Appeal by defendant from judgments entered 30 August 1996 by Judge James E. Ragan, III.
Timmons-goodson, Judge. Judges Lewis and Walker concur.
The opinion of the court was delivered by: Timmons-goodson
Defendant Michael J. Raynor was indicted for robbery with a dangerous weapon, first degree kidnapping, felonious possession of stolen goods, and possession of a firearm by a felon on 28 May 1996. This matter came on for hearing before Judge James E. Ragan, III and a duly empaneled jury during the 26 August 1996 criminal session of Onslow County Superior Court.
The State's evidence tended to show that on 20 January 1996, when Frank Mordica, Jr. responded to a ringing doorbell at his residence in Jacksonville, North Carolina, two men shoved a 9 millimeter handgun into Mordica's face and ordered him back into the house. The two men followed Mordica into the house, and demanded money. Mordica told the men that his wallet was in the bedroom, and in response, the men put the gun to the back of Mordica's head and held onto his pants as they moved Mordica to his bedroom to get the wallet. Once in the bedroom, Mordica took all of the cash from his wallet (approximately $50.00), and gave it to the men. The men, then, instructed Mordica to sit on the bed. The shorter of the two men held the gun on Mordica, while the taller of the two men proceeded to tear cords from the electrical equipment. Next, the men escorted Mordica at gunpoint into the kitchen area of the residence, with the taller man holding the gun. After reaching the kitchen, the men took Mordica's car keys. The taller man, again gave the gun to the shorter man, and attempted to tie Mordica to a kitchen chair. Mordica, however, fought and was able to overcome the shorter man, who held the gun, and took the weapon from him. During the struggle, the taller man jumped on Mordica's back, but Mordica was able to push him off. One round was discharged from the gun during the scuffle, but did not hit anyone.
The two men were able to extricate themselves from the fray and fled the residence. Thereafter, Mordica called the Jacksonville Police Department and reported the incident. When the police arrived, Mordica gave the officers a description of the robbers. They both had worn black jackets and bandanas. The taller of the two men wore a yellow bandanna, while the shorter man wore a blue bandana over his face. The taller man had a light complexion and a scraggly beard. Mordica subsequently remembered that the shorter man had come to his home, on a previous occasion, with a mutual friend. Mordica remembered that this person had been introduced to him as Devon Jones.
Reginald Waters testified that about one or two weeks before 20 January 1996, his 9 millimeter handgun had been stolen from his Jacksonville residence. He identified the gun which Mordica had taken from his assailants as the gun stolen from his home.
Devon Jones testified that he was one of the assailants who entered Mordica's home on 20 January 1996. Jones further testified that he and defendant decided to rob someone after deciding to go to a party, but discovering that neither of them had any money. The two ultimately decided to go to Mordica's house and rob him. Jones had seen the gun used to rob Mordica in the glove compartment of defendant's car, and later made a statement to the police that defendant had told him that the gun was stolen from the Laurindale area of Jacksonville.
The jury found defendant guilty of robbery with a dangerous weapon, first degree kidnapping, felonious possession of stolen goods, and possession of a firearm by a felon. As a result, Judge Ragan sentenced defendant to a minimum of 77 months and a maximum of 102 months imprisonment for robbery with a dangerous weapon, a minimum of 100 months and a maximum of 129 months imprisonment for first degree kidnapping, a minimum of 8 months and a maximum of 12 months imprisonment for possession of a stolen firearm and a minimum of 15 months and a maximum of 23 months imprisonment for the offense of possession of a firearm by a felon. Defendant appeals.
Defendant presents four arguments on appeal, challenging the trial court's submission of and the instruction on the charge of kidnapping, the submission of the charge of felonious possession of stolen property, and the admission of certain State's evidence and exclusion of his proffered evidence. For the reasons discussed herein, we hold that defendant received a fair trial, free from prejudicial error.
Defendant first argues that the trial court committed plain error in instructing the jury on a theory of kidnapping not alleged in the bill of indictment. We cannot agree.
If at trial, a defendant fails to object to a jury instruction, that instruction is reviewable on a plain error standard on appeal. State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). The plain error standard requires a defendant to make a showing that absent the erroneous instruction, a jury would not have found him guilty of the offense charged. Id.
In the instant case, defendant was indicted for the charge of first degree kidnapping in case number 96CRS3600. This indictment alleged that defendant "unlawfully, willfully and feloniously did kidnap Frank Mordica, Jr., . . . by unlawfully restraining him without his consent and for the purpose of facilitating the commission of a felony: robbery with a dangerous weapon." However, the trial court instructed the jury as follows:
Now, I charge that for you to find the defendant guilty of first degree kidnapping, the state must prove five things beyond a reasonable doubt: First, that the defendant unlawfully restrained a person, that is, restricted his freedom of movement, or removed a person from one place to another; second, that the person did not consent to this restraint or removal; third, that the defendant restrained or removed that person for the purpose of facilitating his commission of robbery with a firearm; fourth, that this restraint or removal was a separate, complete act, ...