State v. Johnson

• Decision Date: 05 June 2007
• Docket Number: No. COA06-751.,COA06-751.
• Citation: 646 S.E.2d 123
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Robert Lee JOHNSON, Jr.

646 S.E.2d 123

STATE of North Carolina v. Robert Lee JOHNSON, Jr.

No. COA06-751.

Court of Appeals of North Carolina.

June 5, 2007.

Appeal by Defendant from judgment dated 23 January 2006 by Judge A. Leon Stanback in Superior Court, Wake County. Heard in the Court of Appeals 8 March 2007.

Attorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, for the State.

George B. Currin, Raleigh, for Defendant-Appellant.

McGEE, Judge.

Robert Lee Johnson, Jr. (Defendant) was indicted on 16 May 2005 on charges of attempted first-degree murder, first-degree kidnapping, felony breaking or entering, and felony larceny. Defendant was also indicted for being a violent habitual felon. In a superceding indictment dated 25 September 2005, Defendant was again indicted on the charges of attempted first-degree murder and first-degree kidnapping.

At trial, Melissa Walsh (Ms. Walsh) testified that she had lived with her fiancée in a second floor apartment at 916 Shellbrook Court in Raleigh since 2004. Ms. Walsh testified she first met Defendant on the day she and her fiancée moved into their apartment, when Defendant offered to help them carry a couch. After that, Ms. Walsh did not have any contact with Defendant other than "the casual hello that neighbors give[.]"

Ms. Walsh testified that on 9 April 2005, she and her fiancée took their dog for a walk around their apartment complex. Ms. Walsh returned to their apartment alone and noticed that the door to their apartment was "slightly cracked" open. They had left the door closed, but not locked, when they went for their walk.

Ms. Walsh assumed someone was performing maintenance in her apartment and went inside. She testified: "As I was pushing the door open it hit up against something and . . . I hadn't left anything behind the door for it to hit into. So I continued to push and I stepped inside and that's when I saw . . . [D]efendant with DVDs and a camera." Ms. Walsh testified that Defendant had five of her DVDs and her camera in his hands. She asked Defendant what he was doing inside her apartment and he responded that he was "fixing something, had to return something." However, Ms. Walsh knew of no reason Defendant should be inside the apartment. Ms. Walsh asked Defendant to leave the apartment five or six times, but Defendant did not leave. He continued to "stand by the door" with his back to the door, which was the only exit in the apartment. When Ms. Walsh pulled out her cell phone to call 911, Defendant came towards her and put one of his arms around her neck so that she could not move. Defendant then put his other hand over her mouth and nose and Ms. Walsh testified that she lost consciousness.

Ms. Walsh also testified regarding a note she received after the incident from her downstairs neighbor, who was Defendant's daughter (Ms. Johnson), and with whom Defendant was living at the time of the incident. Defendant made a general objection, and the trial court instructed the jury that since Ms. Johnson would be testifying, the jury should consider Ms. Walsh's testimony only to the extent that it corroborated the testimony of Ms. Johnson. Ms. Walsh testified that in the letter, Ms. Johnson "apologized for what had happened and offered her support." Ms. Walsh also testified that Ms. Johnson had been nice to her since the incident.

Ms. Johnson testified, without objection, that she sent a letter to Ms. Walsh to "express [her] condolences for what [Ms. Walsh] had gone through." Ms. Johnson also testified, over general objection, that she was shocked and hurt by the incident involving Defendant and Ms. Walsh. Ms. Johnson further testified as follows:

Q. [Ms.] Johnson, did you ever see any DVDs that [Defendant] had borrowed from [Ms.] Walsh . . .?

A. No.

Q. Okay. Were you aware of any money that [Ms. Walsh] had loaned [Defendant] or anything she had done?

A. No.

Q. Do you believe any of that?

A. No.

[DEFENSE COUNSEL]: Objection, your Honor.

THE COURT: Objection's sustained.

. . .

THE COURT: The jury's instructed not to consider whether or not [Ms. Johnson] believed what she heard.

Defendant testified on his own behalf, stating that he lived with his daughter in the apartment below Ms. Walsh's apartment. Defendant testified that approximately three weeks prior to 9 April 2005, Ms. Walsh had given Defendant money to buy her Valium or cocaine. Defendant testified that he purchased Valium and cocaine and gave the drugs to Ms. Walsh.

Defendant testified that on 8 April 2005, the day before the incident, Ms. Walsh had again given Defendant money to purchase drugs. At the same time, Defendant testified that he borrowed some DVDs from Ms. Walsh. Defendant testified that he took Ms. Walsh's money and bought cocaine. However, he used the cocaine himself and did not take any cocaine to Ms. Walsh. Defendant testified that the next day, 9 April 2005, Ms. Walsh knocked on the door of Defendant's apartment and asked Defendant to bring to her apartment her drugs and the DVDs Defendant had borrowed. Defendant took the DVDs to Ms. Walsh's apartment and told her he did not have her drugs or her money. Defendant testified that Ms. Walsh became "outraged," started "acting crazy," and began fighting with Defendant. Defendant testified that he put one arm around Ms. Walsh's neck and used the other arm to try to stop her from fighting. Defendant testified that he heard Ms. Walsh's fiancée coming up the stairs with the dog. Defendant then threw Ms. Walsh down on the floor, closed the door, and locked it. Defendant ran to the balcony located in the rear of the apartment and jumped off the balcony.

The trial court instructed the jury on the relevant charges. As part of the charge on first-degree kidnapping and second-degree kidnapping, the trial court instructed the jury that it could convict Defendant if it found, inter alia, that Defendant restrained or confined Ms. Walsh "for the purpose of facilitating . . . [D]efendant's commission of[,] or flight after committing[,] felony breaking or entering or felony larceny[.]" Defendant did not object to this jury instruction. The jury found Defendant not guilty on the charge of attempted first-degree murder. The jury convicted Defendant of second-degree kidnapping, felonious breaking or entering, and felony larceny. The jury also found Defendant had attained the status of a violent habitual felon. The trial court sentenced Defendant to life in prison without parole. Defendant appeals.

I.

Defendant argues the trial court erred by allowing Ms. Walsh to testify regarding the letter written to her by Ms. Johnson. However, Defendant made only a general objection to this testimony, and the trial court instructed the jury to consider this testimony only to the extent that it corroborated the testimony of Ms. Johnson. Ms. Johnson subsequently testified, without objection, regarding the letter she sent to Ms. Walsh. Therefore, Ms. Walsh's testimony corroborated the testimony of Ms. Johnson.

Defendant also argues the trial court erred by allowing Ms. Johnson to testify that she was "shocked" and "hurt" by the incident between Defendant and Ms. Walsh. Defendant further argues defense counsel should have moved for, and the trial court should have granted, a mistrial after Ms. Johnson testified that she did not believe elements of Defendant's defense. While we agree with Defendant that it was error for Ms. Johnson to testify that she was "shocked" and "hurt" and that she did not believe Defendant's defense, such error was not prejudicial. Moreover, after Ms. Johnson testified that she did not believe parts of Defendant's defense, the trial court sustained defense counsel's objection. The trial court further instructed the jury "not to consider whether or not [Ms. Johnson] believed what she heard." "When the trial court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured." State v. Black, 328 N.C. 191, 200, 400 S.E.2d 398, 404 (1991). We overrule these assignments of error.

II.

Defendant argues the trial court erred by denying his motions to dismiss the kidnapping charge because the restraint necessary for kidnapping was an inherent element of the other charged felony of attempted first-degree murder. On a motion to dismiss for insufficiency of the evidence, a trial court must determine "whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). A trial court views the evidence in the light most favorable to the State, drawing all inferences in the State's favor. Id. at 584, 461 S.E.2d at 663.

Under N.C. Gen.Stat. § 14-39(a) (2005),

[a]ny person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person, or any other person under the age of 16 years without the consent of a parent or legal custodian of such person, shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:

. . .

(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony[.]

In State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978), our Supreme Court held that N.C.G.S. § 14-39 "was not intended by the Legislature to make a restraint, which is an inherent, inevitable feature of such other felony, also kidnapping so as to permit the conviction and punishment of the defendant for both crimes. To hold otherwise would violate the constitutional prohibition against double jeopardy." Id. at 523, 243 S.E.2d at 351.

Our Supreme Court further specifically stated that

the term "confine" connotes some...