State v. Smith

• Decision Date: 06 January 2004
• Docket Number: No. COA02-1363.,COA02-1363.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Dwayne Anthony SMITH, Defendant.

589 S.E.2d 739

162 NC App. 46

STATE of North Carolina v. Dwayne Anthony SMITH, Defendant.

No. COA02-1363.

Court of Appeals of North Carolina.

January 6, 2004.

Attorney General Roy Cooper, by Assistant Attorney General Thomas B. Wood, for the State.

Daniel Shatz, Durham, for defendant-appellant.

GEER, Judge.

Defendant Dwayne Anthony Smith appeals from his convictions for second-degree kidnapping, assault inflicting serious injury, and communicating threats. Because the trial court instructed the jury as to kidnapping theories not included in the indictment, we vacate defendant's second-degree kidnapping conviction and remand for a new trial. We find defendant's remaining assignments of error to be without merit.

Facts

A. The State's Evidence.

The State's evidence tended to show the following. Kimberly Hare had been living with defendant since February 2000. On 14 January 2001, at approximately 6:00 p.m., defendant and Hare met three male friends at a bar called the Sports Page in Knightdale, North Carolina. Hare had already drunk four or five beers that afternoon and probably drank another four beers at the bar. When Hare and defendant left the bar at 11:00 p.m., they had an argument in the parking lot about whether defendant was too drunk to drive. During the argument, defendant hit Hare in the face with his fist. Hare returned to the bar, told their friends and the bartender what had happened, and the bartender called the police. Defendant attempted to drag Hare out of the bar, but the police arrived, arrested him, and transported him to jail.

Hare decided not to return to defendant's house in Wilson, but instead went with their friends, including a man named Nick, to a house on Hodge Road in Wake County. After about thirty minutes, Hare went to bed. She was awakened by defendant who picked her up, despite her requests that he put her back down, and carried her naked to his truck. Hare admitted that she did not scream or try to rouse her friends to help her, even though they passed a man on the couch while defendant was carrying her to the truck. In the truck, defendant punched her in the face, called her a slut, and said that "[she] was going to die [that day] because he was going to kill [her]."

Defendant began driving towards their home in Wilson, repeatedly threatening to kill Hare. Defendant stopped at a convenience store and told Hare to call Nick to tell him that she was pressing rape charges against him the next day. When Hare hesitated to make the call, defendant struck her again. After the call, he pulled her back in the truck, started driving again, and hit her repeatedly in the face, causing her to bleed all over the seats of defendant's truck. Defendant then drove the truck to another location where there was a path. He stopped the truck and sexually assaulted Hare with a capped beer bottle while threatening to bury her at the end of the path. During the entire truck drive, Hare was forced to remain unclothed. At some point, Hare falsely told defendant that she was pregnant hoping that he would stop hitting her.

When they finally reached their home in Wilson, defendant demanded that Hare take a shower to wash off the blood and sexually assaulted her again. Defendant left to get a pregnancy test and swore that he would kill her if it came back negative. When defendant was gone, Hare got dressed, ran to a neighbor's house, and called 911. Defendant was arrested when he returned from the store.

Hare's sister-in-law, Jennifer Wilson, picked Hare up at the Wilson County magistrate's office. Wilson testified at trial that Hare had cuts, marks, and bruises all over her face and that she could hardly walk. Wilson also testified that when she saw defendant's truck, there was blood "everywhere," including on the windshield, door, door handle, seats, and steering wheel. A deputy sheriff photographed and also testified about Hare's injuries.

B. Defendant's Evidence.

Defendant and his mother both testified. Defendant agreed that he and Hare had an argument in the parking lot of the Sports Page. Defendant claimed that he lightly pushed Hare and she went back into the bar. After he waited in the truck for a while and she did not return, he started to go back into the bar, but the police arrived and arrested him.

Defendant's mother, Diana Smith, testified that she received a call from Hare at about midnight, telling her that defendant was in the Wake County jail because they had been fighting. At approximately 3:00 a.m., defendant's mother bailed defendant out of jail. Defendant and his mother both testified that while she was driving him back to his truck, he "beeped" Hare on his Nextel two-way radio. Defendant's mother heard Hare respond and ask defendant to pick Hare up on Hodge Road. Defendant's mother testified that she told him that he should just go home and stay away from Hare. Defendant had his mother take him to his truck at the Sports Page and follow him to the house on Hodge Road.

Defendant testified that he knocked on the Hodge Road door, but got no answer. He entered the unlocked house and found Hare naked in bed with Nick. He picked her up, stood her on the floor, gathered her clothes off the floor, and put his coat around her. Defendant testified that Hare never indicated that she did not want to leave. While arguing over the Sports Page incident, they walked outside, got into the truck, and left. Defendant's mother confirmed that she saw defendant and Hare walking to the truck side by side, that she heard them quarrelling, and that Hare was wearing a jacket. Defendant's mother followed them for a while, but then turned off the highway and headed home.

Defendant testified that as they drove towards Wilson, the argument became more heated and they started pushing and hitting each other. Hare demanded that he let her out of the truck. At one point, defendant stopped at a convenience store and told Hare to call someone to come pick her up. While Hare did make a phone call, she then got back into the truck and said, "Let's go." They drove to their home in Wilson with defendant stopping once to urinate. He claimed that Hare never tried to get away from him.

After they returned home, Hare told defendant that she was pregnant. He left to get a pregnancy test and when he returned, he was arrested. Defendant admitted hitting Hare at some point during the night, but denied ever threatening her life.

Defendant claimed that between the incident and the trial, he and Hare secretly saw each other often, including a trip to watch a race at Martinsville. The Wake County assault charges stemming from the argument in the Sports Page parking lot were dismissed when Hare failed to appear at numerous court dates. Defendant was indicted with second-degree kidnapping, assault inflicting serious injury, and communicating threats. Defendant was tried at the 11 March 2002 regular criminal session of Wilson County Superior Court with Judge Cy A. Grant, Sr. presiding. The jury found defendant guilty of all three charges and the trial court sentenced defendant to a minimum of 29 and a maximum of 44 months.

I

Defendant first assigns plain error to the trial court's instructions on the seconddegree kidnapping charge, arguing that the instructions permitted the jury to convict defendant based on theories of kidnapping not alleged in the indictment. We agree.

The indictment charged that defendant had committed kidnapping by unlawfully removing Hare from one place to another:

[t]he defendant named above unlawfully, wilfully and feloniously did kidnap Kimberly Wilson Hare, a person who had attained the age of 16 years, by unlawfully removing [her] from one place to another, without the victim's consent, and for the purpose of doing serious bodily injury to Kimberly Wilson Hare.

(Emphasis added) The jury instructions, however, permitted the jury to find defendant guilty of second-degree kidnapping if the State proved that defendant, without consent, "unlawfully confined a person or restrained a person or removed a person from one place to another." After the jury began deliberations, the foreperson sent a note to the judge stating, "We need for you to review the list of conditions for 2nd degree kidnapping." The judge repeated his original instructions, but also defined "restrained" more specifically as "restrict[ing] her freedom of movement."

Although the instruction given in this case parallels the statutory definition of seconddegree kidnapping, see N.C. Gen.Stat. § 14-39(a) (2001), it varies significantly from the indictment. As a basis for finding kidnapping, the indictment only alleged "removing," while the instructions allowed the jury to convict based on "confining, restraining, or removing."

The Supreme Court has already held in State v. Tucker, 317 N.C. 532, 346 S.E.2d 417 (1986), that such a variance constitutes error. In Tucker, the indictment alleged that the defendant had kidnapped the victim by "removing her from one place to another," but the trial judge instructed the jury that it could find defendant guilty of kidnapping if it found that "the defendant unlawfully restrained [the victim.]" Id. at 537, 346 S.E.2d at 420 (emphasis original). The fact that the State's evidence supported the giving of the instruction was immaterial since the instruction was inconsistent with the indictment: "`It is a well-established rule in this jurisdiction that it is error, generally prejudicial, for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment.'" Id. at 537-38, 346 S.E.2d at 420 (quoting State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980)). The Court therefore concluded that "the trial court erred in its jury instructions on kidnapping." Id. at 538, 346 S.E.2d at 421.

In State v. Lucas, 353 N.C. 568, 590, 548 S.E.2d 712, 727 (2001), the Supreme Court expressly reaffirmed its holding in Tucker: "[W]e reaffirm our holding in...