State v. Alexander

• Decision Date: 01 June 2021
• Docket Number: No. COA20-315,COA20-315
• Citation: 858 S.E.2d 143 (Table)
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Preston Spencer ALEXANDER

858 S.E.2d 143 (Table)

STATE of North Carolina v. Preston Spencer ALEXANDER

No. COA20-315

Court of Appeals of North Carolina.

Filed June 1, 2021

Attorney General Joshua H. Stein, by Special Deputy Attorney General Amy L. Bircher, for the State.

Kimberly P. Hoppin, for defendant.

DIETZ, Judge.

¶ 1 Defendant Preston Spencer Alexander appeals his convictions for second degree kidnapping, communicating threats, and assault with a deadly weapon, all stemming from a violent attack on his girlfriend. Over several hours, Alexander stripped his girlfriend naked, confined her against her will, repeatedly beat her, held a knife to her throat and told her he was going to kill her, and strangled her with such force that she could not breathe and believed she was about to die. Ultimately, Alexander's girlfriend was able to escape, naked and bloody, to a neighbor's apartment, where the neighbors called the police.

¶ 2 Alexander challenges the sufficiency of the evidence on the kidnapping charge, the jury instruction on assault with a deadly weapon, and the admission of various evidence against him. As explained below, the trial court properly denied the motion to dismiss because the State presented sufficient evidence of a separate restraint apart from the underlying assaults, and sufficient evidence of each alternative theory of kidnapping. The trial court also properly instructed the jury that the knife Alexander held against his girlfriend's throat was a deadly weapon as a matter of law. Finally, Alexander has not shown a reasonable possibility that the jury would have reached a different verdict in the absence of the testimony he challenges on appeal. Accordingly, we find no error in the trial court's judgment.

Facts and Procedural History

¶ 3 On 14 March 2019, Defendant Preston Alexander lived in an apartment with Stephany Russ and her two young children. Alexander had been drinking that day. That night, after Russ's children went to bed, Alexander and Russ were upstairs in her bedroom. Alexander asked Russ if she "wanted to be his girl." She responded, "Yes," and Alexander hit her across the face. Alexander then asked Russ other questions including whether she was "talking to anybody else" and continued to smack and punch Russ in her face and ears.

¶ 4 Alexander made Russ take her clothes off and then pushed her up against the wall, held a knife to the side of her neck, and asked if she "valued [her] life." After Russ responded, "Yes," Alexander took the knife away from her neck, threw her on the bed, and continued punching her. Russ tried to put her arms up to protect herself, but Alexander "kept grabbing them and putting them down."

¶ 5 At some point, Russ ended up on the floor of her bedroom with Alexander on top of her. Alexander put his hands around Russ's neck and began squeezing. Russ stopped breathing for "about five, ten seconds" before she was able to get his hands off her neck. Russ believed Alexander was going to kill her. Ultimately, Russ was able to get out from under Alexander and attempted to get her phone to call 911, but Alexander would not let her reach her phone, telling her that if she "called the police, that it would do no good" because she "would be dead."

¶ 6 Alexander told Russ to go look at herself in her bathroom mirror. Russ saw that "it looked like there was a tennis ball in the side of [her] face" where Alexander had struck her. Alexander told her that the other side of her face "was going to look like that" because he was not done yet. Russ also had injuries to her ankle that she believed came from when she was on the ground and Alexander was "stomping" and "kicking" her.

¶ 7 After several hours, Russ was finally able to escape her apartment when Alexander was not looking. She was still naked and bloody and ran to her neighbor's apartment. The neighbor gave Russ a hairdresser's poncho to cover her naked body and then called 911. Police and emergency responders arrived on the scene. Police arrested Alexander, took photos of Russ's injuries, and then took her to the hospital.

¶ 8 The State charged Alexander with second degree kidnapping, communicating threats, assault with a deadly weapon, assault on a female, and assault by strangulation. Alexander pleaded guilty to assault on a female and the other charges went to trial. Alexander moved to dismiss the kidnapping charge, but the trial court denied the motion. The jury convicted Alexander of second degree kidnapping, communicating threats, and assault with a deadly weapon. The jury acquitted Alexander of assault by strangulation. The trial court consolidated the convictions and sentenced Alexander to 29 to 47 months in prison. Alexander appealed.

Analysis

I. Denial of motion to dismiss the kidnapping charge

¶ 9 Alexander first argues that the trial court erred in denying his motion to dismiss the second degree kidnapping charge. He contends that the State failed to present sufficient evidence of confinement or restraint separate from that inherent in the assault and failed to present sufficient evidence that the confinement or restraint was for the purpose of committing assault by strangulation.

¶ 10 "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). "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 (2000). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith , 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980).

¶ 11 We first address Alexander's argument that the "evidence does not support a finding that Ms. Russ was imprisoned in a given area apart from the assaultive contact or that her freedom of movement was restricted apart from the assaultive contact."

¶ 12 For the charge of kidnapping, "the State must prove that defendant unlawfully confined, restrained, or removed the victim for one of the specified purposes outlined" in N.C. Gen. Stat. § 14-39. State v. Rodriguez , 192 N.C. App. 178, 187, 664 S.E.2d 654, 660 (2008). However, to avoid a violation of "the constitutional prohibition against double jeopardy," our Supreme Court has held that the charge of kidnapping for the purpose of committing another felony requires evidence of "a restraint separate and apart from that which is inherent in the commission of the other felony." State v. Fulcher , 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978).

¶ 13 Here, the State's evidence readily satisfied this standard. The State presented evidence that, when Alexander began assaulting Russ, he "stripped her naked so that she would be afraid to run out of the house and get help." Russ was then trapped in her apartment with Alexander for a period of several hours. Russ testified that she was not able to get away sooner because whenever she attempted to leave, Alexander would hit or punch her, or hold her to the ground. Russ also testified that Alexander prevented her from getting her phone to call for help, warning that she "would be dead" before police could get there. Ultimately, Russ was forced to escape and flee naked to her neighbor's apartment. This is substantial evidence of a restraint separate from that inherent in the charged assaults. See State v. China , 370 N.C. 627, 635–36, 811 S.E.2d 145, 150–51 (2018).

¶ 14 We next turn to Alexander's assertion that, even if there was evidence of a separate confinement or restraint, there was insufficient evidence to "support the theory that [he] confined or restrained Ms. Russ with the purpose of committing assault by strangulation." Again, the State's evidence was sufficient to support this theory of kidnapping.

¶ 15 Despite Alexander's ultimate acquittal on the assault by strangulation charge, there was ample evidence from which a reasonable jury could have found that the kidnapping was for the purpose of committing assault by strangulation. The State's evidence indicated that, after making Russ strip naked to prevent her from leaving and striking her repeatedly, Alexander pinned Russ to the ground and put his fingers around her neck, squeezing her throat so hard that she stopped breathing and thought she was going to die. Witnesses observed injuries to Russ's neck and the State presented photos of those injuries. This was sufficient evidence to submit the kidnapping charge to the jury on the theory that Alexander restrained Russ for the purpose of committing assault by strangulation. State v. Bell , 359 N.C. 1, 26–27, 603 S.E.2d 93, 111 (2004).

¶ 16 Accordingly, we hold that the trial court did not err by denying Alexander's motion to dismiss.

II. Jury instruction that knife was a deadly weapon as a matter of law

¶ 17 Alexander next argues that the trial court committed plain error by instructing the jury that the knife he used in the assault was a deadly weapon as a matter of law because "a reasonable jury could determine that under the circumstances and manner of use, [Alexander's] pocketknife was not a deadly weapon as a matter of law."

¶ 18 Alexander concedes that he did not object to the challenged portion of the jury instructions and thus we review solely for plain error. "For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial." State v. Lawrence , 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). "To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty." Id. In other words, the defendant must "show that, absent the error, the jury probably would have returned a...