An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 ure.

NO. COA04-1012

NORTH CAROLINA COURT OF APPEALS

Filed: 7 June 2005

STATE OF NORTH CAROLINA

     v .                          Guilford County
                                 Nos. 03 CRS 77344-45,
JEREMY CHERON GIBSON                     77348-49, 77352, 77459, 77461-64, 77466-69, 77597- 98, 77602
                                    

    Appeal by defendant from judgments entered 11 August 2003 by Judge Michael E. Helms in Guilford County Superior Court. Heard in the Court of Appeals 9 March 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Leonard G. Green, for the State.

    Ligon and Hinton, by Lemuel W. Hinton, for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Jeremy Cheron Gibson appeals after a jury found him guilty of six counts of robbery with a dangerous weapon, three counts of first-degree burglary, and eight counts of first-degree kidnapping. The State's evidence tended to show that defendant and Thomas Dorian Nelson first met in 1997 and became friends. Defendant lived with his mother.
    At some point, defendant's mother filed papers to evict her son. Defendant and Nelson concocted a plan to acquire some “fast money.” The plan involved breaking into homes and stealing money and property.     Defendant and Nelson began riding around in neighborhoods looking for possible targets. When they agreed on a particular house, the men executed the following plan. They would park Nelson's Buick La Sabre on the side of the road a short distance from the house. The men would walk to the house carrying handguns and plastic flex ties. The men hoped to use the ties to restrain the victims who were in the home. This would enable the men to escape before the victims could call the police.
    At about 1:00 a.m. on 22 February 2003, Edith Beville was reading in the living room of her home in Guilford County. Beville heard a noise coming from her back bedroom. When she walked into her den, she saw a man, later identified as Nelson, wearing a ski mask and holding a gun. The man pointed a gun at her, opened the door to the den, and allowed defendant to enter. The men asked for money, and Beville gave them $87.00.
    While Nelson stayed in the den with Beville, defendant ransacked the house. Defendant and Nelson took some guns and jewelry. They also tied up Beville with the plastic flex ties, stole her car, and left her tied up in the den. About thirty minutes after defendant and Nelson left the home, Beville freed herself and telephoned her family.
    On 28 February 2003, Donald and Cynthia Hawkes, along with their three children, were living at 4001 Bitternut Trail in Greensboro. On that evening, the Hawkes were hosting Marc and Diane Bishop and their two children because the Bishop family lost power because of an ice storm. At around 11:00 p.m., Marc Bishopand Donald Hawkes were watching television when Hawkes heard a noise at the side door. Two males, later identified as defendant and Nelson, entered the room. They were dressed in dark clothes and ski masks, and each carried a handgun.
    Defendant and Nelson forced the four adults to stay in one bedroom. During the course of the kidnapping and robbery, defendant and Nelson took a money clip containing $85.00, a television, DVD player, and about $30.00-$50.00 from a large jar of change in the kitchen. They also took about $1,000.00 from Cynthia Hawkes, $80.00 from Diane Bishop's purse, some money from Diane Bishop's jeans, and a digital camera and camcorder, and $40.00 from Marc Bishop's wallet.
    Defendant and Nelson used plastic flex ties to restrain the four adults in the bedroom. The men left the home in a vehicle which belonged to the Hawkes family. Within fifteen minutes after defendant and Nelson left, the four adults freed themselves, checked to see if their children were unharmed, and called the police.
    On 4 March 2003, Richard and Sue Hutchinson and Richard's mother, Donna Hutchinson, were living in a home near Pleasant Ridge Road in Guilford County. Around 1:00 a.m., Richard heard his mother and wife screaming. Richard saw a male, later identified as defendant, dressed in dark clothing and a ski mask. Defendant pointed a gun at Richard. Richard Hutchinson gave him about $200.00 from his wallet.         Defendant went to Sue Hutchinson's dresser, removed her purse, and took $200.00. Nelson had been in Donna Hutchinson's bedroom where he took $200.00 and tied her up with plastic flex ties.
    Defendant and Nelson took about eighteen guns. After tying up Richard and Sue Hutchinson, the men continued to search the house for valuables. The men took Sue Hutchinson's car and left. The victims eventually freed themselves and called the police.
    On or about 4 March 2003 at 1:15 a.m., Officer John Shanas of the Guilford County Sheriff's Department came upon a brown 1984 Buick La Sabre that was unoccupied. The car had a white tag in the driver's side window. While Officer Shanas and an assistant were monitoring the vehicle, they received a call about the Hutchinson robbery. The Hutchinsons' home was approximately one block from the location of the vehicle. Officer Shanas was dispatched to the Hutchinson home.
    Officer Robert Elliott of the Guilford County Sheriff's Department went to watch the vehicle that Officer Shanas located earlier. Officer Elliott assembled several other deputies to assist him. Around 11:54 a.m., a white Toyota pulled up behind the Buick. A young black man, who was later identified as Nelson, got into the Buick and drove away.
    Officer Elliott followed Nelson as he drove the Buick around Guilford County. Nelson stopped at Dan Hughes Court and went to his residence in Oakwood Forest Mobile Home Park.
    At about 4:45 p.m., Nelson and defendant left the residence in Nelson's red Cadillac. Around midnight, the police initiated astop of the Cadillac. At the time, Nelson was driving, and defendant was a passenger.   Officer Elliott recognized defendant as someone he had seen during his surveillance of Nelson.
    The police searched the vehicle and found a shredder, scanner, and a number of other items stolen from the Hutchinsons. The police then obtained a search warrant for Nelson's residence. They found various items from the robberies in Nelson's mobile home.
    Pursuant to a plea agreement, Nelson testified for the State and described the planning and commission of the crimes.
    Defendant's mother, Jacqueline Gibson, testified that defendant was home on the days and times of the break-ins and could not have been culpable.
    After hearing all of the evidence, the jury found defendant guilty as charged. The trial judge sentenced defendant to a minimum term of 760 months and a maximum term of 979 months in prison. Defendant appeals.
    On appeal, defendant argues that the trial court erred by (1) allowing evidence of defendant's character, (2) permitting the State to make a reference to defendant's decision to remain silent, (3) refusing to dismiss the charges, (4) declining to instruct the jury on second-degree kidnapping, (5) instructing the jury on a theory that was different from the allegations in the indictments, and (6) infringing on defendant's right to a fair trial. We disagree and conclude that defendant received a fair trial free from reversible error.

I. Character Evidence
    Defendant argues that the trial court committed plain error by allowing the State to elicit evidence of defendant's character. Pursuant to N.C. R. App. P. 10(c)(4) (2005), a question which has not been preserved through an objection at a criminal trial may still be the basis of an assignment of error if the trial judge has committed plain error. Our Supreme Court has noted:
        [T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “'resulted in a miscarriage of justice or in the denial to appellant of a fair trial'” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). The rule applies in truly exceptional cases, and the appellate court must be convinced that absent the error, the jury probably would have reached a different result. Id. at 661, 300 S.E.2d at 378-79.
    Defendant argues that the trial court erred in allowing the State to elicit improper character evidence. During the State's direct examination of Nelson, the following exchange occurred:        Q. Where did you go from there?

        A. From there I went home. Well, I went to the ABC store and I went home. After I went home, came back out because Jeremy had a P.O. that came by later. So I went back by his house to pick him up and we came back to my crib.

        Q. Why is it that you went around to pick up Jeremy?

        A. Because he had to go home to be there for his P.O. to be there.

    Defendant claims that the reference to defendant's “P.O.” or probation officer was improper character evidence. This argument is unpersuasive. The prosecutor never asked the witness about defendant's character, criminal record, or probation officer. Thus, the State did not make a deliberate attempt to elicit improper character evidence. There was no showing that jurors or members of the general public recognize that “P.O.” is an abbreviation for probation officer. Defense counsel's failure to object or move to strike also suggests that the reference to “P.O.” was insignificant.
    Even if we assume arguendo that the trial court did err in allowing this testimony, the mistake did not amount to plain error. In this case, there was strong evidence of defendant's guilt, including extensive testimony from Nelson describing the planning and execution of the crimes. Thus, there was no showing that absent the alleged error, the jury would have reached a different result. This is not one of the exceptional cases in which theplain error rule would entitle defendant to a new trial. We overrule this assignment of error.

II. Right to Remain Silent
    Defendant contends that the trial court committed plain error by allowing a witness to comment on defendant's decision to remain silent. The Fifth Amendment to the United States Constitution and Article I, § 23 of the North Carolina Constitution confer the right to remain silent. State v. Ward, 354 N.C. 231, 266, 555 S.E.2d 251, 273 (2001). “A defendant's decision to remain silent following his arrest may not be used to infer his guilt, and any comment by the prosecutor on the defendant's exercise of his right to silence is unconstitutional.” Id. A prosecutor's comment is improper if the jury would naturally and necessarily understand the statement to be a comment on the right to remain silent. Id.
    In the present case, the following exchange occurred between the prosecutor and Detective David Jones:
        Q. Can you describe for the members of the jury something of his demeanor, his conduct?

        A. Mr. Gibson was, I guess, for lack of a better word, excitable, wasn't real cooperative. We advised him.

    At that point, defendant's attorney objected, and the trial court instructed the jury to disregard the comments describing defendant as uncooperative.
    We do not believe that defendant's right to remain silent was used to infer his guilt. Neither the prosecutor nor the witness made any direct reference to defendant's right to remain silent. Furthermore, describing defendant as “excitable” is not problematic because it is not something the jury would naturally and necessarily understand to be a comment on defendant's right to remain silent. We overrule this assignment of error.
III. Motion to Dismiss
    Defendant argues that the trial court erred in denying his motion to dismiss. In ruling on a motion to dismiss, the trial judge must consider the evidence in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). The Court must find that there is substantial evidence of each element of the crime charged and of the defendant's perpetration of such crime. Id. “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id.
    Kidnapping is the unlawful confinement, restraint, or removal of a person from one place to another without the individual's consent and for the purpose of committing certain acts. N.C. Gen. Stat. § 14-39(a) (2003). A defendant is guilty of first-degree kidnapping if the victim “was not released by the defendant in a safe place or had been seriously injured or sexually assaulted [.]” N.C. Gen. Stat. § 14-39(b)(2003). “If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree[.]” Id.    Defendant contends that there was insufficient evidence of first-degree kidnapping because there was evidence showing that the victims were released in a safe place, the home. However, this argument is without merit because the evidence was uncontradicted that defendant and Nelson left the victims tied up. Therefore, they were never released in a safe place or at any place at all. We conclude that there was substantial evidence of every element of first-degree kidnapping and of defendant's perpetration of the crime.
    Defendant also claims that the trial judge should have dismissed several counts of robbery with a dangerous weapon. The crime of robbery with a dangerous weapon is codified at N.C. Gen. Stat. § 14-87 (2003). The elements of the offense include:
        (1) the unlawful taking or attempted taking of personal property from another; (2) the possession, use or threatened use of “firearms or other dangerous weapon, implement or means”; and (3) danger or threat to the life of the victim.

State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d 367, 373 (1978).
    Defendant argues that he should have been charged with two counts of robbery with a dangerous weapon instead of four. He claims that he should have been charged with one count for taking the property of Donald and Cynthia Hawkes and one count for taking the property of Mark Bishop and Diane Bishop.
    The resolution of this matter depends upon the application of the same evidence test: “Whether the facts alleged in the second indictment, if given in evidence, would have sustained a convictionunder the first indictment . . . or whether the same evidence would support a conviction in each case.” State v. Hicks, 233 N.C. 511, 516, 64 S.E.2d 871, 875 (citations omitted), cert. denied, 342 U.S. 831, 96 L. Ed. 629 (1951). Where there are two distinct victims and the perpetrator takes property from two separate owners, the acts constitute two separate offenses of armed robbery. State v. Gibbs, 29 N.C. App. 647, 650, 225 S.E.2d 837, 838-39 (1976). This Court has emphasized that the marital relationship of the victims does not lead to a different result. State v. Wheeler, 70 N.C. App. 191, 194-95, 319 S.E.2d 631, 634 (1984) (noting that a defendant can be convicted of two counts of armed robbery where the victims were married and each victim was deprived of his or her own personal property), disc. review denied, 312 N.C. 624, 323 S.E.2d 925 (1984), cert. denied, 316 N.C. 201, 341 S.E.2d 583 (1986).
    In the present case, the State's evidence tended to show that defendant and Nelson took Donald Hawkes' money clip containing $85.00, $1,000.00 from Cynthia Hawkes that was a gift from her father which was hidden away without her husband's knowledge, $80.00 from Diane Bishop's purse, money from her jeans, and her digital camera and camcorder. Finally, the men took about $40.00 from Marc Bishop's wallet. Although defendant and Nelson forced the victims into one room, they threatened and took personal property from each individual. Therefore, charging defendant withfour counts of robbery with a dangerous weapon was appropriate. We overrule this assignment of error.   (See footnote 1) 
IV. Instruction on Second-Degree Kidnapping     
    Defendant argues that the trial court erred by denying his request for an instruction on second-degree kidnapping. Where there is evidence of a defendant's guilt of a lesser included offense, defendant is entitled to have the question submitted to the jury. State v. Summitt, 301 N.C. 591, 596, 273 S.E.2d 425, 427, cert. denied, 451 U.S. 970, 68 L. Ed. 2d 349 (1981). However, where all the evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the crime charged, the trial court is not required to submit a lesser included offense to the jury. State v. Harvey, 281 N.C. 1, 13-14, 187 S.E.2d 706, 714 (1972).
    
Defendant contends that he was entitled to an instruction on second-degree kidnapping because there was evidence showing that the victims were released in a safe place, the home. However, as we have indicated, this argument is without merit because theevidence was uncontradicted that defendant and Nelson left the victims tied up. Therefore, they were never released in a safe place or at any place at all. Since all of the evidence was positive as to each element of first-degree kidnapping, the trial judge did not have to instruct on the lesser included offense of second-degree kidnapping. We overrule this assignment of error.
V. Instructing the Jury on a Different Theory
                    
    Defendant argues that the trial court committed plain error by instructing the jury on a theory different from the one alleged in the indictments. Our courts have established that it is generally prejudicial for the judge to allow a jury to convict based on some abstract theory not supported by the indictment. State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980). To evaluate this contention, we must look at the indictments and the trial judge's instructions to the jury.
    The three indictments against defendant for kidnapping Richard Hutchinson, Sue Hutchinson, and Donna Hutchinson alleged that defendant kidnapped these people “for the purpose of facilitating the commission of a felony, First Degree Burglary, Felony Larceny[,] and Larceny of Motor Vehicle.”
    The four indictments against defendant for the kidnapping of Donald Hawkes, Cynthia Hawkes, Diane Bishop, and Marc Bishop alleged that defendant kidnapped these individuals “for the purpose of facilitating the commission of a felony, Armed Robbery and First Degree Burglary.”     Finally, the indictment against defendant for the kidnapping of Edith Beville alleged that defendant kidnapped her “for the purpose of facilitating the commission of a felony, to wit: First Degree Burglary, Armed Robbery[,] and Larceny of a Motor Vehicle.”     In summary, the indictments charged defendant with kidnapping several people for the purpose of facilitating the commission of various felonies; each felony involved some type of larceny.
    When instructing the jury, the trial judge explained that larceny is
        the taking and carrying away of property which belongs to another, without the consent of the owner, with the intent to permanently deprive the owner of the property, the taker knowing that he was not entitled to take it.

    In his instructions on first-degree kidnapping, the trial judge explained the third element in this way:
        Third, that the defendant restrained that person for the purpose of facilitating his and or another person's commission of and or flight after committing larceny which has already been defined.

(Emphasis added.)

    The general purpose of the kidnappings, as illustrated in the indictments and the trial judge's instructions, is basically the same. Defendant kidnapped the victims to commit some form of larceny against each of them.
    The only possible deviation between the indictments and the instructions is the reference to flight. However, this reference is not problematic because flight is consistent with the elements of larceny. In the context of larceny, the taking and carryingaway of another person's property is generally done in a hurried manner by rapidly fleeing from the scene of the crime.
    We also disagree with defendant's claim that there was no evidence showing that he committed the crimes for the purpose of facilitating his flight. Defendant and Nelson tied up their victims to prevent them from calling the police. Further, while the victims were restrained, defendant and Nelson were able to flee from the scene.
    Under these circumstances, we cannot conclude that the trial judge's reference to flight was erroneous. Even if we assume that the reference was erroneous, the mistake would not amount to plain error. Defendant has not shown that absent the alleged error, the jury would have reached a different result. We overrule this assignment of error.

VI. Right to a Fair Trial
    Defendant has raised a number of arguments suggesting that the trial judge impeded his right to a fair trial. We will consider each in turn.
    Defendant criticizes the trial court for allowing the jury to begin deliberations at 7:20 p.m. He speculates that because deliberations began so late in the day, the jury could infer that the matter did not require careful consideration. We have found nothing in the record to support this assertion. In fact, the following statement reveals that the trial court did not want the jury to rush to judgment:         The record may so reflect and the [c]ourt intends to allow the jury to deliberate for 45 minutes to an hour. They may come up with something. If they haven't done anything, we'll suspend and come back in the morning and let them continue with their deliberations.

    Defendant also suggests that the trial judge improperly intervened during the questioning of witnesses. At one point, the trial judge criticized defendant for spending time on evidence of questionable relevance.
    Pursuant to N.C. Gen. Stat. § 8C-1, Rule 611(a) (2003):
        The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

    “The conduct of the examination is largely in the control of the trial judge[.]” 1 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence § 168 (6th ed. 2004) (emphasis added).
    The trial judge acted appropriately in the present case. His decision to control the mode of interrogation was designed to make the presentation effective for the ascertainment of the truth and avoid needless consumption of time. We conclude that the trial judge did not err through his conduct during the questioning of witnesses.
    Finally, defendant argues that the trial judge made an improper comment and should have excluded certain testimony. Diane Bishop testified that on the night of the robbery, she had been reading a book about a man who was on death row for killing threepeople in a robbery. In response, the trial judge stated, “Interesting reading just before you go to bed.” At that time, defendant's attorney objected. However, the attorney did not state grounds for the objection and never made a motion to strike the witnesses's testimony.
     To preserve a question for appellate review, a party must make an objection and obtain a ruling from the trial court. N.C. R. App. P. 10(b)(1) (2005). Additionally, even if defendant objects to a question asked or testimony received, defendant waives the issue if he fails to make a motion to strike the testimony. State v. Barton, 335 N.C. 696, 709-10, 441 S.E.2d 295, 301-02 (1994). In the present case, defendant should have received a specific ruling on the objection. Additionally, he should have made a motion to strike the testimony. Under these circumstances, defendant has failed to preserve this issue for appellate review. We overrule this assignment of error.
    After careful consideration of the transcript, records, briefs, and arguments of the parties, we conclude that defendant received a fair trial free from reversible error.
    No error.
    Judges HUNTER and LEVINSON concur.
    Report per Rule 30(e).     


Footnote: 1
     Defendant claims that the indictments are inadequate because they list the same pieces of property for each spouse. “If when stripped of nonessential words, the indictment or warrant is sufficient to charge the offense, it is sufficient[.]” State v. Muskelly, 6 N.C. App. 174, 176, 169 S.E.2d 530, 532 (1969). “The use of superfluous words in a bill of indictment should be disregarded.” Id. In this case, the indictments are sufficient to charge defendant with four counts of robbery with a dangerous weapon. There were four distinct victims, and each victim was deprived of his or her own personal property. To the extent that some pieces of property were incorrectly listed on one spouse's indictment, those words are superfluous and can be disregarded.

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