State v. Boyd

• Decision Date: 07 August 2012
• Docket Number: No. COA10–1072–2.,COA10–1072–2.
• Citation: 730 S.E.2d 193
• Parties: STATE of North Carolina v. Bryant Lamont BOYD.
• Court: North Carolina Court of Appeals

730 S.E.2d 193

STATE of North Carolina
v.
Bryant Lamont BOYD.

No. COA10–1072–2.

Court of Appeals of North Carolina.

Aug. 7, 2012.

[730 S.E.2d 194]

Appeal by Defendant from judgment entered 14 April 2010 by Judge Abraham P. Jones in Orange County Superior Court. The case was originally heard before this Court on 10 March 2011. See State v. Boyd, –––N.C.App. ––––, ––––, 714 S.E.2d 466, 468 (2011). Upon remand by order of the North Carolina Supreme Court, filed 19 June 2012. See State v. Boyd, –––N.C. ––––, ––– S.E.2d –––– (2012).

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

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

HUNTER, JR., ROBERT N., Judge.

Bryant Lamont Boyd (“Defendant”) appealed from his sexual battery, and attaining habitual felon status. The case was originally heard before this Court on 10 March 2011. See State v. Boyd, ––– N.C.App. ––––, ––––, 714 S.E.2d 466, 468 (2011). Defendant alleged 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 that Defendant claims was irrelevant and impermissibly prejudicial.

This Court found no error in part, granted a new trial in part, vacated in part, and remanded. Id. at ––––, 714 S.E.2d at 476. We found no error on issues two through five above but found error with the trial court's jury instructions on second degree kidnapping (though we did not apply plain error review). Id. at ––––, 714 S.E.2d at 469. Accordingly, we vacated Defendant's conviction for kidnapping and remanded for a new trial. Id. Because the kidnapping conviction was one of the predicate felonies for Defendant's habitual felon conviction, this Court also vacated and remanded that judgment. Id. Accordingly, we did not reach Defendant's last argument on the habitual felon conviction. Id.

The State petitioned our Supreme Court for discretionary review, and, on 19 June 2012, our Supreme Court allowed the State's

[730 S.E.2d 195]

petition only “for the limited purpose of remanding to the Court of Appeals for the application of plain error review pursuant to State v. Lawrence, ––– N.C. ––––, 723 S.E.2d 326 (2012),” which clarifies the appropriate standard for plain error. Therefore, as per our Supreme Court's order, we conduct a new analysis under plain error review on issue one: whether the trial court erred by instructing the jury on a theory of second degree kidnapping that was not charged in the indictment or supported by evidence. After review, we vacate Defendant's kidnapping conviction and grant Defendant a new trial. We further note that, except as herein modified, the remainder of the opinion we filed on 2 August 2011 remains in full force and effect.

I. Facts and Procedural Background

We adopt the facts and procedural background provided in Boyd, –––N.C.App. at ––––, 714 S.E.2d at 469–70.

II. Standard of Review

Because Defendant did not object to the instructional issue at trial and pursuant to our Supreme Court's direction on remand, Defendant is limited to plain error review. SeeN.C. R.App. P. 10(a)(2) (“A party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires....”); see also State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996) (Our Supreme Court “has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence.”) To show plain error,

a defendant must demonstrate that a fundamental error occurred at trial. 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.” Moreover, because plain error is to be “applied cautiously and only in the exceptional case,” the error will often be one that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”

Lawrence, ––– N.C. at ––––, 723 S.E.2d at 334 (internal citations omitted) (alteration in original).

III. Analysis

Defendant argues the trial court erroneously instructed the jury with respect to the second degree kidnapping charge. Defendant specifically contends the trial court erred by instructing the jury on a theory of second degree kidnapping (removal) that was unsupported by the evidence presented at trial and not charged in the indictment. “[Arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo, by this Court.” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009).

Before applying plain error analysis to jury instructions, “it is necessary to determine whether the instruction complained of constitutes error.” State v. Cummings, 361 N.C. 438, 470, 648 S.E.2d 788, 807 (2007), cert. denied,552 U.S. 1319, 128 S.Ct. 1888, 170 L.Ed.2d 760 (2008). “The prime purpose of a court's charge to the jury is the clarification of issues, the elimination of extraneous matters, and a declaration and an application of the law arising on the evidence.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973), cert. denied,418 U.S. 905, 94 S.Ct. 3195, 41 L.Ed.2d 1153 (1974). “[A] trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial.” Id.

Here, the indictment charged Defendant with second degree kidnapping “by unlawfully confining and restraining her without her consent and for the purpose of terrorizing her.” The trial court defined second degree kidnapping in its jury charge as “unlawfully confining a person and/or restraining a person and that person did not consent to this confinement and/or restraint and that this was for the purpose of terrorizing that person.” However, in charging the jury on the specifics of second degree kidnapping as they applied to the case at hand, the trial court instructed the jury as follows, including “removal”

[730 S.E.2d 196]

as a theory on which to convict Defendant:

For you to find the defendant guilty of [second degree kidnapping], the State must prove three things beyond a reasonable doubt: First, that the defendant unlawfully confined the person—that is, imprisoned her within a given area; restrained a person, that is, restricted her freedom of movement; or removed a person from one place to another—second, that the person did not consent—and, as instructed, consent obtained by fraud or fear is not actual consent; and third, that the defendant did so for the purpose of terrorizing that person.

(Emphasis added).

The State argues the inclusion of “removal” as a theory on which to convict Defendant is not error because this theory is supported by the evidence. We disagree and adopt our analysis in Boyd on this issue:

In support of this assertion, the State points to two portions of [the victim's] testimony in which she describes Defendant forcing her to sit on his lap in a nearby chair. The State argues this constitutes sufficient evidence of removal, and therefore Defendant's argument is factually deficient. We find the State's argument unpersuasive. It is unclear how Defendant “forced” [the victim] to accompany him to the chair. And even assuming there is sufficient evidence of actual or constructive force, we conclude the asportation in this case was insufficient to constitute removal.

We acknowledge that there is no particular requirement that a defendant move a victim a certain distance in order to support a charge of kidnapping under a theory of removal, and our Supreme Court has specifically rejected the notion that removal must be “substantial.” See State v. Fulcher, 294 N.C. 503, 522–23, 243 S.E.2d 338, 351 (1978) (“[I]t was clearly the intent of the Legislature to make resort to a tape measure ... unnecessary in determining whether the crime of kidnapping has been committed.”). Therefore, the State is correct in citing State v. Owen, 24 N.C.App. 598, 211 S.E.2d 830 (1975), for the proposition that moving a victim a short distance could constitute kidnapping in a proper case. This, however, is not such a case.

We do not discount the notion that evidence of removal could be present in a case where a victim was moved a distance equivalent to the space between where [the victim] was standing and the chair. However, we cannot conclude that the evidence presented at trial, or any fair inference stemming therefrom, suggests [the victim] was “removed” in this case. According to her own testimony, the entirety of [the victim's] encounter with Defendant occurred within the confines of her living room, and certainly evidence was presented as to Defendant confining and restraining her. Defendant attempted to talk [the victim] into accompanying him to the bedroom, but she refused. Interpreting [the victim's] testimony as supporting the assertion Defendant “removed” her is not plausible.

This conclusion is consistent with this Court's recent decisions in the home invasion context. We have recently held that a kidnapping victim may be “removed” from one area of their home to another. See, e.g., State v. Mangum, 158 N.C.App. 187, 195, 580 S.E.2d 750, 755 (2003) (evidence tending to show a rape victim was forced down a hallway from one room to...