State v. Clagon

• Decision Date: 21 September 2021
• Docket Number: No. COA20-618,COA20-618
• Citation: 865 S.E.2d 343
• Parties: STATE of North Carolina v. Willis R. CLAGON, Defendant.
• Court: North Carolina Court of Appeals

865 S.E.2d 343

STATE of North Carolina

v.Willis R. CLAGON, Defendant.

No. COA20-618

Court of Appeals of North Carolina.

Filed September 21, 2021

Attorney General Joshua H. Stein, by Special Deputy Attorney General Creecy Johnson, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Wyatt Orsbon, for Defendant.

GRIFFIN, Judge.

¶ 1 Willis R. Clagon ("Defendant") appeals from two judgments entered upon a jury verdict for (1) assault with a deadly weapon inflicting serious injury and (2) intimidating a witness.¹ Defendant argues that (1) there was a fatal variance between the State's proof and its charge of intimidating a witness; (2) the trial court erred by using the phrase "attempted to deter" in its jury instruction for the charge of intimidating a witness; and (3) the trial court's restitution order was unsupported by the State's evidence. We discern no error in the first two issues. We vacate and remand on the issue of restitution.

I. Factual and Procedural Background

A. Indictment

¶ 2 On 8 April 2019, Defendant was indicted for (1) assault with a deadly weapon inflicting serious injury ("AWDWISI") and (2) intimidating a witness. The indictment for intimidating a witness stated, in pertinent part, that "[t]he intimidation consisted of [Defendant] telling Darryl Derstine to tell Nicholas Ramos that he would have Nicholas Ramos deported if he testified against [ ] Defendant and was for the purpose of keeping Nicholas Ramos from testifying against [Defendant]."

B. State's Evidence

¶ 3 Defendant was tried by jury in Washington County Superior Court from 18 to 19 November 2019. The State's evidence tended to show the following:

¶ 4 Larry Brooks and Defendant were employed at Crossties Plus as of 29 November 2018. That day, Mr. Brooks and Defendant had an "altercation." At first, they only exchanged words, but then Defendant pushed Mr. Brooks, and Mr. Brooks swung at Defendant in response, without hitting him. Defendant walked away, and Mr. Brooks went back to work. A few minutes later, Defendant returned with a machete, which he swung at Mr. Brooks multiple times. The machete blade hit Mr. Brooks’ shoulder and left wrist.

¶ 5 Darryl Derstine drove Mr. Brooks to the hospital. Mr. Brooks spent about two hours at the hospital, and then approximately a day and a half at another hospital where he received surgery to repair his severed ligaments. He spent around two months in physical therapy after the incident. He had not regained full use of his left hand when the case was called for trial. Mr. Brooks did not testify as to the monetary amount of his medical expenses, and no evidence in the Record shows the amount.

¶ 6 Nicholas Ramos, another Crossties Plus employee, was working nearby during the alleged assault. Mr. Derstine testified that, "sometime within the next couple of months" after the incident, he had a phone conversation with Defendant concerning Mr. Ramos. Mr. Derstine testified that in the phone call, Defendant

started talking about that he had told his lawyer ... that Nick [Ramos] was illegal.

...

[Defendant] said he mentioned ICE, like immigration, and implied that they would -- might be coming around and then ... he said, "I know Nick has a family here, and that's too bad." He said, "I have a family here too, and I'm going to look out for my interest first. I will not have him testify against me."

[PROSECUTOR:] Did he ... say anything else about having Nick deported?

[MR. DERSTINE:] He never actually said, "I will have Nick deported." He contextualized the conversation in that context of immigration in that ... Nick isn't supposed to be here in his mind, and then he said, "It's too bad about his family, but I have a family too. I'm going to look out for my interest first. I will not have him testify against me."

¶ 7 Similarly, a Crossties Plus employee, James Strite, testified that he "knew [that Defendant] said there is an employee here that is, quote, illegal, and I won't have him testifying against me."

¶ 8 Investigator Charles Arnold, who had responded to the call about the incident, testified that he

had went [sic] back to ... the sawmill on January 29th and spoke with Mr. Derstine in reference to [Defendant] calling up there several times from jail -- or calling after he was released from jail and saying that he knew -- he knew Nick [Ramos] was here illegally and that it would be a shame if, you know, ICE was called and he was -- you know I took it as be deported.

I asked Mr. Derstine if ... Nick would be willing to talk to me, and he said, "Nick is very scared of [Defendant]."

...

It wasn't for a while later that I received a message that Nick would talk.

¶ 9 During cross-examination, Investigator Arnold testified the following:

[DEFENSE COUNSEL:] And [Nicholas Ramos's] cooperation in this case was not deterred in any way that you can tell.

[INVESTIGATOR ARNOLD:] No, ma'am.

[DEFENSE COUNSEL:] And to your knowledge [Defendant], once he turned himself in, never called ICE or any other deportation agency --

[INVESTIGATOR ARNOLD:] No, ma'am.

...

[DEFENSE COUNSEL:] No letters were seized from [Defendant's] jail cell where he said ICE is going to be here, and to your knowledge no ICE agent is in this courtroom.

[INVESTIGATOR ARNOLD:] No, ma'am.

¶ 10 Mr. Ramos testified that Mr. Derstine had not told him "about a phone call he had with [Defendant.]" Additionally, Mr. Ramos denied that he was, "for lack of a better word[,] ... scared to come here today and have to testify[.]"

C. Jury Instructions

¶ 11 For the charge of intimidating a witness, the trial court proposed giving jury instructions of

intimidating a witness and the paragraphs within that the defendant intimidated by attempting to deter any person who was summoned or who was acting as a witness in the defendant's case, intimidating means to make timid, fearful, or inspire or affect with fear or frighten and that the threat consisted of threatening to have authorities to deport the witness and then the concluding instructions.

The trial court gave the following jury instructions for the charge of intimidating a witness:

Now the defendant has been charged with intimidating a witness. For you to find the defendant guilty of this offense the State must prove four things beyond a reasonable doubt: First, that a person was acting as a witness in a -- in a court of this state; second, that the defendant attempted to deter any person who was acting as a witness in the defendant's case. Intimidating means to make timid or fearful, inspire or affect with fear or frighten; third, that the defendant acted intentionally; and, fourth, that the defendant did so by threatening to have the authorities deport the witness.

So if you find from the evidence beyond a reasonable doubt that on or about the alleged date a person was acting as a witness in the defendant's case in a court of this state and that the defendant intentionally attempted to deter the witness by threatening to have the authorities deport the witness it would be your duty to return a verdict of guilty; however, if you do not so find or if you have a reasonable doubt to one or more of these things, it would be your duty to return a verdict of not guilty.

The parties did not object to the court's proposed jury instruction for the charge of intimidating a witness, either before or after the instructions were given.

¶ 12 During deliberations, the jury asked, "What are the criteria for finding an intimidating a witness verdict?" The trial court brought the jury back in the courtroom and repeated essentially the same instructions for the charge of intimidating a witness.

D. Motions to Dismiss

¶ 13 Defendant moved to dismiss both charges at the close of the State's evidence and at the close of all the evidence. The trial court denied Defendant's motions to dismiss.

E. Sentencing and Appeal

¶ 14 The jury found Defendant guilty of both charges. The trial court sentenced Defendant to 45-66 months for the AWDWISI conviction and 22-36 months for the intimidating a witness conviction. At the State's request, the trial court also awarded $23,189.22 in victim restitution. Defendant timely appealed.

II. Analysis

¶ 15 Defendant argues that (1) there was a fatal variance between the State's proof and its charge of intimidating a witness; (2) the trial court erred by using the phrase "attempted to deter" in its jury instruction for the charge of intimidating a witness; and (3) the trial court's restitution order was unsupported by the State's evidence. We disagree that the variance was fatal and that the jury instructions deviated from the agreed-upon pattern instructions. We agree, and the State concedes, that the trial court's restitution order was unsupported by evidence.

A. No Fatal Variance

¶ 16 Defendant argues that there was a fatal variance between the State's proof and its charge of intimidating a witness. Although there was a variance between the evidence and the indictment, the variance was not fatal.

1. Preservation

¶ 17 Defendant's motion to dismiss preserved his variance argument for appellate review. Previously, this Court has held that "[t]o preserve the issue of a fatal variance for review, a defendant must state at trial that a fatal variance is the basis for the motion to dismiss." State v. Redman , 224 N.C. App. 363, 367-68, 736 S.E.2d 545, 549 (2012) (citing State v. Curry , 203 N.C. App. 375, 384, 692 S.E.2d 129, 137, appeal dismissed and disc. review denied , 364 N.C. 437, 702 S.E.2d 496 (2010) ). Defendant's motions to dismiss did not specifically articulate a fatal variance argument; the motions were based generally on alleged insufficiencies of evidence. However, our Supreme Court recently clarified that "merely moving to dismiss at the proper time under Rule 10(a)(3) preserves all issues related to the sufficiency of the evidence for appellate review." State v. Golder , 374 N.C. 238, 249, 839 S.E.2d 782, 790 (2020) (emphasis in original). "[A] variance-based challenge is, essentially, a...