Appeal by Defendant from judgment dated 23 January 2006 by
Judge A. Leon Stanback in Superior Court, Wake County. Heard in
the Court of Appeals 8 March 2007.
Attorney General Roy Cooper, by Assistant Attorney General
David N. Kirkman, for the State.
George B. Currin for Defendant-Appellant.
Robert Lee Johnson, Jr. (Defendant) was indicted on 16 May
2005 on charges of attempted first-degree murder, first-degreekidnapping, felony breaking or entering, and felony larceny.
Defendant was also indicted for being a violent habitual felon. In
a superceding indictment dated 25 September 2005, Defendant was
again indicted on the charges of attempted first-degree murder and
At trial, Melissa Walsh (Ms. Walsh) testified that she had
lived with her fiancée in a second floor apartment at 916
Shellbrook Court in Raleigh since 2004. Ms. Walsh testified she
first met Defendant on the day she and her fiancée moved into their
apartment, when Defendant offered to help them carry a couch.
After that, Ms. Walsh did not have any contact with Defendant other
than "the casual hello that neighbors give[.]"
Ms. Walsh testified that on 9 April 2005, she and her fiancée
took their dog for a walk around their apartment complex. Ms.
Walsh returned to their apartment alone and noticed that the door
to their apartment was "slightly cracked" open. They had left the
door closed, but not locked, when they went for their walk.
Ms. Walsh assumed someone was performing maintenance in her
apartment and went inside. She testified: "As I was pushing the
door open it hit up against something and . . . I hadn't left
anything behind the door for it to hit into. So I continued to
push and I stepped inside and that's when I saw . . . [D]efendant
with DVDs and a camera." Ms. Walsh testified that Defendant had
five of her DVDs and her camera in his hands. She asked Defendant
what he was doing inside her apartment and he responded that he was
"fixing something, had to return something." However, Ms. Walshknew of no reason Defendant should be inside the apartment. Ms.
Walsh asked Defendant to leave the apartment five or six times, but
Defendant did not leave. He continued to "stand by the door" with
his back to the door, which was the only exit in the apartment.
When Ms. Walsh pulled out her cell phone to call 911, Defendant
came towards her and put one of his arms around her neck so that
she could not move. Defendant then put his other hand over her
mouth and nose and Ms. Walsh testified that she lost consciousness.
Ms. Walsh also testified regarding a note she received after
the incident from her downstairs neighbor, who was Defendant's
daughter (Ms. Johnson), and with whom Defendant was living at the
time of the incident. Defendant made a general objection, and the
trial court instructed the jury that since Ms. Johnson would be
testifying, the jury should consider Ms. Walsh's testimony only to
the extent that it corroborated the testimony of Ms. Johnson. Ms.
Walsh testified that in the letter, Ms. Johnson "apologized for
what had happened and offered her support." Ms. Walsh also
testified that Ms. Johnson had been nice to her since the incident.
Ms. Johnson testified, without objection, that she sent a
letter to Ms. Walsh to "express [her] condolences for what [Ms.
Walsh] had gone through." Ms. Johnson also testified, over general
objection, that she was shocked and hurt by the incident involving
Defendant and Ms. Walsh. Ms. Johnson further testified as follows:
Q. [Ms.] Johnson, did you ever see any DVDs
that [Defendant] had borrowed from [Ms.] Walsh
. . . ?
Q. Okay. Were you aware of any money that
[Ms. Walsh] had loaned [Defendant] or anything
she had done?
Q. Do you believe any of that?
[DEFENSE COUNSEL]: Objection, your Honor.
THE COURT: Objection's sustained.
. . .
THE COURT: The jury's instructed not to
consider whether or not [Ms. Johnson]
believed what she heard.
Defendant testified on his own behalf, stating that he lived
with his daughter in the apartment below Ms. Walsh's apartment.
Defendant testified that approximately three weeks prior to 9 April
2005, Ms. Walsh had given Defendant money to buy her Valium or
cocaine. Defendant testified that he purchased Valium and cocaine
and gave the drugs to Ms. Walsh.
Defendant testified that on 8 April 2005, the day before the
incident, Ms. Walsh had again given Defendant money to purchase
drugs. At the same time, Defendant testified that he borrowed some
DVDs from Ms. Walsh. Defendant testified that he took Ms. Walsh's
money and bought cocaine. However, he used the cocaine himself and
did not take any cocaine to Ms. Walsh. Defendant testified that
the next day, 9 April 2005, Ms. Walsh knocked on the door of
Defendant's apartment and asked Defendant to bring to her apartment
her drugs and the DVDs Defendant had borrowed. Defendant took the
DVDs to Ms. Walsh's apartment and told her he did not have herdrugs or her money. Defendant testified that Ms. Walsh became
"outraged," started "acting crazy," and began fighting with
Defendant. Defendant testified that he put one arm around Ms.
Walsh's neck and used the other arm to try to stop her from
fighting. Defendant testified that he heard Ms. Walsh's fiancée
coming up the stairs with the dog. Defendant then threw Ms. Walsh
down on the floor, closed the door, and locked it. Defendant ran
to the balcony located in the rear of the apartment and jumped off
The trial court instructed the jury on the relevant charges.
As part of the charge on first-degree kidnapping and second-degree
kidnapping, the trial court instructed the jury that it could
convict Defendant if it found, inter alia, that Defendant
restrained or confined Ms. Walsh "for the purpose of facilitating
. . . [D]efendant's commission of[,] or flight after committing[,]
felony breaking or entering or felony larceny[.]" Defendant did
not object to this jury instruction. The jury found Defendant not
guilty on the charge of attempted first-degree murder. The jury
convicted Defendant of second-degree kidnapping, felonious breaking
or entering, and felony larceny. The jury also found Defendant had
attained the status of a violent habitual felon. The trial court
sentenced Defendant to life in prison without parole. Defendant
 Defendant argues the trial court erred by allowing Ms.
Walsh to testify regarding the letter written to her by Ms.Johnson. However, Defendant made only a general objection to this
testimony, and the trial court instructed the jury to consider this
testimony only to the extent that it corroborated the testimony of
Ms. Johnson. Ms. Johnson subsequently testified, without
objection, regarding the letter she sent to Ms. Walsh. Therefore,
Ms. Walsh's testimony corroborated the testimony of Ms. Johnson.
Defendant also argues the trial court erred by allowing Ms.
Johnson to testify that she was "shocked" and "hurt" by the
incident between Defendant and Ms. Walsh. Defendant further argues
defense counsel should have moved for, and the trial court should
have granted, a mistrial after Ms. Johnson testified that she did
not believe elements of Defendant's defense. While we agree with
Defendant that it was error for Ms. Johnson to testify that she was
"shocked" and "hurt" and that she did not believe Defendant's
defense, such error was not prejudicial. Moreover, after Ms.
Johnson testified that she did not believe parts of Defendant's
defense, the trial court sustained defense counsel's objection.
The trial court further instructed the jury "not to consider
whether or not [Ms. Johnson] believed what she heard." "When the
trial court withdraws incompetent evidence and instructs the jury
not to consider it, any prejudice is ordinarily cured." State v.
, 328 N.C. 191, 200, 400 S.E.2d 398, 404 (1991). We overrule
these assignments of error.
 Defendant argues the trial court erred by denying his
motions to dismiss the kidnapping charge because the restraintnecessary for kidnapping was an inherent element of the other
charged felony of attempted first-degree murder. On a motion to
dismiss for insufficiency of the evidence, a trial court must
determine "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. Vause
, 328 N.C. 231, 236,
400 S.E.2d 57, 61 (1991). "Substantial evidence is relevant
evidence that a reasonable mind might accept as adequate to support
a conclusion." State v. Vick
, 341 N.C. 569, 583-84, 461 S.E.2d 655,
663 (1995). A trial court views the evidence in the light most
favorable to the State, drawing all inferences in the State's
at 584, 461 S.E.2d at 663.
Under N.C. Gen. Stat. § 14-39(a) (2005),
[a]ny person who shall unlawfully confine,
restrain, or remove from one place to another,
any other person 16 years of age or over
without the consent of such person, or any
other person under the age of 16 years without
the consent of a parent or legal custodian of
such person, shall be guilty of kidnapping if
such confinement, restraint or removal is for
the purpose of:
. . .
(2) Facilitating the commission of any
felony or facilitating flight of any
person following the commission of a
In State v. Fulcher
, 294 N.C. 503, 243 S.E.2d 338 (1978), our
Supreme Court held that N.C.G.S. § 14-39 "was not intended by the
Legislature to make a restraint, which is an inherent, inevitable
feature of such other felony, also kidnapping so as to permit the
conviction and punishment of the defendant for both crimes. Tohold otherwise would violate the constitutional prohibition against
double jeopardy." Id.
at 523, 243 S.E.2d at 351.
Our Supreme Court further specifically stated that
the term "confine" connotes some form of
imprisonment within a given area, such as a
room, a house or a vehicle. The term
"restrain," while broad enough to include a
restriction upon freedom of movement by
confinement, connotes also such a restriction,
by force, threat or fraud, without a
The Court construed the word "'restrain,' as used in G.S.
14-39, to connote a restraint separate and apart from that which is
inherent in the commission of the other felony." Id.
In the present case, Ms. Walsh testified that Defendant placed
one of his arms around her neck and put his other hand over her
mouth and nose. While this was sufficient evidence of "restraint,"
we need not decide whether this restraint was inherent in the other
charged felony of attempted first-degree murder. Even assuming
that the evidence of "restraint" was inherent in both the
kidnapping charge and the charge of attempted first-degree murder,
there was sufficient independent evidence that Defendant "confined"
Ms. Walsh and that the confinement was not inherent in any other
charged felony. As our Supreme Court stated in Fulcher
, the term
"'confine' connotes some form of imprisonment within a given area,
such as a room[.]" Id.
Ms. Walsh testified that although she
asked Defendant to leave her apartment, he continued to "stand by
the door" with his back to the only exit. Moreover, Defendant
admitted that he closed and locked the door to the apartment,
thereby confining Ms. Walsh inside. We hold that this wassufficient evidence that Defendant confined Ms. Walsh and that the
trial court did not err by denying Defendant's motions to dismiss.
 Defendant next argues the trial court committed plain
error by instructing the jury that it could find Defendant guilty
of kidnapping if it found that Defendant restrained or confined Ms.
Walsh for the purpose of committing the offenses of breaking or
entering, or larceny, or to facilitate his flight after committing
those offenses. Defendant argues there was no evidence that he
restrained or confined Ms. Walsh for the purpose of committing the
offenses of breaking or entering or larceny. Therefore, Defendant
argues, the trial court's disjunctive jury instruction deprived him
of his fundamental right to a unanimous jury verdict.
Pursuant to the North Carolina Constitution, "[n]o person
shall be convicted of any crime but by the unanimous verdict of a
jury in open court." N.C. Const. art. 1, § 24. N.C. Gen. Stat. §
15A-1237(b) (2005) also provides that a jury verdict "must be
unanimous, and must be returned by the jury in open court."
Generally, a defendant's failure to object to an alleged error of
the trial court precludes the defendant from raising the error on
appeal. State v. Ashe
, 314 N.C. 28, 39, 331 S.E.2d 652, 659
(1985). "Where, however, the error violates [a] defendant's right
to a trial by a jury of twelve, [a] defendant's failure to object
is not fatal to his right to raise the question on appeal." Id.
see also State v. Brewer
, 171 N.C. App. 686, 691, 615 S.E.2d 360,
363 (2005) (quoting State v. Wiggins
, 161 N.C. App. 583, 592, 589S.E.2d 402, 409 (2003), disc. review denied
, 358 N.C. 241, 594
S.E.2d 34 (2004)), disc. review denied
, 360 N.C. 484, 632 S.E.2d
493 (2006) (stating that "'[v]iolations of constitutional rights,
such as the right to a unanimous verdict . . . are not waived by
the failure to object at trial and may be raised for the first time
Our Supreme Court has held that where a "trial court merely
instructs the jury disjunctively as to various alternative acts
which will establish an element of the offense
, the requirement of
unanimity is satisfied." State v. Lyons
, 330 N.C. 298, 303, 412
S.E.2d 308, 312 (1991). However, as we discuss below, where the
trial court instructs disjunctively in this manner, there must be
evidence to support all of the alternative acts that will satisfy
In State v. Pakulski
, 319 N.C. 562, 356 S.E.2d 319 (1987), the
trial court instructed the jury on felony murder based upon armed
robbery and felonious breaking or entering. Id.
at 567, 356 S.E.2d
at 322. On appeal, our Supreme Court held the State failed to
prove that the defendants possessed a deadly weapon at the time of
the felonious breaking or entering and ruled that breaking or
entering could not be used as a predicate to felony murder. Id.
573, 356 S.E.2d at 326. The Supreme Court held:
Where the trial [court] has submitted the case
to the jury on alternative theories, one of
which is determined to be erroneous and the
other properly submitted, and we cannot
discern from the record the theory upon which
the jury relied, this Court will not assume
that the jury based its verdict on the theory
for which it received a proper instruction. Instead, we resolve the ambiguity in favor of
at 574, 356 S.E.2d at 326. Because it was not clear upon which
predicate felony the jury based its verdict of guilty of felony
murder, the Supreme Court ordered a new trial. Id.
Our Supreme Court followed Pakulski
in State v. Lynch
N.C. 210, 393 S.E.2d 811 (1990), where the trial court instructed
the jury that it could find the defendant guilty of first-degree
murder either on a theory of premeditation and deliberation or on
a theory of lying in wait. Id.
at 212, 393 S.E.2d at 812.
However, our Supreme Court concluded there was no evidence that the
defendant was lying in wait by ambushing or surprising the victim
and, therefore, the trial court erred by instructing the jury on
this theory. Id.
at 218-19, 393 S.E.2d at 816. Accordingly,
because "it [could not] be discerned from the record upon which
theory or theories the jury relied in arriving at its verdict, the
error entitle[d] [the] defendant to a new trial." Id.
at 219, 393
S.E.2d at 816 (citing Pakulski
, 319 S.E.2d at 574, 356 S.E.2d at
In State v. Hughes
, 114 N.C. App. 742, 443 S.E.2d 76, disc.
, 337 N.C. 697, 448 S.E.2d 536 (1994), the trial court
instructed the jury that it could find the defendant guilty of
first-degree sexual offense if it found, inter alia
, that the
defendant committed a sexual act. Id.
at 746, 443 S.E.2d at 79.
A sexual act was defined as fellatio and/or any penetration of the
genital opening of a person's body by an object. Id.
there was no evidence of penetration by an object. Id.
Where the trial court instructs on alternative
theories, one of which is not supported by the
evidence and the other which is, and it cannot
be discerned from the record upon which theory
or theories the jury relied in arriving at its
verdict, the error entitles [the] defendant to
a new trial.
, 327 N.C. at 219, 393 S.E.2d at 816). We held
that "[b]ecause there was no evidence of penetration by an object,
the trial court erred in instructing that the jury could base a
conviction of sexual offense on either fellatio or penetration by
an object." Id.
Therefore, our Court held: "We are required, we
believe, to order a new trial on the charge of first-degree sexual
Likewise, in the present case, there was no evidence that
Defendant restrained or confined Ms. Walsh for the purpose of
committing the offenses of breaking or entering or larceny. The
State concedes this point as follows:
The heart of [Defendant's] . . . argument is
that a reviewing court cannot tell whether a
jury found that his restraint of Ms. Walsh was
done in the perpetration of the felonies of
larceny and breaking and entering or as part
of his effort to flee following those crimes.
After reviewing the record as a whole, the
court can conclude rather easily that it was
the latter. There was not any evidence of the
Ms. Walsh testified that when she returned to her apartment,
Defendant was already inside and was holding the DVDs and the
camera. Ms. Walsh testified that Defendant stood by the door and
Defendant admitted that he locked the door. Ms. Walsh testified
that Defendant then put one arm around her neck and put his otherhand over her nose and mouth. Ms. Walsh also testified that
Defendant did not take the DVDs or the camera when he fled from the
apartment. Therefore, at the time Defendant restrained or confined
Ms. Walsh, he had already committed the offenses of breaking or
entering and larceny. See State v. Wooten
, 1 N.C. App. 240, 242,
161 S.E.2d 59, 60 (1968) (holding that "[t]he breaking of the
station window, with the requisite intent to commit a felony
therein, completes the offense [of breaking or entering] even
though the defendant [was] interrupted or otherwise abandon[ed] his
purpose without actually entering the building."); see also State
, 6 N.C. App. 740, 743, 171 S.E.2d 91, 93 (1969)
(recognizing that "[w]hile there must be a taking and carrying away
of the personal property of another to complete the crime of
larceny, it is not necessary that the property be completely
removed from the premises of the owner."). Consequently, there was
no evidence that Defendant restrained or confined Ms. Walsh for the
purpose of committing the offenses of breaking or entering or
larceny. As in Hughes
, the trial court in the present case
instructed the jury on alternative theories, "one of which [was]
not supported by the evidence and the other which [was], and it
cannot be discerned from the record upon which theory or theories
the jury relied in arriving at its verdict[.]" Hughes
, 114 N.C.
App. at 746, 443 S.E.2d at 79. Therefore, based upon Pakulski
, and Hughes
, Defendant is entitled to a new trial in the
present case on the charge of second-degree kidnapping.
Furthermore, because we grant a new trial on the charge ofsecond-degree kidnapping, and because second-degree kidnapping
formed part of the basis for Defendant's conviction of having
attained violent habitual felon status, we must vacate the violent
habitual felon conviction. See State v. Jones
, 157 N.C. App. 472,
479, 579 S.E.2d 408, 413 (2003) (stating that "[s]ince we hold that
[the] defendant is entitled to a new trial on the felony eluding
arrest charge, which served as the 'substantive felony' underlying
his conviction for having habitual felon status, [the] defendant's
habitual felon conviction must be vacated.").
We do not reach Defendant's remaining assignments of error
because the errors argued thereunder are not likely to recur upon
No error in part; new trial in part; vacated in part.
Judges TYSON and STEPHENS concur.
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