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.
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.
. 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
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
'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
'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
State v. Scott
, 343 N.C. 313, 331, 471 S.E.2d 605, 616 (1996)
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
, 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
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.
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
error, something so basic, so prejudicial, so lacking
in its elements that justice cannot have been done[.]' State v.
, 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
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.
. 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.
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.
. '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
. 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
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.
, 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.'
. 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,
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
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.
Judges McGEE and LEVINSON concur.
Report per Rule 30(e).
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