Curley Jacobs (“defendant”) appeals his conviction for second-degree kidnapping. For the reasons discussed herein, we hold that defendant received a trial free of prejudicial error, but we vacate the trial court’s imposition of attorney’s fees and we remand the case for resentencing.
The State’s evidence presented at trial tends to show the following: On 3 April 2002, Holly Powers (“Powers”) was in Maxton, North Carolina, visiting a friend when she was informed that someone was waiting outside to see her. When Powers walked outside, she saw defendant standing beside a vehicle “hollering and screaming” and holding a “mini 14” rifle. Defendant asked Powers why she had obtained another restraining order against him. Defendant told Powers that she was going to go with him to get the restraining order dropped, and he grabbed Powers and forced her into the vehicle. Defendant thereafter placed Powers in “something like a head lock” and drove away.
Defendant drove Powers to a residence where he was living and “snatched” her out of the vehicle by her arm. Defendant then began pointing the gun at Powers and throwing “20 ounce bottles” at her. Defendant hit Powers in the head with a bottle, and he tore Powers’ shirt off of her. Defendant choked Powers “[l]ong enough” to make her “lose [her] breath” as well as her consciousness. Defendant then “snapped out or something” and apologized to Powers. Defendant drove Powers back to her vehicle but then instructed her to drive her vehicle back to the residence. Defendant told Powers that if she tried to leave, “he would shoot [her] car up.” Defendant followed Powers in his vehicle with the rifle “out the window a little bit.” After Powers dropped her vehicle off at the residence, defendant drove Powers to his mother’s residence in Laurinburg, North Carolina.
Following their arrival at his mother’s residence, defendant and Powers sat in defendant’s vehicle and talked until defendant’s mother came outside and approached the vehicle. Defendant’s mother was “kind of ill” with Powers and was “fussing” at her. Defendant told his mother that Powers was not there “on [her] own free will,” and that she needed to go back inside the residence. Defendant’s mother asked Powers to come inside and, while defendant was in another room, Powers explained the events to her.
As Powers was talking to defendant’s mother, Michelle Locklear (“Locklear”), Powers’ roommate, called the residence and asked to speak to Powers. Defendant’s mother attempted to give the telephone to defendant, but defendant refused to come out of the room to answer it. Powers thereafter located another telephone and called Locklear herself. Powers told Locklear to call the police, and she then asked defendant if she could see their dog, which was located in a pen in the yard. Once outside, Powers ran to a nearby residence where she called the police herself. As Powers was waiting for law enforcement officials to arrive, she noticed Locklear approaching in her vehicle. Powers entered Locklear’s vehicle and the two drove to pick up Powers’ vehicle at defendant’s residence.
Law enforcement officers subsequently located defendant driving his vehicle a short distance away from his mother’s residence. Scotland County Sheriff’s Department Lieutenant Richard J. Best (“Lieutenant Best”) approached defendant’s vehicle and saw “an assault rife that was in the floor board behind the driver’s seat[.]” Lieutenant Best took custody of the rifle and thereafter transferred it to Robeson County Sheriff’s Department Detective Anthony Thompson (“Detective Thompson”).
After taking her vehicle back to her residence, Powers traveled to a police station in Scotland County. She later went to a police station in Robeson County, where she was interviewed by Detective Thompson as well as Robeson County Sheriff’s Department Deputy Stuart Williams (“Deputy Williams”). The officers took a statement from Powers regarding the incident, and they photographed her injuries.
Defendant was subsequently arrested and indicted for first-degree kidnapping. Defendant’s trial began the week of 19 November 2003, and on 21 November 2003, the jury found defendant guilty of second-degree kidnapping.
We note initially that defendant’s brief contains arguments supporting only six of the nineteen original assignments of error. Pursuant to N.C.R. App. P. 28(b)(6) (2005), the thirteen omitted assignments of error are deemed abandoned. Therefore, we limit our present review to those assignments of error properly preserved by defendant for appeal.
The issues on appeal are whether the trial court erred by: (I) refusing to instruct the jury on false imprisonment; (II) limiting the scope of defendant’s recross-examination of Powers; (III) refusing to inquire further into an alleged communication with a juror; (IV) refusing to rule on an evidentiary issue; (V) sentencing defendant in the aggravated range; and (VI) imposing attorney’s fees upon defendant.
Defendant first argues that the trial court erred by refusing to instruct the jury on false imprisonment. We disagree.
N.C. Gen. Stat. § 14-39 (2003) provides in pertinent part as follows:
(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person... shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:
(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person ....
(b) There shall be two degrees of kidnapping as defined by subsection (a). If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree and is punishable as a Class C felony. If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree and is punishable as a Class E felony.
“Our courts have long held that false imprisonment is a lesser-included offense of the crime of kidnapping.”
State v. Baldwin,
In the instant case, defendant was charged with kidnapping Powers for the purpose of terrorizing her. “Terrorizing is defined as ‘more than just putting another in fear. It means putting that person in some high degree of fear, a state of intense fright or apprehension.’ ”
State v. Davis,
In determining whether sufficient evidence supports a charge of kidnapping for
[Defendant] made me walk in the building. My back was to [defendant] and he hit me in the head with his fist three to four times. I fell to the couch. [Defendant] put the gun to my face with the infrared and told me he would kill me. [Defendant] pulled the trigger and it snapped. [Defendant] put the gun down, came back over to me and snatched my shirt off and ripped it off of me. After [defendant] ripped my shirt off, I had my bra on. I got up off of the couch and I went towards the bedroom to see if I could find something to put on. [Defendant] hit me with his open hand hard on the back of my neck. I fell on the bed. I stood back up, [defendant] grabbed me around the throat and was choking me. [Defendant] was saying I was not going to do him like that. [Defendant] shoved me down on the bed by my throat, and he fell on top of me. I passed out for about ten seconds. [Defendant] was hitting me in the head with 20 ounce plastic-drink bottles.
In light of the foregoing, we conclude that the State introduced sufficient evidence to demonstrate that defendant restrained Powers
for the purpose of terrorizing her. Although we recognize that defendant apologized to Powers during the incident and told Powers that he wanted her to drop the restraining order against him, “none of the acts he committed within the residence [or during the incident] furthered these asserted goals.”
State v. Mangum,
In
Mangum,
the defendant was charged with kidnapping for the purpose of raping the victim. On appeal, he argued that the evidence also tended to show that he merely wished to use the telephone and engage in “horeseplay” with the victim when he entered her home. This Court noted that although the defendant asked to use the telephone when he entered the victim’s home, evidence introduced at trial also tended to show that, after asking to use the telephone, the defendant forced the victim to the bedroom, pinned her down, and fondled her until law enforcement officials arrived.
Id.
In light of this evidence, we “fail[ed] to see how [the] defendant’s restraint of the victim and the repeated touching of the breast and vagina furthered his stated intent of using the telephone or restroom.”
Id.
at 197,
Defendant next argues that the trial court erred by limiting his recross-examination of Powers. Defendant asserts that he was denied the right to effective cross-examination. We disagree.
“Cross-examination of an opposing witness for the purpose of showing his bias or interest is a substantial legal right. Jurors are to consider evidence of any prejudice in determining the witness’ credibility.”
State v. Grant,
In the instant case, during recross-examination of Powers, defense counsel asked Powers whether she had informed the district attorney that she did not want to testify in the case. Powers answered in the affirmative, and defense counsel then asked Powers whether any “threats” were made against her in connection with her testimony. The State objected, arguing that the line of questioning was “opening new ground that is inappropriate for [defense counsel] to open.” During the subsequent voir dire conference, defense counsel argued that Powers had indicated to him that “she was told what would happen to her if she didn’t testify” and that “she had been threatened or forced to testify by being told what would happen if she didn’t.” Powers informed the trial court that “[t]he only thing it was is I said I do not want to testify, and I was told if I did not testify that I would be sent to jail.” Powers informed the trial court that the assistant district attorney “told me that and a couple of other people told me that because this was the Superior Court, that I could get contempt of court or something like that.” The State noted that it “did instruct her that an order to show cause was being prepared if she refused to appear,” but that Powers “changed her mind, largely based on discussions with her mother and, if I’m not mistaken, her friend, not based on what I told her.” When asked why she did not want to testify, Powers informed the trial court that she had “been through a lot,” that she “didn’t want to go through with it, relive it again[,]” and that she “figured that with all the other cases and the other charges that [defendant] had on him, it was enough.” The trial court thereafter sustained the State’s objection.
“The right to cross examine a witness to expose the witness’ bias is not unlimited.”
State v. Hatcher,
In the instant case, we conclude that the trial court did not abuse its discretion in sustaining the State’s objection. There is no indication that Powers was offered leniency or favorable treatment from the State in exchange for her testimony. The reasons for her unwillingness to testify and the possibility of her being held in contempt do not bear on her credibility or bias toward defendant, nor is whether she believed defendant had been tried “enough” relevant to any matter at issue in the trial. Furthermore, defendant has failed to demonstrate how the trial court’s ruling regarding Powers’ initial hesitation to testify improperly influenced the
Defendant next argues that the trial court erred by refusing to inquire further into an alleged communication with a juror. We disagree.
The record reflects that during jury deliberations, the trial court asked defense counsel whether there was “anything” he wanted “to put on the record[.]” Thereafter, defense counsel asked the trial court to “note for the record that during the recess the juror number seven was seated and I observed [the assistant district attorney] talking to the clerk.” Defense counsel informed the trial court that he “thought” he heard the assistant district attorney “mention something about a statement.” After the trial court noted that the juror sat in the jury box “the entire time by himself,” defense counsel stated that “then there was conversation over there about three or four feet from them between [the assistant district attorney] and the clerk, and I thought I heard him mention something about a statement.” The trial court noted that it was the same distance away from the clerk as the juror and “did not hear it.” The trial court then concluded that “[w]ithout some showing that the juror heard it,” it would not “make any inquiries.” Nevertheless, the trial court did thereafter inquire as to whether defense counsel knew “what they were talking about[.]” Defense counsel responded that he believed the assistant district attorney mentioned “something about a statement.” The trial court confirmed that defense counsel did not overhear “mention [of] anything about the facts of the case,” and subsequently concluded that “[w]ithout more, it’s denied.”
When a trial court learns of alleged improper contact with a juror, “the trial court’s inquiry into the substance and possible prejudicial impact of the contact is a vital measure for ensuring the impartiality of the juror.”
State v. Burke,
In the instant case, the alleged inappropriate contact occurred in the courtroom and in the presence of the trial court. The trial court noted that it could not hear what was discussed between the assistant district attorney and the clerk, and it was the same distance away as the juror. Defense counsel was not certain what was discussed, and could only state that he “thought” he overheard the assistant district attorney mention “something” about “a statement,” which defense counsel “assume [d]” was related to the case. There is no indication that the alleged inappropriate communication had any influence on the respective juror or the verdict of the entire jury. In light of the foregoing, we conclude that the trial court did not abuse its discretion either in investigating or ruling upon the alleged inappropriate communication. Accordingly, defendant’s third argument is overruled.
Defendant next argues that the trial court erred by deferring its ruling on an evidentiary issue. Defendant asserts that the trial court chilled his right to present evidence by refusing to rule on the issue of whether the State could introduce evidence of his other bad acts. We disagree.
During trial, defendant’s father, Frank Jacobs, Jr. (“Frank”), testified on defendant’s behalf. Frank testified that he had seen defendant and Powers together on 5 April 2002 or 6 April 2002, while defendant was on bonded release for the instant charge. The State objected to Frank’s testimony, arguing that defendant was “getting into a dangerous area” and that defendant’s examination of Frank was entering “that temporal area” of defendant’s relationship with Powers following the incident. The State asserted that, in light of the trial court’s pretrial ruling, defendant was relying on “the idea that he w[ould] prevent [the State] from eliciting the real story of [defendant and Powers’] relationship after” the incident, namely, the bad acts defendant had pled guilty to prior to trial. During a voir dire hearing on the matter, the following exchange occurred between the trial court and defense counsel:
The Court: If you open that door, the D.A.’s going to come back with all of these convictions that he [pled] guilty to. I don’t know that I’m going to allow it, but I’ve kept it out so far. But if you open that door, I don’t know, then. I’m not going to tell you, but I think maybe you and your client ought to discuss that strategy. At this point I’m going to rule that immaterial. That confused the jury on the issues under 403.
Defense Counsel: Your Honor, but what about the testimony of a witness about she taking her and [defendant] — they were together and they took her to get her license? How — I guess I need a ruling on that.
The Court: Well, then you’re going to argue that they were good and this, that and the other, and I think you’re — if you open that door that they were getting along after this incident, then I think there is a chance, not saying I’d allow it, but I’m saying there’s a chance of rebuttal on behalf of the District Attorney that needs to be weighed before you do anything like that. I’m going to hold it out right now.
After ensuring that defendant had participated in the decision not to offer further evidence from Frank, the trial court reminded defendant that “I don’t know what I’d do with that. I’m not telling you I’d let it in; I’m not telling you I’d keep the D.A. from doing it.” Defense counsel thereafter made an offer of proof on voir dire, during which Frank testified that Powers visited defendant at Frank’s residence less than a week after defendant was released on bond. Frank testified that during the visit, defendant and Powers “r[o]de off someplace” for a short period of time. Frank further testified that he saw Powers and defendant together again near the end of April, when Powers and defendant spoke in front of Frank’s residence for “15-20 minutes.” Following this testimony, the trial court stated that it would overrule the State’s objection, would deny defendant’s motion in lim-ine, but would not rule on whether the State would be allowed to impeach Frank with the prior bad acts. Defendant refused the offer to elicit further testimony from Frank in the jury’s presence.
“The decision whether to grant a motion
in limine
rests in the discretion of the trial court.”
State v. Holman,
We conclude that the reasoning of Holman is applicable to the instant case. Following defendant’s offer of proof, the trial court stated that it would deny the State’s objection to Frank’s testimony but could not ensure that it would not allow the State to cross-examine Frank with the bad acts. Defendant nevertheless refused to offer the testimony to the jury, stating that he was concerned he would “run the risk of 404(b) evidence” if the testimony was offered. The trial court reminded defendant that it had not ruled upon whether such evidence would be allowed during cross-examination and was “not going to cross bridges until I come to them because I don’t know what anybody’s going to do.” In light of Holman, we conclude that the trial court did not abuse its discretion in its determination.
Defendant relies on
State v. Lamb,
Defendant next argues that the trial court erred by sentencing him in the aggravated range. Defendant asserts that the trial court was prohibited from sentencing him in the aggravated range without first submitting an aggravating factor to the jury for proof beyond a reasonable doubt. We agree.
In
State v. Allen,
After reviewing the applicable case law, the Court in
Allen
concluded that, when “[ajpplied to North Carolina’s structured sentencing scheme, the rule of
Apprendi
and
Blakely
is: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt.”
Defendant next argues that the trial court erred by imposing attorney’s fees upon him. Defendant asserts that he was not provided with sufficient notice of or an opportunity to be heard concerning the fees of his court-appointed attorney. We agree.
N.C. Gen. Stat. § 7A-455 (2003) provides that the trial court may enter a civil judgment against a convicted indigent defendant for the amount of fees incurred by the defendant’s court-appointed attorney. In
State v. Crews,
In the instant case, following the imposition of defendant’s sentence, the trial court inquired as to whether defendant’s counsel was appointed. Defense counsel replied that he was court-appointed, but he informed the trial court that he had not yet calculated his hours of work related to defendant’s representation. After the trial court instructed defense counsel to calculate his hours and submit them to the court, the following exchange occurred between defendant and the trial court:
The Court: Well, now, let me say to you, Mr. Jacobs, I’m going to give younotice of this now, he’s going to submit a bill, an hourly bill. I don’t know how much that hourly bill is going to total up, how many hours he’s got. I know he’s got two days, more than two days work here in the courtroom. But whatever, it’s going to be at a rate of $65 an hour that the State allots. I’ll use the multiple $65 times the hours that he submits that I find to be reasonable, and I’m certain that he will be honest in that regard. Whatever that is I’m going to order — enter an order that the State of North Carolina pay him the amount for representing you. I also will be signing a judgment, possibly, to be used against you that will require you some day in the future, maybe, to have to reimburse the State that amount of money. You’ve heard all this before, haven’t you?
Defendant: Yes, sir.
The Court: That’s called the notice. You got the notice now. You know what I’m talking about. Now you’ve got your right to say anything reasonable about my award of attorney’s fees. You got any problem with it?
Defendant: No, sir.
The Court: Sir?
Defendant: No, sir.
The Court: Well, now you’ve been told, and in open court you’ve been advised of that.
This exchange clearly demonstrates that defendant was given notice of the trial court’s intention to impose attorney’s fees upon him. However, while the transcript reveals that attorney’s fees were discussed following defendant’s conviction, there is no indication in the record that defendant was notified of and given an opportunity to be heard regarding the appointed attorney’s total hours or the total amount of fees imposed. Therefore, in light of the foregoing, we vacate the trial court’s imposition of attorney’s fees in this matter. On remand, the State may apply for a judgment in accordance with N.C. Gen. Stat. § 7A-455, provided that defendant is given notice and an opportunity to be heard regarding the total amount of hours and fees claimed by the court-appointed attorney.
In light of the foregoing conclusions, we hold that defendant received a trial free of prejudicial error, but we vacate the trial court’s imposition of attorney’s fees, and we remand the case for resentencing.
No error in part; vacated in part; remanded for resentencing.
Notes
. Defendant also asserts that the trial court was prohibited from sentencing him in the aggravated range because the State failed to allege the aggravating factor in
defendant’s indictment. However, our Supreme Court expressly rejected the same assertion by the defendant in
Allen.