Opinion
No. COA10-509
Filed 21 June 2011 This case not for publication
Appeal by defendant from judgments entered 12 December 2008 by Judge Susan C. Taylor in Rowan County Superior Court. Heard in the Court of Appeals 26 October 2010.
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for Defendant.
Rowan County File Nos. 06 CRS 50444; 06 CRS 50733-34.
Defendant Damion Jermaine Morrow appeals from judgments sentencing him to two consecutive terms of a minimum of ten months and a maximum of twelve months imprisonment in the custody of the North Carolina Department of Correction based upon his convictions for threatening a court officer. In addition, Defendant was sentenced to two consecutive terms of 120 days imprisonment in the custody of the North Carolina Department of Correction, both of which were suspended, based upon Defendant's misdemeanor convictions for communicating threats. After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable law, we find no error in the proceedings leading to the trial court's judgments and conclude that Defendant's motion for appropriate relief on appeal should be denied.
I. Facts A. Substantive Facts
On 17 January 2006, Lieutenant J.R. Schmierer and Officer Phillip Reccardi of the East Spencer Police Department served Defendant with a felony warrant. At the time of his arrest, Defendant became extremely combative and made a number of abusive comments to Lieutenant Schmierer and Officer Reccardi. The arresting officers transported Defendant to an intake facility and commenced the booking process, at which point Defendant stated in the presence of both officers that he was going to look up their addresses and get one of his "mules" to kill them. In addition, Defendant went on to say that he "was going to get [District Attorney] Bill Kenerly's address and that fat ass [Assistant District Attorney] Karen Biernacki, too."
The felony warrant that the officers served upon Defendant resulted from a decision by Assistant District Attorney Karen Biernacki that Defendant's pending misdemeanor criminal charge should be treated as a felony. As a result, Ms. Biernacki suggested that a felony warrant be issued against Defendant in lieu of the existing misdemeanor warrant, a development that led to his arrest.
At trial, Officer Reccardi testified that the term "mule" was a drug-related street term which referred to a person's fellow worker or associate. According to Lieutenant Schmierer, a "mule" was someone who worked for you or did your bidding. Both Lieutenant Schmierer and Officer Reccardi knew or were familiar with several of Defendant's associates, whom they believed to be the "mules" mentioned in Defendant's comments. Both officers believed that these "mules" were dangerous and would likely be willing to carry out Defendant's threats. Specific testimony was offered as to the bad acts and past crimes of Defendant's associates of which Lieutenant Schmierer and Officer Reccardi had knowledge.
B. Procedural Background
On 24 April 2006, the Rowan County grand jury returned bills of indictment charging Defendant with a single count of communicating threats against Lieutenant Schmierer and Officer Reccardi, with threatening Mr. Kenerly, and with threatening Ms. Biernacki. On 2 September 2008, the Rowan County grand jury returned superseding indictments charging Defendant with communicating a threat to Lieutenant Schmierer, communicating a threat to Officer Reccardi, threatening Mr. Kenerly, and threatening Ms. Biernacki. In addition, the State notified Defendant that it would seek to establish the existence of the statutory aggravating factors that "[t]he offense was committed for the purpose of [] avoiding or preventing a lawful arrest;" that "[t]he offense was committed to disrupt the lawful exercise of a governmental function or the enforcement of the laws" or to "hinder the lawful exercise of a governmental function or the enforcement of the laws;" and that Defendant "committed the offense while on pretrial release from another charge," as well as to assess a prior record point because "the offense was committed while the defendant was on supervised or unsupervised probation, parole, or post-release supervision."
The charges against Defendant came on for trial before the trial court and a jury at the 8 December 2008 criminal session of the Rowan County Superior Court. On 12 December 2008, the jury returned verdicts convicting Defendant as charged. On the same date, the jury returned a separate verdict finding that "the defendant committed the offense while on pretrial release" and that "the defendant committed the offense while on probation." At the ensuing sentencing hearing, the trial court found that Defendant had five prior convictions for misdemeanor sentencing purposes and should be sentenced as a Level III misdemeanant; that Defendant had accumulated nine prior record points for felony sentencing purposes and should be sentenced as a Level IV felon; that Defendant should be sentenced in the aggravated range for felony sentencing purposes; that Defendant should be imprisoned in the custody of the North Carolina Department of Correction for two consecutive terms of a minimum of ten months and a maximum of twelve months based upon his convictions for threatening a judicial officer; and that Defendant should be sentenced to two consecutive terms of 120 days imprisonment in the custody of the North Carolina Department of Correction based upon his convictions for communicating threats. However, the trial court suspended Defendant's sentences for communicating threats and placed Defendant on supervised probation for a period of sixty months on the condition that Defendant comply with the usual terms and conditions of probation and that Defendant pay the community service fee; be on intensive probation for six months; perform fifty hours of community service; submit to warrantless searches for stolen goods, controlled substances, contraband, child pornography, paraphernalia, and weapons; not use, possess, or control any controlled substances that had not been prescribed for his use; supply a breath or urine sample for drug testing purposes upon request; and not go near certain persons or upon certain premises. Defendant noted an appeal to this Court from the trial court's judgment. On 21 July 2010, Defendant filed a motion for appropriate relief with this Court pursuant to N.C. Gen. Stat. §§ 15A-1415(b)(3) and 15A-1418(a).
II. Legal Analysis A. Defendant's Motion to Sever
First, Defendant contends that the trial court erred by denying his motion to sever the communicating threats charges from the threatening a court officer charges. We do not believe that Defendant is entitled to appellate relief on the basis of this argument.
"Pursuant to [N.C. Gen. Stat.] § 15A-927(a), a defendant must make a motion for severance of offenses before trial unless the basis for the motion is a ground not previously known." State v. Walters, 357 N.C. 68, 79, 588 S.E.2d 344, 351, cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320, 124 S. Ct. 442 (2003). In the event that a defendant becomes aware of the existence of grounds for making such a motion after the start of trial, "[he or she] may move for severance during trial but no later than the close of the State's evidence." Id. A defendant waives his right to severance "`if the motion is not made at the appropriate time.'" Id. (quoting N.C. Gen. Stat. § 15A-927(a)(1)).
The record clearly establishes that Defendant did not seek a severance before trial and only requested such relief after his trial was well underway. Even so, Defendant argues that his severance motion was made in a timely manner because he moved for severance prior to the close of the State's evidence on the basis of a ground of which he had not previously known and that the trial court erred by making a contrary determination. In essence, Defendant argues that the communicating threats cases should have been severed from the threatening a court officer cases because "a substantial amount of evidence regarding [Defendant]'s acquaintances and the bad acts, crimes, and misdeeds of those acquaintances" was presented to the jury at Defendant's trial despite the fact that this evidence was only relevant to the issue of Defendant's guilt of communicating threats. According to Defendant, he "could not make a motion to sever prior to trial [on these grounds] . . . because the State did not provide [him], during discovery, with the acquaintance evidence upon which the State intended to rely." We do not find this argument convincing.
Defendant was charged with two counts of communicating threats in violation of N.C. Gen. Stat. § 14-277.1. In order to obtain Defendant's conviction for committing this offense, the State was required to prove that:
(1) [Defendant] willfully threaten[ed] to physically injure the person or that person's child, sibling, spouse, or dependent or willfully threaten[ed] to damage the property of another;
(2) The threat [was] communicated to the other person, orally, in writing, or by any other means;
(3) The threat [was] made in a manner and under circumstances which would cause a reasonable person to believe that the threat [was] likely to be carried out; and
(4) The person threatened believe[d] that the threat [would] be carried out.
N.C. Gen. Stat. § 14-277.1(a). The evidence upon which Defendant relied in seeking a severance was admitted for the purpose of proving that Defendant's threat was "made in a manner and under circumstances which would cause a reasonable person to believe that the threat [was] likely to be carried out[,]" N.C. Gen. Stat. § 14-277.1(a)(3), and that Lieutenant Schmierer and Officer Reccardi "believe[d] that the threat [would] be carried out." N.C. Gen. Stat. § 14-277.1(a)(4). The indictment charging Defendant with communicating threats alleges that Defendant threatened Lieutenant Schmierer and Officer Reccardi by stating that he was going to "look up [their] addresses on the internet and get one of his mules to kill [them]." In light of the nature of the offense with which Defendant had been charged and the allegations of the communicating threats indictment, Defendant could have easily foreseen that the State would introduce evidence tending to show that Defendant surrounded himself with "mules" who might be willing to carry out his threats and that Lieutenant Schmierer and Officer Reccardi were cognizant of that fact. As a result, Defendant had ample notice that the State was likely to attempt to obtain the admission of evidence like that upon which his severance motion is predicated. As a result, we reject Defendant's contention that he had no basis for making his severance motion until after the trial was underway, necessitating a conclusion that Defendant waived his right to seek a severance of the communicating threats charges from the threatening a court official charges by failing to file a timely severance motion as required by N.C. Gen. Stat. § 15A-927(a).
Defendant also suggests in his brief that the State failed to comply with its discovery obligations under N.C. Gen. Stat. § 15A-903(a)(1) on the grounds that "[a]ll of those arrest warrants, search warrants, magistrate orders, and judgments are discoverable documents contained in the files of the police and prosecutor's office, which should have been provided to [Defendant's] counsel prior to trial." However, the trial court explicitly offered to provide Defendant with additional time to investigate and prepare to address the challenged testimony in response to Defendant's discovery argument. Defendant has not argued in his brief that the trial court should have severed the communicating threats cases from the threatening a court officer cases as a sanction for the State's alleged discovery violation. As a result of the fact that Defendant expressly indicated that he did not need any additional time to prepare to address the challenged testimony at the conclusion of the voir dire proceedings in the trial court, the fact that Defendant has not argued that the trial court abused its discretion in addressing any discovery violation that may have occurred in this manner, and the fact that we are unable to discern any such abuse of discretion based on our own examination of the record, State v. Herring, 322 N.C. 733, 747-48, 370 S.E.2d 363, 372 (1988) (stating that "[t]he sanction for failure to make discovery when required is within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of discretion") (citations omitted), we do not believe that Defendant has shown any entitlement to relief stemming from the State's alleged failure to disclose the information testified to by Lieutenant Schmierer and Officer Reccardi.
B. Trial Court's Jurisdiction
Secondly, Defendant contends that the indictments purporting to charge him with threatening a court officer in violation of N.C. Gen. Stat. § 14-16.7 were fatally defective, so that the trial court lacked jurisdiction to enter judgment against him. We do not find Defendant's argument persuasive.
N.C. Gen. Stat. § 15A-924(a) provides, in pertinent part, that:
A criminal pleading must contain . . . [a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.
A valid indictment must charge "all the essential elements of the alleged criminal offense." State v. Lewis, 58 N.C. App. 348, 354, 293 S.E.2d 638, 642 (1982) (citing State v. Morgan, 226 N.C. 414, 415, 38 S.E.2d 166, 167 (1946)), cert. denied, 311 N.C. 766, 321 S.E.2d 152 (1984). In the event that one or more of the indictments returned against Defendant failed to allege the existence of an essential element of an offense with which Defendant was charged, "`[they] . . . failed to give the trial court subject matter jurisdiction over the matter, and [we] must arrest judgment.'" State v. Marshall, 188 N.C. App. 744, 752, 656 S.E.2d 709, 715 (quoting State v. Kelso, 187 N.C. App. 718, 722, 654 S.E.2d 28, 31-32 (2007), disc. review denied, 362 N.C. 367, 663 S.E.2d 432 (2008)), disc. review denied, 362 N.C. 368, 661 S.E.2d 890 (2008). However, a judgment "is not vulnerable to a motion in arrest of judgment because of defects in the indictment, unless the indictment wholly fails to charge some offense cognizable at law or fails to state some essential and necessary element of the offense of which the defendant is found guilty." State v. Gregory, 223 N.C. 415, 418, 27 S.E.2d 140, 142 (1943) (citations omitted). We review the sufficiency of indictments using a de novo standard of review. Marshall, 188 N.C. App. at 748, 656 S.E.2d at 712.
According to N.C. Gen. Stat. § 14-16.7(a), a person is guilty of threatening an executive, legislative, or court officer when he or she "knowingly and willfully makes any threat to inflict serious bodily injury upon or to kill any legislative officer, executive officer, or court officer[.]" The indictments returned against Defendant allege that:
[Defendant did] knowingly make a threat to kill, William D. Kenerly, District Attorney for Rowan County Prosecutorial District 19-C by orally stating to PH Reccardi and JR Schmierer that he was going to look up their addresses on the internet and get one of his mules to kill them and he was also going to get Bill Kenerly's address too.
[Defendant did] knowingly make a threat to kill, Karen Biernacki, Assistant District Attorney for Rowan County Prosecutorial District 19-C by orally stating to PH Reccardi and JR Schmierer that he was going to look up their addresses on the internet and get one of his mules to kill them and he was also going to get that fat ass Karen Biernacki too.
Defendant contends, in apparent reliance on the allegation that Defendant was going to "get Bill Kenerly's address" and "get that fat ass Karen Biernacki," that the indictments failed to allege that he threated to kill Mr. Kenerly and Ms. Biernacki, rendering them fatally defective. After carefully reviewing the indictments in question, we believe that they adequately allege that Defendant threatened to kill both Mr. Kenerly and Ms. Biernacki.
"In general, an indictment couched in the language of the statute is sufficient to charge the statutory offense[, and] need only allege the ultimate facts constituting the elements of the criminal offense[.]" State v. Blackmon, 130 N.C. App. 692, 699, 507 S.E.2d 42, 46 (internal citations and quotations omitted), cert. denied, 349 N.C. 531, 526 S.E.2d 470 (1998). In other words, "evidentiary matters need not be alleged[,]" Id. (citations omitted), and any allegations "`beyond the essential elements of the crime sought to be charged are irrelevant and may be treated as surplusage.'" State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996) (quoting State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972)). The challenged indictments clearly allege that Defendant "knowingly ma[d]e a threat to kill" both Mr. Kenerly and Ms. Biernacki, which is all that is necessary in order for an indictment to properly allege the offense of threatening a court officer in violation of N.C. Gen. Stat. § 14-16.7(a). As a result, since the challenged indictments adequately alleged that Defendant threatened to kill Mr. Kenerly and Ms. Biernacki, the trial court had jurisdiction to enter judgment against Defendant.
C. Sufficiency of the Evidence
Thirdly, Defendant contends that his convictions for threatening a court officer should be overturned because the State failed to present sufficient evidence to support a finding of guilt. We disagree.
Although Defendant moved for a dismissal of the charges against him on the grounds of evidentiary insufficiency at the close of the State's evidence, he did not renew his dismissal motion at the end of all of the evidence. As a result, since the applicable provisions of the North Carolina Rules of Appellate Procedure preclude Defendant from "mak[ing] insufficiency of the evidence to prove the crime charged the basis of an issue presented on appeal" unless he moved for dismissal at the close of all of the evidence, N.C.R. App. P. (10)(a)(3), Defendant requests that we review his challenge to the sufficiency of the evidence to support his convictions on the merits pursuant to N.C.R. App. P. 2, which provides that, "[t]o prevent manifest injustice to a party, or to expedite decision in the public interest, [we] may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before [us] upon application of a party or upon [our] own initiative[.]" Although Defendant contends that "manifest injustice would occur should [his convictions] be allowed to stand," he has not advanced any argument in support of this contention except for his substantive challenge to the sufficiency of the State's evidence. Since we only grant review of otherwise unpreserved claims pursuant to N.C.R. App. P. 2 in exceptional cases, State v. Hart, 361 N.C. 309, 315-16, 644 S.E.2d 201, 205 (2007); Steingress v. Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299-300 (1999) ("reaffirm[ing] that Rule 2 relates to the residual power of our appellate courts to consider, in exceptional circumstances, significant issues of importance in the public interest, or to prevent injustice which appears manifest to the Court and only in such instances") (citing Blumenthal v. Lynch, 315 N.C. 571, 578, 340 S.E.2d 358, 362 (1986)), and since Defendant has not established that there is anything exceptional about his challenge to the sufficiency of the evidence to support his convictions, we decline his request that we review this sufficiency of the evidence issue pursuant to N.C.R. App. P. 2.
In the event that we were to address this issue on the merits, however, we would reject Defendant's claim as meritless.
The standard for ruling on a motion to dismiss is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In determining the sufficiency of the evidence, [t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom.
State v. Harris, 145 N.C. App. 570, 578, 551 S.E.2d 499, 504 (2001) (internal citations and quotations omitted), disc. review denied, 355 N.C. 218, 560 S.E.2d 146 (2002). "Thus, `if there is substantial evidence — whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.'" State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) (quoting State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271, 274 (2005)).
In order to convict Defendant of threatening a court officer, the State was required to establish that Defendant knowingly and willfully made a "threat to inflict serious bodily injury upon or to kill [a] . . . court officer[.]" N.C. Gen. Stat. § 14.16.7(a); N.C. Gen. Stat. § 14.16.8 (providing that "it [is] not [] necessary to prove that [a] court officer actually received the threatening communication or actually believed the threat"). According to Defendant, the State failed to prove that Defendant threatened to kill either Mr. Kenerly or Ms. Biernacki. More particularly, Defendant contends that, while the record contained evidence tending to show that he stated he was going to "get Bill Kenerly's address" and "get that fat ass Karen Biernacki," "[neither] of [these] statements constitutes a threat to kill." Defendant cites our decision in State v. Mortimer, 142 N.C. App. 321, 542 S.E.2d 330 (2001), to support his claim that Defendant's statements "are speculative and open to innumerable interpretations" and that, "[b]ecause of this multiplicity of meanings, the evidence was insufficient to establish that [Defendant] made a threat to kill either Mr. Kenerly or Ms. Biernacki."
In Mortimer, we held that the State failed to present substantial evidence that Defendant communicated a threat "to physically injure the person or damage the property of another" when the evidence demonstrated that, during a bomb scare at a public high school, the defendant created a screensaver on a school computer which read "the end is near." Mortimer, 142 N.C. App. at 322-24, 542 S.E.2d at 330-32. In reaching this conclusion, we specifically noted that "[t]he statement `the end is near' does not indicate what, if anything, the speaker intends to do[;]" that the defendant "could . . . have meant . . . that some other person was going to bomb the school[;]" and that defendant had a generally positive reputation at the school. Id. The facts contained in the present record are easily distinguishable from those at issue in Mortimer.
Unlike the statement "the end is near," the meaning of which we deemed "impossible to ascertain" in Mortimer, id. at 323, 542 S.E.2d at 331, it can be reasonably inferred, in light of the context in which they were made, that Defendant's statements to the effect that he was going to "get Bill Kenerly's address" and "get that fat ass Karen Biernacki," amounted to threats to engage in deadly violence directed against the named individuals. In essence, after explicitly threatening to have his "mules" kill Lieutenant Schmierer and Officer Reccardi, Defendant essentially indicated that he would have them treat Mr. Kenerly and Ms. Biernacki in the same manner. As a result, in the event that we were to reach this issue, we would not hesitate to conclude that the record contained sufficient evidence to support Defendant's convictions for threatening a court officer in violation of N.C. Gen. Stat. § 14-16.7(a).
D. Assistance of Counsel
Fourth, Defendant contends that he failed to receive the effective assistance of counsel because his trial counsel failed to move to dismiss the threatening a court officer charges at the close of all of the evidence. In order to obtain relief on the basis of an ineffective assistance of counsel claim, Defendant is required to demonstrate that his trial counsel's performance was deficient and that this deficient performance "prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984).
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. In order to establish the necessary prejudice, Defendant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
As we have already determined, even if Defendant's trial counsel had renewed his dismissal motion at the close of all evidence, that motion would not have resulted in either the dismissal of the charges against Defendant at trial or a grant of appellate relief by this Court. Simply put, the evidence presented by the State in this case was sufficient to withstand any dismissal motion that Defendant's trial counsel might have made at the conclusion of all of the evidence. As a result, even if Defendant received deficient representation due to his trial counsel's failure to adequately preserve Defendant's challenge to the sufficiency of the evidence to support his convictions for threatening a court officer for appellate review, any such deficient performance did not adversely affect Defendant's chances for a more favorable outcome at trial or on appeal. Thus, we conclude that Defendant's ineffective assistance of counsel claim lacks merit.
E. Jury Instructions
Finally, Defendant contends that the trial court failed to appropriately instruct the jury concerning the issue of his guilt of threatening a court officer in violation of N.C. Gen. Stat. § 14-16.7(a). More specifically, Defendant argues that the "trial court [erred] by instructing the jury upon a theory of guilt which was not supported by the indictments[.]" We do not believe that Defendant is entitled to appellate relief on the basis of this alleged instructional error.
Defendant did not object to the trial court's instructions concerning the issue of his guilt of threatening a court officer at trial. For that reason, we review this aspect of Defendant's challenge to the trial court's judgments using a plain error standard of review. State v. Goforth, 170 N.C. App. 584, 587, 614 S.E.2d 313, 315 (explaining that jury instructions to which the defendant did not object at trial are only subject to appellate review for plain error) (citing N.C.R. App. P. 10), cert. denied, 359 N.C. 854, 619 S.E.2d 854 (2005). Under the plain error standard of review, a defendant must show that error occurred and that, absent this error, "the jury would probably have reached a different verdict." State v. Smith, 152 N.C. App. 29, 37-38, 566 S.E.2d 793 799 (citing State v. Faison, 330 N.C. 347, 361, 411 S.E.2d 143, 151 (1991)), cert. denied, 356 N.C. 311, 571 S.E.2d 208 (2002). Plain error exists when,
after reviewing the entire record, it can be said the claimed error is a " fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "resulted in a miscarriage of justice or in the denial to appellant of a fair trial" or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings" or where it can be fairly said "the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citing United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513, 103 S. Ct. 381 (1982)).
At the conclusion of the trial, the trial court instructed the jury that, "[i]f you find from the evidence beyond a reasonable doubt that [Defendant] made a threat to inflict serious bodily injury upon or kill the victim, that the victim was a court officer, and that the [D]efendant knew or had reasonable grounds to know that the victim was a court officer, it [is] your duty to return [] a verdict of guilty." According to Defendant, "[t]he indictments returned by the grand jury for threatening a court officer alleged only that [he] `did knowingly make a threat to kill' Mr. Kenerly and Ms. Biernacki" and did not allege "that [he] threatened to inflict serious bodily injury upon Mr. Kenerly or Ms. Biernacki." In essence, Defendant argues that the trial court's instruction permitted the jury to return a verdict of guilty predicated on a theory of liability not specified in the indictments. We do not believe that this argument has merit.
A careful reading of the indictments returned against Defendant indicates that they adequately charged both of the theories addressed in the trial court's instructions. At bottom, we find the present situation to be an analogous situation to the one that came before us in State v. Fulcher, 34 N.C. App. 233, 242, 237 S.E.2d 909, 915 (1977), aff'd on other grounds, 294 N.C. 503, 243 S.E.2d 338 (1978), in which we explained, in analyzing the kidnapping statute, that "unlawful removal from one place to another must involve unlawful restraint," so that the "State may confine the charge against the defendant to kidnapping by unlawful restraint." Similarly, in this case, since a threat to kill necessarily involves a threat to inflict serious bodily injury, the indictments returned against Defendant sufficed to charge him with both a threat to kill and a threat to inflict serious bodily injury. See also State v. Lark, 198 N.C. App. 82, 89-93, 678 S.E.2d 693, 699-702 (2009) (holding that the trial court did not commit plain error by instructing the jury that it could convict the defendant of felonious child abuse in the event that the defendant performed either fellatio or anal intercourse upon the child despite the fact that the indictment merely alleged that the defendant performed anal intercourse upon the child), disc. review denied, 363 N.C. 808, 692 S.E.2d 111 (2010); State v. Bollinger, 192 N.C. App. 241, 247, 665 S.E.2d 136, 140 (2008) (refusing to grant appellate relief in a case in which the trial court instructed the jury that it could convict the defendant of carrying a concealed weapon in the event that it found that he possessed a set of metallic knuckles and one or more knives despite the fact that the indictment only alleged that the defendant possessed a set of metallic knuckles), aff'd, 363 N.C. 251, 675 S.E.2d 333 (2009). As a result, since "the trial court did not substitute a different theory for the one alleged in the indictment" and, instead, "instructed on the theory alleged in the indictment in addition to a second theory supported by the evidence," Lark, 198 N.C. App. at 93, 678 S.E.2d at 701-702, we conclude that Defendant is not entitled to appellate relief on the grounds that the "trial court [erroneously] instruct[ed] the jury [on] a theory of guilt which was not supported by the indictments."
F. Motion for Appropriate Relief
On 21 July 2010, Defendant filed a motion for appropriate relief in which he alleged that he was denied due process of law as a result of the State's use of or failure to correct false testimony by Lieutenant Schmierer at trial. At trial, Lieutenant Schmierer testified that he believed Defendant would carry out his threat to have one of his "mules" kill Lieutenant Schmierer based, in part, on his knowledge of Defendant's association with an individual named Kenneth Carpenter. Lieutenant Schmierer claimed that his testimony to this effect rested on his knowledge of several of Mr. Carpenter's criminal convictions. However, the available court records "establish that Mr. Carpenter committed [the relevant] crimes on February 9, 2007, over a year after [Defendant] allegedly threatened Officer Schmierer." For that reason, Defendant contends that Lieutenant Schmierer's "testimony that he believed, on January 17, 2006, that [Defendant] would employ Mr. Carpenter to be his mule so as to carry out his threat, based upon crimes which Mr. Carpenter had not yet committed, is demonstrably false."
"When a defendant shows that `testimony was in fact false, material, and knowingly and intentionally used by the State to obtain his conviction,' he is entitled to a new trial." State v. Sanders, 327 N.C. 319, 336, 395 S.E.2d 412, 423 (1990) (quoting State v. Robbins, 319 N.C. 465, 514, 356 S.E.2d 279, 308, cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987)), cert. denied, 498 U.S. 1051, 112 L. Ed. 2d 782, 111 S. Ct. 763 (1991). "The Supreme Court has used Mooney [ v. Holohan, 294 U.S. 103, 79 L. E. 791, 55 S. Ct. 340 (1935),] and its progeny to establish a `standard of materiality' under which the knowing use of perjured testimony requires a conviction to be set aside `if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.'" Id. at 327 N.C. at 336, 395 S.E.2d at 424 (citations omitted). As a result, the ultimate issue raised by the claim asserted in Defendant's motion for appropriate relief is whether the State knowingly used or failed to correct false testimony that reasonably could have affected the judgment of the jury. Id.
The State offered the challenged portion of Lieutenant Schmierer's testimony for the purpose of proving Defendant's guilt of communicating threats in violation of N.C. Gen. Stat. § 14-277.1. As we have already noted, establishing that a defendant violated N.C. Gen. Stat. § 14-277.1 requires proof that "[t]he threat [was] made in a manner and under circumstances which would cause a reasonable person to believe that the threat [was] likely to be carried out[,]" and that the recipient of the threat "believe[d] that the threat [would] be carried out." N.C. Gen. Stat. § 14-277.1(a)(3)-(4). As a result, Lieutenant Schmierer's testimony concerning Defendant's association with Mr. Carpenter tended to prove the existence of the third and fourth elements of the offense of communicating a threat.
In addition to testifying about Defendant's association with Mr. Carpenter, Lieutenant Schmierer testified that he knew that Defendant associated with J.D. Gladden and Charles Gillespie. Both Lieutenant Schmierer and Officer Reccardi testified that they were aware of Defendant's association with Mr. Gladden and Mr. Gillespie and with information concerning the criminal records and violent reputations of these individuals. When the prosecutor asked Lieutenant Schmierer, "Is there anything you know about [Defendant] that would make you believe that it was possible that he could carry out this threat and hav[e] a mule look up yours and Reccardi's address and kill you both," he responded by making reference to Defendant's association with Mr. Gladden and Mr. Gillespie and providing a detailed account of his knowledge of Mr. Gladden and Mr. Gillespie's criminal activities. As a result, the record clearly establishes that Lieutenant Schmierer was not the only witness to testify concerning the activities of and risks posed by Defendant's associates and that Mr. Carpenter was not the only one of Defendant's associates about whom Lieutenant Schmierer offered testimony. Instead, our review of the record reveals the presence of substantial evidence, separate and apart from Lieutenant Schmierer's testimony concerning Mr. Carpenter, tending to show that Lieutenant Schmierer and Officer Reccardi were aware that Defendant associated with violent individuals who might serve as his "mules." As a result, in light of the substantial amount of evidence tending to show the existence of legitimate fears on the part of Lieutenant Schmierer and Officer Reccardi that Defendant would be able to have his threats against them carried out, we do not believe that there is any reasonable likelihood that the admission of Lieutenant Schmierer's erroneous testimony affected the jury's decision at trial. Thus, Defendant is not entitled to relief on the basis of this claim.
In addition, Defendant alleged in his motion for appropriate relief that his communicating threats convictions resulted from state-induced ineffective assistance of counsel because his trial counsel was not made aware prior to trial that the State intended to rely on the criminal acts of others in proving the case against him. We need not discuss Defendant's second argument at any length given our previous determination that Defendant could have reasonably anticipated that the State would seek to have testimony like that upon which Defendant relies in asserting this claim admitted into evidence for the purpose of proving his guilt of communicating threats. As a result, we conclude that the second claim asserted in Defendant's motion for appropriate relief lacks merit.
III. Conclusion
For the reasons set forth above, we conclude that Defendant received a fair trial, free from any prejudicial error, and that none of his challenges to the trial court's judgments have merit. As a result, we find no error in the proceedings leading to the entry of the trial court's judgments and deny Defendant's motion for appropriate relief.
NO ERROR CONCERNING CONVICTION; MOTION FOR APPROPRIATE RELIEF DENIED.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).