STATE OF NORTH CAROLINA
v
.
Mecklenburg County
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.
JACKSON, Judge.
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.
No error.
Judges WYNN concurs in the results only.
Judge HUNTER concurs.
Report per Rule 30(e).
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