Appeal by defendant from judgment entered 3 September 2003 by
Judge C. Philip Ginn in Swain County Superior Court. Heard in the
Court of Appeals 11 May 2005.
Attorney General Roy A. Cooper, III, by Solicitor General
Christopher G. Browning, Jr., for the State.
Glover & Petersen, P.A., by James R. Glover and Ann B.
Petersen, for defendant-appellant.
HUNTER, Judge.
Hemant Raghunath Borkar (“defendant”) appeals from a judgment
dated 3 September 2003 entered consistent with a jury verdictfinding him guilty of solicitation of murder, stalking, and
carrying a concealed weapon. As we find prejudicial error in the
trial court's failure to provide a limiting instruction, we reverse
and remand for a new trial.
The evidence tends to show that defendant met Tabitha
Zimmerman (“Tabitha”) in 1998 when both were first-year students at
the University of North Carolina School of Medicine (“Medical
School”). Defendant and Tabitha initially had a friendly
relationship, often studying together, although Tabitha rebuffed
defendant's attempts at a romantic relationship.
In 1999, incidents occurred where defendant expressed anger or
irritation at Tabitha for small comments or actions in front of
classmates and also expressed anger that Tabitha had not told him
she was dating a classmate. Defendant offered Tabitha gifts from
a summer trip to India in 1999, some of which she refused to
accept. Defendant told Tabitha he could no longer be friends with
her at the conclusion of their second year, resulting in a
confrontation in which defendant grabbed Tabitha's arm and waved a
fist in her face.
Relations between defendant and Tabitha remained strained.
While assigned to a rotation together in Chapel Hill, defendant
confronted Tabitha in a hospital hallway and told her she was a
“'goddamn bitch.'” Tabitha reported defendant's past behavior and
name-calling to the Medical School, who met with both parties and
arranged for limited contact between them for the remaining two
years of the program. Prior to graduation on 19 May 2002, Tabitha visited her
family's home in Bryson City. On 10 May 2002, defendant also
visited Bryson City and spent four days hiking. Graduation for the
Medical School was held on the weekend of 19 May 2002 and both
defendant and Tabitha attended. At one of the social events
related to graduation, defendant approached Tabitha and apologized
for their difficulties, explaining it had been difficult for him to
“get over” his romantic feelings for her. Defendant also mentioned
his trip to Bryson City and asked Tabitha to have coffee with him.
She declined the offer.
Following graduation, Tabitha returned to Bryson City to
prepare for her move to Virginia for her residency program.
Tabitha mentioned her concerns regarding defendant to a friend who
was married to a local law enforcement officer, David Southards
(“Deputy Southards”).
On 29 May 2002, defendant returned to Bryson City. Defendant
had obtained a map from the Internet to locate the Zimmerman home
and asked for permission to park at a nearby church. Defendant
testified that he hiked over the next few days in the national
park, but after recognizing a moving van from Chapel Hill, hiked
into the woods towards the Zimmerman home where the van was parked.
Defendant used his binoculars to read the car tags of the vehicles
parked at the residence and made notations of the information.
Defendant then returned to town and stopped at the local library to
check his e-mail. Tabitha entered the library while defendant was
there and contacted the police as soon as she saw defendant. Defendant then left the library, decided to cut short his
weekend, and returned to Chapel Hill. As a result of reports by
Tabitha and an individual who had seen defendant walk up the road
into the woods leading to the Zimmerman home on three consecutive
days, a “be on the lookout” order was issued to local law
enforcement. The following day, Tabitha moved to Virginia.
On 7 June 2002, defendant returned to Bryson City and again
went hiking in the national park. While traveling on a road near
the Zimmerman residence, defendant was spotted by Deputy Southards,
who pulled defendant over in a parking lot after following him for
a short distance. Deputy Southards asked defendant if he had any
weapons in the vehicle. When defendant replied that he had weapons
under the backseat, Deputy Southards arrested defendant. Defendant
was charged with carrying a concealed weapon and stalking, and
taken to the Swain County jail.
While in the county jail, defendant shared a cell with Joseph
Barron (“Barron”). Barron testified defendant told him that
Tabitha had disgraced him in medical school in front of their class
and had him reprimanded by the dean, and that he had come to Bryson
City to kill her. Defendant told Barron about watching Tabitha and
her family from the road and from a church, and about how he had
written down their tag numbers. Barron testified defendant offered
to pay him $10,000.00 to kill Tabitha, and to pay additional sums
for killing other members of her family. Upon release from jail,
Barron shared this information with Tabitha's father, David
Zimmerman (“Dr. Zimmerman”), who had treated Barron for previouspanic attacks by prescribing prescription medication for him.
Defendant was subsequently also charged with solicitation of
murder.
On 3 September 2003, the jury found defendant guilty of
solicitation to commit murder, stalking, and carrying a concealed
weapon. The trial court consolidated the charges and sentenced
defendant in the aggravated range to a minimum of seventy-three
months and a maximum of ninety-seven months.
I.
[1] Defendant contends the trial court erred in denying
defendant's motion to dismiss for insufficient evidence as to the
charge of stalking. We disagree.
In reviewing challenges to the sufficiency of the evidence,
the question for this Court is whether there is substantial
evidence of each essential element of the offense charged.
State
v. Thompson, 157 N.C. App. 638, 642, 580 S.E.2d 9, 12 (2003).
“'Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.'”
Id.
(citation omitted). This Court must view the evidence in the light
most favorable to the State, giving the State the benefit of all
reasonable inferences, and allowing all contradictions and
discrepancies in the evidence to be resolved by the jury.
Id.
The misdemeanor offense of stalking occurs
if the person willfully on more than one
occasion follows or is in the presence of, or
otherwise harasses, another person without
legal purpose and with the intent to . . . :
(1) Place that person in reasonable fear
either for the person's safety or
the safety of the person's immediate
family or close personal associates.
N.C. Gen. Stat. . 14-277.3(a)(1) (2003). Defendant argues the
State failed to present sufficient evidence that defendant was in
the presence of Tabitha without legal purpose, and with the intent
to cause her to be in reasonable fear of harm.
In the case of
State v. Thompson, the defendant charged with
stalking similarly argued that insufficient evidence was presented
to show that he was in the victim's presence without legal purpose
and had the necessary intent to cause her emotional distress.
Thompson, 157 N.C. App. at 642-43, 580 S.E.2d at 12. There, the
evidence showed that the defendant had frequented the victim's
workplace, had been seen going up and down the dead-end road in
front of the victim's house, had verbally confronted and threatened
the victim, and had made threats that he intended to “blow away”
the victim to a third party.
Id. at 643, 580 S.E.2d at 13.
Thompson found that such evidence was sufficient to survive a
motion to dismiss for the charge of stalking.
Id. at 643-44, 580
S.E.2d at 13.
Here, the State presented evidence tending to show that during
medical school, defendant called Tabitha a “'goddamn bitch,'”
grabbed her, and shook his fist in her face. Tabitha testified
that she was rattled and made uncomfortable by these incidents.
Special arrangements were made regarding Tabitha and defendant's
rotation schedules due to these concerns, and defendant was advisedby the Medical School to have no contact with Tabitha.
Plainclothes escorts were also provided by the Medical School to
protect Tabitha during her graduation ceremony.
Dr. Zimmerman testified that his family was “very alarmed” and
had “a good deal of apprehension” about Tabitha's safety. Dr.
Zimmerman further testified that just prior to graduation, Tabitha
“was convinced that there was a very real threat to her of possible
physical harm[.]”
Defendant traveled to Bryson City on three occasions in May
and June of 2002, downloaded a map from the Internet in an attempt
to locate the Zimmerman home, watched the Zimmerman home from the
woods, and wrote down license plate numbers of each vehicle parked
there. Defendant admitted he hid in the woods and watched the
Zimmerman home. Multiple witnesses testified to seeing defendant
or his Jeep parked a short distance from the Zimmerman home on
several different occasions. Defendant was also seen by Tabitha at
the Bryson City public library, prompting her to immediately call
the Swain County Sheriff's Department and relay concerns about her
safety.
On 7 June 2002, only a short distance away from the Zimmerman
home, defendant was stopped by Deputy Southards, who searched
defendant's vehicle and discovered a riot shotgun, a .357 magnum,
a .45 caliber revolver, and hundreds of rounds of ammunition.
Defendant was arrested, and while in jail, confessed to Barron that
he had been watching Tabitha, that he wanted her, and that he
intended to kill her and her family. Viewing the evidence in the light most favorable to the State,
we conclude that there was sufficient evidence from which the jury
could find that defendant followed or was in the presence of
Tabitha on more than one occasion without legal purpose, and with
the intent to place her in reasonable fear of her personal safety.
The trial court, therefore, properly denied the motion to dismiss.
II.
Defendant next contends the trial court erred in admitting a
witness's pretrial statement in its entirety without redaction, and
further contends the trial court erred in denying a request for
limiting instructions as to the statement. We agree that the trial
court erred in failing to give the requested limiting instruction.
A. Redaction of Prior Statement
[2] We first address defendant's contention that the trial
court's failure to redact portions of Barron's statement was
reversible error. As defendant did not identify at trial the
specific portions of the statement that were not competent, we find
defendant failed to properly preserve this issue for appeal.
“In a noncapital case, where portions of a statement
corroborate and other portions are incompetent because they do not
corroborate, the defendant must specifically object to the
incompetent portions.” State v. Harrison, 328 N.C. 678, 682, 403
S.E.2d 301, 304 (1991).
Here, the prosecutor sought to corroborate Barron's testimony
with a prior consistent statement given to Jenny Hyatt (“Deputy
Hyatt”), a deputy sheriff of the Swain County Sheriff's Department.Defendant made only a general objection that the statement was
hearsay and did not move to strike or exclude any portion alleged
to be incompetent. Although defendant was given an opportunity to
conduct a voir dire of Deputy Hyatt, the voir dire did not focus on
whether portions of Barron's statement corroborated his earlier
testimony. Defendant later renewed his motion to suppress the
statement, but did not object to specific portions of the statement
as it was read. Additionally, defendant concedes that portions of
Barron's prior consistent statement do corroborate Barron's
testimony. Because defendant failed to specifically object to the
incompetent portions of Barron's prior consistent statement, we
find this issue was not properly preserved for appeal.
B. Limiting Instruction as to Prior Statement
[3] We next address defendant's contention that the trial
court's failure to give the requested limiting instruction was
reversible error. We agree.
Before reaching the substantive issue, we address the State's
contention that defendant failed to properly request the limiting
instruction. Following Deputy Hyatt's reading of Barron's
statement and the State's request that the statement be submitted
into evidence for corroborative purposes, defendant's attorney
stated: “Your Honor, I would like a limited instruction rule of
the Court that it doesn't corroborate.”
Although we note that defendant's statement was awkwardly
worded, it was nonetheless sufficiently clear that defendant's
request was for a limited instruction regarding corroboration byprior statement. The limiting instruction for corroboration by
prior statement, as set out in 1 N.C.P.I.--Crim. 105.20 (1986),
states in pertinent part:
When evidence has been received tending
to show that at an earlier time a witness made
a statement which may be consistent . . . with
his testimony at this trial, you must not
consider such earlier statement as evidence of
the truth of what was said at that earlier
time because it was not made under oath at
this trial. If you believe that such earlier
statement was made, and that it is consistent
. . . with the testimony of the witness at
this trial, then you may consider this,
together with all other facts and
circumstances bearing upon the witness's
truthfulness, in deciding whether you will
believe or disbelieve his testimony at this
trial.
Id. (emphasis added). Thus, as the language of the requested
instruction itself directs the jury to make a finding as to whether
the statement is corroborative when considering a prior statement,
we find defendant's request, ruled on by the trial court, to have
properly preserved this issue for our review.
“Evidence of prior consistent statements is admissible for the
limited purpose of affirming a witness's credibility, and upon
proper request a defendant is entitled to both a limiting
instruction at the time of its admission and a jury instruction as
to its limited purpose.” State v. Ferebee, 128 N.C. App. 710, 715,
499 S.E.2d 459, 462 (1998). “Furthermore, 'prior consistent
statements' are admissible only when they are in fact consistent
with the witness's trial testimony.” State v. Stills, 310 N.C.
410, 415, 312 S.E.2d 443, 447 (1984) (citations omitted). However,“an instruction limiting admissibility of testimony to
corroboration is not required unless counsel specifically requests
such an instruction.” State v. Smith, 315 N.C. 76, 82, 337 S.E.2d
833, 838 (1985). “Defendant was entitled, upon request, to have
the evidence limited to the purpose for which it was competent.”
State v. Erby, 56 N.C. App. 358, 361, 289 S.E.2d 86, 88 (1982)
(holding that the trial court committed reversible error when it
denied defendant's request for a limiting instruction and failed to
give the requested limiting instruction).
Here, defendant objected to the reading of the prior statement
by Deputy Hyatt on the grounds that the statement contained
information which was not corroborative. Without examining the
statement, the trial court overruled the objection, and allowed
Deputy Hyatt to read the entire statement to the jury. After the
statement was admitted into evidence, defendant asked the trial
judge to give a limiting instruction. The motion for a limiting
instruction was denied and no limiting instruction was given to the
jury that Barron's prior statement was introduced solely for the
purpose of corroborating his trial testimony and not as substantive
evidence.
An examination of the record shows that Barron's testimony was
the only evidence presented to establish the elements of the charge
of conspiracy to commit murder. Further, Barron's testimony, as
discussed supra, was critical in establishing the charge of
stalking. Finally, Barron's testimony as to defendant's intentions
to harm Tabitha and her family provided evidence as to defendant'sintent in the charge of carrying concealed weapons. Thus, Barron's
credibility was critical in establishing evidence for each of
defendant's charges. We also note that during jury deliberations,
the jury specifically requested and was permitted to review the
entire contents of the prior consistent statement with no limiting
instruction as to the competency of the evidence.
Defendant was entitled, upon request, to have evidence
concerning Barron's prior consistent statement limited to a purpose
for which it was competent, that is, corroboration. See State v.
Norkett, 269 N.C. 679, 681, 153 S.E.2d 362, 363 (1967) (holding
failure to give requested limiting instruction that evidence was
competent only as to the defendant's credibility as a witness was
prejudicial error requiring new trial); Erby, 56 N.C. App. at 361,
289 S.E.2d at 88. We find, therefore, that the trial court's
denial of defendant's request for a limiting instruction
constitutes reversible error.
As we find prejudicial error in the trial court's denial of a
limiting instruction as to a prior statement offered for
corroborative purposes, we reverse and remand for a new trial on
all charges. We therefore do not reach defendant's final
contention regarding errors in sentencing.
New trial.
Judges HUDSON and GEER concur.
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