{ "id": 8319307, "name": "STATE OF NORTH CAROLINA v. CURLEY JACOBS", "name_abbreviation": "State v. Jacobs", "decision_date": "2005-08-02", "docket_number": "No. COA04-963", "first_page": "220", "last_page": "237", "citations": [ { "type": "official", "cite": "172 N.C. App. 220" } ], "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": "156 L. Ed. 2d 702", "category": "reporters:federal", "reporter": "L. 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App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525383 ], "year": 1982, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0589-01" ] }, { "cite": "588 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491488, 491905, 491778, 491757, 491888, 491603, 491573, 491413, 491447, 491645 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0510-01", "/nc/357/0510-09", "/nc/357/0510-05", "/nc/357/0510-07", "/nc/357/0510-04", "/nc/357/0510-08", "/nc/357/0510-02", "/nc/357/0510-06", "/nc/357/0510-03", "/nc/357/0510-10" ] }, { "cite": "580 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2003, "pin_cites": [ { "page": "755" }, { "page": "757" } ], "opinion_index": 0 }, { "cite": "158 N.C. 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Moore, 315 N.C. 738, 745, 340 S.E.2d 401, 405 (1986)" } ], "opinion_index": 0 }, { "cite": "340 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790138 ], "year": 1995, "pin_cites": [ { "page": "24", "parenthetical": "quoting State v. Moore, 315 N.C. 738, 745, 340 S.E.2d 401, 405 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0001-01" ] }, { "cite": "457 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "324" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 714", "category": "reporters:state", "reporter": "N.C. 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Stat.", "weight": 2, "year": 2003, "opinion_index": 0 } ], "analysis": { "cardinality": 1432, "char_count": 39997, "ocr_confidence": 0.744, "pagerank": { "raw": 2.4954674291694704e-07, "percentile": 0.8089620282881357 }, "sha256": "3d6942871656482fd8e405d3226b9371c816a8036f134b7f16e9e992e9fe02cf", "simhash": "1:8f6bd02e770e8d52", "word_count": 6601 }, "last_updated": "2023-07-14T22:22:54.702952+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CURLEY JACOBS" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nCurley Jacobs (\u201cdefendant\u201d) 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\u2019s imposition of attorney\u2019s fees and we remand the case for resentencing.\nThe State\u2019s evidence presented at trial tends to show the following: On 3 April 2002, Holly Powers (\u201cPowers\u201d) 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 \u201chollering and screaming\u201d and holding a \u201cmini 14\u201d 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 \u201csomething like a head lock\u201d and drove away.\nDefendant drove Powers to a residence where he was living and \u201csnatched\u201d her out of the vehicle by her arm. Defendant then began pointing the gun at Powers and throwing \u201c20 ounce bottles\u201d at her. Defendant hit Powers in the head with a bottle, and he tore Powers\u2019 shirt off of her. Defendant choked Powers \u201c[l]ong enough\u201d to make her \u201close [her] breath\u201d as well as her consciousness. Defendant then \u201csnapped out or something\u201d 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, \u201che would shoot [her] car up.\u201d Defendant followed Powers in his vehicle with the rifle \u201cout the window a little bit.\u201d After Powers dropped her vehicle off at the residence, defendant drove Powers to his mother\u2019s residence in Laurinburg, North Carolina.\nFollowing their arrival at his mother\u2019s residence, defendant and Powers sat in defendant\u2019s vehicle and talked until defendant\u2019s mother came outside and approached the vehicle. Defendant\u2019s mother was \u201ckind of ill\u201d with Powers and was \u201cfussing\u201d at her. Defendant told his mother that Powers was not there \u201con [her] own free will,\u201d and that she needed to go back inside the residence. Defendant\u2019s mother asked Powers to come inside and, while defendant was in another room, Powers explained the events to her.\nAs Powers was talking to defendant\u2019s mother, Michelle Locklear (\u201cLocklear\u201d), Powers\u2019 roommate, called the residence and asked to speak to Powers. Defendant\u2019s 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\u2019s vehicle and the two drove to pick up Powers\u2019 vehicle at defendant\u2019s residence.\nLaw enforcement officers subsequently located defendant driving his vehicle a short distance away from his mother\u2019s residence. Scotland County Sheriff\u2019s Department Lieutenant Richard J. Best (\u201cLieutenant Best\u201d) approached defendant\u2019s vehicle and saw \u201can assault rife that was in the floor board behind the driver\u2019s seat[.]\u201d Lieutenant Best took custody of the rifle and thereafter transferred it to Robeson County Sheriff\u2019s Department Detective Anthony Thompson (\u201cDetective Thompson\u201d).\nAfter 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\u2019s Department Deputy Stuart Williams (\u201cDeputy Williams\u201d). The officers took a statement from Powers regarding the incident, and they photographed her injuries.\nDefendant was subsequently arrested and indicted for first-degree kidnapping. Defendant\u2019s trial began the week of 19 November 2003, and on 21 November 2003, the jury found defendant guilty of second-degree kidnapping. Following the jury verdict, the trial court found as an aggravating factor that defendant committed the offense to disrupt and hinder the lawful exercise of a governmental function or the enforcement of laws. The trial court thereafter sentenced defendant to fifty-eight to seventy-nine months incarceration. Defendant appeals.\nWe note initially that defendant\u2019s 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.\nThe 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\u2019s 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\u2019s fees upon defendant.\nDefendant first argues that the trial court erred by refusing to instruct the jury on false imprisonment. We disagree.\nN.C. Gen. Stat. \u00a7 14-39 (2003) provides in pertinent part as follows:\n(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:\n(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person ....\n(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.\n\u201cOur courts have long held that false imprisonment is a lesser-included offense of the crime of kidnapping.\u201d State v. Baldwin, 141 N.C. App. 596, 605, 540 S.E.2d 815, 822 (2000). \u201cThe difference between kidnapping and the lesser-included offense of false imprisonment is the purpose of the confinement, restraint, or removal of another person.\u201d State v. Lancaster, 137 N.C. App. 37, 44, 527 S.E.2d 61, 66, disc. review denied in part, 352 N.C. 680, 545 S.E.2d 723 (2000). \u201cIf the purpose of the restraint was to accomplish one of the purposes enumerated in N.C. Gen. Stat. \u00a7 14-39, then the offense is kidnapping. However, if the unlawful restraint occurs without any of the purposes specified in the statute, the offense is false imprisonment.\u201d State v. Claypoole, 118 N.C. App. 714, 718, 457 S.E.2d 322, 324 (1995).\nIn the instant case, defendant was charged with kidnapping Powers for the purpose of terrorizing her. \u201cTerrorizing is defined as \u2018more than just putting another in fear. It means putting that person in some high degree of fear, a state of intense fright or apprehension.\u2019 \u201d State v. Davis, 340 N.C. 1, 24, 455 S.E.2d 627, 639 (1995) (quoting State v. Moore, 315 N.C. 738, 745, 340 S.E.2d 401, 405 (1986)). Defendant contends that sufficient evidence was presented to demonstrate that he acted with some other purpose than to terrorize Powers. In support of this contention, defendant cites Powers\u2019 trial testimony, in which she stated that she was \u201c[a] little bit frightened\u201d during the incident, that defendant told her that he was kidnapping her to force her to drop the restraining order against him, and that defendant apologized to her and stated \u201che would quit doing drugs and stuff like that\u201d after they reached his mother\u2019s residence.\nIn determining whether sufficient evidence supports a charge of kidnapping for the purpose of terrorizing, \u201cthe test is not whether subjectively the victim was in fact terrorized, but whether the evidence supports a finding that the defendant\u2019s purpose was to terrorize\u201d the victim. Moore, 315 N.C. at 745, 340 S.E.2d at 405. \u201cThe presence or absence of the defendant\u2019s intent or purpose to terrorize [the victim] may be inferred by the fact-finder from the circumstances surrounding the events constituting the alleged crime.\u201d Baldwin, 141 N.C. App. at 605, 540 S.E.2d at 821. In the instant case, the State\u2019s evidence tends to show that defendant approached Powers with a rifle, grabbed her by her hair, and forced her into his vehicle. Once she was inside his vehicle, defendant placed Powers in a headlock, choked her, and caused her to hit her head against the side of the vehicle. Defendant held Powers in a headlock and hit her with his fists as he drove to his residence, and, once at the residence, defendant threw objects at Powers and choked her, causing her to lose consciousness. Defendant waved the rifle at Powers during the incident, \u201cpulling the trigger off and letting it snap\u201d while the rifle was facing Powers. Powers testified that the rifle was equipped with a laser-pointed scope and that she was scared of it. After forcing Powers to retrieve her vehicle, defendant told Powers that he would shoot her vehicle if she \u201ctried to get away,\u201d and he held the rifle out of the window of his vehicle while he followed Powers. Detective Thompson testified that Powers was crying and was \u201cvery emotional and tearful\u201d when he interviewed her following the incident. Powers\u2019 statement to Detective Thompson was introduced into evidence for corroborative purposes, and it provides the following pertinent narrative of the incident:\n[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.\nIn 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, \u201cnone of the acts he committed within the residence [or during the incident] furthered these asserted goals.\u201d State v. Mangum, 158 N.C. App. 187, 194, 580 S.E.2d 750, 755, disc. review denied, 357 N.C. 510, 588 S.E.2d 378 (2003).\nIn 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 \u201choreseplay\u201d 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\u2019s 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 \u201cfail[ed] to see how [the] defendant\u2019s restraint of the victim and the repeated touching of the breast and vagina furthered his stated intent of using the telephone or restroom.\u201d Id. at 197, 580 S.E.2d at 757. We concluded that the defendant\u2019s \u201covertly sexual actions also belie his assertion that he was merely engaging in \u2018horseplay\u2019 with the victim.\u201d Id. Therefore, we held that the trial court did not err by failing to instruct on false imprisonment. Id. In the instant case, we are likewise unpersuaded that defendant\u2019s continual threats, restraint, and blows upon Powers advanced his asserted goal of forcing her to drop the restraining order against him. Accordingly, we overrule defendant\u2019s first argument.\nDefendant 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.\n\u201cCross-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\u2019 credibility.\u201d State v. Grant, 57 N.C. App. 589, 591, 291 S.E.2d 913, 915, disc. review denied, 306 N.C. 560, 294 S.E.2d 225 (1982). Thus, during cross-examination, a defendant may question an opposing witness regarding \u201cparticular facts having a logical tendency to show that the witness is biased against him or his cause, or that the witness is interested adversely to him in the outcome of the litigation.\u201d State v. Hart, 239 N.C. 709, 711, 80 S.E.2d 901, 902 (1954).\nIn 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 \u201cthreats\u201d were made against her in connection with her testimony. The State objected, arguing that the line of questioning was \u201copening new ground that is inappropriate for [defense counsel] to open.\u201d During the subsequent voir dire conference, defense counsel argued that Powers had indicated to him that \u201cshe was told what would happen to her if she didn\u2019t testify\u201d and that \u201cshe had been threatened or forced to testify by being told what would happen if she didn\u2019t.\u201d Powers informed the trial court that \u201c[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.\u201d Powers informed the trial court that the assistant district attorney \u201ctold 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.\u201d The State noted that it \u201cdid instruct her that an order to show cause was being prepared if she refused to appear,\u201d but that Powers \u201cchanged her mind, largely based on discussions with her mother and, if I\u2019m not mistaken, her friend, not based on what I told her.\u201d When asked why she did not want to testify, Powers informed the trial court that she had \u201cbeen through a lot,\u201d that she \u201cdidn\u2019t want to go through with it, relive it again[,]\u201d and that she \u201cfigured that with all the other cases and the other charges that [defendant] had on him, it was enough.\u201d The trial court thereafter sustained the State\u2019s objection.\n\u201cThe right to cross examine a witness to expose the witness\u2019 bias is not unlimited.\u201d State v. Hatcher, 136 N.C. App. 524, 526, 524 S.E.2d 815, 816 (2000). \u201c \u2018[W]hile it is axiomatic that the cross-examiner should be allowed wide latitude, the trial judge has discretion to ban unduly repetitious and argumentative questions, as well as inquiry into matters of tenuous relevance.\u2019 \u201d Id. (quoting 1 Brandis & Broun on North Carolina Evidence \u00a7 170 (5th ed. 1998)) (alteration in original). \u201cThe trial judge may and should rule out immaterial, irrelevant, and incompetent matter.\u201d State v. Stanfield, 292 N.C. 357, 362, 233 S.E.2d 574, 578 (1977). On appeal, the trial court\u2019s decision to limit cross-examination is reviewed for abuse of discretion, and \u201crulings in controlling cross examination will not be disturbed unless it is shown that the verdict was improperly influenced.\u201d Hatcher, 136 N.C. App. at 526, 524 S.E.2d at 816.\nIn the instant case, we conclude that the trial court did not abuse its discretion in sustaining the State\u2019s 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 \u201cenough\u201d relevant to any matter at issue in the trial. Furthermore, defendant has failed to demonstrate how the trial court\u2019s ruling regarding Powers\u2019 initial hesitation to testify improperly influenced the jury\u2019s verdict. Accordingly, we overrule defendant\u2019s second argument.\nDefendant next argues that the trial court erred by refusing to inquire further into an alleged communication with a juror. We disagree.\nThe record reflects that during jury deliberations, the trial court asked defense counsel whether there was \u201canything\u201d he wanted \u201cto put on the record[.]\u201d Thereafter, defense counsel asked the trial court to \u201cnote for the record that during the recess the juror number seven was seated and I observed [the assistant district attorney] talking to the clerk.\u201d Defense counsel informed the trial court that he \u201cthought\u201d he heard the assistant district attorney \u201cmention something about a statement.\u201d After the trial court noted that the juror sat in the jury box \u201cthe entire time by himself,\u201d defense counsel stated that \u201cthen 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.\u201d The trial court noted that it was the same distance away from the clerk as the juror and \u201cdid not hear it.\u201d The trial court then concluded that \u201c[w]ithout some showing that the juror heard it,\u201d it would not \u201cmake any inquiries.\u201d Nevertheless, the trial court did thereafter inquire as to whether defense counsel knew \u201cwhat they were talking about[.]\u201d Defense counsel responded that he believed the assistant district attorney mentioned \u201csomething about a statement.\u201d The trial court confirmed that defense counsel did not overhear \u201cmention [of] anything about the facts of the case,\u201d and subsequently concluded that \u201c[w]ithout more, it\u2019s denied.\u201d\nWhen a trial court learns of alleged improper contact with a juror, \u201cthe trial court\u2019s inquiry into the substance and possible prejudicial impact of the contact is a vital measure for ensuring the impartiality of the juror.\u201d State v. Burke, 343 N.C. 129, 149, 469 S.E.2d 901, 910-11, cert. denied, 519 U.S. 1013, 136 L. Ed. 2d 409 (1996). The trial court is given \u201cthe responsibility to conduct investigations to this effect, including examination of jurors when warranted[.]\u201d State v. Barnes, 345 N.C. 184, 226, 481 S.E.2d 44, 67, cert. denied, 522 U.S. 876, 139 L. Ed. 2d 134 (1997), cert. denied, 523 U.S. 1024, 140 L. Ed. 2d 473 (1998). \u201cAn inquiry into possible misconduct is generally required only where there are reports indicating that some prejudicial conduct has taken place.\u201d Id. However, the trial court retains sound discretion over its scope of the inquiry, and its decision is \u201cgiven great weight on appeal.\u201d State v. Bonney, 329 N.C. 61, 83, 405 S.E.2d 145, 158 (1991). \u201c \u2018The circumstances [surrounding an allegedly inappropriate communication] must be such as not merely to put suspicion on the verdict, because there was opportunity and a chance for misconduct, but that there was in fact misconduct. When there is merely matter of suspicion, it is purely a matter in the discretion of the presiding judge.\u2019 \u201d State v. Johnson, 295 N.C. 227, 234-35, 244 S.E.2d 391, 396 (1978) (quoting Lewis v. Fountain, 168 N.C. 277, 279, 84 S.E. 278, 279 (1915)).\nIn 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 \u201cthought\u201d he overheard the assistant district attorney mention \u201csomething\u201d about \u201ca statement,\u201d which defense counsel \u201cassume [d]\u201d 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\u2019s third argument is overruled.\nDefendant 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.\nThe record reflects that prior to trial, the State filed a motion requesting that it be allowed to introduce into evidence other bad acts involving Powers to which defendant had pled guilty on 29 October 2002. The acts occurred within two months following the incident giving rise to the instant case, and they included defendant\u2019s alleged discharge of a weapon into a dwelling occupied by Powers and the alleged theft and subsequent burning of Powers\u2019 vehicle. In a pretrial hearing, the trial court determined that defendant had not been provided with a record of the relevant convictions until the date of the hearing. The trial court thereafter ruled that the State was prohibited from using the evidence during the instant case.\nDuring trial, defendant\u2019s father, Frank Jacobs, Jr. (\u201cFrank\u201d), testified on defendant\u2019s 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\u2019s testimony, arguing that defendant was \u201cgetting into a dangerous area\u201d and that defendant\u2019s examination of Frank was entering \u201cthat temporal area\u201d of defendant\u2019s relationship with Powers following the incident. The State asserted that, in light of the trial court\u2019s pretrial ruling, defendant was relying on \u201cthe idea that he w[ould] prevent [the State] from eliciting the real story of [defendant and Powers\u2019] relationship after\u201d 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:\nThe Court: If you open that door, the D.A.\u2019s going to come back with all of these convictions that he [pled] guilty to. I don\u2019t know that I\u2019m going to allow it, but I\u2019ve kept it out so far. But if you open that door, I don\u2019t know, then. I\u2019m not going to tell you, but I think maybe you and your client ought to discuss that strategy. At this point I\u2019m going to rule that immaterial. That confused the jury on the issues under 403.\nDefense Counsel: Your Honor, but what about the testimony of a witness about she taking her and [defendant] \u2014 they were together and they took her to get her license? How \u2014 I guess I need a ruling on that.\nThe Court: Well, then you\u2019re going to argue that they were good and this, that and the other, and I think you\u2019re \u2014 if you open that door that they were getting along after this incident, then I think there is a chance, not saying I\u2019d allow it, but I\u2019m saying there\u2019s a chance of rebuttal on behalf of the District Attorney that needs to be weighed before you do anything like that. I\u2019m going to hold it out right now.\nAfter ensuring that defendant had participated in the decision not to offer further evidence from Frank, the trial court reminded defendant that \u201cI don\u2019t know what I\u2019d do with that. I\u2019m not telling you I\u2019d let it in; I\u2019m not telling you I\u2019d keep the D.A. from doing it.\u201d Defense counsel thereafter made an offer of proof on voir dire, during which Frank testified that Powers visited defendant at Frank\u2019s residence less than a week after defendant was released on bond. Frank testified that during the visit, defendant and Powers \u201cr[o]de off someplace\u201d 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\u2019s residence for \u201c15-20 minutes.\u201d Following this testimony, the trial court stated that it would overrule the State\u2019s objection, would deny defendant\u2019s 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\u2019s presence.\n\u201cThe decision whether to grant a motion in limine rests in the discretion of the trial court.\u201d State v. Holman, 353 N.C. 174, 184, 540 S.E.2d 18, 25 (2000), cert. denied, 534 U.S. 910, 151 L. Ed. 2d 181 (2001). In Holman, the defendant pled guilty to the first-degree murder of his estranged wife. During his sentencing proceeding, the defendant attempted to introduce evidence tending to show that, at the time he killed his wife, he was acting under a mental or emotional disturbance spawned by an indication that his wife was rekindling a relationship with her ex-husband. The defendant moved the trial court for a ruling that the introduction of the evidence would not open the door to the State to introduce evidence previously ruled irrelevant. The trial court deferred its ruling on the motion until it heard the defendant\u2019s questions and their context, stating that \u201c[w]ell, I think that door \u2014 while it might get open \u2014 I don\u2019t think it automatically flies open .... Neither can I say that the door would not be opened, depending on what\u2019s asked. So, I mean, that\u2019s a matter they\u2019ll have to consider, I suppose.\u201d Id. On appeal, our Supreme Court noted that it had consistently permitted evidence to be introduced in rebuttal of a particular fact on cross-examination, even if the evidence would be incompetent or irrelevant when initially offered. Id. (citing State v. Bishop, 346 N.C. 265, 389, 488 S.E.2d 769, 782 (1997)). The Court further noted that \u201c[a]t the point when the trial court deferred its ruling in the present case, it did not have sufficient information to decide upon the motion knowledgeably.\u201d Holman, 353 N.C. at 184, 540 S.E.2d at 25. Accordingly, the Court held that \u201cthe trial court did not abuse its discretion by deferring its ruling on the motion until sufficient information was presented to allow the trial court to make a proper and informed decision.\u201d Id.\nWe conclude that the reasoning of Holman is applicable to the instant case. Following defendant\u2019s offer of proof, the trial court stated that it would deny the State\u2019s objection to Frank\u2019s 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 \u201crun the risk of 404(b) evidence\u201d 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 \u201cnot going to cross bridges until I come to them because I don\u2019t know what anybody\u2019s going to do.\u201d In light of Holman, we conclude that the trial court did not abuse its discretion in its determination.\nDefendant relies on State v. Lamb, 321 N.C. 633, 365 S.E.2d 600 (1988) to support his contention that the trial court\u2019s decision not to rule upon the motion in limine chilled defendant\u2019s right to present evidence. However, we conclude that defendant\u2019s reliance on Lamb is misplaced. In Lamb, the Court held that a defendant\u2019s right to testify could be \u201cimpermissibly chilled\u201d if, in response to a motion in limine to prohibit cross-examination of impermissible evidence of other crimes, the trial court issues a \u201cbald denial\u201d and never provides the defendant with \u201cany assurance that, should she testify, provided she did not open the door, she would be protected from impermissible evidence being used to impeach her.\u201d Id. at 649, 365 S.E.2d at 609. In the instant case, the trial court did not issue a \u201cbald denial\u201d of defendant\u2019s motion. Instead, it merely deferred its ruling on whether the State would be allowed to cross-examine Frank about defendant\u2019s bad acts following the incident. Defendant recognized \u201cthe risk\u201d at trial, and decided that he did not \u201cwant to take that chance[.]\u201d \u201cDefendant\u2019s decision not to introduce the evidence in question was a purely tactical one based on the possibility that the questioning might open the door to undesired cross-examination. Defendant\u2019s choice of tactics in this instance did not implicate any of his rights.\u201d Holman, 353 N.C. at 185, 540 S.E.2d at 26. Accordingly, we overrule defendant\u2019s fourth argument.\nDefendant 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.\nIn State v. Allen, 359 N.C. 425, -S.E.2d-(Filed 1 July 2005) (No. 485PA04), our Supreme Court recently examined the constitutionality of North Carolina\u2019s structured sentencing scheme in light of the United States Supreme Court\u2019s decisions in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). The Court noted initially that its holding would \u201capply to cases \u2018in which the defendants have not been indicted as of the certification date of this opinion and to cases that are now pending on direct review or are not yet final.\u2019 \u201d 359 N.C. at 427, -S.E.2d at-(quoting State v. Lucas, 353 N.C. 568, 598, 548 S.E.2d 712, 732 (2001)). As defendant\u2019s instant appeal was pending on direct review when Allen and Blakely were decided, we conclude that their reasoning and holdings are applicable to the instant case.\nAfter reviewing the applicable case law, the Court in Allen concluded that, when \u201c[ajpplied to North Carolina\u2019s 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.\u201d 359 N.C. at 437, -S.E.2d at - (citing Blakely, 542 U.S. at \u2014, 159 L. Ed. 2d at 413-14; Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455; N.C. Gen. Stat. \u00a7\u00a7 15A-1340.13, 15A-1340.14, 15A-1340.16, 15A-1340.17). In the instant case, following defendant\u2019s conviction for second-degree kidnapping, the trial court found as an aggravating factor that defendant committed the offense to disrupt and hinder the lawful exercise of a governmental function or the enforcement of laws. The trial court found this factor unilaterally, thereby aggravating defendant\u2019s sentence without submitting the issue to the jury for proof beyond a reasonable doubt. In light of our Supreme Court\u2019s decision in Allen, we conclude that the trial court committed reversible error. Therefore, we remand the case for resentencing.\nDefendant next argues that the trial court erred by imposing attorney\u2019s 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.\nN.C. Gen. Stat. \u00a7 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\u2019s court-appointed attorney. In State v. Crews, 284 N.C. 427, 201 S.E.2d 840 (1974), our Supreme Court noted that there was no evidence in the record supporting or negating the defendant\u2019s contention that a judgment imposing attorney\u2019s fees was entered without notice or opportunity for him to be heard. Accordingly, the Court vacated the judgment \u201cwithout prejudice to the State\u2019s right to apply for a judgment in accordance with G.S. 7A-455 after due notice to defendant and a hearing[.]\u201d Id. at 442, 201 S.E.2d at 849-50. Similarly, in State v. Stafford, 45 N.C. App. 297, 300, 262 S.E.2d 695, 697 (1980), this Court vacated a civil judgment imposing attorney\u2019s fees on the defendant where, notwithstanding a signed affidavit of indigency, there was \u201cno indication [in the record] that [the] defendant received any opportunity to be heard on the matter\u201d of attorney\u2019s fees.\nIn the instant case, following the imposition of defendant\u2019s sentence, the trial court inquired as to whether defendant\u2019s 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\u2019s 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:\nThe Court: Well, now, let me say to you, Mr. Jacobs, I\u2019m going to give you notice of this now, he\u2019s going to submit a bill, an hourly bill. I don\u2019t know how much that hourly bill is going to total up, how many hours he\u2019s got. I know he\u2019s got two days, more than two days work here in the courtroom. But whatever, it\u2019s going to be at a rate of $65 an hour that the State allots. I\u2019ll use the multiple $65 times the hours that he submits that I find to be reasonable, and I\u2019m certain that he will be honest in that regard. Whatever that is I\u2019m going to order \u2014 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\u2019ve heard all this before, haven\u2019t you?\nDefendant: Yes, sir.\nThe Court: That\u2019s called the notice. You got the notice now. You know what I\u2019m talking about. Now you\u2019ve got your right to say anything reasonable about my award of attorney\u2019s fees. You got any problem with it?\nDefendant: No, sir.\nThe Court: Sir?\nDefendant: No, sir.\nThe Court: Well, now you\u2019ve been told, and in open court you\u2019ve been advised of that.\nThis exchange clearly demonstrates that defendant was given notice of the trial court\u2019s intention to impose attorney\u2019s fees upon him. However, while the transcript reveals that attorney\u2019s fees were discussed following defendant\u2019s conviction, there is no indication in the record that defendant was notified of and given an opportunity to be heard regarding the appointed attorney\u2019s total hours or the total amount of fees imposed. Therefore, in light of the foregoing, we vacate the trial court\u2019s imposition of attorney\u2019s fees in this matter. On remand, the State may apply for a judgment in accordance with N.C. Gen. Stat. \u00a7 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.\nIn light of the foregoing conclusions, we hold that defendant received a trial free of prejudicial error, but we vacate the trial court\u2019s imposition of attorney\u2019s fees, and we remand the case for resentencing.\nNo error in part; vacated in part; remanded for resentencing.\nJudges CALABRIA and GEER concur.\n. 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\u2019s indictment. However, our Supreme Court expressly rejected the same assertion by the defendant in Allen. 359 N.C. at 437-38, -S.E.2d at - (overruling language in Lucas \u201crequiring sentencing factors which might lead to a sentencing enhancement to be alleged in an indictment!,]\u201d finding no error in the State\u2019s failure to include aggravating factors in the defendant\u2019s indictment, and noting that in State v. Hunt, \u201c[T]his Court concluded that \u2018the Fifth Amendment would not require aggrava-tors, even if they were fundamental equivalents of elements of an offense, to be pled in a state-court indictment.\u2019 \u201d (quoting State v. Hunt, 357 N.C. 257, 272, 582 S.E.2d 593, 603, cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003)). Accordingly, defendant\u2019s assertion in the instant case is overruled as well.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper; by Assistant Attorney General Alexandra M.- Hightower, for the State.", "Stubbs, Cole, Breedlove, Prentis & Biggs, P.L.L.C., by G. Scott Holmes, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CURLEY JACOBS\nNo. COA04-963\n(Filed 2 August 2005)\n1. Kidnapping\u2014 to terrorize victim \u2014 evidence sufficient\nThe test for sufficiency of the evidence of kidnapping to terrorize the victim is whether defendant\u2019s purpose was to terrorize, not whether the victim was in fact terrorized. Here, there was sufficient evidence that defendant kidnapped the victim to terrorize her even though he apologized to her during the incident, and the trial court did not err by failing to instruct on false imprisonment.\n2. Witnesses\u2014 reluctant witness \u2014 reasons for reluctance\u2014 recross-examination limited\nThe trial court did not abuse its discretion by limiting the recross-examination of a kidnapping victim about her reluctance to testify and the State\u2019s threat of a contempt charge. There was no indication of an offer of favorable treatment, the reasons behind her reluctance did not bear on her credibility, and defendant did not show that the verdict was improperly influenced.\n3. Jury\u2014 improper contact \u2014 conversation possibly overheard in courtroom\nThere was no abuse of discretion in the trial court\u2019s investigation or ruling on an improper contact with a juror where a juror remained seated during a recess and may have overheard a conversation between the prosecutor and the clerk. The alleged inappropriate contact occurred in the presence of the judge, who was about the same distance from the conversation as the juror and did not hear what was discussed; defense counsel was not certain what was discussed; and there is no indication of any influence on the juror or the verdict.\n4. Evidence\u2014 deferred ruling \u2014 no abuse of discretion\nThe trial court did not abuse its discretion by deferring a ruling where it had granted a motion in limine to exclude certain State\u2019s evidence, the court indicated at trial that it might allow the excluded evidence if defendant offered evidence which opened the door but would not rule in advance, and defendant made an offer of proof but did not introduce its evidence.\n5. Sentencing\u2014 aggravating factor \u2014 Blakely error \u2014 jury required\nThe trial court erred by sentencing defendant in the aggravated range for kidnapping by unilaterally finding as an aggravating factor that defendant committed the offense to disrupt and hinder the lawful exercise of a governmental function or the enforcement of the laws without submitting this aggravating factor to the jury for proof beyond a reasonable doubt.\n6. Indigent Defendants\u2014 attorney fees \u2014 notice and opportunity for hearing\nA judgment for attorney fees against an indigent defendant pursuant to N.C.G.S. \u00a7 7A-455 was remanded where it did not include his appointed attorney\u2019s total hours or the total amount of the fee and there was no indication in the record that defendant was notified of and given an opportunity to be heard regarding those matters.\nAppeal by defendant from judgment entered 21 November 2003 by Judge Donald Jacobs in Robeson County Superior Court. Heard in the Court of Appeals 10 March 2005.\nAttorney General Roy Cooper; by Assistant Attorney General Alexandra M.- Hightower, for the State.\nStubbs, Cole, Breedlove, Prentis & Biggs, P.L.L.C., by G. Scott Holmes, for defendant-appellant." }, "file_name": "0220-01", "first_page_order": 250, "last_page_order": 267 }