STATE OF NORTH CAROLINA
v. Rockingham County
No. 04CRS050356
GREGORY ALTON MURPHY
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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