STATE OF NORTH CAROLINA
No. 05 CRS 220174
CARLESTER JAMES MASSEY
Attorney General Roy A. Cooper, III, by Assistant Attorney
General David D. Lennon, for the State.
Matthew C. Joseph, for defendant-appellant.
Carlester James Massey (defendant) appeals the trial court's denial of his motion to dismiss an extortion charge, and the giving of an improper jury instruction. For the reasons stated below, we hold no error.
Defendant is a bail bondsman. On 6 February 2005, defendant sought Ismael Chavez Escobar (Escobar) after he failed to appear in court and his bond went into forfeiture. Defendant searched the apartment of Gildardo Chavez Meneses (Meneses), Escobar's father, looking for signs that Escobar still lived there. Neither Escobar nor Meneses was there; an unidentified person had allowed defendant and his crew into the apartment. While searching the apartment, defendant found a receipt in Escobar's name dated only one dayearlier. Meneses was found outside in his car. Defendant acquired Meneses' car title, car keys, and license tag and told Meneses that he could have them back when he produced his son or the $2,000 owed on the forfeited bond.
On 23 August 2006, defendant was convicted of extortion in violation of North Carolina General Statutes, section 14-118.4 and sentenced in the mitigated range to a term of ten to twelve months incarceration in the Department of Correction. The sentence was suspended, and defendant was placed on intensive supervised probation for a period of three months. Defendant appeals.
Defendant first assigns error to the trial court's denial of his motion to dismiss the extortion charge. We are not persuaded.
A motion to dismiss criminal charges is properly denied 'if the evidence considered in the light most favorable to the State permits a rational jury to find beyond a reasonable doubt the existence of each element of the charged crime and that defendant was the perpetrator.' State v. Campbell, 359 N.C. 644, 683, 617 S.E.2d 1, 24 (2005) (quoting State v. Trull, 349 N.C. 428, 447, 509 S.E.2d 178, 191 (1998), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80 (1999)), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523 (2006). Any person who . . . communicates a threat . . . to another with the intention thereby wrongfully to obtain anything of value . . . is guilty of extortion . . . . N.C. Gen. Stat § 14-118.4 (2005).
In the case sub judice, appellant's brief cites only three cases related to this first assignment of error. The first states the standard of review to be applied to this issue and is notsubstantively relevant to the argument. The other two cases were raised by the State in opposition to defendant's motion to dismiss the extortion charge. Defendant attempts to distinguish these cases from the facts of his case, arguing that nothing was communicated that constituted a threat.
State v. Greenspan, 92 N.C. App. 563, 374 S.E.2d 884 (1989), held that offering to refrain from pressing criminal charges in exchange for money amounted to threatening criminal prosecution and comes within the purview of a threat. Id. at 567, 374 S.E.2d at 886-87. Defendant argues that
[o]ffering to refrain from pressing criminal charges for money that a person would only be entitled to if they were successful in a civil suit is completely different from taking keys and a license plate and saying you will keep it until you receive payment for a bond or the person turns themselves in to jail.
Tryco Trucking Co. v. Belks Stores Services, 634 F. Supp. 1327 (W.D.N.C. 1986), held that a threat of economic harm constitutes a threat under the statute. See id. at 1333-34. Defendant argues that [i]t is understandable how fear of economic harm existed in the Tryco case. Both companies were multi-million dollar companies and certainly the money Tryco stood to lose if business was taken away would be in the hundreds of thousands and possibly millions. He then questions what Meneses stood to lose economically _ the car was not taken; Meneses had spare keys; he could get another license plate. The items taken had minimal actual value. We hold there was sufficient evidence from which the jury could conclude beyond a reasonable doubt that a threat was made within the meaning of the extortion statute.
Defendant's second assignment of error challenges the trial court's jury instructions. This issue has not been preserved for our review, and we decline to address it.
Pursuant to our Rules of Appellate Procedure,
[a] party may not assign as error any portion of the jury charge . . . unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury, and, on request of any party, out of the presence of the jury.
N.C.R. App. P. 10(b)(2) (2007). Defendant failed to object to the proposed instruction.
During the charge conference, defendant argued against the court's proposed jury instruction. However, once the court stated that the instruction would be given as proposed, defendant raised no objection. Defendant also did not object after the instruction was given but before the jury retired, although he was given an opportunity to do so. Having made no formal objection, the issue has not been preserved for our review. Moreover, defendant makes no argument that the court's proposed instruction constituted plain error. By failing to make this argument, he has waived it. State v. Call, 349 N.C. 382, 415, 508 S.E.2d 496, 516 (1998); see N.C.R. App. P. 10(c)(4) (2007). Because defendant's motion to dismiss was properly denied, and we decline to address defendant's other assignment of error, we hold that there was no error in the trial below.
Judges WYNN concurs in the results only.
Judge HUNTER concurs.
Report per Rule 30(e).
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