State v. Page

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-16
NORTH CAROLINA COURT OF APPEALS

Filed: 21 October 2014

STATE OF NORTH CAROLINA

v. New Hanover County
No. 10CRS055472-74
11CRS10750
NEIL STANLEY PAGE, JR.

Appeal by Defendant from judgments entered 23 May 2013 by

Judge Claire V. Hill in New Hanover County Superior Court.

Heard in the Court of Appeals 13 August 2014.

Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Grady L. Balentine, Jr., for the State.

McCotter Ashton, P.A., by Kirby H. Smith, III, and Rudolph
A. Ashton, III, for the Defendant.

DILLON, Judge.

Neil Stanley Page, Jr. (“Defendant”), appeals from

judgments entered upon a jury verdict finding him guilty of

robbery with a dangerous weapon; felonious breaking and

entering; assault with a deadly weapon inflicting serious

injury; first-degree kidnapping; and second-degree kidnapping.

I. Background
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The evidence at trial tended to establish the following

facts: On 26 May 2010, Defendant went to the home of Tracy Moore

and asked her whether any of the cars in her yard were for sale.

Ms. Moore replied that they were not.

The following day, Ms. Moore was upstairs in her home with

her newborn grandchild and with the baby’s mother, referred to

herein as Ms. Allen, when she heard a loud noise downstairs.

Ms. Moore went downstairs to investigate and discovered three

men at her door. One of the intruders pointed a gun at Ms.

Moore and demanded money, asking her where her safe was located.

He dragged her into her den and attempted to tie her up with a

telephone cord. He pistol-whipped her in the face and

threatened to kill her as he continued demanding that she tell

him where her money was hidden. Eventually, this intruder told

Ms. Moore that if she did not tell him where she kept her money,

one of the other intruders would go upstairs and take her

grandchild. Ms. Moore finally relented and told him the

location of a small safe, which contained approximately $700.

Overhearing the commotion, Ms. Allen shut herself in an

upstairs bathroom and dialed 911. One of the other intruders

noticed Ms. Allen’s presence, kicked in the bathroom door,
 -3-
pulled Ms. Allen’s shirt over her face, and dragged her

downstairs to the den.

Ms. Moore told one of the investigating officers who

arrived at her home shortly after the break-in that she

recognized the intruder who struck her as the man who had

inquired about the car for sale the day before. However, the

officer was unable to complete his interview with Ms. Moore at

that time as Ms. Moore was experiencing pain from her injuries.

A friend took her to a nearby hospital for treatment. As a

result of the attack, Ms. Moore suffered bruising, a swollen

head, a broken toe, and an injury to her right eye.

Later, Ms. Moore was shown a photo line-up which included a

picture of Defendant, but she failed to identify Defendant as

one of the intruders. However, at trial, during her direct

examination by the State, Ms. Moore positively identified

Defendant as one of the intruders. Ms. Allen, on the other

hand, failed to identify Defendant at either the photo line-up

or in court.

At trial, the jury found Defendant guilty of robbery with a

dangerous weapon; felonious breaking and entering; assault with

a deadly weapon inflicting serious injury; first-degree

kidnapping; and second-degree kidnapping. Defendant admitted to
 -4-
his status as a habitual felon. The trial court entered two

judgments. First, the trial court consolidated the robbery,

breaking and entering, and kidnapping charges and sentenced

Defendant to prison for 110 months to 141 months. Second, the

trial court entered a separate judgment on the charge for

assault with a deadly weapon inflicting serious injury,

sentencing Defendant to prison for 110 months to 141 months.

The trial court ordered that the sentences run consecutively.

Defendant noted his appeal in open court.

II. Analysis

Defendant makes five arguments on appeal. We have

carefully reviewed each argument; and, for the reasons stated

below, we find no reversible error.

A. Fair Trial

Defendant first contends that one of the jurors slept

during portions of the trial, depriving him of his right to a

fair trial and verdict rendered by twelve impartial and

competent jurors. We disagree.

The record reveals that the trial judge noticed that one of

the jurors appeared fatigued during a morning session of the

trial and alerted counsel to this fact after the jury had left

the courtroom for a morning recess. The judge asked counsel for
 -5-
recommendations on how to proceed. Defendant’s counsel

requested that the judge address the issue with the juror

privately during the lunch break. During the lunch break, the

judge assured Defendant’s counsel that she had been monitoring

the situation and that the juror had been more attentive after

the morning recess. The judge then met with the juror privately

and stressed the importance of being alert and attentive. Once

the judge was satisfied that the juror understood, the other

jurors were called back into the courtroom for the afternoon

session. Defendant’s counsel never suggested that the juror’s

conduct prejudiced Defendant and the record contains no

indication to the contrary.

Our holding in State v. Williams, 33 N.C. App. 397, 235

S.E.2d 86, disc. review denied, 293 N.C. 258, 237 S.E.2d 540

(1977), is instructive. In Williams, the trial judge noticed

that one of the jurors had fallen asleep during cross-

examination. Id. at 398, 237 S.E.2d at 87. The judge asked the

jurors to stand and told them that they were not allowed to

sleep. Id. We observed that the defendant’s counsel proceeded

with cross-examination “without so much as suggesting to the

court that there was a possibility of prejudice to the

defendant.” Id. We held that the trial court did not abuse its
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discretion in failing to declare a mistrial where there was

neither a suggestion by counsel that the defendant was

prejudiced nor any indication in the record otherwise. Id.

In the present case, like in Williams, there is no

indication in the record that Defendant was prejudiced.

Furthermore, unlike in Williams, there is nothing in the record

in the present case indicating that the juror actually fell

asleep during any portion of the proceedings. Accordingly, this

argument is overruled.

B. In-Court Identification

Defendant next asserts that the trial court erred in

allowing Ms. Moore’s in-court identification of him as one of

the intruders when she had previously failed to identify

Defendant from the photo line-up. Defendant failed to object to

Ms. Moore’s in-court identification at trial. Unpreserved

issues related to the trial court’s rulings on the admissibility

of evidence are subject to plain error review. State v.

Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). To

establish plain error, Defendant bears the burden of

demonstrating that a different result probably would have been

reached but for the error. State v. Lawrence, 365 N.C. 506,

518, 723 S.E.2d 326, 334 (2012).
 -7-
Generally, a witness is allowed to make an in-court

identification of a defendant; and any uncertainty goes to the

weight of the testimony rather than its admissibility. State v.

Billups, 301 N.C. 607, 615-16, 272 S.E.2d 842, 849 (1981). In

evaluating the credibility of a witness, a jury may consider the

witness’s prior inconsistent statements. See, e.g., State v.

Lynn, 157 N.C. App. 217, 225, 578 S.E.2d 628, 634 (2003). The

final credibility determination nevertheless remains the

responsibility of the jury. State v. Legins, 184 N.C. App. 156,

159, 645 S.E.2d 835, 837 (2007), aff’d per curiam, 362 N.C. 83,

653 S.E.2d 144 (2007).

In his brief, Defendant contends that Ms. Moore’s

identification was based on “information subsequently learned

from law enforcement officers and prosecutors during the course

of the investigation and prosecution of [the] case” rather than

her own personal knowledge. Defendant’s theory was advanced

vigorously by his counsel at trial. We believe, however, that

Ms. Moore’s inability to identify Defendant from the photo line-

up went to the weight and not to admissibility, see Billups, 301

N.C. at 616, 272 S.E.2d at 849, and that it was the jury’s

responsibility to evaluate the credibility of her testimony.
 -8-
Defendant cites the Eyewitness Identification Reform Act as

the basis for finding that it was plain error for the trial

court to allow Ms. Moore’s in-court identification. See N.C.

Gen. Stat. § 15A-284.50, et seq. (2010). Specifically,

Defendant cites to the portion of the Act which requires that if

a witness identifies a suspect in a line-up, the line-up

administrator “shall seek and document a clear statement from

the eyewitness, at the time of the identification and in the

eyewitness’s own words, as to the eyewitness’s confidence level

that the person identified in the given line-up is the

perpetrator.” Id. § 15A-284.52(b)(12). In citing this statute,

Defendant complains in his brief that the line-up administrator

did not testify at trial, nor was any statement from Ms. Morgan

offered “indicating that she identified [Defendant] in this

line-up as one of her attackers.” Defendant’s reliance on this

statute is misplaced. The record shows that Ms. Moore did not

positively identify Defendant from the photo line-up. Further,

the State relied upon Ms. Moore’s in-court identification of

Defendant.

Defendant has failed to demonstrate error; and, therefore,

this argument is overruled.

C. Guilty Pleas and Plea Arrangements
 -9-
Defendant next asserts it was plain error for the trial

court to allow testimony regarding guilty pleas and plea

arrangements from Defendant’s accomplices.

Our courts have long recognized “[t]he ‘clear rule’ [] that

evidence of convictions, guilty pleas, and pleas of nolo

contendere of non-testifying co-defendants is inadmissible

unless introduced for a legitimate purpose, i.e., used for a

purpose other than evidence of the guilt of the defendant on

trial.” State v. Batchelor, 157 N.C. App. 421, 430, 579 S.E.2d

422, 429, disc. review denied, 357 N.C. 462, 586 S.E.2d 101

(2003). Our Supreme Court has explained that the rationale for

this rule is twofold: First, “a defendant’s guilt must be

determined solely on the basis of the evidence presented against

him;” and second, “the introduction of such a plea by a co-

defendant, when he or she has not testified at defendant's

trial, would also deprive the defendant of his constitutional

right of confrontation and cross-examination.” State v.

Rothwell, 308 N.C. 782, 785-86, 303 S.E.2d 798, 801 (1983)

(emphasis in original). However, “if evidence of a testifying

co-defendant’s guilty plea is introduced for a legitimate

purpose, it is proper to admit it.” Id. at 786, 303 S.E.2d at

801. Furthermore, “[a] defendant is not prejudiced by the
 -10-
granting of relief which he has sought or by error resulting

from his own conduct.” N.C. Gen. Stat. § 15A-1443(c) (2010). A

defendant thus cannot complain of error he invites. State v.

Rivers, 324 N.C. 573, 575-76, 380 S.E.2d 359, 360 (1989).

In the present case, it was counsel for Defendant rather

than the prosecutor who initially brought out the guilty pleas

of the accomplices. Specifically, the following colloquy took

place between counsel for Defendant and Ms. Moore during cross-

examination:

Q. Then at some point you actually spoke to
the District Attorney?

A. Yes.

Q. And you did that a few times, didn’t you?

A. Uh-huh.

Q. You had to do it on at least one occasion
when Aaron Spicer pled guilty to this
charge, didn’t you?

A. Yes.

Q. You did it again when E. J. Dukes pled
out, Ernest Dukes, didn’t you, ma’am?

A. Yes.

Q. You did it again when they were arranging
the plea agreement for Mr. Chambers, didn’t
you, ma’am?

A. Yes, I did.
 -11-
Despite the fact that Defendant’s counsel elicited this

testimony, Defendant now alleges it was plain error for the

trial court not to rule on its own motion to exclude it.

In Rivers, the defendant similarly argued that the trial

court committed plain error by not ruling on its own motion that

hearsay testimony elicited by the defendant’s counsel was

inadmissible. Id. at 575-76, 380 S.E.2d at 360. The defendant

neither objected to the testimony nor moved to strike it at

trial; and our Supreme Court held that the trial court had not

erred, observing that the defendant could not “invalidate a

trial by . . . eliciting evidence on cross-examination which he

might have rightfully excluded if the same evidence had been

offered by the State.” Id. at 576, 380 S.E.2d at 360.

Just as in Rivers, in the present case we conclude that the

trial court did not commit plain error in not ruling on its own

motion that this excludable evidence elicited by the defense was

inadmissible.

D. Jury Instructions

Defendant next argues that the following portion of the

trial court’s instruction to the jury on the first-degree

kidnapping charge was erroneous:

For you to find the defendant guilty . . . ,
the State must prove five things beyond a
 -12-
reasonable doubt.

. . .

Third, that the defendant confined, . . . or
removed that person for the purpose of
facilitating his commission of robbery or
breaking and entering or terrorizing that
person or another person. Terrorizing means
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.

Defendant contends that this instruction was erroneous in two

respects.

First, Defendant contends that there was no evidence that

he intended to terrorize Ms. Moore. We are unpersuaded.

Rather, we believe that there was sufficient evidence from which

a jury could reasonably find that Defendant intended to

terrorize Ms. Moore. For instance, there was evidence which

tended to show that Defendant pistol-whipped Ms. Moore,

attempted to tie her up with a telephone cord, dragged her

through the house, threatened to kidnap her grandchild, and

threatened to kill her.

Second, Defendant contends that the instruction puts “the

focus on the issue of terrorizing on the [victim’s perception],

and not the Defendant[’s intent].” Again, we are unpersuaded.

Though the instruction does define terrorizing as “putting a
 -13-
person in some high degree of fear[,]” the instruction does not

provide that the jury need find that Ms. Moore was put in a high

degree of fear but rather that Defendant acted “for the purpose

of” putting Ms. Moore in some high degree of fear. Furthermore,

this Court has approved a jury instruction containing a nearly

identical definition of “terrorizing” in State v. Bonilla, 209

N.C. App. 576, 585, 706 S.E.2d 288, 295 (2011). Accordingly,

this contention is overruled.

E. Double Jeopardy

In Defendant’s final argument, he contends that his

conviction for both first-degree kidnapping and assault with a

deadly weapon inflicting serious injury violates the

constitutional guarantee against double jeopardy. Specifically,

he asserts his consecutive sentences for both offenses qualify

as double punishment for a single crime because liability for

each offense was predicated on the same serious injury, citing

State v. Freeland, 316 N.C. 13, 340 S.E.2d 35 (1986).

In 1979, our Legislature amended our kidnapping statute,

dividing kidnapping into two degrees. Freeland, 316 N.C. at 23,

340 S.E.2d at 40. Under the statute, a person is guilty of

first-degree kidnapping if the person kidnapped “either was not

released by the defendant in a safe place or had been seriously
 -14-
injured or sexually assaulted[.]” N.C. Gen. Stat. § 14-39(b)

(2010). In Freeland, our Supreme Court held that where a

defendant commits a single sexual assault during a kidnapping,

our Legislature did not intend for that defendant to be punished

“for both the first degree kidnapping and the underlying sexual

assault.” Freeland, 316 N.C. at 23, 340 S.E.2d at 40-41.

We believe Freeland is distinguishable from the present

case. Here, there was sufficient evidence from which the jury

could conclude that Ms. Moore suffered serious injury to support

Defendant’s first-degree kidnapping conviction which was

separate from her serious injuries supporting Defendant’s

assault conviction. Defendant’s assault conviction was based on

the injuries Ms. Moore suffered from being pistol-whipped.

However, the evidence also showed that Defendant hit Ms. Moore

before he pistol-whipped her; that he threw Ms. Moore on the

floor; that he dragged Ms. Moore across the house and down

stairs; that he applied force to Ms. Moore’s back with his knee

while pinning her down on the floor; that he manhandled her;

that she suffered bruising and a broken toe; and that her body

was sore for over two weeks following the incident. Whether the

injuries suffered by Ms. Moore, apart from the injuries caused

by the pistol-whipping, were “serious” was a question of fact
 -15-
for the jury. See, e.g., State v. Everhardt, 96 N.C. App. 1,

12, 384 S.E.2d 562, 569 (1989), aff’d, 326 N.C. 777, 392 S.E.2d

391 (1990). Accordingly, Defendant’s argument is overruled.

See State v. Romero, 164 N.C. App. 169, 175, 595 S.E.2d 208, 212

(2004) (finding no error where the defendant was convicted of

both first-degree kidnapping and assault with a deadly weapon

inflicting serious injury).

III. Conclusion

For the reasons stated above, Defendant has failed to

demonstrate reversible error.

NO ERROR.

Judge HUNTER, Robert C and Judge DAVIS concur.

Report per Rule 30(e).