State v. Boyd

• Decision Date: 18 April 2017
• Docket Number: No. COA16-715,COA16-715
• Citation: 798 S.E.2d 437 (Table)
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Tekenya BOYD

798 S.E.2d 437 (Table)

STATE of North Carolina

v.Tekenya BOYD

No. COA16-715

Court of Appeals of North Carolina.

Filed: April 18, 2017

Attorney General Joshua H. Stein, by Assistant Attorney General Joseph E. Elder, for the State.

Cooley Law Office, Cary, by Craig M. Cooley, for Defendant.

McGEE, Chief Judge.

Tekenya Boyd ("Defendant") appeals her convictions for assault with a deadly weapon with intent to kill, assault by pointing a gun, and discharging a firearm within city limits. We find no plain or prejudicial error.

I. Background

Defendant and her boyfriend, John Nesbitt ("Mr. Nesbitt"), went to a Quik Shoppe convenience store and gas station ("the store") located at 1500 Eastway Drive in Charlotte around 3:00 a.m. on 6 April 2014. Store employees Ahmeira Deese ("Ms. Deese") and Nathan Kazadi ("Mr. Kazadi") were working in the store when Defendant and Mr. Nesbitt entered. Ms. Deese was working as a cook and Mr. Kazadi was working as a cashier. Several days prior, Defendant and Mr. Nesbitt had entered the store around 1:00 a.m. and caused a verbal disturbance that resulted in Ms. Deese asking them to leave the premises. When Defendant and Mr. Nesbitt returned on 6 April, Ms. Deese indicated to Mr. Kazadi that they had been "banned from the store" and requested that Mr. Kazadi ask them to leave, which he did. According to Mr. Kazadi, Defendant and Mr. Nesbitt began "insult [ing him] and curs[ing at] everybody in the store[.]" Mr. Nesbitt "pick[ed] up [a] box of candy and [threw] it at [Mr. Kazadi]" before leaving the store with Defendant. Defendant and Mr. Nesbitt "left [the store] and went outside [but] came back in, [and] words were exchanged. [Defendant and Mr. Nesbitt] went back outside again, and [Mr. Nesbitt] got a cup out of his car that had ice in it, and came back in[to the store] and threw it in [Mr. Kazadi's] face." Mr. Kazadi followed Mr. Nesbitt out of the store and "[they] start[ed] fighting outside."

As the physical altercation between Mr. Kazadi and Mr. Nesbitt continued, Defendant "went to [Mr.] Nesbitt's SUV, retrieved a [nine millimeter] Luger [handgun], and approached [Mr.] Kazadi with the gun drawn." Defendant pointed the gun at Mr. Kazadi. When Mr. Kazadi saw the gun pointed at him, he ran. There was conflicting testimony at trial as to whether Defendant fired the gun before or after Mr. Kazadi began running away, but Defendant concedes that "[a]s [Mr.] Kazadi ran, [she] fired three to four [gun]shots." Mr. Kazadi heard several more gunshots as he ran, although he "didn't turn back." Mr. Kazadi was not shot or injured. He hid in a wooded area behind a nearby carwash, where he "wait[ed] to hear the sirens from the police car before [returning to the store]."

From inside the store, Ms. Deese saw Defendant pointing the gun at Mr. Kazadi and then heard a single gunshot. Ms. Deese testified she "didn't actually see [Defendant] [pull the trigger], but ... [saw Defendant] with the gun the whole time. So when the gun went off ... [Defendant] still had the gun. There wasn't [anyone else] around [Defendant], ... so that's how [Ms. Deese] knew [Defendant] did the shooting." After hearing the first gunshot, Ms. Deese "grabbed [a] cordless phone [and] ran to the back [of the store]" to call the police. Before police arrived, Defendant and Mr. Nesbitt left the scene in the SUV ("the SUV") from which Defendant had retrieved the handgun. A store customer gave Ms. Deese the SUV's license plate number, and Ms. Deese provided it to police.

Officers from Charlotte-Mecklenburg Police Department ("CMPD") responded to Ms. Deese's 911 call and took statements of Ms. Deese and Mr. Kazadi at the scene. CMPD crime scene investigator Officer Kharyn Nix photographed the scene and collected three discharged cartridge casings and three live cartridges. CMPD Detective Sarah Carey ("Detective Carey") ran the SUV's license plate tags on 7 April 2014. The SUV, a 2014 Ford Expedition, was registered to a car rental company and rented in the name of Mr. Nesbitt. CMPD Officer Billie Burleson, accompanied by Mr. Nesbitt's federal probation officer, searched Mr. Nesbitt's residence on 11 April 2014. Defendant and Mr. Nesbitt were present during the search. The officers also searched the SUV, which was parked outside Mr. Nesbitt's apartment. They recovered one spent nine millimeter Luger shell casing from the SUV. A CMPD firearms examiner conducted a comparison of the three discharged cartridge cases collected at the crime scene and the discharged cartridge case found in the SUV. All casings were nine millimeter Luger cartridge cases. The firearms examiner formed the opinion that all four cartridges were discharged from the same firearm, but was unable to determine how closely in time they were fired.

CMPD Officer Candace Miles showed Ms. Deese two separate photographic lineups on 17 April 2014. Ms. Deese identified Defendant as the individual who "pulled the gun and fired at [Mr. Kazadi]," and Mr. Nesbitt as the individual who "got into the [6 April 2014] confrontation with [Mr. Kazadi]." CMPD Officer William Pallone showed Mr. Kazadi two separate photographic lineups on 16 April 2014. Mr. Kazadi identified Mr. Nesbitt as the person with whom he was "one hundred percent certain" he had the physical altercation on 6 April 2014. He identified Defendant as the individual he was "[forty-five] to [fifty] [percent]" certain had fired the gun at him.

Warrants were issued on 17 April 2014 for Defendant's arrest on charges of assault with a deadly weapon with intent to kill, assault by pointing a gun, and discharging a firearm within city limits. Defendant voluntarily surrendered to the sheriff's office on 24 April 2014 and was released on bond shortly thereafter. Defendant was indicted on all charges on 20 January 2015. Following a jury trial, Defendant was convicted on all charges on 17 December 2015. The trial court sentenced Defendant to a term of twenty-five to forty-two months' imprisonment, which was suspended with an intermediate punishment of thirty-six months of supervised probation. Defendant appeals.

II. Failure to Instruct Jury on Lesser Included Offense

Defendant argues the trial court committed plain error by not instructing the jury on the lesser-included offense of assault with a deadly weapon because there was contradictory evidence regarding her intent to kill Mr. Kazadi.

A. Standard of Review

As Defendant concedes, defense counsel did not request that the trial court give a jury instruction on assault with a deadly weapon.

[A] defendant may not challenge a trial court's failure to instruct a jury on lesser-included offenses when the defendant ... did not request instructions on lesser offenses. In such instances, a defendant may challenge jury instructions [only] by ... contending that the instructions amount[ed] to plain error.

State v. Thacker , 196 N.C. App. 512, 514, 675 S.E.2d 670, 672 (2009) ; see also N.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 to consider its verdict [.]"). "Under the plain error standard, [a] defendant must establish the error had a probable impact on the jury's finding that the defendant was guilty." State v. Hole , ––– N.C. App. ––––, ––––, 770 S.E.2d 760, 762 (2015) (citation and internal quotation marks omitted); see also State v. Boyett , 224 N.C. App. 102, 105, 735 S.E.2d 371, 374 (2012) ("A prerequisite to our engaging in a plain error analysis is the determination that the [jury] instruction complained of constitutes error at all; then, before deciding that an error by the trial court amounts to plain error, the appellate court must be convinced that absent the error the jury probably would have reached a different verdict." (citation, quotation marks, and internal alterations omitted)). "[It] is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court." State v. Lawrence , 365 N.C. 506, 517, 723 S.E.2d 326, 333 (2012) (citations and quotation marks omitted).

B. Analysis

"It is well-settled that the trial court must submit and instruct the jury on a lesser included offense when, and only when, there is evidence from which the jury could find that [a] defendant committed the lesser included offense." State v. Harris , 222 N.C. App. 585, 591, 730 S.E.2d 834, 839 (2012) (citation and internal quotation marks omitted). "[W]hen the State's evidence is positive as to each element of the crime charged and there is no conflicting evidence relating to any element, the submission of a lesser included offense is not required." Id.

Defendant contends there was conflicting evidence as to whether she "shot at [Mr.] Kazadi intending to kill him" and, as a result, the trial court was required to instruct the jury on the lesser included offense of assault with a deadly weapon. Defendant submits that "[b]ecause the evidence ... was not unequivocal that [she] assaulted [Mr.] Kazadi with an intent to cause his death, the jury could have found that [Defendant] fired the gun without intending to kill [Mr.] Kazadi." However, assuming arguendo there was conflicting evidence regarding Defendant's intent to kill Mr. Kazadi such that the trial court should have instructed the jury on assault with a deadly weapon, Defendant misstates the standard applied under plain error review. Because Defendant did not request the instruction, our inquiry is not whether the jury "could have found" that Defendant lacked the intent to kill Mr. Kazadi. Instead, the question is whether, if instructed on the lesser included offense of assault with a deadly weapon, the jury probably would have found Defendant not guilty of assault with a deadly weapon with intent to kill. See State v. Carter , 366 N.C. 496, 500, 739 S.E.2d 548, 551 (2013) ("The necessary examination [under the plain error standard] is...