were to
accept the premise, defendant failed to raise this constitutional
argument to the trial court and has, thereby, waived it. See State
v. Jaynes, 342 N.C. 249, 263, 464 S.E.2d 448, 457 (1995) (noting
that “[e]ven alleged errors arising under the Constitution of the
United States are waived if defendant does not raise them in the
trial court”).
Regarding any argument premised upon the local rules,
defendant's counsel was appointed for the assault charge as
permitted under the local rules and, only after defendant
“expressed his desire that [his] counsel be officially appointed to
[the second-degree kidnapping charge],” did his counsel move to be
appointed counsel of record on that charge. The record reveals
defendant, his counsel, the district attorney, and the court all
considered defendant's counsel competent to undertake the defense.
Any violation of the local rules that occurred was occasioned by
defendant's invitation. This assignment of error is overruled.
III. Evidentiary Ruling
[3] In his last assignment of error, defendant asserts the
trial court improperly admitted, under N.C. Gen. Stat. § 8C-1, Rule
404(b) (2003), Woods' testimony concerning an alleged assault onher by defendant in the summer of 1999. Rule 404(b) provides,
“Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted in
conformity therewith.” N.C. Gen. Stat. § 8C-1, Rule 404(b). Our
Supreme Court has
held that Rule 404(b) is a “clear general rule
of inclusion of relevant evidence 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. Lloyd, 354 N.C. 76, 88, 552 S.E.2d 596, 608 (2001)
(quoting State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54
(1990)).
Accordingly, evidence of other offenses is
admissible so long as it is relevant to any
fact or issue other than the character of the
accused. In addition to the requirement that
the evidence be offered for a purpose other
than to show criminal propensity, the
admissibility of evidence under [Rule 404(b)]
is guided by two further constraints --
similarity and temporal proximity [of the
acts].
Id. (internal citations and quotation marks omitted).
Woods' testimony tended to show that she and defendant were
involved in an intimate relationship and defendant lived with her
“off and on.” Following an altercation between Woods and defendant
at a bar where they had been drinking, defendant drove Woods to his
grandparents' house. During the drive, defendant struck Woods,
causing her to bleed. After arriving at his grandparents' and
determining they were not home, defendant “dr[ug] [Woods] into the
house,” held her for eight hours, stripped and raped her, and beat
her with his hands and various implements. While defendant was
holding Woods, he repeatedly apologized and expressed concern about“go[ing] to jail.” Woods testified that she thought she “was going
to die.” After the assault, defendant offered to take Woods to the
hospital. When she declined, defendant took her and held her at
her apartment until the following morning when he left. Despite
these actions, defendant convinced Woods to go with him to a hotel,
where he held her against her will a second time and “pushed [her]
around.”
Defendant correctly points out that the alleged assault on
Woods involved a sexual assault and that defendant used implements
in the abuse in addition to his hands. However, in each instance,
the evidence tended to show defendant isolated and abused the
victims, alternated between anger, repentance, and fear of going to
jail, and caused an imminent fear of death. In each instance,
defendant offered to procure medical aid for the victims. After
the assault, defendant continued to contact the victims and
convinced them to accompany him to a hotel where he again held them
against their will. We think these similarities sufficiently
indicate a common plan or design on the part of defendant, and
Woods' testimony served a purpose other than to show mere
propensity to commit the crime charged.
Nonetheless, evidence of the assault on Woods may have been
excluded if its probative value was substantially outweighed by the
danger of unfair prejudice under N.C. Gen. Stat. § 8C-1, Rule 403
(2003). “The determination of whether to exclude such evidence is
a matter left to the sound discretion of the trial court, and its
determination will not be disturbed on appeal absent an abuse of
discretion.” Lloyd, 354 N.C. at 90-91, 552 S.E.2d at 609. In the
instant case, the trial court admitted the evidence of the assault
on Woods for the limited purpose of showing a common plan ordesign. After considering the similarity in factors and the
proximity of the two assaults, the trial court found “the probative
value of this evidence is not substantially outweighed by the
danger of unfair prejudice” and overruled defendant's objection.
The trial court did not abuse its discretion in its ruling on the
evidence, and this assignment of error is overruled.
No error.
Judges ELMORE and STEELMAN concur.
*** Converted from WordPerfect ***