An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 21 June 2005
STATE OF NORTH CAROLINA
v. No. 02 CRS 57143
02 CRS 57144
ANTRON JAVON BRODIE, 02 CRS 57145
Appeal by defendant from judgments entered 26 June 2003 by
Judge Thomas D. Haigwood in Wayne County Superior Court. Heard in
the Court of Appeals 6 December 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Clinton C. Hicks, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Matthew D. Wunsche, for defendant-appellant.
Defendant Antron Javon Brodie appeals from the judgments and
sentences imposed for first degree burglary, second degree
kidnapping, first degree rape, and first degree sex offense. We
conclude that no error occurred with respect to the burglary, rape,
and sex offense convictions. Because we hold that the trial
court's jury instruction as to the kidnapping charge was not
supported by the evidence, we order a new trial on that charge.
The State's evidence tended to show the following facts. At
about 2:30 a.m. on 30 July 2002, defendant knocked on the door of
Benita Hamilton's apartment. Ms. Hamilton lived in the apartmentwith her two children, ages three and one. Although Ms. Hamilton
had seen defendant before, she did not really know him. Defendant
wanted to enter the apartment, but Ms. Hamilton barred the doorway
with her arm and asked him to leave several times. Ultimately,
defendant ducked under her arm, walked in, and headed for the
kitchen. Ms. Hamilton eventually followed and asked defendant
several times to leave, but he refused. When she pulled a kitchen
knife out of a drawer, defendant removed a gun from his pocket and
ordered Ms. Hamilton to put the knife down or he would shoot her.
After she complied, defendant grabbed her around the neck with
one arm and around the waist with the other arm and pulled her
upstairs to her bedroom. He threw her down on the mattress and
tried to pry her legs apart although she struggled to keep them
closed. He was ultimately able to overpower her, spread her legs,
and insert a finger into her vagina. After Ms. Hamilton pleaded to
check on her children, defendant accompanied her downstairs where
the children were, but then forced her to return back upstairs. At
that point, he forced her to engage in sexual intercourse.
During this act, Ms. Hamilton's older son wandered into the
room looking for his mother. Defendant asked if there was another
place upstairs where they could go. When Ms. Hamilton said there
was nothing in the other room, he directed her to place the child
in the corner of the mattress and continued to have forced
intercourse with her.
When defendant left Ms. Hamilton's apartment at approximately
5:00 a.m., he threatened that he would "finish" her if she toldanyone what had happened and instructed her to meet him at a park
the following evening. Instead, Ms. Hamilton contacted her social
worker. When police officers went to apprehend defendant, he tried
After defendant was arrested, he gave the police a written
statement in which he admitted to being at Ms. Hamilton's home, to
having had sex with her, and to bringing a gun with him. Defendant
claimed the sex was consensual and at trial offered evidence
through other witnesses that Ms. Hamilton had spoken with defendant
multiple times and had told a neighbor that defendant did not rape
her, but rather she had "messed with him" and did not want her
boyfriend to find out about it.
Defendant was indicted with (1) first degree burglary, (2)
first degree kidnapping, (3) first degree rape, and (4) first
degree sex offense. Defendant was convicted of all four charges on
26 June 2003. The trial court consolidated the charges of first
degree rape and first degree sexual offense into one judgment and
entered a sentence of 260 to 321 months. Pursuant to State v.
Belton, 318 N.C. 141, 165, 347 S.E.2d 755, 769 (1986), the trial
court arrested judgment on the charge of first degree kidnapping,
entered judgment on second degree kidnapping and first degree
burglary, and imposed a consecutive sentence of 77 to 102 months on
During the testimony of an investigating officer, the State
introduced into evidence the handwritten statement provided bydefendant following his arrest. In that statement, defendant
mentioned that Ms. Hamilton's child had entered the bedroom while
the two were engaging in sexual intercourse. Defendant wrote in
his statement: "I said that I'm not going to do that while he in
here[;] she said so, like he haven't seen it before." The State's
exhibit, however, redacted that sentence. Defendant contends that
the trial court erred in admitting, over his objection, the
redacted version of his statement.
The trial court allowed the redaction based on Rule 412 of the
Rules of Evidence. Rule 412 is "a codification of the 'rule of
relevance' as it pertains to issues in a rape case." State v.
, 306 N.C. 692, 697, 295 S.E.2d 453, 456 (1982). It
provides that evidence of sexual behavior of the complainant is
irrelevant unless it falls within one of the four categories listed
in the rule. Specifically, Rule 412 states in the portion
pertinent to this appeal:
(a) As used in this rule, the term
"sexual behavior" means sexual activity of the
complainant other than the sexual act which is
at issue in the indictment on trial.
(b) Notwithstanding any other provision
of law, the sexual behavior of the complainant
is irrelevant to any issue in the prosecution
unless such behavior:
(1) Was between the complainant and
the defendant; or
. . . .
(3) Is evidence of a pattern of
sexual behavior so distinctive
and so closely resembling the
defendant's version of the
alleged encounter with thecomplainant as to tend to prove
that such complainant consented
to the act or acts charged or
behaved in such a manner as to
lead the defendant reasonably
to believe that the complainant
consented . . . .
N.C. Gen. Stat. § 8C-1, Rule 412 (2003).
Defendant first argues that Rule 412 is inapplicable because
the victim's statement does not involve "sexual behavior," as
defined in Rule 412(a). In support of this contention, defendant
cites State v. Guthrie, 110 N.C. App. 91, 428 S.E.2d 853, disc.
review denied, 333 N.C. 793, 431 S.E.2d 28 (1993). In Guthrie, the
State offered into evidence several letters in which the victim
promised to do acts of a sexual nature for defendant if he would
take her to school or lend her money; the victim testified the
letters were in fact dictated by defendant. In response, the
defense attempted to introduce another letter that the victim had
voluntarily written to a school friend asking him to have sex with
her. This Court ruled that Rule 412 did not require exclusion of
the letter offered by the defense because the letter did not
constitute "evidence of sexual activity . . . . Instead, we have
evidence of language." Id. at 93, 428 S.E.2d at 854.
In Guthrie, the victim's statement proposed future sex with a
third party; it necessarily did not reflect past sexual conduct.
In this case, by contrast, the statement suggested that Ms.
Hamilton had previously engaged in sex in front of her child. It,
therefore, referred to "sexual activity of the complainant other
than the sexual act which is at issue in the indictment on trial," Rule 412(a), and fell within the scope of the protection of the
rule. While defendant contends on appeal that the statement is
subject to multiple constructions, only one of which involved prior
sexual activity by the victim, he did not make this argument at
(See footnote 1)
To the extent defendant contends that Guthrie removes
statements of the victim regarding her prior sexual activity from
the scope of Rule 412, that construction of Guthrie would conflict
with other decisions of this Court. See, e.g., State v. Rhinehart,
68 N.C. App. 615, 618, 316 S.E.2d 118, 121 (1984) (trial court did
not err in redacting from complainant's written statement a
sentence indicating that she had had intercourse with her boyfriend
earlier in the evening of the alleged offense by defendant); State
v. Shoffner, 62 N.C. App. 245, 248, 302 S.E.2d 830, 832 (1983)
(trial court did not err in excluding testimony that the victim
told a witness "that she had been caught at some hotel" with
Defendant argues in the alternative that even if the redacted
statement is considered evidence of past sexual activity of the
victim, the statement nonetheless should have been admitted under
Rule 412(b)(3) as evidence of "a pattern of sexual behavior so
distinctive and so closely resembling the defendant's version ofthe alleged encounter with the complainant as to tend to prove that
such complainant consented to the act or acts charged or behaved in
such a manner as to lead the defendant reasonably to believe that
the complainant consented . . . ." Since defendant did not argue
Rule 412(b)(3) at trial, but instead referred the court only to
Rule 412(b)(1), he cannot on appeal offer it as a basis for
reversing the trial court. Our Supreme Court "has long held that
where a theory argued on appeal was not raised before the trial
court, 'the law does not permit parties to swap horses between
courts in order to get a better mount'" in the appellate court.
State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting
Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)).
Defendant's remaining arguments challenge the trial court's
jury instructions regarding burglary and kidnapping. Because
defendant did not make any objection to these instructions at
trial, he argues those instructions constitute plain error under
Rule 10(c)(4) of the Rules of Appellate Procedure. "Plain error
includes error that is a fundamental error, something so basic, so
prejudicial, so lacking in its elements that justice cannot have
been done; or grave error that amounts to a denial of a fundamental
right of the accused; or error that has resulted in a miscarriage
of justice or in the denial to appellant of a fair trial."
, 342 N.C. 580
, 586, 467 S.E.2d 28, 32 (1996). Not every
failure to give a proper instruction constitutes plain error.
Instead, in deciding whether a defect in the jury instructionsconstitutes plain error, "the appellate court must examine the
entire record and determine if the instructional error had a
probable impact on the jury's finding of guilt." State v. Odom
307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983).
A. First Degree Burglary
Defendant first assigns error to the trial court's instruction
that in order to find defendant guilty of first degree burglary,
the jury must find that "at the time of the breaking and entering
the Defendant intended to commit kidnapping or rape." Defendant
contends that the trial court should not have referred to both
kidnapping and rape because the State offered no evidence to
suggest that defendant had the intent to kidnap Ms. Hamilton at the
time he ducked under her outstretched arm and walked into her home.
Intent is a mental attitude that can seldom be proved by
direct evidence, but rather must ordinarily be inferred from a
defendant's acts and conduct. State v. Wright
, 127 N.C. App. 592,
597, 492 S.E.2d 365, 368 (1997), disc. review denied
, 347 N.C. 584,
502 S.E.2d 616 (1998). Further, "[t]he intent with which the
accused broke and entered may be found by the jury from evidence as
to what he did within the house." State v. Mangum
, 158 N.C. App.
187, 194, 580 S.E.2d 750, 755, disc. review denied
, 357 N.C. 510,
588 S.E.2d 378 (2003).
According to the State's evidence, defendant went to Ms.
Hamilton's house carrying a gun and with the intention of having
sex with her. The gun would permit a jury reasonably to infer thatdefendant intended to force Ms. Hamilton to engage in sex.
Further, defendant's actions once inside the house _ insistence
that the sexual acts occur upstairs _ permit the inference that
defendant intended to remove Ms. Hamilton from the first floor to
the second floor in order to rape her. See id.
at 195, 580 S.E.2d
at 756 (evidence that the defendant pushed the victim down the
hallway into her bedroom prior to attempting to rape her was
sufficient evidence to support a conviction for kidnapping). From
this evidence, a reasonable jury could conclude that defendant
broke into the residence with the intent to forcefully remove Ms.
Hamilton upstairs and thus kidnap her. The trial court's
instruction regarding burglary was, therefore, proper.
B. First Degree Kidnapping
Defendant next assigns plain error to the trial court's
instruction that, in order to find defendant guilty of first degree
or second degree kidnapping, the jury must find "that the Defendant
confined or restrained or removed that person for the purpose of
facilitating his commission of burglary as I have previously
defined burglary for you." Defendant contends that the evidence
did not support the giving of this instruction. We agree.
Under N.C. Gen. Stat. § 14-39(a) (2003), a defendant is guilty
of kidnapping if he "shall unlawfully confine, restrain, or remove
from one place to another, any other person 16 years of age or over
without the consent of such person" for one of eight itemized
purposes, including "(2) [f]acilitating the commission of any
felony . . . ." For the defendant to be convicted of first degreekidnapping, the State must also prove one of three additional
elements: that the person kidnapped was (1) not released in a safe
place, (2) was seriously injured, or (3) sexually assaulted. N.C.
Gen. Stat. § 14-39(b). In the absence of one of the elements set
forth in N.C. Gen. Stat. § 14-39(b), the defendant is guilty of
second degree kidnapping. Id. See State v. Brooks
, 138 N.C. App.
185, 192, 530 S.E.2d 849, 854 (2000) ("Our Supreme Court has long
held that in order to properly indict a defendant for first degree
kidnapping, the State must allege both the essential elements of
kidnapping as provided in N.C. Gen. Stat. § 14-39(a) and at least
one of the elements of first degree kidnapping listed in N.C. Gen.
Stat. § 14-39(b).").
In this case, the trial court instructed the jury that
defendant could be found guilty of kidnapping if it found that
defendant confined, restrained, or removed Ms. Hamilton "for the
purpose of facilitating his commission of burglary." The court did
not instruct the jury as to any other possible purpose. The
question presented on appeal is whether evidence existed to support
a finding that the kidnapping was for the purpose of committing a
"The elements of first-degree burglary are: (1) breaking, (2)
and entering, (3) at night, (4) into the dwelling, (5) of another,
(6) that is occupied, (7) with the intent to commit a felony
therein." State v. Lucas
, 353 N.C. 568, 581, 548 S.E.2d 712, 721-
22 (2001). In this case, the burglary was complete when defendant
ducked under Ms. Hamilton's arm and entered her home without herconsent. The kidnapping did not occur until defendant grabbed Ms.
Hamilton in the kitchen and removed her upstairs. In short, the
kidnapping took place after
the burglary. Logically, as this Court
has previously recognized, the felony that is supposedly the
purpose for the kidnapping must occur after
, 138 N.C. App. at 192, 530 S.E.2d at 854 ("[I]n order for
the State to prove kidnapping [for the purpose of facilitating the
commission of a felony], the evidence at trial must have shown that
defendant kidnapped [the victim] before
he shot her.").
The State does not contend otherwise. Instead, the State
focuses on the kidnapping indictment, which stated in pertinent
part that "Antron Javon Brodie unlawfully, willfully, and
feloniously did kidnap Benita Hamilton . . . for the purpose of
facilitating the commission of a felony, to wit: burglary. Benita
Hamilton was sexually assaulted." The State argues correctly that
the indictment was not required to specify the actual felony
intended to be committed and that the indictment's reference to
burglary is harmless surplusage. See State v. Freeman
, 314 N.C.
432, 435-36, 333 S.E.2d 743, 745-46 (1985) (holding that language
in a kidnapping indictment following the words "committing a
felony" is "mere harmless surplusage and may properly be
disregarded in passing upon its validity"). See also State v.
, 162 N.C. App. 419, 433, 590 S.E.2d 898, 908 ("Our Supreme
Court has held that burglary and kidnapping indictments need not
allege the specific felony a defendant intended to commit at thetime of the criminal act."), disc. review denied
, 358 N.C. 378, 598
S.E.2d 138 (2004). The indictment is not, however, at issue.
Although the language in the indictment regarding burglary may
have been surplusage _ which would allow the State to prove and
argue another felony as the reason for the kidnapping _ the trial
court only instructed the jury as to a single felony: burglary.
(See footnote 2)
We cannot uphold the jury verdict based on a theory _ even if
supported by the evidence _ upon which the jury was not instructed.
The trial instruction as to kidnapping constitutes plain error.
See State v. Tucker
, 317 N.C. 532, 540, 346 S.E.2d 417, 422 (1986)
("[I]t would be difficult to say that permitting a jury to convict
a defendant on a theory not legally available to the state because
it is . . . not supported by the evidence is not plain error even
under the stringent test required to invoke that doctrine."); State
, 315 N.C. 738, 749, 340 S.E.2d 401, 408 (1986) ("It is
generally prejudicial error for the trial judge to permit a jury to
convict upon a theory not supported by the evidence."). Defendant
must, therefore, receive a new trial on the kidnapping charge.
We hold that there was no error in defendant's convictions for
first degree rape, first degree sexual offense, and first degree
burglary. With respect, however, to the conviction of second
degree kidnapping, we reverse and order a new trial.
No error in part and new trial in part.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
Defendant's trial counsel appeared to agree that the
statement referenced prior sexual activity by the victim, but
argued that the activity could have been with defendant and,
therefore, would be admissible under Rule 412(b)(1). Defendant,
however, never offered any evidence of prior sexual contact between
himself and the victim.
While the State points to language in the instructions
referencing sexual assault, the trial court was clear in its
instructions that the existence of a sexual assault was relevant
only with respect to the question whether defendant was guilty of
first or second degree kidnapping.
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