in the Court of Appeals 1 November 2017.
by defendant from judgments and orders entered 18 August 2016
by Judge Marvin P. Pope, Jr. in Buncombe County Superior
Court Nos. 13 CRS 63940, 63942.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Anne J. Brown, for the State.
Law PLLC, by Jason Christopher Yoder, for 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).
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 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 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.
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.
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.
the afternoon of 7 December 2013, Anna,  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.
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 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.
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
State also presented Rule 404(b) evidence through the
testimony of two other witnesses, Cindy and
Lisa. 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.
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.
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
Instructing on Unindicted First-Degree Kidnapping
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.
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."
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 any
subsection (b) elements. Accordingly, we conclude this
alleged instructional error is not precluded from plain error
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
show that an error was fundamental, a defendant must
establish prejudice-that, after examination of the entire
record, the error had a probable impact on the jury's
finding that the defendant was guilty. Moreover, because
plain error is to be applied cautiously and only in the
exceptional case, the error will often be one that seriously
affects the fairness, integrity or public reputation of
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d
326, 334 (2012) (citations, internal quotation marks, and
is the unlawful confinement, restraint, or removal, from one
place to another, of any person over 16 years old without
their consent, for one of six statutorily enumerated
purposes. N.C. Gen. Stat. § 14-39(a) (2013). Kidnapping
is elevated to the first-degree if the defendant (1) did not
release the victim in a safe place, (2) seriously injured the
victim, or (3) sexually assaulted the victim. N.C. Gen. Stat.
§ 14-39(b) (2013). "[T]he language of [ N.C. Gen.
Stat. §] 14-39(b) states essential elements of the
offense of first-degree kidnapping . . . ." State v.
Jerrett, 309 N.C. 239, 261, 307 S.E.2d 339, 351 (1983).
Thus, "to properly indict a defendant for first-degree
kidnapping, the State must allege the applicable elements of
both subsection (a) and subsection (b)." Id.
is error, generally prejudicial, for the trial judge to
permit a jury to convict upon a theory not supported by the
bill of indictment." State v. Brown, 312 N.C.
237, 248, 321 S.E.2d 856, 863 (1984) (citations omitted);
see also id. at 249, 321 S.E.2d at 863 (awarding new
first-degree kidnapping trial under plain error review where
trial court instructed on an different subsection (a) purpose
theory, for which the State presented no supportive evidence,
and a different subsection (b) elevating element, than those
charged in the indictment). However, our Supreme Court has
"found no plain error where the trial court's
instruction included the [subsection (a)] purpose that was
listed in the indictment and where compelling evidence had
been presented to support an additional element or elements
not included in the indictment as to which the court had
nevertheless instructed." State v. Tirado, 358
N.C. 551, 575, 599 S.E.2d 515, 532 (2004) (citing State
v. Lucas, 353 N.C. 568, 588, 548 S.E.2d 712, 726
(2001)); see also id. at 575-76, 599 S.E.2d at
532-33 (finding no plain error where the trial court
instructed on ...