{
  "id": 11359822,
  "name": "STATE OF NORTH CAROLINA v. TONY DOUGLAS MILLER",
  "name_abbreviation": "State v. Miller",
  "decision_date": "2001-10-16",
  "docket_number": "No. COA00-1003",
  "first_page": "494",
  "last_page": "505",
  "citations": [
    {
      "type": "official",
      "cite": "146 N.C. App. 494"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "522 U.S. 1125",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        11628735,
        11628386,
        11628133,
        11628935,
        11628264,
        11628232,
        11629002,
        11628041,
        11628493,
        11628846,
        11628435,
        11628790,
        11628188,
        11628605,
        11628319
      ],
      "year": 1998,
      "pin_cites": [
        {
          "parenthetical": "quoting State v. Buchanan, 330 N.C. 202, 224, 410 S.E.2d 832, 845 (1991)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/522/1125-11",
        "/us/522/1125-07",
        "/us/522/1125-02",
        "/us/522/1125-14",
        "/us/522/1125-05",
        "/us/522/1125-04",
        "/us/522/1125-15",
        "/us/522/1125-01",
        "/us/522/1125-09",
        "/us/522/1125-13",
        "/us/522/1125-08",
        "/us/522/1125-12",
        "/us/522/1125-03",
        "/us/522/1125-10",
        "/us/522/1125-06"
      ]
    },
    {
      "cite": "352 N.C. 360",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        685089,
        684986,
        685113,
        684938
      ],
      "year": 2000,
      "opinion_index": 0,
      "case_paths": [
        "/nc/352/0360-01",
        "/nc/352/0360-03",
        "/nc/352/0360-04",
        "/nc/352/0360-02"
      ]
    },
    {
      "cite": "514 U.S. 1071",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        1339297,
        1339621,
        1340455,
        1339305,
        1339083,
        1339085,
        1340365,
        1338927,
        1339984,
        1339758,
        1339893,
        1338716,
        1339930,
        1339164,
        1338621
      ],
      "year": 1995,
      "pin_cites": [
        {
          "parenthetical": "\"In the instant case defendant, having failed to object at trial [based on his constitutional right to be present at all stages of the trial], waived his right and cannot assign as error the trial court's denial of the right.\""
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/514/1071-08",
        "/us/514/1071-09",
        "/us/514/1071-13",
        "/us/514/1071-11",
        "/us/514/1071-01",
        "/us/514/1071-15",
        "/us/514/1071-04",
        "/us/514/1071-10",
        "/us/514/1071-03",
        "/us/514/1071-06",
        "/us/514/1071-02",
        "/us/514/1071-05",
        "/us/514/1071-14",
        "/us/514/1071-07",
        "/us/514/1071-12"
      ]
    },
    {
      "cite": "513 U.S. 1135",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        1332513,
        1333762,
        1333317,
        1330854,
        1331561,
        1332010,
        1334928,
        1330809,
        1331538,
        1334225,
        1335700,
        1335894,
        1330874,
        1335833,
        1333466,
        1331419
      ],
      "year": 1995,
      "pin_cites": [
        {
          "parenthetical": "quoting State v. Payne, 320 N.C. 138, 139, 357 S.E.2d 612, 612 (1987)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/513/1135-09",
        "/us/513/1135-05",
        "/us/513/1135-08",
        "/us/513/1135-03",
        "/us/513/1135-15",
        "/us/513/1135-14",
        "/us/513/1135-12",
        "/us/513/1135-06",
        "/us/513/1135-11",
        "/us/513/1135-07",
        "/us/513/1135-10",
        "/us/513/1135-16",
        "/us/513/1135-01",
        "/us/513/1135-02",
        "/us/513/1135-04",
        "/us/513/1135-13"
      ]
    },
    {
      "cite": "427 S.E.2d 124",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1993,
      "pin_cites": [
        {
          "page": "127"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "109 N.C. App. 344",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8525424
      ],
      "year": 1993,
      "pin_cites": [
        {
          "page": "350"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/109/0344-01"
      ]
    },
    {
      "cite": "N.C. Gen. Stat. \u00a7 14-39",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "pin_cites": [
        {
          "parenthetical": "unlawful confinement or restraint amounts to second-degree kidnapping where done for the purpose of \"[facilitating the commission of any felony or facilitating flight of any person following the commission of a felony.\""
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "340 S.E.2d 401",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1986,
      "pin_cites": [
        {
          "page": "404"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "315 N.C. 738",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4720408
      ],
      "weight": 2,
      "year": 1986,
      "pin_cites": [
        {
          "page": "743"
        },
        {
          "page": "743"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/315/0738-01"
      ]
    },
    {
      "cite": "546 S.E.2d 610",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2001,
      "pin_cites": [
        {
          "parenthetical": "quoting State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986)"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "353 N.C. 388",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        135808,
        135660,
        135669,
        135639
      ],
      "year": 2001,
      "pin_cites": [
        {
          "parenthetical": "quoting State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/353/0388-03",
        "/nc/353/0388-04",
        "/nc/353/0388-02",
        "/nc/353/0388-01"
      ]
    },
    {
      "cite": "541 S.E.2d 474",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2000,
      "pin_cites": [
        {
          "page": "477-78"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "141 N.C. App. 177",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        9440617
      ],
      "year": 2000,
      "pin_cites": [
        {
          "page": "181"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/141/0177-01"
      ]
    },
    {
      "cite": "327 S.E.2d 613",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "pin_cites": [
        {
          "page": "617",
          "parenthetical": "citing Hammond, 307 N.C. 662, 300 S.E.2d 361"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "73 N.C. App. 662",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8525398
      ],
      "year": 1985,
      "pin_cites": [
        {
          "page": "667",
          "parenthetical": "citing Hammond, 307 N.C. 662, 300 S.E.2d 361"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/73/0662-01"
      ]
    },
    {
      "cite": "300 S.E.2d 361",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1983,
      "pin_cites": [
        {
          "page": "363",
          "parenthetical": "citation omitted"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "307 N.C. 662",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8565448
      ],
      "weight": 2,
      "year": 1983,
      "pin_cites": [
        {
          "page": "665",
          "parenthetical": "citation omitted"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/307/0662-01"
      ]
    },
    {
      "cite": "175 S.E.2d 605",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1970,
      "pin_cites": [
        {
          "page": "606"
        },
        {
          "page": "607"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "9 N.C. App. 245",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8549406
      ],
      "year": 1970,
      "pin_cites": [
        {
          "page": "247"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/9/0245-01"
      ]
    },
    {
      "cite": "326 S.E.2d 302",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 3,
      "year": 1985,
      "pin_cites": [
        {
          "page": "302-03",
          "parenthetical": "citation omitted"
        },
        {
          "page": "324"
        },
        {
          "page": "303"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "73 N.C. App. 323",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8523811
      ],
      "year": 1985,
      "pin_cites": [
        {
          "page": "324",
          "parenthetical": "citation omitted"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/73/0323-01"
      ]
    },
    {
      "cite": "182 S.E.2d 244",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1971,
      "pin_cites": [
        {
          "page": "246",
          "parenthetical": "where defense counsel failed to request that trial court instruct jury on defendant's waiver of right to be present and that his absence should not be considered with regard to guilt or innocence, trial court's failure to so instruct not error"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "11 N.C. App. 670",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8556448
      ],
      "year": 1971,
      "pin_cites": [
        {
          "page": "673-74",
          "parenthetical": "where defense counsel failed to request that trial court instruct jury on defendant's waiver of right to be present and that his absence should not be considered with regard to guilt or innocence, trial court's failure to so instruct not error"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/11/0670-01"
      ]
    },
    {
      "cite": "544 S.E.2d 550",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2000,
      "pin_cites": [
        {
          "parenthetical": "citing N.C. R. App. P. 10(b)(2)"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "352 N.C. 358",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        684946,
        685109,
        685046,
        684950,
        684894
      ],
      "year": 2000,
      "pin_cites": [
        {
          "parenthetical": "citing N.C. R. App. P. 10(b)(2)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/352/0358-01",
        "/nc/352/0358-02",
        "/nc/352/0358-05",
        "/nc/352/0358-03",
        "/nc/352/0358-04"
      ]
    },
    {
      "cite": "530 S.E.2d 584",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2000,
      "pin_cites": [
        {
          "page": "588",
          "parenthetical": "citing N.C. R. App. P. 10(b)(2)"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "138 N.C. App. 127",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        11078766
      ],
      "year": 2000,
      "pin_cites": [
        {
          "page": "132",
          "parenthetical": "citing N.C. R. App. P. 10(b)(2)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/138/0127-01"
      ]
    },
    {
      "cite": "410 S.E.2d 832",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1991,
      "pin_cites": [
        {
          "page": "845"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "330 N.C. 202",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2509584
      ],
      "year": 1991,
      "pin_cites": [
        {
          "page": "224"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/330/0202-01"
      ]
    },
    {
      "cite": "140 L. Ed. 2d 131",
      "category": "reporters:federal",
      "reporter": "L. Ed. 2d",
      "year": 1998,
      "pin_cites": [
        {
          "parenthetical": "quoting State v. Buchanan, 330 N.C. 202, 224, 410 S.E.2d 832, 845 (1991)"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "487 S.E.2d 734",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1997,
      "pin_cites": [
        {
          "page": "739"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "346 N.C. 608",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        139328
      ],
      "year": 1997,
      "pin_cites": [
        {
          "page": "616"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/346/0608-01"
      ]
    },
    {
      "cite": "136 L. Ed. 2d 47",
      "category": "reporters:federal",
      "reporter": "L. Ed. 2d",
      "year": 1996,
      "opinion_index": 0
    },
    {
      "cite": "519 U.S. 828",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        11611424,
        11611236,
        11611653,
        11611718,
        11611367,
        11611530,
        11611789,
        11611758,
        11611599,
        11611282,
        11611123,
        11611479,
        11611324,
        11611167
      ],
      "year": 1996,
      "opinion_index": 0,
      "case_paths": [
        "/us/519/0828-07",
        "/us/519/0828-03",
        "/us/519/0828-11",
        "/us/519/0828-12",
        "/us/519/0828-06",
        "/us/519/0828-09",
        "/us/519/0828-14",
        "/us/519/0828-13",
        "/us/519/0828-10",
        "/us/519/0828-04",
        "/us/519/0828-01",
        "/us/519/0828-08",
        "/us/519/0828-05",
        "/us/519/0828-02"
      ]
    },
    {
      "cite": "464 S.E.2d 414",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1995,
      "pin_cites": [
        {
          "page": "431"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "342 N.C. 198",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        796105
      ],
      "year": 1995,
      "pin_cites": [
        {
          "page": "227-28"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/342/0198-01"
      ]
    },
    {
      "cite": "544 S.E.2d 554",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2000,
      "opinion_index": 0
    },
    {
      "cite": "529 S.E.2d 493",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "pin_cites": [
        {
          "page": "496"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "137 N.C. App. 726",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        11095935
      ],
      "pin_cites": [
        {
          "page": "728"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/137/0726-01"
      ]
    },
    {
      "cite": "501 S.E.2d 57",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1998,
      "pin_cites": [
        {
          "page": "63",
          "parenthetical": "defendant waives plain error review where defendant does not assert plain error"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "348 N.C. 510",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        1659821
      ],
      "year": 1998,
      "pin_cites": [
        {
          "page": "518",
          "parenthetical": "defendant waives plain error review where defendant does not assert plain error"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/348/0510-01"
      ]
    },
    {
      "cite": "545 S.E.2d 190",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2001,
      "pin_cites": [
        {
          "parenthetical": "assignment of error overruled where defendant \"failed to assert plain error on appeal.\""
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "353 N.C. 400",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        135771
      ],
      "year": 2001,
      "pin_cites": [
        {
          "parenthetical": "assignment of error overruled where defendant \"failed to assert plain error on appeal.\""
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/353/0400-01"
      ]
    },
    {
      "cite": "471 S.E.2d 605",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1996,
      "pin_cites": [
        {
          "page": "616"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "343 N.C. 313",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        798758
      ],
      "year": 1996,
      "pin_cites": [
        {
          "page": "332"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/343/0313-01"
      ]
    },
    {
      "cite": "544 S.E.2d 253",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2001,
      "pin_cites": [
        {
          "page": "255"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "142 N.C. App. 629",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        9442747
      ],
      "year": 2001,
      "pin_cites": [
        {
          "page": "630"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/142/0629-01"
      ]
    },
    {
      "cite": "340 S.E.2d 701",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1986,
      "pin_cites": [
        {
          "page": "705"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "315 N.C. 444",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4717320
      ],
      "year": 1986,
      "pin_cites": [
        {
          "page": "447"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/315/0444-01"
      ]
    },
    {
      "cite": "435 S.E.2d 91",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1993,
      "pin_cites": [
        {
          "page": "98",
          "parenthetical": "defendant abandoned argument that his right to be present at all stages of trial was violated where record reveals that defendant raised objection for the first time on appeal"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "112 N.C. App. 137",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8520503
      ],
      "year": 1993,
      "pin_cites": [
        {
          "page": "149",
          "parenthetical": "defendant abandoned argument that his right to be present at all stages of trial was violated where record reveals that defendant raised objection for the first time on appeal"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/112/0137-01"
      ]
    },
    {
      "cite": "131 L. Ed. 2d 569",
      "category": "reporters:federal",
      "reporter": "L. Ed. 2d",
      "year": 1995,
      "pin_cites": [
        {
          "parenthetical": "\"In the instant case defendant, having failed to object at trial [based on his constitutional right to be present at all stages of the trial], waived his right and cannot assign as error the trial court's denial of the right.\""
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "449 S.E.2d 694",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1994,
      "pin_cites": [
        {
          "page": "708"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "338 N.C. 168",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2519058
      ],
      "year": 1994,
      "pin_cites": [
        {
          "page": "191"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/338/0168-01"
      ]
    },
    {
      "cite": "431 S.E.2d 11",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1993,
      "opinion_index": 0
    },
    {
      "cite": "334 N.C. 155",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2530190
      ],
      "year": 1993,
      "opinion_index": 0,
      "case_paths": [
        "/nc/334/0155-01"
      ]
    },
    {
      "cite": "518 S.E.2d 222",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1999,
      "pin_cites": [
        {
          "parenthetical": "no error when defendant was removed from the courtroom after disrupting the trial court while attempting to rule and enter an observation on the record"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "134 N.C. App. 560",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        11146025
      ],
      "year": 1999,
      "pin_cites": [
        {
          "parenthetical": "no error when defendant was removed from the courtroom after disrupting the trial court while attempting to rule and enter an observation on the record"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/134/0560-01"
      ]
    },
    {
      "cite": "533 S.E.2d 518",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 3,
      "year": 2000,
      "pin_cites": [
        {
          "parenthetical": "no error when defendant was removed after making two outbursts during the presentation of evidence regarding the charge of habitual felon"
        },
        {
          "page": "522"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "139 N.C. App. 209",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        9496411
      ],
      "weight": 2,
      "year": 2000,
      "pin_cites": [
        {
          "parenthetical": "no error when defendant was removed after making two outbursts during the presentation of evidence regarding the charge of habitual felon"
        },
        {
          "page": "217"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/139/0209-01"
      ]
    },
    {
      "cite": "378 S.E.2d 812",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1989,
      "pin_cites": [
        {
          "parenthetical": "no error when defendant was removed after becoming disruptive upon denial of his motion and again when the jury venire returned for jury selection"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "93 N.C. App. 579",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8528302
      ],
      "year": 1989,
      "pin_cites": [
        {
          "parenthetical": "no error when defendant was removed after becoming disruptive upon denial of his motion and again when the jury venire returned for jury selection"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/93/0579-01"
      ]
    },
    {
      "cite": "324 S.E.2d 241",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1985,
      "pin_cites": [
        {
          "page": "246"
        },
        {
          "page": "247",
          "parenthetical": "citation omitted"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "312 N.C. 553",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4753359
      ],
      "weight": 2,
      "year": 1985,
      "pin_cites": [
        {
          "page": "559"
        },
        {
          "page": "560"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/312/0553-01"
      ]
    },
    {
      "cite": "223 U.S. 442",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        3663096
      ],
      "weight": 2,
      "year": 1912,
      "opinion_index": 0,
      "case_paths": [
        "/us/223/0442-01"
      ]
    },
    {
      "cite": "184 F.2d 488",
      "category": "reporters:federal",
      "reporter": "F.2d",
      "case_ids": [
        1236215
      ],
      "year": 1950,
      "pin_cites": [
        {
          "page": "490",
          "parenthetical": "citing Diaz v. United States, 223 U.S. 442, 56 L. Ed. 500 (1912)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/f2d/184/0488-01"
      ]
    },
    {
      "cite": "146 S.E.2d 666",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1966,
      "opinion_index": 0
    },
    {
      "cite": "266 N.C. 606",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8561846
      ],
      "year": 1966,
      "opinion_index": 0,
      "case_paths": [
        "/nc/266/0606-01"
      ]
    },
    {
      "cite": "185 S.E.2d 459",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1971,
      "pin_cites": [
        {
          "page": "462-63",
          "parenthetical": "citing State v. Ferebee, 266 N.C. 606, 146 S.E.2d 666 (1966)"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "13 N.C. App. 287",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8552821
      ],
      "year": 1971,
      "pin_cites": [
        {
          "page": "291",
          "parenthetical": "citing State v. Ferebee, 266 N.C. 606, 146 S.E.2d 666 (1966)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/13/0287-01"
      ]
    },
    {
      "cite": "357 S.E.2d 612",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1987,
      "pin_cites": [
        {
          "page": "612"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "320 N.C. 138",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4728771
      ],
      "year": 1987,
      "pin_cites": [
        {
          "page": "139"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/320/0138-01"
      ]
    },
    {
      "cite": "130 L. Ed. 2d 895",
      "category": "reporters:federal",
      "reporter": "L. Ed. 2d",
      "year": 1995,
      "pin_cites": [
        {
          "parenthetical": "quoting State v. Payne, 320 N.C. 138, 139, 357 S.E.2d 612, 612 (1987)"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "446 S.E.2d 298",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1994,
      "pin_cites": [
        {
          "page": "307"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "337 N.C. 243",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2550074
      ],
      "year": 1994,
      "pin_cites": [
        {
          "page": "256"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/337/0243-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 981,
    "char_count": 25808,
    "ocr_confidence": 0.755,
    "pagerank": {
      "raw": 1.7437490307778618e-07,
      "percentile": 0.7074651842636386
    },
    "sha256": "b8b181aed289e399ef86d98f8d3d635783d03830e854626c1d4e4ee34e5c879a",
    "simhash": "1:0329d128542e28f4",
    "word_count": 4337
  },
  "last_updated": "2023-07-14T17:14:58.205856+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges WYNN and HUNTER concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. TONY DOUGLAS MILLER"
    ],
    "opinions": [
      {
        "text": "TYSON, Judge.\nTony Douglas Miller (\u201cdefendant\u201d) appeals the entry of judgment upon a jury verdict finding him guilty of two counts of common law robbery, one count of second-degree kidnapping, and one count of felonious escape from jail. We hold there was no error as to the entry of judgment on two counts of common law robbery. We vacate as to the entry of judgment on felonious escape and second-degree kidnapping, and remand for sentencing on misdemeanor escape and false imprisonment.\nI. Facts\nEvidence presented at trial tended to establish that on 15 September 1998, defendant was an inmate of the Montgomery County Jail. Jailers Carolyn Britt (\u201cBritt\u201d) and Donna Williamson (\u201cWilliamson\u201d) were making their rounds for purposes of \u201clocking down\u201d the jail at approximately 11:00 p.m. Williamson went to cell number three to collect some used bottles. She unlocked the cell and reached in to collect the bottles. Williamson testified that as she did so, an inmate of cell number three grabbed her by the arm and restrained her.\nBritt testified that she heard Williamson scream, and saw defendant walk out of cell number three and come towards her. Britt also testified that she attempted to close the main door, but that defendant \u201cstepped between [her] and the double door.\u201d She further testified defendant \u201cwas right on me, and so he took my left wrist and put it up behind my back. He . . . told me if I would do as he said he would not hurt me.\u201d Defendant then instructed Britt to open some of the cell gates, which she did. Defendant asked Britt for the keys to the \u201cbooking room\u201d. She responded that she did not have those keys and did not know where the keys were. Defendant then took Britt to the booking room and again asked for the keys. Britt again responded that she did not have the keys.\nBritt testified that defendant then \u201ctook [her] all the way back inside the west walk area\u201d where Williamson was sitting on the floor. Defendant asked Williamson for the keys to the booking room. Williamson responded that the other inmates had taken the keys. Defendant took Britt back in the direction of the \u201cvisiting room\u201d and instructed her not to move. Defendant left Britt momentarily and returned with some keys. Britt testified that defendant took her back to the booking room and told her to unlock the door with the keys. Britt told defendant that those were not the keys to the booking room. Defendant transported Britt back to the visiting room where he took her police radio. When defendant left again, Britt locked herself in the Chief Jailer\u2019s office and called for help. When help arrived at approximately 11:45 p.m., defendant and three other inmates were gone.\nDefendant was tried at the 28 February 2000 criminal session of the Montgomery County Superior Court on indictments of kidnapping, common law robbery, felonious escape, and larceny. Defendant moved to dismiss all charges at the close of the State\u2019s evidence and again at the close of all evidence. The trial court granted defendant\u2019s motion on the charge of larceny, at the close of all evidence. The jury returned guilty verdicts on one count of second-degree kidnapping, two counts of common law robbery, and one count of felonious escape from jail. The trial court sentenced defendant to an active term of imprisonment of a minimum of 77 months and a maximum of 103 months. Defendant appeals.\nII. Issues\nThe issues on appeal are: (1) whether the trial court violated defendant\u2019s constitutional right to be present at all stages of his trial; (2) whether the trial court erred in denying defendant\u2019s motions to dismiss the charges of felonious escape and second-degree kidnapping; and; (3) whether the trial court\u2019s jury instruction on felonious escape amounted to plain error.\nA. Defendant\u2019s absence from iurv selection\n1. Failure to object to absence and waiver\nDefendant argues that he is entitled to a new trial based on the trial court\u2019s violation of his constitutional right to be present for all stages of the trial. Specifically, defendant contends that the trial court erred in excluding him from the courtroom during jury selection. Defendant was present in the courtroom when the case was called to trial and while the trial judge explained the process of jury selection. With the jury venire present, defendant stood up and engaged the trial judge in the following exchange:\nMr. Miller: Honorable Judge?\nThe Court: Have a seat please, Mr. Miller.\nMr. Miller: I was told you told me not to come in here with my colors on, sir.\nThe Court: I let you come in here with the hat. Sit down.\nMr. Miller: But sir\u2014\nThe Court: Sit down.\nMr. Miller: I have a problem with that.\nThe Court: Sheriff, take him out of here please .... He\u2019s waived his right to be present.\nFollowing jury selection, and outside the presence of the jurors, the trial court made the following statement for the record:\n[P]lease let the record reflect that before we began court this afternoon that [defense counsel] requested of the Court on behalf of [defendant\u2019s] mother and grandmother that they be allowed to speak with him in private in an effort to see if they could have some effect on his willingness to sit in the courtroom and be quiet, and that we did afford them that opportunity .... I am going to now bring him back in the absence of the jury and see if he is willing to sit and participate in this trial in a civilized and respectful fashion.\nWith the jury absent, defendant returned to the courtroom, and the trial court stated that defendant would have \u201cthe chance to say whatever it is [he] wants to say with the jury out of the room.\u201d Defendant then requested that his attorney be dismissed. After an exchange regarding defendant\u2019s legal representation, the trial court asked defendant the following:\nThe Court: . . . Do you wish to sit here and participate in your trial in defense?\nMr. Miller: Participate?\nThe Court: Sit there and be quiet?\nMr. Miller: I will not disrespect my family.\nThe Court: So you\u2019re choosing not to be here for your trial, is that correct?\nMr. Miller: I will not disrespect my mother and grandmother for injustice.\nThe Court: Let the record reflect that Mr. Miller chooses not to be present for his trial, and we will proceed in his absence.\nDefendant was escorted from the courtroom and the jury was impaneled. The trial court made the following statement to the jury:\nNow, ladies and gentlemen, first of all let me explain to you that the circumstances of this case are obviously a little different than you might have anticipated anywhere outside of a television portrayal of a trial. While you were out Mr. Miller came back in the courtroom, and we had a discussion as to whether he wished to be in the courtroom for the rest of his trial, and if so, whether he would commit to me that he would sit and participate in his defense in a respectful and quiet manner. He has chosen not to be present for the rest of his trial, and we\u2019re going to go ahead and let the State present their evidence to you and then let the defense present evidence, if they choose to do so.\nThe trial proceeded with opening statements. Prior to the examination of witnesses, defendant expressed that he wished to return to the courtroom and would sit quietly, which was reported to the trial court in open court. The trial court then allowed defendant to re-join the trial. Defendant remained in the courtroom throughout the balance of the trial.\nThe Confrontation Clause in Article I, Section 23 of the North Carolina Constitution \u201c \u2018guarantees an accused the right to be present in person at every stage of his trial.\u2019 \u201d State v. Daniels, 337 N.C. 243, 256, 446 S.E.2d 298, 307 (1994), cert. denied, Daniels v. North Carolina, 513 U.S. 1135, 130 L. Ed. 2d 895 (1995) (quoting State v. Payne, 320 N.C. 138, 139, 357 S.E.2d 612, 612 (1987)). \u201cHowever, in felonies less than capital, it is well established that a defendant may personally waive his right to be present.\u201d State v. Stockton, 13 N.C. App. 287, 291, 185 S.E.2d 459, 462-63 (1971) (citing State v. Ferebee, 266 N.C. 606, 146 S.E.2d 666 (1966)); see also Parker v. United States, 184 F.2d 488, 490 (4th Cir. 1950) (citing Diaz v. United States, 223 U.S. 442, 56 L. Ed. 500 (1912)). Such a right is \u201ca purely personal right\u201d that can be waived \u201cexpressly or by [the] failure to assert it.\u201d State v. Braswell, 312 N.C. 553, 559, 324 S.E.2d 241, 246 (1985).\n\u201cA trial judge, after warning a defendant whose conduct is disrupting his trial, may order the defendant removed from the trial if he continues conduct which is so disruptive that the trial cannot proceed in an orderly manner.\u201d N.C. Gen. Stat. Sec. 15A-1032(a) (1999). Defendant voluntarily waived his right to be present during jury selection by his own disruptive behavior. Defendant continued to disrupt the trial by refusing to sit down. Defendant was given the opportunity to be present during opening statements and again refused to participate. See State v. Callahan, 93 N.C. App. 579, 378 S.E.2d 812 (1989) (no error when defendant was removed after becoming disruptive upon denial of his motion and again when the jury venire returned for jury selection); State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518 (2000) (no error when defendant was removed after making two outbursts during the presentation of evidence regarding the charge of habitual felon); State v. Thomas, 134 N.C. App. 560, 518 S.E.2d 222 (1999) (no error when defendant was removed from the courtroom after disrupting the trial court while attempting to rule and enter an observation on the record).\nThe State acknowledges that the trial court failed to comply with the requirements of N.C. Gen. Stat. Sec. 15A-1032(b)(2) which provides: \u201cif the judge orders a defendant removed from the courtroom he must... (2) [i]nstruct the jurors that the removal is not to be considered in weighing evidence or determining the issue of guilt.\u201d This Court has held that such an omission is error. Smith, 139 N.C. App. at 217, 533 S.E.2d at 522. This Court went on to say that not every error warrants a new trial. Id. (citing State v. Ginyard, 334 N.C. 155, 431 S.E.2d 11 (1993)). \u201cAn error is considered harmful when there is a reasonable probability that without the error a different result would have occurred. Id. (citing N.C. Gen. Stat. Sec. 15A-1443(a)).\nDefendant has not shown any reasonable probability that a different result would have been reached had the instruction been given. Defendant was afforded the opportunity to talk with his attorney and keep informed of what took place during his absence. Defendant was present during the admission of all the evidence and confronted all of the witnesses.\nDefendant concedes that neither defendant nor his attorney ever objected to the trial court\u2019s removing defendant prior to jury selection or following jury selection and before the presentation of opening statements. When defendant was excused prior to jury selection, his attorney continued on with the selection without making any objection to defendant\u2019s absence or the trial court\u2019s finding that defendant waived his right to be present. The failure to object at trial to the alleged denial of such a right constitutes waiver of the right to argue the denial on appeal. See State v. Watson, 338 N.C. 168, 191, 449 S.E.2d 694, 708 (1994), cert. denied, Watson v. North Carolina, 514 U.S. 1071, 131 L. Ed. 2d 569 (1995) (\u201cIn the instant case defendant, having failed to object at trial [based on his constitutional right to be present at all stages of the trial], waived his right and cannot assign as error the trial court\u2019s denial of the right.\u201d); State v. Almond, 112 N.C. App. 137, 149, 435 S.E.2d 91, 98 (1993) (defendant abandoned argument that his right to be present at all stages of trial was violated where record reveals that defendant raised objection for the first time on appeal).\nWhen a party fails to timely object at trial, he has the burden of establishing his right to appellate review by showing that the exception was preserved by rule or law or that the error alleged constitutes plain error. State v. Gardner, 315 N.C. 444, 447, 340 S.E.2d 701, 705 (1986); State v. Reaves, 142 N.C. App. 629, 630, 544 S.E.2d 253, 255 (2001). A defendant must \u201cspecifically and distinctly\u201d contend on appeal that the omission amounted to plain error. N.C. R. App. P. 10(c)(4).\nDefendant here has failed to argue that the trial court\u2019s finding that defendant waived his right to be present during jury selection amounted to plain error, or is otherwise preserved for our review. In short, defendant \u201cdid not object at trial or allege plain error,\u201d State v. Scott, 343 N.C. 313, 332, 471 S.E.2d 605, 616 (1996), and thus \u201chas failed to properly preserve this issue for appeal.\u201d Id.; see also, e.g., State v. Call, 353 N.C. 400, 545 S.E.2d 190 (2001) (assignment of error overruled where defendant \u201cfailed to assert plain error on appeal.\u201d); State v. Gary, 348 N.C. 510, 518, 501 S.E.2d 57, 63 (1998) (defendant waives plain error review where defendant does not assert plain error); State v. McGraw, 137 N.C. App. 726, 728, 529 S.E.2d 493, 496, (\u201cIn failing to assert plain error, defendant has waived review by this Court.\u201d), disc. review denied, 352 N.C. 360, 544 S.E.2d 554 (2000).\nThe right to be present at all critical stages of a trial is subject to a harmless error analysis. Braswell, 312 N.C. at 560, 324 S.E.2d at 247 (citation omitted); State v. Buckner, 342 N.C. 198, 227-28, 464 S.E.2d 414, 431 (1995), cert. denied, Buckner v. North Carolina, 519 U.S. 828, 136 L. Ed. 2d 47 (1996)). \u201c \u2018[T]he burden is on the defendant to show the usefulness of his presence in order to prove a violation of his right to presence.\u2019 \u201d State v. Neal, 346 N.C. 608, 616, 487 S.E.2d 734, 739 (1997), cert. denied, Neal v. North Carolina, 522 U.S. 1125, 140 L. Ed. 2d 131 (1998) (quoting State v. Buchanan, 330 N.C. 202, 224, 410 S.E.2d 832, 845 (1991)). Defendant here has failed to show \u201cthe usefulness of his presence\u201d during jury selection; especially in light of his subsequent statements evincing an intent not to sit quietly in the courtroom and allow the trial to proceed, and being present during the testimony of witnesses, presentation of all the evidence, return of the verdict, and entry of judgment.\n2. Failure to object to iurv instructions\nDefendant further argues that the trial court erred in failing to inform the jury that defendant\u2019s absence from the courtroom \u201cwas not to be considered in weighing the evidence or deciding his guilt\u201d and that the trial court did not include any such instruction in the jury charge. However, defendant never objected to the omission of any such instruction.\n\u201cAccording to our rules of appellate procedure, a defendant waives his right to assign error to the omission of a jury instruction where he does not object to such omission before the jury retires to deliberate.\u201d State v. Farmer, 138 N.C. App. 127, 132, 530 S.E.2d 584, 588, disc. review denied, 352 N.C. 358, 544 S.E.2d 550 (2000) (citing N.C. R. App. P. 10(b)(2)) (despite request for particular instruction, argument not preserved where defendant did not object at trial to omission of instruction). Again, defendant failed to preserve the issue for plain error review by \u201cspecifically and distinctly\u201d contending that the omission amounted to plain error as required by N.C. R. App. P. 10(c)(4). Defendant has abandoned this argument. See State v. Turner, 11 N.C. App. 670, 673-74, 182 S.E.2d 244, 246 (1971) (where defense counsel failed to request that trial court instruct jury on defendant\u2019s waiver of right to be present and that his absence should not be considered with regard to guilt or innocence, trial court\u2019s failure to so instruct not error). These assignments of error are overruled.\nB. Motions to dismiss\n1. Felonious escape\nDefendant first argues that the trial court should have granted his motion to dismiss the charge of felonious escape. Defendant contends that the State failed to present any evidence that defendant was serving a sentence upon conviction of a felony on 15 September 1995, the date of defendant\u2019s escape. We agree.\n\u201cThe elements of felonious escape thus are (1) lawful custody, (2) while serving a sentence imposed upon a plea of guilty, a plea of nolo contendere, or a conviction for a felony, and (3) escape from such custody.\u201d State v. Malone, 73 N.C. App. 323, 324, 326 S.E.2d 302, 302-03 (1985) (citation omitted). \u201cTo prove the second of the foregoing elements, the State must offer evidence of the felony conviction or plea for which defendant was in lawful custody when he escaped.\u201d Id. at 324, 326 S.E.2d at 303. Evidence such as a properly certified copy of the commitment is competent to show the lawfulness of the custody and the type of offense for which the defendant was committed. State v. Ledford, 9 N.C. App. 245, 247, 175 S.E.2d 605, 606 (1970).\n\u201cBefore a defendant can be convicted of this offense, the state must prove beyond a reasonable doubt that at the time of his escape defendant was serving a sentence of incarceration imposed for the conviction of a felony.\u201d State v. Hammond, 307 N.C. 662, 665, 300 S.E.2d 361, 363 (1983) (citation omitted); State v. Parrish, 73 N.C. App. 662, 667, 327 S.E.2d 613, 617 (1985) (citing Hammond, 307 N.C. 662, 300 S.E.2d 361) (\u201cWhen a defendant is charged with felonious escape from the state prison system under G.S. \u00a7 148-45, the State has the burden of proving that defendant was . . . serving a sentence imposed upon conviction of a felony.\u201d).\nIn the present case, the State failed to present any evidence to the jury that defendant was serving a sentence for the commission of a felony on the date of his escape. The State argues that this fact was stipulated to by defendant. However, the record does not contain any clear statement of a stipulation by defendant that he was serving a sentence for a felony at the time of the escape. Defense counsel clearly stated that \u201cdefendant will stipulate that on the date in question he was serving an active sentence . . . [i]n the Department of Corrections.\u201d Defendant never stipulated that he was serving an active sentence upon conviction of a felony, and the State neither introduced testimony nor exhibits, such as a certified copy of defendant\u2019s commitment, to prove that defendant was serving a sentence upon conviction of a felony.\nViewed in the light most favorable to the State, the evidence fails to establish the necessary element of felonious escape that defendant was serving a sentence for the commission of a felony. The evidence does prove that defendant was serving an active sentence, which supports a finding that defendant is guilty of the lesser included offense of misdemeanor escape under N.C. Gen. Stat. 148-45(a).\n2. Second-degree kidnanning\nDefendant further assigns error to the trial court\u2019s denial of his motions to dismiss the charge of second-degree kidnapping, arguing that the evidence was insufficient to support each element of the crime. In order to establish the commission of second-degree kidnapping, \u201cthe State bears the burden of proving that the defendant \u2018unlawfully confined, restrained, or removed the [victim] for one of the eight purposes set out in the statute.\u2019 \u201d State v. Guice, 141 N.C. App. 177, 181, 541 S.E.2d 474, 477-78 (2000), stay allowed, 353 N.C. 388, 546 S.E.2d 610 (2001) (quoting State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986)). \u201c \u2018The indictment in a kidnaping case must allege the purpose or purposes upon which the State intends to rely, and the State is restricted at trial to proving the purposes alleged in the indictment.\u2019 \u201d Id. at 181, 451 S.E.2d at 478 (quoting Moore, 315 N.C. at 743, 340 S.E.2d at 404).\nIn the present case, defendant\u2019s indictment for second-degree kidnapping alleged that defendant unlawfully confined and restrained Britt \u201cfor the purpose of facilitation of the commission of a felony . . . felony escape from jail.\u201d See N.C. Gen. Stat. \u00a7 14-39 (unlawful confinement or restraint amounts to second-degree kidnapping where done for the purpose of \u201c[facilitating the commission of any felony or facilitating flight of any person following the commission of a felony.\u201d).\nThe State was required to present substantial evidence that defendant kidnapped Britt for the purpose of committing the crime of felonious escape. We have already held that the State failed to present substantial evidence that defendant was serving a sentence for a felony, and thus could not be guilty of committing felonious escape. However, the jury\u2019s verdict of guilty of second-degree kidnapping contains all the elements of the lesser included offense of false imprisonment: (1) intentionally and unlawfully, (2) restrains or detains a person, (3) without the person\u2019s consent. State v. Surrett, 109 N.C. App. 344, 350, 427 S.E.2d 124, 127 (1993).\nC. Jury instruction on felonious escape\nWe need not address defendant\u2019s remaining argument that the trial court erred in instructing the jury on felonious escape in light of our holding that the State failed to present evidence to the jury that defendant was serving a sentence for the commission of a felony on the date of his escape.\nWe, however, note that the trial court\u2019s instruction, which required a guilty verdict upon the findings that defendant (a) was lawfully confined in the Montgomery County Jail, and (b) escaped, erroneously failed to distinguish between felonious escape and misdemeanor escape and to clearly require the finding that defendant was serving a sentence for the commission of a felony. See Ledford at 247-48, 175 S.E.2d at 607.\nWe hold that the evidence was insufficient to support the verdicts of felonious escape (98CRS004137) and second-degree kidnapping (98CRS004138) and vacate defendant\u2019s convictions as to these charges. We hold there was no error in the remainder of the verdict and judgment as to the two counts of common law robbery (98CRS004135 and 98CRS004136). We remand to the trial court for imposition of judgment on the lesser included offenses of misdemeanor escape and false imprisonment and for resentencing.\nNo error in part, vacated and remanded in part.\nJudges WYNN and HUNTER concur.",
        "type": "majority",
        "author": "TYSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Sandra Wallace-Smith, for the State.",
      "Russell J. Hollers III, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. TONY DOUGLAS MILLER\nNo. COA00-1003\n(Filed 16 October 2001)\n1. Constitutional Law\u2014 right to be present at all stages\u2014 exclusion from courtroom during jury selection\nThe trial court did not violate defendant\u2019s constitutional right to be present at all stages of his trial in a second-degree kidnapping, common law robbery, and felonious escape from jail case by excluding defendant from the courtroom during jury selection, because: (1) defendant voluntarily waived his right to be present during jury selection by his own disruptive behavior, including refusing to sit down and refusing to participate when he was given the opportunity to be present during opening statements; (2) although the trial court failed to comply with N.C.G.S. \u00a7 15A-1032(b)(2) requiring it to instruct the jurors that defendant\u2019s removal is not to be considered in weighing evidence or determining the issue of guilt, defendant has not shown any reasonable probability that a different result would have been reached had the instruction been given; (3) defendant was afforded the opportunity to talk with his attorney and keep informed of what took place during his absence; (4) defendant was present during the admission of all the evidence and confronted all of the witnesses; and (5) neither defendant nor his attorney ever objected to the trial court\u2019s removing defendant prior to jury selection and before the presentation of opening statements, and defendant failed to argue plain error. N.C. Const, art. I, \u00a7 23; N.C.G.S. \u00a7 15A-1032(a).\n2. Appeal and Error\u2014 preservation of issues \u2014 failure to object \u2014 failure to assert plain error\nThe trial court did not err in a second-degree kidnapping, common law robbery, and felonious escape from jail case by failing to inform the jury that defendant\u2019s absence from the courtroom was not to be considered in weighing the evidence or deciding his guilt, because: (1) defendant never objected to the omission of any such instructions; and (2) defendant failed to preserve the issue for plain error review as required by N.C. R. App. P. 10(c)(4).\n3. Escape\u2014 felonious escape from jail \u2014 motion to dismiss\u2014 sufficiency of evidence\nThe trial court erred by denying defendant\u2019s motion to dismiss the charge of felonious escape from jail, because: (1) the State failed to present any evidence that defendant was serving a sentence upon conviction of a felony on the date of defendant\u2019s escape; and (2) the record does not contain any clear statement of a stipulation by defendant that he was serving a sentence for a felony at the time of the escape, but merely that he was serving an active sentence which supports a finding of the lesser included offense of misdemeanor escape under N.C.G.S. \u00a7 14845(a).\n4. Kidnapping\u2014 second-degree \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court erred by denying defendant\u2019s motion to dismiss the charge of second-degree kidnapping under N.C.G.S. \u00a7 14-39 based on defendant\u2019s unlawfully confining and restraining a jailer for the purpose of facilitation of the commission of felony escape from jail, because the State failed to present substantial evidence that defendant was serving a sentence for a felony, which means defendant could not be guilty of committing felonious escape.\nAppeal by defendant from judgment entered 1 March 2000 by Judge Russell G. Walker, Jr. in Montgomery County Superior Court. Heard in the Court of Appeals 15 August 2001.\nAttorney General Roy Cooper, by Assistant Attorney General Sandra Wallace-Smith, for the State.\nRussell J. Hollers III, for defendant-appellant."
  },
  "file_name": "0494-01",
  "first_page_order": 526,
  "last_page_order": 537
}
