State v. Voltz
| Decision Date | 15 August 2017 |
| Docket Number | No. COA16-1164,COA16-1164 |
| Parties | STATE of North Carolina v. Phillip VOLTZ, IV, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Stuart M. Saunders, for the State.
Richard Croutharmel, Raleigh, for Defendant.
Phillip Voltz, IV ("Defendant") appeals from judgments entered after a jury found him guilty of assault inflicting serious injury, second-degree sexual offense, assault by strangulation, felonious breaking or entering, and intimidating a witness. We affirm in part, and find no plain error in part.
Jessica Tony ("Tony") invited Defendant to the apartment she shared with B.A. and B.A.’s two-year-old daughter on the evening of 12 May 2015. Defendant brought a six-pack of beer with him. Tony, Defendant, and B.A. sat on the porch drinking and talking. Defendant and B.A. had not met prior to that evening. At around 12:30 a.m., B.A.’s daughter woke up and began to cry. Tony left to check on the child, and eventually fell asleep with her. When B.A. found Tony asleep, she told Defendant he needed to leave. Defendant responded he could not leave because he did not want to drive drunk, so B.A. told him he could sleep on the couch. B.A. retired to her bedroom.
As B.A. was preparing for bed, Defendant entered B.A.’s bedroom and informed her "that [they] were going to have sex." B.A. "told [Defendant] no," and Defendant pushed B.A. onto the bed, got on top of her, and choked her for a few seconds. Defendant forced B.A. to put her hands over her head, pulled off her shirt, ripped off her bra, and inserted his fingers into her vagina while choking her with one hand.
During a struggle, B.A. managed to fight off Defendant. B.A. then stood up on the bed, swung her right hand and hit Defendant in the eye, causing him to fall backwards. Defendant exclaimed "[l]ook what you did to my face," pulled B.A. down from the bed, threw her against the wall, and began to choke her again. B.A. was able to reach the bedroom door, open it, and push Defendant off of her. Defendant again grabbed B.A., and the pair fell to the floor in the doorway of the bedroom. The struggle continued into the hallway, during which Defendant picked B.A. up by her legs and slammed her to the floor three times.
Hearing the commotion, Tony came out of her bedroom, screamed, and asked what was going on. Tony testified that B.A. "kept yelling that [Defendant] raped her[.]" B.A. testified she told Tony to call the police. B.A. eventually managed to get away from Defendant.
The police responded to the scene, but Defendant had left before they arrived. Defendant was indicted on 15 June 2015 on charges of assault inflicting serious injury, second-degree sexual offense, and assault by strangulation (collectively, the "13 May 2015 charges").
About eight months later, Kerissa Eller ("Eller"), B.A.’s neighbor, was washing dishes in her kitchen on 2 January 2016 when a man wielding a knife broke into her home. The man repeatedly asked "[w]here the f--k is [B.A.’s first name]?" Eller assumed the man meant B.A. Eller testified that after the man repeated the question a few times, he stopped, looked around, exclaimed "[o]h s--t," and ran out. Eller called the police. The police showed Eller a photographic lineup, which included a photo of Defendant, but Eller was unable to identify anyone in the lineup. Defendant was indicted on 7 March 2016 on charges of felony breaking or entering, felony stalking, and intimidating a witness (collectively, the "2 January 2016 charges").
Prior to trial, the State moved to join the 13 May 2015 and the 2 January 2016 charges for a single trial. Defense counsel objected to the motion. After considering arguments by Defendant and the State, the trial court ruled, "after hearing all the arguments and reviewing the case law," joinder "[was] proper in this matter[.]"
Defendant's trial began on 29 August 2016. During Eller's testimony, the trial court conducted voir dire to determine whether to admit portions of her testimony regarding B.A.’s character. In her voir dire testimony, Eller described B.A. as someone who created drama by, for example, "not keeping up with her dog." Eller further testified B.A. "always [had] ... eight or nine cars in and out of [the apartment complex] all day." Also during voir dire , the following colloquy occurred between Defendant's counsel and Eller:
Eller further testified during voir dire that she had observed B.A. arguing with men in the yard outside of the apartment complex, and she could occasionally hear B.A. loudly arguing with men inside of B.A.’s apartment, which was a considerable distance away. Following voir dire , the trial court ruled that Eller's testimony would be limited to describing statements B.A. made to Eller about the events surrounding the alleged attack, but Eller was not permitted to testify about B.A.’s "propensity for violence" or about the
After all of the evidence was presented, the trial court instructed the jury regarding each of the charged offenses. With respect to the charge of felonious breaking or entering, the trial court gave the following oral instruction in open court:
(emphasis added). The trial court further instructed the jury if it found "from the evidence beyond a reasonable doubt that on or about the alleged date [Defendant] broke into or entered a building without the consent of the tenant, intending at that time to commit a felony of assault ," it would be the jury's duty "to return a verdict of guilty of felonious breaking or entering."
After the trial court had fully instructed the jury as to all offenses, the jury began deliberations. The next morning, and outside the presence of the jury, the trial judge stated that he "want[ed] to mention something ... that [he] added" to the jury instruction on felonious breaking or entering. With regard to the fourth element of felonious breaking or entering, the trial court judge explained:
At the time of the breaking or entering [Defendant] intended to commit the felony of felonious assault. That was what I read to [the jury]. The footnote after that [in the pattern jury instructions] says that the crime—the crime that [Defendant] allegedly intended to commit should be briefly defined. Failure to define the crime may constitute reversal [sic] error.
The trial judge stated it was his intention to provide the jury with alternate jury instructions that defined felony assault. Both the State and Defendant's counsel reviewed the proposed alternate instructions, and each agreed to them.
When the jury was present in the courtroom, the trial judge told the jury the following:
I've prepared for you sort of at your request a copy of everything that I read to you—all yesterday.... [I]t's the whole charge from the beginning to end.... [Y]ou said you wanted the law yesterday afternoon, and I read it to you, but overnight I had time to fix the whole thing that I read to you from beginning to end. So I'm going to give you a copy of what's called the judge's charge, just one copy. But it's everything I read to you from beginning to end, okay? ... I'm exercising the [c]ourt's discretion to give you a written copy of the charge, the oral charge, that I read to you yesterday afternoon, okay? So you'll have a written copy of that with you in the jury room.
(emphasis supplied). The written copy of the jury instructions given to the jury was identical to the oral instructions given the previous day, quoted above, but replaced the fourth element of the charge of breaking or entering with the following:
And Fourth, that at the time of breaking or entering, [Defendant] intended to commit the felony of felonious assault. A felony assault would be Assault with a Deadly Weapon with Intent to Kill, Inflicting Serious Bodily Injury. Or an attempt to commit Assault with a Deadly Weapon with Intent to Kill, Inflicting Serious Bodily Injury.
(emphasis omitted). The jury then resumed deliberations.
Defendant was convicted of assault inflicting serious injury, second-degree sexual offense, assault by strangulation, felonious breaking or entering, and intimidating a witness, but was acquitted on the charge of felonious stalking. Defendant appeals.
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2015) and N.C. Gen. Stat. § 15A-1444(a) (2015).
Defendant argues the trial court erred by: (1) granting the State's motion for joinder of...
To continue reading
Request your trial
-
State v. Russell
...a jury instruction correctly explains the law is a question of law, reviewable by this Court de novo. " State v. Voltz , 255 N.C. App. 149, 156, 804 S.E.2d 760, 765 (2017) (citation and quotation marks omitted). "Instructions that as a whole present the law fairly and accurately to the jury......
-
State v. Coley
...whether a trial court erred in instructing the jury is a question of law reviewed de novo . State v. Voltz , ––– N.C. App. ––––, ––––, 804 S.E.2d 760, 765 (2017). "Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribu......