Appeal by defendant from judgments entered 25 July 2006 by
Judge J. Richard Parker in Perquimans County Superior Court. Heard
in the Court of Appeals on 19 September 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Dahr Joseph Tanoury, for the State.
Appellate Defender Staple Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant appellant.
McCULLOUGH, Judge.
Defendant Andrew Jermaine Jordan (“defendant”) was tried
before a jury at the 24 July 2006 Criminal Session of Perquimans
County Superior Court after being charged with one count of first-
degree burglary, one count of second-degree kidnapping, and one
count of first-degree attempted armed robbery. The State's
evidence tended to show the following: On 12 December 2003, Kathy
Turner, Kelly Palmer, and Dana Hayes were visiting with each other
at Dana Hayes's residence, located at 388 Chinquapin Road. Kathy
Turner had recently finished watching her grandchild at her
daughter's house, which is across the street from Hayes'sresidence, and it was turning dark at the time her daughter came
home from work.
Turner, Palmer, and Hayes had been sitting at the kitchen
table with an infant in a carrier on the floor between them when
Rashie Bellfield, Christopher Hinton, Quinton Porter, and defendant
suddenly kicked open a locked door and entered the house.
(See footnote 1)
The men
were wearing hoods and ski masks. Chris Hinton and Quinton Porter
were carrying guns.
The men ordered the group, at gunpoint, to get down on the
ground in the kitchen. At one point, one of the men held a gun to
the infant's head, threatening to kill the child if the group did
not cooperate.
While Turner, Palmer, and Hayes were held in the kitchen, one
man went down the hall toward the back of the house. Bellfield
testified at trial that the men had entered the house intending to
“kill someone” in particular, but quickly discovered that they were
in the wrong house. After this realization, the men fled to their
car. Palmer immediately called 911, and Turner headed to her
daughter's house across the street. Turner testified that she was
too upset to notice the lighting conditions when she left the
Hayes's residence. Turner's son-in-law, who was in his yard across
the street, saw the men's vehicle leaving. At 6:49 p.m., Officer Larry Chamblee of the Perquimans County
Sheriff's Department received a call, reporting the incident and
describing the perpetrators' vehicle. The police subsequently
spotted the vehicle, and a high speed chase ensued. The
perpetrators' car lost control and crashed into a wooded area.
Three of the men ran from the car, but defendant remained seated in
the backseat.
At the police station, in the presence of Perquimans County
Sheriff Tilley and Probation Officer Long, defendant voluntarily
prepared an unsigned, written statement, corroborating the events
described above and confirming that defendant did enter Hayes's
residence.
At the close of the State's evidence, the defense moved for a
directed verdict on all three charges. The trial court granted the
motion with respect to the charge of first-degree attempted armed
robbery, but denied the motions regarding first-degree burglary and
second-degree kidnapping.
Defendant's evidence tended to show the following: On 12
December 2003, Christopher Hinton agreed to drive defendant to
Chowan Hospital so that he could visit with his sister and sick
nephew. Bellfield and Porter were also in the car. Defendant had
just met Hinton, but was well acquainted with Bellfield, who had a
child with defendant's sister, and Porter, whom he had known since
childhood. During the car ride, there was no conversation about
robbing a house or about killing anyone. Defendant did not see any
ski masks or guns in the car. After stopping for gas, Hinton tolddefendant that they needed to stop by Hinton's house. They arrived
at a house with which defendant was unfamiliar, and Hinton,
Bellfield, and Porter got out of the car and opened the trunk,
stating that they would be back shortly. Defendant remained in the
car.
Soon after, at around 6:00 p.m., Hinton, Bellfield, and Porter
came running back to the car. Defendant asked what had happened,
but the men did not answer. Next, the car was spotted by the
police, a high-speed chase ensued, and the car crashed into a
ditch. Defendant testified that the reason he chose not to run from
the police was because he knew he had done nothing wrong.
Defendant testified that the police had fabricated the written
statement admitted into evidence by the State.
Defendant was found guilty of first-degree burglary and
second-degree kidnapping. He received consecutive terms of
imprisonment of 87 to 124 months.
On appeal, defendant argues that the trial court erred by: (1)
denying defendant's motion to dismiss the first-degree burglary
charge; (2) improperly instructing the jury with respect to both
the first-degree burglary charge and the second-degree kidnapping
charge; and (3) failing to strike portions of the State's closing
argument.
I. Motion to Dismiss
Defendant first contends that the trial court erred in denying
his motion to dismiss the first-degree burglary charge. In ruling on a motion to dismiss, the trial judge must
consider the evidence in the light most favorable to the State,
allowing every reasonable inference to be drawn therefrom.
State v.
Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). The court
must find that there is substantial evidence of each element of the
crime charged and of the defendant's perpetration of such crime.
Id. “Substantial evidence is relevant evidence that a reasonable
mind might accept as adequate to support a conclusion.”
Id.
The elements of first-degree burglary are: (1) the breaking,
(2) and entering, (3) in the nighttime, (4) into a dwelling house
or sleeping apartment of another, (5) which is actually occupied at
the time of the offense, (6) with the intent to commit a felony
therein.
State v. Barnett, 113 N.C. App. 69, 74, 437 S.E.2d 711,
714 (1993). The actual commission of the intended felony is not an
essential element of the crime.
State v. Bell, 285 N.C. 746, 208
S.E.2d 506 (1974).
In the case at hand, the indictment alleged,
inter alia, that,
at the time of the breaking and entering, defendant intended to
commit felonious assault. Defendant contends that while the State's
evidence tended to show intent to murder, it did not show intent to
feloniously assault, as alleged in the indictment, and was thus
insufficient to satisfy the felonious intent element of the first-
degree burglary charge. We disagree.
Under North Carolina General Statutes, a person is guilty of
felonious assault where he (1) commits an assault on another, (2)
with a deadly weapon, (3) with intent to kill. N.C. Gen. Stat.§ 14-32(c) (2005). Common law assault is “'an attempt, or the
unequivocal appearance of an attempt, with force and violence, to
do some immediate physical injury to the person of another, which
show of force ... must be sufficient to put a person of reasonable
firmness in fear of immediate bodily harm.'”
State v. Roberts, 270
N.C. 655, 658, 155 S.E.2d 303, 305 (1967) (citation omitted).
Viewed in the light most favorable to the State, the evidence
tended to show that defendant and three conspirators kicked down
the front door of Dana Hayes's house, wearing ski masks and
carrying loaded guns. While inside the house, the men terrorized
and assaulted its occupants, pointing guns at them and threatening
to “blow [their] heads off.” Bellfield specifically testified that
the men entered the home intending to kill at least one person and
that they only abandoned their plan upon discovering that they had
entered the wrong house. We agree with the State that there was
substantial evidence for a reasonable mind to conclude that, at a
minimum, defendant unlawfully entered Dana Hayes's home with the
intent to commit felonious assault, though this same evidence would
also support an intent to murder theory. Therefore, the trial court
properly denied defendant's motion to dismiss the first-degree
burglary charge.
II. Jury Instructions
Defendant makes several assignments of error to the jury
instructions.
A. First-degree Burglary Charge
Defendant first contends that the trial judge erred in
instructing the jury on an intent to feloniously assault theory,
where the evidence was only sufficient to demonstrate intent to
murder. For the reasons previously discussed, we disagree.
Defendant did not object to this instruction at trial, and
therefore, asks this Court for plain error review. “Under a plain
error analysis, defendant is entitled to a new trial only if the
error was so fundamental that, absent the error, the jury probably
would have reached a different result.”
State v. Jones, 355 N.C.
117, 125, 558 S.E.2d 97, 103 (2002).
“The trial court's jury instructions on possible theories of
conviction must be supported by the evidence.”
State v. Osborne,
149 N.C. App. 235, 238, 562 S.E.2d 528, 531,
aff'd, 356 N.C. 424,
571 S.E.2d 584 (2002). As previously discussed, the State presented
sufficient evidence to support a finding of intent to feloniously
assault. Therefore, there was no error in instructing the jury on
that theory.
Next, defendant contends that, because there was conflicting
evidence as to whether defendant entered Hayes's residence during
the nighttime, the trial court committed reversible error in
denying defendant's motion to instruct the jury on the lesser
included offense of felonious breaking and entering. Because we
find no conflict as to the time period in which the unlawful entry
occurred, we disagree. “'[N]ecessity for instructing the jury as to an included
crime of lesser degree than that charged arises when and only when
there is evidence from which the jury could find that such included
crime of lesser degree was committed. The
presence of such evidence
is the determinative factor.'”
State v. Collins, 334 N.C. 54, 58,
431 S.E.2d 188, 191 (1993) (emphasis in original) (quoting
State v.
Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547 (1954)). Where the
State's evidence is sufficient to fully satisfy its burden of
proving each element of the greater offense and defendant's denial
that he committed the offense is the only evidence to negate those
elements, the defendant is not entitled to an instruction on the
lesser offense.
State v. Smith, 351 N.C. 251, 267-68, 524 S.E.2d
28, 40,
cert. denied, 531 U.S. 862, 148 L. Ed. 2d 100 (2000).
“'The law considers it to be nighttime when it is so dark that
a man's face cannot be identified except by artificial light or
moonlight.'”
State v. Garrison, 294 N.C. 270, 279, 240 S.E.2d 377,
383 (1978) (quoting
State v. Frank, 284 N.C. 137, 145, 200 S.E.2d
169, 175 (1973)). As our Supreme Court did in
Garrison, we take
judicial notice that in Chowan County on 12 December 2003, the sun
set at 4:52 p.m., and the end of civil twilight occurred at 5:21
p.m. See the schedule for “Sunrise and Sunset” computed by the
Nautical Almanac Office, United States Naval Observatory.
See also
N.C. Gen. Stat. § 8C-1, Rule 201(f) (providing that a court may
take judicial notice at any stage of a proceeding).
The uncontroverted evidence in the record shows that Turner's
daughter had already come home from work at the health departmentby the time the unlawful entry occurred; the perpetrators were only
in Hayes's residence for a brief time before discovering their
mistake and fleeing the scene; the victims contacted the police
immediately after the perpetrators left the residence; and Officer
Chamblee received a phone call reporting the incident at 6:49 p.m.
Thus, the evidence clearly shows that the breaking happened shortly
before 6:49 p.m. Given that 5:21 p.m. marked the end of civil
twilight, we find the State's uncontroverted evidence sufficient to
fully satisfy its burden of proving that the breaking and entering
occurred well after 5:21 p.m., at some point during the nighttime.
While Turner testified that she was too upset to notice the
lighting conditions after the breaking and entering occurred, she
testified that it was turning dark before she went over to Hayes's
house. Turner's testimony is wholly consistent with the time line
established by Officer Chamblee's phone records and does not tend
to establish that it was daytime when the unlawful entry occurred.
The only evidence tending to support a finding that the unlawful
entry occurred in the daytime is defendant's testimony that the men
returned to their car at about 6:00 p.m, when it was “just turning
dark.” Defendant's denial alone, however, is insufficient to
negate the nighttime element. There is no other evidence in the
record from which a juror could rationally find that the incident
occurred prior to 5:21 p.m., which marked the end of civil
twilight. Therefore, we find no error in the trial judge's decision
not to instruct on the lesser included offense of felonious
breaking and entering.
B. Kidnapping Charge
Defendant next assigns plain error to the trial court's
instruction that, in order to find defendant guilty of second-
degree kidnapping, the jury must find that defendant “unlawfully
restrained a person ... for the purpose of facilitating the
Defendant's commission of first degree burglary[.]” Defendant
contends that the evidence did not support the giving of this
instruction. We agree.
Under North Carolina General Statutes, to be guilty of
kidnapping, a defendant must “unlawfully confine, restrain, or
remove from one place to another, any person 16 years of age or
over without the consent of such person” for one of four specified
purposes, including “[f]acilitating the commission of any
felony[.]” N.C. Gen. Stat. § 14-39(a)(2)(2005). Where the victim
is released to a safe place and is not seriously injured or
sexually assaulted, the defendant is guilty of second-degree
kidnapping. N.C. Gen. Stat. § 14-39(b).
It is well settled that an indictment under N.C. Gen. Stat.
§ 14-39(a)(2) need not allege the exact type of felony furthered by
the restraint or confinement, and any additional language such as
“rape or robbery” in the indictment is harmless surplusage, which
may properly be disregarded.
State v. Moore, 284 N.C. 485, 493, 202
S.E.2d 169, 174 (1974). However, it is plain error to allow a jury
to convict a defendant upon a theory not supported by the evidence.
See State v. Tucker, 317 N.C. 532, 539-40, 346 S.E.2d 417, 422
(1986);
State v. Brooks, 138 N.C. App. 185, 190-92, 530 S.E.2d 849,852-53 (2000). This Court has recognized that the felony that is
the alleged purpose of the kidnapping must occur after the
kidnapping.
Id. at 192, 530 S.E.2d at 854;
State v. Brodie, 171
N.C. App. 363, 615 S.E.2d 97,
disc. review denied, 360 N.C. 67, 621
S.E.2d 881 (2005).
In this case, the trial court instructed the jury that
defendant could be found guilty of kidnapping only if defendant
restrained the victims for the purpose of committing first-degree
burglary. The court did not instruct as to any other possible
purpose. Defendant argues that the evidence shows that, if any
burglary occurred, it was completed before the restraint, and
therefore, the jury instruction was unsupported by the evidence.
We agree.
“The elements of first-degree burglary are: (i) the breaking
(ii) and entering (iii) in the nighttime (iv) into the dwelling
house or sleeping apartment (v) of another (vi) which is actually
occupied at the time of the offense (vii) with the intent to commit
a felony therein.”
State v. Singletary, 344 N.C. 95, 101, 472 S.E.2d
895, 899 (1996). In this case, the burglary was complete as soon as
defendant kicked down the front door and entered Hayes's residence
with the intent to murder; whereas, the kidnapping was not complete
until the defendant and his accomplices unlawfully restrained the
victims by ordering them at gunpoint to lie on the ground. Thus, the
evidence shows that the felony that is the only alleged purpose for
the kidnapping occurred before, not after, the kidnapping; theevidence is, thus, inconsistent with the theory upon which the jury
was instructed.
The State contends that evidence of defendant's walking down
the hall toward the back of the house supports an inference that
defendant was searching for property to steal and that the burglary
was, thus, on-going in nature, occurring after the victims had been
restrained. Given that the State conceded at trial that any evidence
of intent to steal was insufficient to support the attempted armed
robbery charge and, accordingly, the trial judge granted a directed
verdict with respect to that charge, we find this argument
unpersuasive.
We cannot uphold a jury verdict based upon a theory that is not
supported by the evidence. The instruction as to the kidnapping
charge constitutes plain error, and defendant must receive a new
trial with respect to this charge.
Tucker, 317 N.C. 532, 540, 346
S.E.2d 417, 422.
Although the kidnapping conviction cannot stand, we note that
defendant also assigns plain error to the jury instruction's use of
the term “restrained,” while the indictment alleged “confined.”
Given the strength of the evidence against defendant, we find no
reasonable basis to conclude that use of the word “confine” would
have altered the jury's verdict, and this instructional error would
not have constituted plain error. However, because this type of
error is likely to reoccur, we note that the terms “restrain” and
“confine” are not synonymous. Instead, we conclude that evidence
showing that the victims were held at gunpoint in the kitchen wassufficient to find that the victims were both “restrained” and
“confined.”
See State v. Gainey, 355 N.C. 73, 95, 558 S.E.2d 463,
478,
cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002),
(recognizing 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
confinement.'”)
Id. (citation omitted). Nonetheless, the kidnapping
conviction cannot stand due to plain error in the trial court's
instruction on the felonious purpose element.
III. Closing Argument
Finally, defendant contends that the prosecutor improperly
vouched for the credibility of the State's witness during closing
argument. The pertinent portion of the prosecutor's argument relates
to the credibility of Sheriff Tilley's testimony concerning
defendant's unsigned, written statement. The prosecutor argued,
“[W]e contend that the Sheriff is an honest man and he has told you
what happened. He's not trying to convict somebody for something
they didn't do. He wouldn't want to do that. He is the elected
Sheriff of this county.” Because defendant did not object to the
closing argument at trial, we review to determine whether the
remarks were so grossly improper that the trial court committed
reversible error in failing to intervene
ex mero motu.
State v.
Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998),
cert. denied,
528 U.S. 835, 145 L. Ed. 2d 80 (1999). “To establish such an abuse,defendant must show that the prosecutor's comments so infected the
trial with unfairness that they rendered the conviction
fundamentally unfair.”
State v. Davis, 349 N.C. 1, 23, 506 S.E.2d
455, 467 (1998),
cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219
(1999). In determining whether an argument is grossly improper, we
must examine the context in which it was given and the circumstances
to which it refers.
See State v. Cummings, 353 N.C. 281, 297, 543
S.E.2d 849, 859,
cert. denied, 534 U.S. 965, 151 L. Ed. 2d 286
(2001). Under this standard, we find that the prosecuting attorney's
argument did not require the court to intervene
ex mero motu.
“It is well settled that the arguments of counsel are left
largely to the control and discretion of the trial judge and that
counsel will be granted wide latitude in the argument of hotly
contested cases.”
State v. Williams, 317 N.C. 474, 481, 346 S.E.2d
405, 410 (1986). To that end, counsel are permitted to argue the
evidence presented and all inferences reasonably drawn therefrom.
Id. “Even so, counsel may not, by argument ..., place before the
jury incompetent and prejudicial matters by injecting his own
knowledge, beliefs, and personal opinions not supported by the
evidence.”
State v. Britt, 288 N.C. 699, 711, 220 S.E.2d 283, 291
(1975).
Our Supreme Court has recognized that while counsel may not
personally vouch for the credibility of the State's witnesses or for
his own credibility, counsel may give the jurors reasons why they
should believe the State's evidence.
State v. Bunning, 338 N.C. 483,
489, 450 S.E.2d 462, 464 (1994) (concluding that a prosecutor'sargument that a law enforcement officer would not risk his
professional reputation merely to convict the defendant was proper);
State v. Rogers, 355 N.C. 420, 453, 562 S.E.2d 859, 880 (2002),
cert. denied, 360 N.C. 294, 629 S.E.2d 283 (2006) (finding no
impropriety in prosecutor's argument that the State's witness had
no “axe to grind” or reason to lie).
Likewise, we conclude that the prosecutor's argument is
properly characterized as one giving the jurors reasons why they
should believe the State's evidence, as opposed to one personally
vouching for the sheriff's credibility. As such, the argument did
not require the court to intervene
ex mero motu.
Based on the foregoing, we find no error in defendant's
conviction of first-degree burglary. We reverse the trial court's
judgment regarding defendant's conviction of second-degree
kidnapping.
Reversed in part, no error in part.
Judges CALABRIA and STEPHENS concur.
Footnote: 1