State v. Harding, No. COA17-448

Docket NºNo. COA17-448
Citation258 N.C.App. 306, 813 S.E.2d 254
Case DateMarch 06, 2018
CourtCourt of Appeal of North Carolina (US)

258 N.C.App. 306
813 S.E.2d 254

STATE of North Carolina
v.
Nicholas Nacoleon HARDING

No. COA17-448

Court of Appeals of North Carolina.

Filed: March 6, 2018


Attorney General Joshua H. Stein, by Special Deputy Attorney General Anne J. Brown, for the State.

Yoder Law PLLC, by Jason Christopher Yoder, for defendant.

ELMORE, Judge.

258 N.C.App. 308

Defendant Nicholas Nacoleon Harding appeals from judgments entered after a jury convicted him of first-degree sexual offense, first-degree kidnapping, assault on a female, and assault inflicting physical injury by strangulation. He also appeals the trial court's orders requiring him to enroll in lifetime sex offender registration and lifetime satellite-based monitoring (SBM).

Defendant contends the trial court erred by (1) instructing the jury on two unindicted first-degree kidnapping elements; (2) sentencing him, on double jeopardy grounds, for both kidnapping based on sexual assault and for first-degree sexual offense; (3) sentencing him for both assaults in violation of a statutory mandate requiring that only one sentence be imposed for the same conduct; (4) denying his motion to dismiss the first-degree sexual offense charge for insufficient evidence; and (5) ordering he enroll in lifetime registration and SBM on grounds that

258 N.C.App. 309

the trial court's findings do not support its orders, and that the trial court failed to determine the reasonableness, under the Fourth Amendment, of imposing SBM pursuant to

813 S.E.2d 258

Grady v. North Carolina , ––– U.S. ––––, 135 S.Ct. 1368, 191 L.Ed.2d 459 (2015). Defendant also advances (6) five separate claims of ineffective assistance of counsel (IAC) that allegedly occurred during sentencing.

We hold that defendant's first four alleged errors are meritless and thus that he received a fair trial, free of error, and the sentences imposed based upon the jury convictions were proper. However, based on the first issue of defendant's fifth alleged error, we reverse the trial court's registration and SBM orders and remand for further proceedings, including a new SBM hearing. We dismiss defendant's numerous IAC claims without prejudice to his right to reassert them in a subsequent motion for appropriate relief (MAR) proceeding.

I. Background

On 8 September 2014, defendant was indicted for first-degree sexual offense, first-degree kidnapping, assault on a female, and assault inflicting physical injury by strangulation. At trial, the State's evidence showed the following facts.

During the afternoon of 7 December 2013, Anna,1 a twenty-two-year-old, ninety-five-pound female, was waiting at a bus stop when a stranger, defendant, struck up a conversation with her. Defendant followed Anna onto the bus, after she changed buses, and after she got off at a bus stop on Brevard Road in Asheville. Anna had never taken this route home before and started walking down Pond Road, in a non-residential and "somewhat ... deserted" area. Defendant followed about ten feet behind. Eventually, defendant caught up to Anna, and the two began walking together and talking. As they continued walking down this isolated stretch of road, they came to an area surrounded by excavation machinery and overlooking a creek about twenty feet below, and Anna stopped to take off her fleece jacket.

Unexpectedly, defendant "grabbed [Anna's] hair and then ... tossed [her] over the [em]bank[ment]." When Anna got up, she tried to run away, but defendant "grabbed [her] and started beating [her] face." Anna screamed for help as she fell to the ground. Defendant pinned her body down, grabbed her throat, and "kept choking ... and hitting [her] until [she] stopped trying to fight him." Defendant agreed to stop his physical

258 N.C.App. 310

assault if Anna quit screaming and resisting. Anna calmed down briefly and begged defendant not to hurt her. Defendant warned Anna that he was a "mob boss," but instructed her that as long as she did what he demanded, everything would be okay. Anna started screaming again. Defendant "hit [her] in the head" and covered her mouth. When Anna bit defendant's hand, he "hit [her] again in the head multiple times." Eventually, Anna stopped resisting and defendant let her up. After threatening Anna's and her one-year-old child's life, defendant forced Anna to perform fellatio on him.

Defendant then instructed Anna to sit on a nearby rock near the creek with him while she calmed down. He eventually let Anna retrieve her cell phone and watched as she texted her partner that she was going to be late coming home. Defendant demanded that Anna meet him the next day at 11:00 a.m. in front of the post office downtown and that, if she did not, he "would send somebody to take care of [her] and [her] child." Defendant then instructed Anna to stay put until he walked away and demanded her not to call the police. Once defendant was out of sight, Anna immediately called 9-1-1. Responding officers found defendant walking down a nearby road and arrested him.

The State also presented Rule 404(b) evidence through the testimony of two other witnesses, Cindy and Lisa.2 According to Cindy and Lisa, defendant had also attempted, unsuccessfully, to force himself on them only a few days apart from the incident with Anna. Defendant similarly targeted these women in the afternoon, while they were alone, attempted to befriend them and bring them to an isolated location, and demanded sexual favors. Defendant similarly warned these women that he was a "mob boss" when they refused his demands, and threatened their lives if they continued to deny him.

813 S.E.2d 259

Defendant presented no evidence, and the jury convicted him on all counts. The trial court consolidated the first-degree-sexual-offense and assault-on-a-female convictions into one judgment, imposing an active sentence of 276 to 392 months in prison; it consolidated the first-degree-kidnapping and assault-by-strangulation convictions into another judgment, imposing a consecutive sentence of 83 to 112 months. The trial court also ordered, inter alia , that defendant enroll in lifetime sex offender registration and SBM. Defendant appeals from the judgments, and from the registration and SBM orders.

258 N.C.App. 311

II. Alleged Errors

On appeal, defendant contends the trial court erred by (1) instructing the jury on two first-degree kidnapping elements which were not charged in the indictment; (2) sentencing him for both first-degree kidnapping and first-degree sexual offense on the double jeopardy grounds that the kidnapping conviction was based on the underlying sexual offense; (3) sentencing him for both assault on a female and assault by strangulation in violation of statutory mandates requiring only one punishment for the same conduct; (4) denying his motion to dismiss the first-degree sexual offense charge for insufficiency of the evidence; and (5) ordering he enroll in lifetime sex offender registration and SBM on the grounds that the trial court's findings were inadequate to support such orders, and a proper Grady hearing on the reasonableness of SBM was never conducted. Defendant also asserts (6) he was denied effective assistance of counsel several times.

III. Instructing on Unindicted First-Degree Kidnapping Elements

Defendant first contends the trial court plainly erred by instructing the jury it could find him guilty of first-degree kidnapping based on all three elevating elements of N.C. Gen. Stat. § 14-39(b) when the indictment only charged the subsection (b) element of sexual assault. We disagree.

A. Issue Preservation

Defendant concedes his counsel failed to object to the instructions at trial and is thus entitled only to plain error review of this alleged error. See N.C. R. App. P. 10(b)(2), (c)(4). The State argues that defendant is precluded from plain error review in part under the invited-error doctrine because he failed to object, actively participated in crafting the challenged instruction, and affirmed it was "fine." We disagree.

Even where the "trial court gave [a] defendant numerous opportunities to object to the jury instructions outside the presence of the jury, and each time [the] defendant indicated his satisfaction with the trial court's instructions," our Supreme Court has not found the defendant invited his alleged instructional error but applied plain error review. See State v. Hooks , 353 N.C. 629, 633, 548 S.E.2d 501, 505 (2001) (acknowledging that the defendant at multiple times failed to object and approved the challenged instruction but nonetheless electing to review his alleged instructional error for plain error). Further, the transcript excerpt the State cites to support its participating-in-crafting-the-instructions argument concerned the subsection (a) purpose element of kidnapping, not

258 N.C.App. 312

any subsection (b)...

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16 practice notes
  • State v. Perkins, COA20-572
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 18, 2022
    ...860, 864-65, 854 S.E.2d 15, 20 (2020); State v. Lopez, 264 N.C.App. 496, 503-04, 826 S.E.2d 498, 503-04 (2019); State v. Harding, 258 N.C.App. 306, 320, 813 S.E.2d 254, 265 (2018); State v. Lindsey, 260 N.C.App. 640, 642, 818 S.E.2d 344, 346 (2018); State v. Martinez, 253 N.C.App. 574, 585 ......
  • State v. Perkins, COA20-572
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 6, 2022
    ...860, 864-65, 854 S.E.2d 15, 20 (2020); State v. Lopez, 264 N.C.App. 496, 503-04, 826 S.E.2d 498, 503-04 (2019); State v. Harding, 258 N.C.App. 306, 320, 813 S.E.2d 254, 265 (2018); State v. Lindsey, 260 N.C.App. 640, 642, 818 S.E.2d 344, 346 (2018); State v. Martinez, 253 N.C.App. 574, 585 ......
  • State v. Chavez, No. COA19-400
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • April 7, 2020
    ...on appeal.The same argument the State makes here has been soundly rejected by both of our appellate courts. In State v. Harding , 258 N.C. App. 306, 813 S.E.2d 254 (2018), "[t]he State argue[d] that defendant [wa]s precluded from plain error review in part under the invited-error doctrine b......
  • State v. Coffey, No. COA19-445
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 15, 2020
    ...v. Harding , the trial court gave a jury instruction that included the indicted language and additional language. State v. Harding , 258 N.C. App. 306, 313, 813 S.E.2d 254, 260, writ denied, review denied , 371 N.C. 450, 817 S.E.2d 205 (2018). The first-degree kidnapping indictment provided......
  • Request a trial to view additional results
15 cases
  • State v. Perkins, COA20-572
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 18, 2022
    ...860, 864-65, 854 S.E.2d 15, 20 (2020); State v. Lopez, 264 N.C.App. 496, 503-04, 826 S.E.2d 498, 503-04 (2019); State v. Harding, 258 N.C.App. 306, 320, 813 S.E.2d 254, 265 (2018); State v. Lindsey, 260 N.C.App. 640, 642, 818 S.E.2d 344, 346 (2018); State v. Martinez, 253 N.C.App. 574, 585 ......
  • State v. Chavez, No. COA19-400
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • April 7, 2020
    ...on appeal.The same argument the State makes here has been soundly rejected by both of our appellate courts. In State v. Harding , 258 N.C. App. 306, 813 S.E.2d 254 (2018), "[t]he State argue[d] that defendant [wa]s precluded from plain error review in part under the invited-error doctrine b......
  • State v. Coffey, No. COA19-445
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 15, 2020
    ...v. Harding , the trial court gave a jury instruction that included the indicted language and additional language. State v. Harding , 258 N.C. App. 306, 313, 813 S.E.2d 254, 260, writ denied, review denied , 371 N.C. 450, 817 S.E.2d 205 (2018). The first-degree kidnapping indictment provided......
  • State v. French, No. COA19-968
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 6, 2020
    ...the instruction provided to the jury as "fine," we held that the argument was still reviewable for plain error. State v. Harding , 258 N.C. App. 306, 311, 813 S.E.2d 254, 259 (2018).The State relies on State v. Horner , in which our Supreme Court denied the benefit of plain error review to ......
  • Request a trial to view additional results

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