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1. Kidnapping--to terrorize victim--evidence sufficient
The test for sufficiency of the evidence of kidnapping to terrorize the victim is whether defendant's purpose was to terrorize, not whether the victim was in fact terrorized. Here, there was sufficient evidence that defendant kidnapped the victim to terrorize her even though he apologized to her during the incident, and the trial court did not err by failing to instruct on false imprisonment.
2. Witnesses--reluctant witness--reasons for reluctance--recross-examination limited
The trial court did not abuse its discretion by limiting the recross-examination of a kidnapping victim about her reluctance to testify and the State's threat of a contempt charge. There was no indication of an offer of favorable treatment, the reasons behind her reluctance did not bear on her credibility, and defendant did not show that the verdict was improperly influenced.
3. Juror--improper contact--conversation possibly overheard in courtroom
There was no abuse of discretion in the trial court's investigation or ruling on an improper contact with a juror where a juror remained seated during a recess and may have overheard a conversation between the prosecutor and the clerk. The alleged inappropriate contact occurred in the presence of the judge, who was about the same distance from the conversation as the juror and did not hear what was discussed; defense counsel was not certain what was discussed; and there is no indication of any influence on the juror or the verdict.
4. Evidence--deferred ruling--no abuse of discretion
The trial court did not abuse its discretion by deferring a ruling where it had granted a motion in limine to exclude certain State's evidence, the court indicated at trial that it might allow the excluded evidence if defendant offered evidence which opened the door but would not rule in advance, and defendant made an offer of proof but did not introduce its evidence.
5. Sentencing_aggravating factor_Blakely error--jury required
The trial court erred by sentencing defendant in the aggravated range for kidnapping by unilaterally finding as an aggravating factor that defendant committed the offense to disrupt and hinder the lawful exercise of a governmental function or the enforcement of the laws without submitting this aggravating factor to the jury for proof beyond a reasonable doubt.
6. Indigent Defendants_attorney fees--notice and opportunity for hearing
A judgment for attorney fees against an indigent defendant pursuant to N.C.G.S. § 7A-455 was remanded where it did not include his appointed attorney's total hours or the total amount of the fee and there was no indication in the record that defendant was notified of and given an opportunity to be heard regarding those matters.
Attorney General Roy Cooper, by Assistant Attorney GeneralAlexandra M. Hightower, for the State.
STUBBS, COLE, BREEDLOVE, PRENTIS & BIGGS, P.L.L.C., by C. Scott Holmes, for defendant-appellant.
Curley Jacobs (defendant) appeals his conviction for second- degree kidnapping. For the reasons discussed herein, we hold that defendant received a trial free of prejudicial error, but we vacate the trial court's imposition of attorney's fees and we remand the case for resentencing.
The State's evidence presented at trial tends to show the following: On 3 April 2002, Holly Powers (Powers) was in Maxton, North Carolina, visiting a friend when she was informed that someone was waiting outside to see her. When Powers walked outside, she saw defendant standing beside a vehicle hollering and screaming and holding a mini 14 rifle. Defendant asked Powers why she had obtained another restraining order against him. Defendant told Powers that she was going to go with him to get the restraining order dropped, and he grabbed Powers and forced her into the vehicle. Defendant thereafter placed Powers in something like a head lock and drove away.
Defendant drove Powers to a residence where he was living and snatched her out of the vehicle by her arm. Defendant then began pointing the gun at Powers and throwing 20 ounce bottles at her. Defendant hit Powers in the head with a bottle, and he tore Powers' shirt off of her. Defendant choked Powers [l]ong enough to make her lose [her] breath as well as her consciousness. Defendant then snapped out or something and apologized to Powers. Defendant drove Powers back to her vehicle but then instructed her to drive her vehicle back to the residence. Defendant told Powers that if shetried to leave, he would shoot [her] car up. Defendant followed Powers in his vehicle with the rifle out the window a little bit. After Powers dropped her vehicle off at the residence, defendant drove Powers to his mother's residence in Laurinburg, North Carolina.
Following their arrival at his mother's residence, defendant and Powers sat in defendant's vehicle and talked until defendant's mother came outside and approached the vehicle. Defendant's mother was kind of ill with Powers and was fussing at her. Defendant told his mother that Powers was not there on [her] own free will, and that she needed to go back inside the residence. Defendant's mother asked Powers to come inside and, while defendant was in another room, Powers explained the events to her.
As Powers was talking to defendant's mother, Michelle Locklear (Locklear), Powers' roommate, called the residence and asked to speak to Powers. Defendant's mother attempted to give the telephone to defendant, but defendant refused to come out of the room to answer it. Powers thereafter located another telephone and called Locklear herself. Powers told Locklear to call the police, and she then asked defendant if she could see their dog, which was located in a pen in the yard. Once outside, Powers ran to a nearby residence where she called the police herself. As Powers was waiting for law enforcement officials to arrive, she noticed Locklear approaching in her vehicle. Powers entered Locklear's vehicle and the two drove to pick up Powers' vehicle at defendant's residence.
Law enforcement officers subsequently located defendant driving his vehicle a short distance away from his mother's residence. Scotland County Sheriff's Department Lieutenant Richard J. Best (Lieutenant Best) approached defendant's vehicle and saw an assault rife that was in the floor board behind the driver's seat[.] Lieutenant Best took custody of the rifle and thereafter transferred it to Robeson County Sheriff's Department Detective Anthony Thompson (Detective Thompson).
After taking her vehicle back to her residence, Powers traveled to a police station in Scotland County. She later went to a police station in Robeson County, where she was interviewed by Detective Thompson as well as Robeson County Sheriff's Department Deputy Stuart Williams (Deputy Williams). The officers took a statement from Powers regarding the incident, and they photographed her injuries.
Defendant was subsequently arrested and indicted for first- degree kidnapping. Defendant's trial began the week of 19 November 2003, and on 21 November 2003, the jury found defendant guilty of second-degree kidnapping. Following the jury verdict, the trial court found as an aggravating factor that defendant committed the offense to disrupt and hinder the lawful exercise of a governmental function or the enforcement of laws. The trial court thereafter sentenced defendant to fifty-eight to seventy-nine months incarceration. Defendant appeals.
The right to cross examine a witness to expose the witness'
bias is not unlimited. State v. Hatcher, 136 N.C. App. 524, 526,
524 S.E.2d 815, 816 (2000). '[W]hile it is axiomatic that the
cross-examiner should be allowed wide latitude, the trial judge has
discretion to ban unduly repetitious and argumentative questions, as
well as inquiry into matters of tenuous relevance.' Id. (quoting 1
Brandis & Broun on North Carolina Evidence § 170 (5th ed. 1998))
(alteration in original). The trial judge may and should rule out
immaterial, irrelevant, and incompetent matter. State v. Stanfield,
292 N.C. 357, 362, 233 S.E.2d 574, 578 (1977). On appeal, the trial
court's decision to limit cross-examination is reviewed for abuse of
discretion, and rulings in controlling cross examination will not be
disturbed unless it is shown that the verdict was improperly
influenced. Hatcher, 136 N.C. App. at 526, 524 S.E.2d at 816.
In the instant case, we conclude that the trial court did notabuse its discretion in sustaining the State's objection. There is no indication that Powers was offered leniency or favorable treatment from the State in exchange for her testimony. The reasons for her unwillingness to testify and the possibility of her being held in contempt do not bear on her credibility or bias toward defendant, nor is whether she believed defendant had been tried enough relevant to any matter at issue in the trial. Furthermore, defendant has failed to demonstrate how the trial court's ruling regarding Powers' initial hesitation to testify improperly influenced the jury's verdict. Accordingly, we overrule defendant's second argument.
 Defendant next argues that the trial court erred by refusing to inquire further into an alleged communication with a juror. We disagree.
The record reflects that during jury deliberations, the trial court asked defense counsel whether there was anything he wanted to put on the record[.] Thereafter, defense counsel asked the trial court to note for the record that during the recess the juror number seven was seated and I observed [the assistant district attorney] talking to the clerk. Defense counsel informed the trial court that he thought he heard the assistant district attorney mention something about a statement. After the trial court noted that the juror sat in the jury box the entire time by himself, defense counsel stated that then there was conversation over there about three or four feet from them between [the assistant district attorney] and the clerk, and I thought I heard him mention something about a statement. The trial court noted that it was the same distance away from the clerk as the juror and did not hear it. The trial court then concluded that [w]ithout some showing that the juror heard it, it would not make any inquiries. Nevertheless,the trial court did thereafter inquire as to whether defense counsel knew what they were talking about[.] Defense counsel responded that he believed the assistant district attorney mentioned something about a statement. The trial court confirmed that defense counsel did not overhear mention [of] anything about the facts of the case, and subsequently concluded that [w]ithout more, it's denied.
When a trial court learns of alleged improper contact with a juror, the trial court's inquiry into the substance and possible prejudicial impact of the contact is a vital measure for ensuring the impartiality of the juror. State v. Burke, 343 N.C. 129, 149, 469 S.E.2d 901, 910-11, cert. denied, 519 U.S. 1013, 136 L. Ed. 2d 409 (1996). The trial court is given the responsibility to conduct investigations to this effect, including examination of jurors when warranted[.] State v. Barnes, 345 N.C. 184, 226, 481 S.E.2d 44, 67, cert. denied, 522 U.S. 876, 139 L. Ed. 2d 134 (1997), cert. denied, 523 U.S. 1024, 140 L. Ed. 2d 473 (1998). An inquiry into possible misconduct is generally required only where there are reports indicating that some prejudicial conduct has taken place. Id. However, the trial court retains sound discretion over its scope of the inquiry, and its decision is given great weight on appeal. State v. Bonney, 329 N.C. 61, 83, 405 S.E.2d 145, 158 (1991). 'The circumstances [surrounding an allegedly inappropriate communication] must be such as not merely to put suspicion on the verdict, because there was opportunity and a chance for misconduct, but that there was in fact misconduct. When there is merely matter of suspicion, it is purely a matter in the discretion of the presiding judge.' State v. Johnson, 295 N.C. 227, 234-35, 244 S.E.2d 391, 396 (1978) (quoting Lewis v. Fountain, 168 N.C. 277, 279, 84 S.E. 278, 279 (1915)).
In the instant case, the alleged inappropriate contact occurredin the courtroom and in the presence of the trial court. The trial court noted that it could not hear what was discussed between the assistant district attorney and the clerk, and it was the same distance away as the juror. Defense counsel was not certain what was discussed, and could only state that he thought he overheard the assistant district attorney mention something about a statement, which defense counsel assume[d] was related to the case. There is no indication that the alleged inappropriate communication had any influence on the respective juror or the verdict of the entire jury. In light of the foregoing, we conclude that the trial court did not abuse its discretion either in investigating or ruling upon the alleged inappropriate communication. Accordingly, defendant's third argument is overruled.
 Defendant next argues that the trial court erred by deferring its ruling on an evidentiary issue. Defendant asserts that the trial court chilled his right to present evidence by refusing to rule on the issue of whether the State could introduce evidence of his other bad acts. We disagree.
The record reflects that prior to trial, the State filed a motion requesting that it be allowed to introduce into evidence other bad acts involving Powers to which defendant had pled guilty on 29 October 2002. The acts occurred within two months following the incident giving rise to the instant case, and they included defendant's alleged discharge of a weapon into a dwelling occupied by Powers and the alleged theft and subsequent burning of Powers' vehicle. In a pretrial hearing, the trial court determined that defendant had not been provided with a record of the relevant convictions until the date of the hearing. The trial court thereafter ruled that the State was prohibited from using theevidence during the instant case.
During trial, defendant's father, Frank Jacobs, Jr. (Frank), testified on defendant's behalf. Frank testified that he had seen defendant and Powers together on 5 April 2002 or 6 April 2002, while defendant was on bonded release for the instant charge. The State objected to Frank's testimony, arguing that defendant was getting into a dangerous area and that defendant's examination of Frank was entering that temporal area of defendant's relationship with Powers following the incident. The State asserted that, in light of the trial court's pretrial ruling, defendant was relying on the idea that he w[ould] prevent [the State] from eliciting the real story of [defendant and Powers'] relationship after the incident, namely, the bad acts defendant had pled guilty to prior to trial. During a voir dire hearing on the matter, the following exchange occurred between the trial court and defense counsel:
THE COURT: If you open that door, the D.A.'s going to come back with all of these convictions that he [pled] guilty to. I don't know that I'm going to allow it, but I've kept it out so far. But if you open that door, I don't know, then. I'm not going to tell you, but I think maybe you and your client ought to discuss that strategy. At this point I'm going to rule that immaterial. That confused the jury on the issues under 403.
DEFENSE COUNSEL: Your Honor, but what about the testimony of a witness about she taking her and [defendant] -- they were together and they took her to get her license? How -- I guess I need a ruling on that.
. . . .
THE COURT: Well, then you're going to argue that they were good and this, that and the other, and I think you're -- if you open that door that they were getting along after this incident, then I think there is a chance, not saying I'd allow it, but I'm saying there's a chance of rebuttal on behalf of the District Attorney that needs to be weighed before you do anything like that. I'm going to hold it out right now.
After ensuring that defendant had participated in the decision not to offer further evidence from Frank, the trial court reminded defendant that I don't know what I'd do with that. I'm not telling you I'd let it in; I'm not telling you I'd keep the D.A. from doing it. Defense counsel thereafter made an offer of proof on voir dire, during which Frank testified that Powers visited defendant at Frank's residence less than a week after defendant was released on bond. Frank testified that during the visit, defendant and Powers r[o]de off someplace for a short period of time. Frank further testified that he saw Powers and defendant together again near the end of April, when Powers and defendant spoke in front of Frank's residence for 15-20 minutes. Following this testimony, the trial court stated that it would overrule the State's objection, would deny defendant's motion in limine, but would not rule on whether the State would be allowed to impeach Frank with the prior bad acts. Defendant refused the offer to elicit further testimony from Frank in the jury's presence.
The decision whether to grant a motion in limine rests in the discretion of the trial court. State v. Holman, 353 N.C. 174, 184, 540 S.E.2d 18, 25 (2000), cert. denied, 534 U.S. 910, 151 L. Ed. 2d 181 (2001). In Holman, the defendant pled guilty to the first-degreemurder of his estranged wife. During his sentencing proceeding, the defendant attempted to introduce evidence tending to show that, at the time he killed his wife, he was acting under a mental or emotional disturbance spawned by an indication that his wife was rekindling a relationship with her ex-husband. The defendant moved the trial court for a ruling that the introduction of the evidence would not open the door to the State to introduce evidence previously ruled irrelevant. The trial court deferred its ruling on the motion until it heard the defendant's questions and their context, stating that [w]ell, I think that door -- while it might get open -- I don't think it automatically flies open . . . . Neither can I say that the door would not be opened, depending on what's asked. So, I mean, that's a matter they'll have to consider, I suppose. Id. On appeal, our Supreme Court noted that it had consistently permitted evidence to be introduced in rebuttal of a particular fact on cross- examination, even if the evidence would be incompetent or irrelevant when initially offered. Id. (citing State v. Bishop, 346 N.C. 265, 389, 488 S.E.2d 769, 782 (1997)). The Court further noted that [a]t the point when the trial court deferred its ruling in the present case, it did not have sufficient information to decide upon the motion knowledgeably. Holman, 353 N.C. at 184, 540 S.E.2d at 25. Accordingly, the Court held that the trial court did not abuse its discretion by deferring its ruling on the motion until sufficient information was presented to allow the trial court to make a proper and informed decision. Id.
We conclude that the reasoning of Holman is applicable to the instant case. Following defendant's offer of proof, the trial court stated that it would deny the State's objection to Frank's testimony but could not ensure that it would not allow the State to cross-examine Frank with the bad acts. Defendant nevertheless refused to offer the testimony to the jury, stating that he was concerned he would run the risk of 404(b) evidence if the testimony was offered. The trial court reminded defendant that it had not ruled upon whether such evidence would be allowed during cross-examination and was not going to cross bridges until I come to them because I don't know what anybody's going to do. In light of Holman, we conclude that the trial court did not abuse its discretion in its determination.
Defendant relies on State v. Lamb, 321 N.C. 633, 365 S.E.2d 600 (1988) to support his contention that the trial court's decision not to rule upon the motion in limine chilled defendant's right to present evidence. However, we conclude that defendant's reliance on Lamb is misplaced. In Lamb, the Court held that a defendant's right to testify could be impermissibly chilled if, in response to a motion in limine to prohibit cross-examination of impermissible evidence of other crimes, the trial court issues a bald denial and never provides the defendant with any assurance that, should she testify, provided she did not open the door, she would be protected from impermissible evidence being used to impeach her. Id. at 649, 365 S.E.2d at 609. In the instant case, the trial court did not issue a bald denial of defendant's motion. Instead, it merely deferred its ruling on whether the State would be allowed to cross- examine Frank about defendant's bad acts following the incident. Defendant recognized the risk at trial, and decided that he did not want to take that chance[.] Defendant's decision not to introduce the evidence in question was a purely tactical one based on the possibility that the questioning might open the door to undesired cross-examination. Defendant's choice of tactics in this instance did not implicate any of his rights. Holman, 353 N.C. at 185, 540S.E.2d at 26. Accordingly, we overrule defendant's fourth argument.
 Defendant next argues that the trial court erred by sentencing him in the aggravated range. Defendant asserts that the trial court was prohibited from sentencing him in the aggravated range without first submitting an aggravating factor to the jury for proof beyond a reasonable doubt. We agree.
In State v. Allen, 359 N.C. 425, ___ S.E.2d ___ (Filed 1 July 2005) (No. 485PA04), our Supreme Court recently examined the constitutionality of North Carolina's structured sentencing scheme in light of the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). The Court noted initially that its holding would apply to cases 'in which the defendants have not been indicted as of the certification date of this opinion and to cases that are now pending on direct review or are not yet final.' 359 N.C. at 427, ___ S.E.2d at ___ (quoting State v. Lucas, 353 N.C. 568, 598, 548 S.E.2d 712, 732 (2001)). As defendant's instant appeal was pending on direct review when Allen and Blakely were decided, we conclude that their reasoning and holdings are applicable to the instant case.
After reviewing the applicable case law, the Court in Allen concluded that, when [a]pplied to North Carolina's structured sentencing scheme, the rule of Apprendi and Blakely is: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt. 359 N.C. at 437, ___ S.E.2d at ___ (citing Blakely, 542 U.S. at ___, 159 L. Ed. 2d at 413-14; Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455; N.C. Gen. Stat. §§ 15A-1340.13, 15A-1340.14, 15A-1340.16, 15A-1340.17). In theinstant case, following defendant's conviction for second-degree kidnapping, the trial court found as an aggravating factor that defendant committed the offense to disrupt and hinder the lawful exercise of a governmental function or the enforcement of laws. The trial court found this factor unilaterally, thereby aggravating defendant's sentence without submitting the issue to the jury for proof beyond a reasonable doubt. In light of our Supreme Court's decision in Allen, we conclude that the trial court committed reversible error. (See footnote 1) Therefore, we remand the case for resentencing.
 Defendant next argues that the trial court erred by imposing attorney's fees upon him. Defendant asserts that he was not provided with sufficient notice of or an opportunity to be heard concerning the fees of his court-appointed attorney. We agree.
N.C. Gen. Stat. § 7A-455 (2003) provides that the trial court may enter a civil judgment against a convicted indigent defendant for the amount of fees incurred by the defendant's court-appointed attorney. In State v. Crews, 284 N.C. 427, 201 S.E.2d 840 (1974), our Supreme Court noted that there was no evidence in the record supporting or negating the defendant's contention that a judgment imposing attorney's fees was entered without notice or opportunityfor him to be heard. Accordingly, the Court vacated the judgment without prejudice to the State's right to apply for a judgment in accordance with G.S. 7A-455 after due notice to defendant and a hearing[.] Id. at 442, 201 S.E.2d at 849-50. Similarly, in State v. Stafford, 45 N.C. App. 297, 300, 262 S.E.2d 695, 697 (1980), this Court vacated a civil judgment imposing attorney's fees on the defendant where, notwithstanding a signed affidavit of indigency, there was no indication [in the record] that [the] defendant received any opportunity to be heard on the matter of attorney's fees.
In the instant case, following the imposition of defendant's sentence, the trial court inquired as to whether defendant's counsel was appointed. Defense counsel replied that he was court-appointed, but he informed the trial court that he had not yet calculated his hours of work related to defendant's representation. After the trial court instructed defense counsel to calculate his hours and submit them to the court, the following exchange occurred between defendant and the trial court:
THE COURT: Well, now, let me say to you, Mr. Jacobs, I'm going to give you notice of this now, he's going to submit a bill, an hourly bill. I don't know how much that hourly bill is going to total up, how many hours he's got. I know he's got two days, more than two days work here in the courtroom. But whatever, it's going to be at a rate of $65 an hour that the State allots. I'll use the multiple $65 times the hours that he submits that I find to be reasonable, and I'm certain that he will be honest in that regard. Whatever that is I'm going to order -- enter an order that the State of North Carolina pay him the amount for representing you. I also will be signing a judgment, possibly, to be usedagainst you that will require you some day in the future, maybe, to have to reimburse the State that amount of money. You've heard all this before, haven't you?
DEFENDANT: Yes, sir.
THE COURT: That's called the notice. You got the notice now. You know what I'm talking about. Now you've got your right to say anything reasonable about my award of attorney's fees. You got any problem with it?
DEFENDANT: No, sir.
THE COURT: Sir?
DEFENDANT: No, sir.
THE COURT: Well, now you've been told, and in open court you've been advised of that.
This exchange clearly demonstrates that defendant was given notice of the trial court's intention to impose attorney's fees upon him. However, while the transcript reveals that attorney's fees were discussed following defendant's conviction, there is no indication in the record that defendant was notified of and given an opportunity to be heard regarding the appointed attorney's total hours or the total amount of fees imposed. Therefore, in light of the foregoing, we vacate the trial court's imposition of attorney's fees in this matter. On remand, the State may apply for a judgment in accordance with N.C. Gen. Stat. § 7A-455, provided that defendant is given notice and an opportunity to be heard regarding the total amount of hours and fees claimed by the court-appointed attorney.
In light of the foregoing conclusions, we hold that defendant received a trial free of prejudicial error, but we vacate the trial court's imposition of attorney's fees, and we remand the case for resentencing. No error in part; vacated in part; remanded for resentencing.
Judges CALABRIA and GEER concur.
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