An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-145


Filed: 4 October 2005


    v.                                Rockingham County
                                    No. 04CRS050356
GREGORY ALTON MURPHY                                

    Appeal by defendant from judgment entered 21 September 2004 by Judge Catherine C. Eagles in Rockingham County Superior Court. Heard in the Court of Appeals 19 September 2005.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Barbara A. Shaw, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Kelly D. Miller, for defendant-appellant.

    HUNTER, Judge.

    On 5 April 2004, Gregory Alton Murphy (“defendant”) was indicted for first degree kidnapping. The case was tried at the 20 September 2004 Criminal Session of Rockingham County Superior Court.
    The State presented evidence at trial which tended to show the following: On 1 February 2004, Sheila Lewis (“Lewis”) came home from work to find defendant at her home. The two had been in a relationship since September 2003. Defendant was having a problem with his truck and had been drinking. He was highly agitated, so Lewis left him a note saying she was going to her son's house because she was concerned for her safety.    Defendant showed up at her son's home at 4:30 a.m. “beating and banging and kicking on the door” while Lewis' son held it closed. Finally, Lewis' son's girlfriend, Patrice, called the police and defendant left. Defendant called Lewis' son's home several times after that. At 9:00 a.m. he called and told Lewis that his truck had run out of gas on the way home. He asked if she would come get him and take him to get the truck before it was towed. Lewis agreed and drove back to her home, but did not see the truck along the route.
    When Lewis arrived home, she went to the phone to call the police so she could find out where defendant's truck had been taken. However, before she could make the call, defendant was standing over her in the kitchen. Defendant told her that he had a knife when he went over to her son's house, and he was going to use it on them. He said, “'I am going to show you what happens when somebody messes with me.'” Defendant proceeded to call Patrice's employer and told her that he had witnessed Patrice selling drugs to kids.
    Lewis tried to walk out of the house, but defendant grabbed her by the arm and pulled her back into the house. Lewis yelled for help. Defendant hit Lewis on the left side of her head and again on the right side. Lewis fell to the ground. Defendant stood over her and threatened her with the knife. The phone rang and defendant answered it, turning his back to Lewis. When he did so, Lewis ran out the front door and started screaming for help. Defendant caught her, hit her with his fist and dragged her backinto the house by her hair. Once inside the house, he got on top of her and started choking her. Eventually, defendant stopped, took her to a mirror in the family room and said “'[s]ee what you made me do?'” Lewis tried to wipe the blood off her face. Defendant told Lewis that the police were there and pushed her to a laundry room at the rear of the house. He told her to take her shirt off and then took her to a small, windowless bathroom in the back of the house. Once there, defendant told Lewis to wash the blood out of her hair and clean up her face. They could hear the police knocking at the front door, and defendant told her to tell the police that she had tripped off the front porch and broke her nose. Lewis testified that she agreed to do whatever he said because she thought he would kill her and her family. Once the police entered the house, Lewis told them that defendant had choked her and tried to kill her.
    At trial, defendant testified that when he called Patrice's employer to retaliate for Patrice calling the police on him, Lewis got mad and started to leave. Defendant stated that he stepped in front of her to block her way, and she “nudged” him to go by her. Lewis started “hollering” and he “smacked” her, fracturing her nose. Defendant testified that he realized what he did and let her go, and Lewis “took off running out the front door and slipped and fell off the steps[.]” Lewis was “hysterical” and defendant grabbed her by her hair and tried to “calm her down.” Defendant testified that they never argued, had never had any fights, and he did not want the neighbors to know that he “beat [his] girlfriendup.” Defendant denied ever dragging Lewis back in the house, instead stating that he carried her, and denied choking her. Defendant asserted that Lewis went willingly back into the house with him.
    Defendant was convicted of first degree kidnapping and was sentenced to a term of 107 to 138 months imprisonment. Defendant appeals.
    Defendant first argues that the trial court committed plain error by not instructing the jury on the lesser included offense of false imprisonment. Defendant contends that there was evidence from which a jury could have found that he did not act with the intent of terrorizing Lewis, as alleged in the indictment. Instead, defendant contends that the jury could have concluded from the evidence that the purpose of the restraint was: (1) to cause Lewis physical harm; (2) to conceal the assault; (3) to continue the argument inside the house; or (4) to calm her down, as he testified at trial.
    After careful review of the record, briefs, and contentions of the parties, we find no plain error. “A plain error is one 'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'” State v. Carroll, 356 N.C. 526, 539, 573 S.E.2d 899, 908 (2002) (citation omitted), cert. denied, 539 U.S. 949, 156 L. Ed. 2d 640 (2003). It is to be applied cautiously and only in the exceptional case where the error is so prejudicial, that justice cannot have been done. State v. Baldwin,161 N.C. App. 382, 388, 588 S.E.2d 497, 503 (2003). Furthermore, “'[e]ven when the “plain error” rule is applied, “it 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.”'” State v. Bell, 359 N.C. 1, 23, 603 S.E.2d 93, 109 (2004) (citations omitted). “'In deciding whether a defect in the jury instruction constitutes “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.'” Id. (citations omitted).
    “'The law is well settled that the trial court must submit and instruct the jury on a lesser included offense when, and only when, there is evidence from which the jury could find that defendant committed the lesser included offense.'” State v. Petro, ___ N.C. App. ___, ___, 606 S.E.2d 425, 427 (2005) (citation omitted). Kidnapping is defined as an unlawful confinement or removal from one place to another for the purpose of committing certain specified acts. N.C. Gen. Stat. § 14-39(a) (2003). First degree kidnapping occurs “[i]f the person kidnapped either 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). “The elements of the lesser included offense of false imprisonment are the (1) intentional and unlawful, (2) restraint or detainment of a person, (3) without that person's consent.” Petro, ___ N.C. App. at ___, 606 S.E.2d at 428.    Defendant claims that he restrained Lewis for the purpose of calming her down. If defendant's testimony is to be believed, it negates an intent to terrorize the victim when he restrained her and removed her to the house. However, it would also negate the unlawful element of false imprisonment. See Petro, ___ N.C. App. at ___, 606 S.E.2d at 427-28 (if the jury accepted evidence that the defendant was trying to “help and calm” the victim, defendant would not have unlawfully restrained the victim; therefore, the trial court did not err in rejecting defendant's instruction on the lesser included offense). See also State v. Nicholson, 99 N.C. App. 143, 147, 392 S.E.2d 748, 751 (1990) (no plain error for failure to instruct on the lesser included offense of false imprisonment where defendant testified “that the whole incident was a misunderstanding”).
    Defendant also appears to contend that an instruction on false imprisonment should have been given because the jury could have determined that he restrained Lewis for the purpose of concealing the crime, or to further assault her. However, defendant's claims are speculative, and the court's refusal to instruct on false imprisonment does not amount to a “'miscarriage of justice.'” See Carroll, 356 N.C. at 539, 573 S.E.2d at 908 (citation omitted). Accordingly, we conclude that there was no plain error.
    Defendant next argues that the trial court erred when it refused to allow him to impeach Lewis with evidence of her drug and alcohol use. Defendant asserts that the evidence would have discredited her testimony by showing that her ability to perceiveevents, as well as his intentions, was impaired due to her drug dependency and withdrawal. However, in the instant case, defendant failed to make an offer of proof at trial of what Lewis would have testified to on cross-examination, and the substance of her testimony is not apparent from the record. Our Supreme Court has stated:
            “'It is well established that an exception to the exclusion of evidence cannot be sustained where the record fails to show what the witness' testimony would have been had he been permitted to testify.' '[I]n order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record.'”

State v. Golphin, 352 N.C. 364, 462, 533 S.E.2d 168, 231-32 (2000) (citations omitted). Accordingly, the assignment of error is overruled.
    No error.
    Chief Judge MARTIN and Judge STEELMAN concur.
    Report per Rule 30(e).

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