Opinion
No. COA11–917.
2012-04-17
STATE of North Carolina v. Jahmise N. ALLEN.
Roy Cooper, Attorney General, by Donald W. Laton, Assistant Attorney General, for the State. Sue Genrich Berry for the defendant.
Appeal by defendant from judgments entered 30 March 2011 by Judge G. Wayne Abernathy in Person County Superior Court. Heard in the Court of Appeals 15 December 2011. Roy Cooper, Attorney General, by Donald W. Laton, Assistant Attorney General, for the State. Sue Genrich Berry for the defendant.
THIGPEN, Judge.
Jahmise N. Allen (“Defendant”) appeals from convictions of robbery with a dangerous weapon, first-degree burglary, and two counts of second-degree kidnapping. We must decide whether the trial court (I) erred by denying his motion to dismiss all charges and (II) committed plain error by instructing the jury on theories of guilt not alleged in the two kidnapping indictments. After review of the record and applicable law, we conclude Defendant had a fair trial, free from prejudicial error.
I. Factual and Procedural Background
The State's evidence tends to show that in the early morning hours on 20 January 2010, two intruders entered Vicki Westbrook's residence located in a trailer park in Roxboro, North Carolina. The two men forced their way into the residence saying, “police.” One man had a handgun, and the other had a long, black gun. The intruders pushed Ms. Westbrook into the room where her pregnant daughter and her daughter's boyfriend had been asleep. When Ms. Westbrook insisted on getting her two-year-old son, Dakota Spivey, the men hit her in the head with a gun and then brought Dakota into the bedroom. The intruders rummaged through dresser drawers and asked for money, pills, and cell phones. The men took a wallet, a digital camera, a Nintendo game system, and a makeup bag.
At the time the intruders entered the home, Ms. Westbrook's teenage daughter, Destiny Yackel, had been asleep on the couch. Destiny hid under the covers so the intruders could not see her, and, when she realized she had her cell phone with her, she called 911.
Officer Ryan Ford of the Roxboro Police Department was dispatched to Ms. Westbrook's home in response to a breaking and entering call. Before arriving at the residence, Officer Ford turned his lights and siren off. As he approached, Officer Ford observed a car parked near Ms. Westbrook's home facing his direction with the engine running. Officer Ford pulled his police vehicle directly in front of the parked car and saw Defendant in the driver's seat. Officer Ford told Defendant to put his hands up and asked him to exit the vehicle. As Officer Ford checked Defendant for weapons, he asked Defendant what he was doing there. Defendant stated that his cousin was inside the residence because the people owed him some money. At that point, Officer Ford heard a call of distress from the home. He told Defendant to remain at the front of the vehicle and proceeded to the front door of the residence.
Officer Ford drew his service weapon as he entered the residence. He saw an individual later identified as Joshua Evans with a long rifle in his hands. In response to Officer Ford's command, Evans put the weapon on the ground. Officer Ford then noticed a female victim in one room and another suspect in another room. Rather than stop as commanded by Officer Ford, the other suspect slammed the room door closed and escaped through a window. Additional police officers arrived shortly thereafter, but when Officer Ford went back outside, Defendant was gone. The police vehicle camera showed Defendant running away after Officer Ford entered the residence.
Evans was arrested that night, and a digital camera, wallet and bandana were removed from his coat. At trial, Evans testified Defendant was driving a green vehicle with a person he knew as “Stink[,]” later identified as Aaron Dexter, in the passenger seat when Defendant offered to give Evans a ride to the store. After going to the store, Defendant drove to his brother's house where Defendant and Stink went in for about ten minutes and came out with a “deuce-deuce rifle.” Evans also gave statements to police on multiple occasions. Detective Gary Lee testified that Evans told him that the following occurred after Defendant and Stink got the rifle: the three men drove to a trailer park; Defendant made a statement about “getting some money from someone inside the house”; Stink pulled out a handgun; Defendant asked Evans whether he was going to go inside; Evans said he was not going into the house because he was already on probation; Defendant pulled out a handgun, looked at Evans, and told him Evans was going inside the house; and Evans felt threatened and said he'd go in the house. Evans subsequently identified Defendant in a photo lineup as the driver of the car.
On 8 February 2010, Defendant was charged with robbery with a dangerous weapon, first-degree burglary, and four counts of second-degree kidnapping. At trial, the trial court granted Defendant's motion to dismiss two counts of second-degree kidnapping due to insufficiency of the evidence. The jury found Defendant guilty of robbery with a dangerous weapon, first-degree burglary, and the remaining two counts of second-degree kidnapping of Ms. Westbrook and Dakota. Defendant was sentenced to 128 to 163 months imprisonment for robbery with a dangerous weapon, 128 to 163 months imprisonment for first-degree burglary, and a consolidated sentence of 40 to 57 months imprisonment for the two counts of second-degree kidnapping. Defendant appeals from these judgments.
II. Motion to Dismiss
On appeal, Defendant first contends the trial court erred by denying his motion to dismiss the charges of robbery with a dangerous weapon, first-degree burglary, and two counts of second-degree kidnapping because there was no evidence to support Defendant's convictions on the State's theories of aiding and abetting or acting in concert. We disagree.
We note Defendant does not argue on appeal that there was insufficient evidence to support the underlying substantive offenses of robbery with a dangerous weapon, first-degree burglary, or second-degree kidnapping. Defendant only contends that there was no evidence to support the State's theories of aiding and abetting or acting in concert.
“This Court reviews the trial court's denial of a motion to dismiss de novo. ” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). “Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quotation omitted), cert. denied, 531 U.S. 890, 121 S.Ct. 213, 148 L.Ed.2d 150 (2000). “In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.” Id. at 378–79,526 S.E.2d at 455 (citations omitted).
The three elements of aiding and abetting are: “(1) that the crime was committed by another; (2) that the defendant knowingly advised, instigated, encouraged, procured, or aided the other person; and (3) that the defendant's actions or statements caused or contributed to the commission of the crime by the other person.” State v. Bond, 345 N.C. 1, 24, 478 S.E.2d 163, 175 (1996) (citation omitted), cert. denied,521 U.S. 1124, 117 S.Ct. 2521, 138 L.Ed.2d 1022 (1997). It is not necessary for any of the elements of aiding and abetting “to be proven to the trial court beyond a reasonable doubt before the trial court may instruct on aiding and abetting; there needs only to be evidence supporting the instructions, and the jury is to determine whether the State has proved the elements beyond a reasonable doubt.” State v. Baskin, 190 N.C.App. 102, 111–12, 660 S.E.2d 566, 573–74 (citation omitted), disc. review denied,362 N.C. 475, 666 S.E.2d 648 (2008). “The following are the elements of acting in concert: (1) being present at the scene of the crime, and (2) acting together with another person who commits the acts necessary to constitute the crime pursuant to a common plan or purpose.” State v. Jackson, ––– N.C.App. ––––, ––––, 716 S.E.2d 61, 66 (2011) (quotation and quotation marks omitted).
In this case, Evans's testimony and statements to police show that Defendant told Evans “he had a place they could hit[.]” Defendant, Stink, and Evans then drove to Ms. Westbrook's home with two guns to get “some money from someone inside the house[.]” Defendant told Evans to go in with Stink, while Defendant waited in the car. Additionally, Officer Ford testified that when he arrived at Ms. Westbrook's home to respond to the breaking and entering, he saw Defendant sitting in the driver's seat of a car with the engine running. Defendant told Officer Ford his cousin was inside the residence because the people owed him some money. Officer Ford told Defendant to remain at the front of the vehicle while he went inside, but Defendant ran away after Officer Ford entered the residence.
We conclude this evidence was sufficient to support a reasonable inference that Defendant was aiding and abetting or acting in concert to commit the offenses of robbery with a dangerous weapon, first-degree burglary, and two counts of second-degree kidnapping for the offenses to be submitted to the jury. Thus, this argument has no merit.
III. Jury Instruction
Defendant next contends the trial court committed plain error by instructing the jury on theories of guilt not alleged in the two kidnapping indictments. Specifically, Defendant argues the jury instructions included purposes not charged in the respective indictments. Although we agree the jury instructions were erroneous, the error in the instructions was not prejudicial and did not reach the level of plain error.
Because Defendant did not object to the jury instruction at trial, we review for plain error. See State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996) (stating that “[t]his Court has elected to review unpreserved issues for plain error when they involve ... errors in the judge's instructions to the jury”), cert. denied,525 U.S. 952, 119 S.Ct. 382, 142 L.Ed.2d 315 (1998). Plain error arises when the error “is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done [.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (emphasis omitted) (quotation and quotation marks omitted). “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993) (citation omitted).
“It is a well-established rule in this jurisdiction that it is error, generally prejudicial, for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment.” State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980) (citations omitted). Our Supreme Court has found prejudicial error “when the trial court's instruction as to the defendant's underlying intent or purpose in committing a kidnapping differs from that alleged in the indictment.” State v. Tirado, 358 N.C. 551, 574–75, 599 S.E.2d 515, 532 (2004), cert. denied,544 U.S. 909, 125 S.Ct. 1600, 161 L.Ed.2d 285 (2005). “However, we have also found no plain error where the trial court's instruction included the purpose that was listed in the indictment and where compelling evidence had been presented to support an additional element or elements not included in the indictment as to which the court had nevertheless instructed.” Id. at 575,599 S.E.2d at 532 (citing State v. Lucas, 353 N.C. 568, 588, 548 S.E.2d 712, 726 (2001)).
Here, the indictments charge Defendant with kidnapping Ms. Westbrook and Dakota “for the purpose of terrorizing [him or] her and for the purpose of facilitating the commission of a felony, robbery with a dangerous weapon.” (Emphasis added). However, the trial court charged the jury that it could find Defendant guilty of Ms. Westbrook's kidnapping if it found that Defendant, by acting in concert or by aiding and abetting Evans and Stink, kidnapped her “for the purpose of facilitating a larceny or the commission of a larceny or robbery with a firearm or first-degree burglary.” (Emphasis added). Similarly, the trial court instructed the jury that it could find Defendant guilty of Dakota's kidnapping if it found that Defendant kidnapped him “for the purpose of facilitating the commission of robbery with a firearm or larceny or first-degree burglary.” (Emphasis added). Thus, as to each kidnapping charge relating to Ms. Westbrook and Dakota, the jury was instructed on the purpose set out in the indictment, along with two additional purposes that had not been alleged in the indictment.
We note each of the indictments also allege that Defendant “confin[ed]” the victim, while the trial court instructed the jury that it could find Defendant guilty if Defendant “removed” each victim. However, Defendant does not argue the jury instructions were erroneous on this basis. Defendant contends only that the jury instructions contained purposes not charged in the respective indictments. Thus, we will not address on appeal the variance between “confining” in the indictments and “removed” in the jury instructions.
We find this case analogous to Tirado, 358 N.C. at 551, 599 S .E.2d at 515. In Tirado, the indictments for one victim's kidnapping alleged “that each defendant confined, restrained, and removed her for the ‘purpose of doing serious bodily injury to her.” Id. at 575, 599 S.E.2d at 532. The trial court, however, instructed the jury “that it could find defendants guilty if it found that each, acting by himself or with others, removed the victim for the purpose of ‘facilitating commission of robbery with a firearm or for the purpose of doing serious bodily injury.’ “ Id . Our Supreme Court concluded:
Because the instructions given by the trial court contained purposes not charged in the respective indictments, these instructions were erroneous. However, after examining the instructions and the record in its entirety, we cannot say that the defect was a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.... As to victim Cheeseborough, the evidence supported both the theory set out in the indictment and the additional theory set out in the trial court's instructions. Accordingly, we conclude that a different result would not have been reached had the trial court instructed only on the purpose charged in the indictment, and that the error in the instructions was not prejudicial.
Id. at 576, 599 S.E.2d at 532–33 (citations and quotation marks omitted).
Like Tirado, the trial court in this case committed error by instructing the jury on purposes not charged in the respective indictments. However, we cannot say that the defect in the instructions was “a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.” Odom, 307 N.C. at 660, 300 S.E.2d at 378 (emphasis omitted) (quotation and quotation marks omitted). As to Ms. Westbrook and Dakota, the evidence supported both the theory set out in the indictment—robbery with a dangerous weapon—and the additional theories set out in the trial court's instructions—larceny and first-degree burglary. In fact, the jury found Defendant guilty of first-degree burglary. Accordingly, we conclude a different result would not have been reached had the trial court instructed only on the purpose charged in the indictments, and the error in the instructions was not prejudicial. See Tirado, 358 N.C. at 576, 599 S.E.2d at 533;see also State v. Lucas, 353 N.C. 568, 588, 548 S.E.2d 712, 726 (2001) (holding that although “the indictment here charged confinement, [and] the instructions given by the trial court based on the theory of removal were erroneous” the error was not prejudicial and did not rise to the level of plain error because the trial court's instruction regarding the purpose in the kidnapping “did not differ from that listed in the indictment” and “the evidence of confinement, restraint and removal was compelling”), overruled on other grounds, State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005); compare State v. Brown, 312 N.C. 237, 249, 321 S.E.2d 856, 863 (1984) (holding the trial court committed plain error by instructing the jury on kidnapping for the purpose of terrorizing the victim when the indictment charged kidnapping for the purpose of facilitating attempted rape because “the State presented absolutely no evidence directed to proof of the theory that defendant kidnapped [the victim] for the purpose of terrorizing her”).
NO ERROR. Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).