An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1358


Filed: 16 August 2005

STATE OF NORTH CAROLINA                    Davidson County
                                    Nos. 03CRS8923-24,
v .                                     03CRS54085,
                                        54087, 54089

    Appeal by defendant from judgment entered 1 April 2004 by Judge Kimberly S. Taylor in Davidson County Superior Court. Heard in the Court of Appeals 7 June 2005.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Tina A. Krasner, for the State.

    James N. Freeman, Jr. for defendant-appellant.

    HUNTER, Judge.

    Eric Bernard McNeair (“defendant”) appeals from a judgment consistent with a jury verdict of guilty as to first degree kidnapping, first degree burglary, violation of a domestic violence protective order, resisting a public officer, and a plea of no contest to habitual felon status. For the reasons stated herein, we find no error.
    The evidence tends to show that on 25 April 2003, defendant entered the home of Christie Lackey (“Lackey”). Defendant and Lackey had previously been involved in a relationship which began in early 2001, and produced one daughter, born in February 2002. Lackey also had two older children. In 2001, Lackey obtained a domestic violence restraining order against defendant due tophysical abuse and defendant's use of alcohol and crack cocaine. Lackey and defendant continued to see each other after the restraining order was entered. In October 2002, Lackey attempted to end the relationship and told defendant that he could only enter her home to see their daughter, and then only if he was sober.
    In December 2002, Lackey reported defendant twice for violation of the domestic violence restraining order. On both occasions, Lackey testified that defendant would enter her home, stand over her, and begin an argument. If Lackey insisted defendant leave, he would become physically abusive and forcibly prevent her from reaching the telephone to call the police. As a result, Lackey instructed her children to call the police if defendant entered the home and became abusive, and hid a telephone for that purpose.
    On the night of 25 April 2003, Lackey locked the windows and doors to her home, except for a side door previously broken by defendant. Lackey awoke at 4:00 a.m. to find defendant standing over her. Defendant informed Lackey he was not leaving and that he had a gun. Lackey reported smelling alcohol on defendant. Lackey pushed defendant out into the hall. Defendant then pushed Lackey to the ground. After their daughter began crying, Lackey went back into the bedroom to care for her.
    Lackey returned to the living room to find defendant on the couch. Lackey attempted to reach the phone on three occasions, but stopped when defendant asked her what she was doing, because shewas afraid defendant would become violent. She returned to her bedroom to wait until the children awoke.
    At 8:00 a.m. on 25 April 2003, Officer Jeff Hunt (“Officer Hunt”) of the Lexington Police Department responded to a domestic violence call from Lackey's home. Lackey met Officer Hunt when he arrived and told him that she had a restraining order, and defendant was inside the house. Officer Hunt entered and through a window saw defendant running across the backyard in his underwear. Officer Hunt left, but returned after a call that defendant had returned. Officer Hunt found defendant walking down the road, approached defendant, and told defendant he was under arrest. Defendant fled into a nearby field.
    At trial, defendant testified in his own defense. A jury found defendant guilty of first degree kidnapping, first degree burglary, violation of a domestic violence protective order, and resisting a public officer. Defendant entered a plea of no contest to habitual felon status. Defendant's convictions were consolidated and he was sentenced within the presumptive range to a term of 150 to 189 months. Defendant appeals.


    Defendant first contends the trial court erred in allowing testimony as to defendant's prior bad acts, on the grounds that such evidence served only to impugn defendant's character and show his past violent propensity. In a related assignment of error, defendant also contends the trial court erred in instructing thejury it could consider such testimony as evidence of motive. We disagree with both contentions.
    N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003) governs admission of evidence of other crimes, wrongs, or acts, stating:
        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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

Id. Rule 404(b) has been held to be a
        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. Carrilo, 149 N.C. App. 543, 550, 562 S.E.2d 47, 51 (2002) (citation omitted). “[A]s long as evidence of other crimes, wrongs, or acts is relevant to any other fact or issue other than the defendant's propensity to commit the crime for which he is being tried, the evidence is admissible.” Id. at 550, 562 S.E.2d at 51-52.
    “'The existence of a motive is . . . a circumstance tending to make it more probable that the person in question did the act, hence evidence of motive is always admissible where the doing of the act is in dispute.'” State v. Coffey, 326 N.C. 268, 280, 389 S.E.2d 48, 55 (1990) (quoting 1 Henry Brandis, Jr., Brandis on North Carolina Evidence § 83 (3d ed. 1988)). Furthermore, our Supreme Court has specifically noted the relevancy of prior badacts for proof of intent and motive in the context of domestic relations.
        “'In the domestic relation, the malice of one of the parties is rarely to be proved but from a series of acts; and the longer they have existed and the greater the number of them, the more powerful are they to show the state of [the defendant's] feelings.'” Specifically, evidence of frequent quarrels, separations, reconciliations, and ill-treatment is admissible as bearing on intent, malice, motive, premeditation, and deliberation.

State v. Scott, 343 N.C. 313, 331, 471 S.E.2d 605, 616 (1996) (citations omitted).
    “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]” N.C. Gen. Stat. § 8C-1, Rule 403 (2003), see Carrilo, 149 N.C. App. at 550-51, 562 S.E.2d at 52. “Whether or not to exclude evidence under Rule 403 is a matter within the sound discretion of the trial judge. His decision will not be reversed absent an abuse of that discretion.” State v. Bynum, 111 N.C. App. 845, 849, 433 S.E.2d 778, 781 (1993) (citations omitted).
     For a charge of kidnapping, the State must show the defendant had formed the intent to do one of the eight purposes set out in N.C. Gen. Stat. § 14-39 at the time he confined, restrained, or removed the victim. See State v. Moore, 74 N.C. App. 464, 467, 328 S.E.2d 864, 866 (1985). Here, defendant was charged with first degree kidnapping, specifically with “unlawfully confining and restraining [Lackey] without her consent and for the purpose of terrorizing her.”    Motive and intent were at issue in the trial, as defendant denied his intent to terrorize Lackey. The State presented evidence of defendant's prior abusive behavior, repeated violations of 50-B domestic violence orders, past instances of entering Lackey's home uninvited, and threatening her when she attempted to call the police. The record indicates the trial court conducted a voir dire hearing and determined the relevancy of the disputed testimony. The trial court also instructed the jury that such evidence was to be considered for the sole purpose of showing motive, plan or scheme, and opportunity.
    As the evidence was offered for a purpose other then defendant's propensity to commit the crime, and the trial court properly instructed the jury as to the limited use of the evidence, we find no abuse of discretion in the admission of evidence of defendant's prior bad acts.

    Defendant next contends the trial court committed plain error in failing to charge the jury that a hearsay statement could not be considered for any purpose other than corroboration. We disagree.
    A party may not assign error to the trial court's failure to properly instruct the jury when no objection was made at trial. See N.C.R. App. P. 10(b)(2). Here, defendant did not object to the trial court's failure to provide a limiting instruction for corroborating hearsay evidence. Therefore, defendant is only entitled to plain error review.    “'[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[.]”'” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citations omitted). “[E]ven when the 'plain error' rule is applied, '[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.'” Id. at 660-61, 300 S.E.2d at 378 (citation omitted).
    In State v. Demos, 148 N.C. App. 343, 559 S.E.2d 17 (2002), a written out-of-court statement was admitted to corroborate the trial testimony of a witness. Id. at 347, 559 S.E.2d at 20. The Court noted that “[a] witness's unsworn out-of-court statement is admissible to corroborate the witness's sworn testimony in court, provided the statement is consistent with his trial testimony.” Id. The defendant in Demos did not request a limiting instruction when the statement was introduced. Id. at 348, 559 S.E.2d at 21. The Court accordingly reviewed under the plain error standard, holding that as the defendant did not request a limiting instruction and as the evidence was admissible for a proper purpose, “'any error in instructing the jury was not so fundamental as to have a probable impact on the verdict.'” Id. at 349, 559 S.E.2d at 21 (citations omitted).    Here, Officer Hunt read to the jury a prior written statement taken from Lackey on the day of the incident. The contents of the statement substantially corroborated Lackey's testimony at trial. As defendant did not request a limiting instruction and as the evidence was admissible for the proper purpose of corroborating Lackey's trial testimony, we find that the error cannot be said to be so fundamental as to have had a probable impact on the verdict. Id.

    Defendant next contends the trial court erred in failing to allow defendant's motion to dismiss for insufficient evidence. Specifically, defendant contends the State's evidence as to defendant's intent to terrorize Lackey was insufficient to survive a motion to dismiss. We disagree.
    “On a defendant's motion for dismissal on the ground of insufficiency of the evidence, the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id. “'The trial court's function is to determine whether the evidence will permit a reasonable inference that the defendant is guilty of the crimes charged. The determination of the witnesses' credibility is for the jury.'” Id. (citations omitted). “In ruling on a motion to dismiss, 'the trial court must consider theevidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence.'” Id. at 73-74, 472 S.E.2d at 926 (citation omitted).
    The crime of kidnapping may be shown by evidence that the victim was unlawfully confined and that such confinement was for the purpose of terrorizing the person. See N.C. Gen. Stat. § 14-39 (2003). “Terrorizing is defined as 'more than just putting another in fear. It means putting that person in some high degree of fear, a state of intense fright or apprehension.'” State v. Davis, 340 N.C. 1, 24, 455 S.E.2d 627, 639 (1995) (citation omitted). “In determining the sufficiency of the evidence, 'the test is not whether subjectively the victim was in fact terrorized, but whether the evidence supports a finding that the defendant's purpose was to terrorize' the victim.” Id. (citation omitted). “The presence or absence of the defendant's intent or purpose to terrorize [the victim] may be inferred by the fact-finder from the circumstances surrounding the events constituting the alleged crime.” State v. Baldwin, 141 N.C. App. 596, 605, 540 S.E.2d 815, 821 (2000).
    Here, the evidence shows that defendant entered Lackey's home through a broken door at 4:00 a.m. Defendant awakened Lackey, and when asked to leave, told her he had a gun and would kill himself, Lackey, and her children. After a brief scuffle in which defendant held Lackey down and squeezed her arms, Lackey was released to care for their crying child, and defendant went into the living room to lie on the couch. Lackey testified defendant removed the telephone base so that she could not contact the police. When she attemptedon three separate occasions to reach the telephone hidden for emergencies in the living room, defendant questioned her actions and caused her to retreat back to the bedroom, because she believed that he would “jump” on her.
    The evidence in this case, when viewed in the light most favorable to the State, was sufficient to support the kidnapping charge, as a jury could reasonably infer from this evidence that defendant intended to terrorize Lackey. Further, a careful review of the record shows sufficient evidence as to the other offenses to survive a motion to dismiss. Therefore, as the evidence was sufficient as to all charges to reach the jury, we find the trial court properly denied defendant's motion.

    Defendant next contends the trial court committed plain error in sentencing defendant as a habitual felon in violation of the separation of powers. We disagree.
    Defendant acknowledges that this Court has previously addressed the issue of the constitutionality of the Habitual Felons Act. In State v. Williams, 149 N.C. App. 795, 561 S.E.2d 925 (2002), this Court held that “'[o]ur courts have held the procedures set forth in the Habitual Felon Act comport with a criminal defendant's federal and state constitutional guarantees.'” Id. at 802, 561 S.E.2d at 929 (quoting State v. Wilson, 139 N.C. App. 544, 550, 533 S.E.2d 865, 870 (2000)). As we are bound by prior decisions of this Court, we therefore reject defendant'sarguments. See State v. Jones, 358 N.C. 473, 487, 598 S.E.2d 125, 133 (2004).

    Defendant finally contends the trial court committed plain error in sentencing defendant as a habitual felon in violation of his constitutional right to be free from double jeopardy and cruel and unusual punishment.     We disagree.
    Defendant again acknowledges that our courts have previously addressed the issue of the constitutionality of the Habitual Felons Act as to both double jeopardy and cruel and unusual punishment challenges. Our Supreme Court has “reject[ed] outright the suggestion that our legislature is constitutionally prohibited from enhancing punishment for habitual offenders as violations of constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities.” State v. Todd, 313 N.C. 110, 117, 326 S.E.2d 249, 253 (1985). We therefore reject defendant's arguments on this settled point of law.
    As the trial court did not err in admission of evidence for Rule 404(b) purposes or in denying defendant's motion to dismiss, and did not commit plain error in failing to give a limiting instruction as to corroborating evidence, and as defendant's challenges to the Habitual Felon Act are without merit, we find defendant's trial was without error.
    No error.
    Judges McGEE and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***