State Carolina v. Bryant Lamont Boyd.

• Decision Date: 02 August 2011
• Docket Number: No. COA10–1072.,COA10–1072.
• Citation: State Carolina v. Bryant Lamont Boyd., 714 S.E.2d 466 (N.C. App. 2011)
• Parties: STATE of North Carolinav.Bryant Lamont BOYD.
• Court: North Carolina Court of Appeals

714 S.E.2d 466

STATE of North Carolina

v.Bryant Lamont BOYD.

No. COA10–1072.

Court of Appeals of North Carolina.

Aug. 2, 2011.

Appeal by Defendant from judgment entered 14 April 2010 by Judge Abraham P. Jones in Orange County Superior Court. Heard in the Court of Appeals 10 March 2011.

Attorney General Roy Cooper, by Assistant Attorney General David L. Elliott and Agency Legal Specialist Brian C. Tarr, for the State.

Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for Defendant-appellant.

HUNTER, JR., ROBERT N., Judge.

Bryant Lamont Boyd (“Defendant”) appeals from his convictions for first degree burglary, second degree kidnapping, sexual battery, and attaining habitual felon status. Defendant alleges the trial court erred by (1) instructing the jury on a theory of second degree kidnapping that was not charged in the indictment or supported by evidence; (2) instructing the jury on a theory of sexual battery Defendant claims was unsupported by evidence; (3) deviating from the pattern jury instructions on the first degree burglary charge; (4) overruling Defendant's objection to, and failing to intervene ex mero motu during, the State's closing argument; (5) allowing Defendant to be shackled in view of the jury during the habitual felon stage of the trial; and (6) permitting the introduction of evidence in the habitual felon phase Defendant claims was irrelevant and impermissibly prejudicial. For the reasons set forth below, we find no error in issues two through five set forth above. We do, however, find error with the trial court's jury instructions on kidnapping, and order Defendant's conviction vacated and remand for a new trial. As this kidnapping conviction was one of the predicate felonies at issue in Defendant's habitual felon conviction, we must vacate and remand that judgment as well. As a result, we do not reach the last issue raised by Defendant on appeal.

I. Factual & Procedural History

The State's evidence tended to show the following. Pinky Shah moved to the United States from India in February 2008. In 2009, she and her husband moved into the Colony Apartments in Chapel Hill. On an April evening, Shah returned home after leaving work and went to bed. Shah did not testify as to whether she closed or locked the door, but she did tell police that she believed she locked the door.

According to her trial testimony, Shah was awoken around 3:00 a.m. by the noise of someone entering her apartment. She initially assumed it was her husband, whom she expected home late from work. After lying in bed for a period of about ten to fifteen minutes, she got up and walked towards the living room from the bedroom. Her bedroom opened directly into the living room; there was no hallway. Instead of finding her husband, she saw Defendant sitting on the couch. Shah had seen Defendant prior to that night on a few occasions, usually hanging around with some other men in front of a nearby apartment. She testified her husband would sometimes say hello and make small talk with these men.

Before she could say anything, Defendant rushed toward Shah, who was standing just outside the entrance to the doorway of her bedroom, and said, “Don't make a noise. I'm not here to hurt you.” Defendant repeatedly asked Shah if they could talk in the bedroom, but she insisted they stay put. Defendant then said, “All right, we will talk [in the living room].” Defendant told Shah she would have to sit on his lap. Shah attempted to move towards the front door to leave, but Defendant blocked her movements and pushed her back. Defendant asserted, “No. Now that I'm here, I'm going to get something out of you.”

Shah walked about ten feet from the area in front of the bedroom doorway to a chair in the living room (the record does not indicate whether Defendant physically forced her to relocate). Defendant “made” her sit on his lap, according to Shah's testimony (it is unclear how Defendant forced her to cross the room before she sat on his lap). Defendant said, “I'm going [to] sit here and you [sic] going to sit on my lap and you going to give me a hand job.” At some point, Defendant stated, “If you don't want me to rape you, you will do this.” Defendant unzipped his pants, grabbed Shah's hand, and forced her to touch his penis. Shah rubbed Defendant's penis for a long period of time while he attempted to grope her; eventually, he ejaculated on her hands and shirt. Shah testified that, at some point, Defendant must have been successful in his attempts to grope her. After this occurred, Defendant kept Shah pinned on his lap. Defendant made Shah write her phone number on a scrap of paper torn from an envelope, stating, “I hope it's the right number because I'm going to call you later today.”

Defendant then left through the front door. As he was leaving, Defendant re-affixed the screen of the kitchen window, saying, “I'm going to put this screen back on for you and make sure no one else breaks into your apartment.”

After Defendant left, Shah called her husband and her mother-in-law. Her mother-in-law advised her to call the police, but Shah did not call emergency services at that time. When Shah's husband returned to the apartment, he dialed 911, but Shah hung up on the dispatcher. The dispatcher called back, and Shah gave a statement of the event to police.

Chapel Hill Police arrived at the Shah residence later that morning to investigate. Shah told police about the incident and gave a description of the assailant. After obtaining this information, they developed Defendant as a suspect.

Officer David Britt of the Chapel Hill Police Department went to Defendant's apartment, which was in the same complex as Shah's. The door was answered by Regina Baldwin, Defendant's sister. As Officer Britt looked inside the apartment, he saw a pile of clothes that matched Shah's description of the clothes worn by the intruder. Defendant claimed the clothes as his, and permitted Officer Britt to take a picture of the garments. Officer Britt then left Defendant's apartment, and showed Shah the picture he had just taken. Shah stated the clothes could have been the ones she saw on the assailant, although she admitted it was dark during the incident.

When Officer Britt returned to Defendant's apartment, he overheard Baldwin telling Defendant “that a woman had been sexually assaulted in addition to the break-in.” Defendant replied, “Yeah, I know.” Baldwin asked Defendant how he knew, and Defendant indicated that he had heard Officer Britt tell Baldwin this fact. Officer Britt told Defendant that he had never said anything of that sort to Baldwin and asked Defendant how he knew of the sexual assault. Defendant walked over to a couch, sat down, looked at the floor and replied, “Nevermind. Just forget it.”

Officer Britt asked for permission to search the home from Baldwin, who declined to consent. Another officer had everyone inside come out of the apartment in order to “freeze” the scene before applying for a search warrant. Defendant attempted to bring a coat with him that was on the floor. After being told to leave the coat, Defendant asked to pull a lighter out from the pocket. Instead of a lighter, an officer saw Defendant remove a scrap of paper from the pocket, which contained Shah's phone number. Finding this to be consistent with Shah's description of the events, the officers placed Defendant under arrest.

Defendant subsequently waived his Miranda rights and gave a statement in which he claimed to have called Shah earlier on 18 April—arguing the encounter was consensual. Police later found no record of any phone calls received by Shah of the time or length described by Defendant. Subsequently, police found in Shah's home the remainder of the envelope from which the paper containing her phone number was torn. Defendant did not put on any evidence. Defendant's counsel in closing argument acknowledged that Defendant had been untruthful with police, but maintained that the encounter on the night in question was consensual.

Defendant was convicted of first degree burglary, second degree kidnapping, and misdemeanor sexual battery. Defendant was later found to have attained habitual felon status and was sentenced to 121 to 155 months imprisonment. Defendant gave timely notice of appeal.

II. Jurisdiction

We have jurisdiction over Defendant's appeal of right. See N.C. Gen.Stat. § 15A–1444(a) (2009) (“A defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered.”); N.C. Gen.Stat. § 7A–27(b) (2009) (stating appeal shall be to this Court).

III. Analysis

Defendant raises several issues on appeal, which we address in turn.

A. Jury Instruction—Second Degree Kidnapping

Defendant first argues the trial court erroneously instructed the jury with respect to the second degree kidnapping charge.¹ Specifically, Defendant contends the trial court erred by instructing the jury on a theory of second degree kidnapping that was (1) unsupported by the evidence presented at trial and (2) not charged in the indictment. We agree.

We turn first to Defendant's claim that the trial court erred by instructing on a theory of kidnapping that was not supported by the evidence presented at trial. At the conclusion of Defendant's trial, the jury was instructed it could convict Defendant if it found, beyond a reasonable doubt, that he “confined or restrained or removed a person from one place to another.” Defendant asserts that, as a result of this instruction, he was denied his state constitutional right to a unanimous jury verdict.

As a question of law, this Court reviews the sufficiency of jury instructions de novo. State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009). Under de novo review, this Court “considers the matter anew and freely substitutes its own judgment for that of” the trial court....