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      "STATE OF NORTH CAROLINA v. ANDREW JERMAINE JORDAN"
    ],
    "opinions": [
      {
        "text": "McCullough, Judge.\nDefendant Andrew Jermaine Jordan (\u201cdefendant\u201d) was tried before a jury at the 24 July 2006 Criminal Session of Perquimans County Superior Court after being charged with one count of first-degree burglary, one count of second-degree kidnapping, and one count of first-degree attempted armed robbery. The State\u2019s evidence tended to show the following: On 12 December 2003, Kathy Turner, Kelly Palmer, and Dana Hayes were visiting with each other at Dana Hayes\u2019s residence, located at 388' Chinquapin Road. Kathy Turner had recently finished watching her grandchild at her daughter\u2019s house, which is across the street from Hayes\u2019s residence, and it was turning dark at the time her daughter came home from work.\nTurner, Palmer, and Hayes had been sitting at the kitchen table with an infant in a carrier on the floor between them when Rashie Bellfield, Christopher Hinton, Quinton Porter, and defendant suddenly kicked open a locked door and entered the house. The men were wearing hoods and ski masks. Chris Hinton and Quinton Porter were carrying guns.\nThe men ordered the group, at gunpoint, to get down on the ground in the kitchen. At one point, one of the men held a gun to the infant\u2019s head, threatening to kill the child if the group did not cooperate.\nWhile Turner, Palmer, and Hayes were held in the kitchen, one man went down the hall toward the back of the house. Bellfield testified at trial that the men had entered the house intending to \u201ckill someone\u201d in particular, but quickly discovered that they were in the wrong house. After this realization, the men fled to their car. Palmer immediately called 911, and Turner headed to her daughter\u2019s house across the street. Turner testified that she was too upset to notice the lighting conditions when she left the Hayes\u2019s residence. Turner\u2019s son-in-law, who was in his yard across the street, saw the men\u2019s vehicle leaving.\nAt 6:49 p.m., Officer Larry Chamblee of the Perquimans County Sheriff\u2019s Department received a call, reporting the incident and describing the perpetrators\u2019 vehicle. The police subsequently spotted the vehicle, and a high speed chase ensued. The perpetrators\u2019 car lost control and crashed into a wooded area. Three of the men ran from the car, but defendant remained seated in the backseat.\nAt the police station, in the presence of Perquimans County Sheriff Tilley and Probation Officer Long, defendant voluntarily prepared an unsigned, written statement, corroborating the events described above and confirming that defendant did enter Hayes\u2019s residence.\nAt the close , of the State\u2019s evidence, the defense moved for a directed verdict on all three charges. The trial court granted the motion with respect to the charge of first-degree attempted armed robbery, but denied the motions regarding first-degree burglary and second-degree kidnapping.\nDefendant\u2019s evidence tended to show the following: On 12 December 2003, Christopher Hinton agreed to drive defendant to Chowan Hospital so that he could visit with his sister and sick nephew. Bellfield and Porter were also in the car. Defendant had just met Hinton, but was well acquainted with Bellfield, who had a child with defendant\u2019s sister, and Porter, whom he had known since childhood. During the car ride, there was no conversation about robbing a house or about killing anyone. Defendant did not see any ski masks or guns in the car. After stopping for gas, Hinton told defendant that they needed to stop by Hinton\u2019s house. They arrived at a house with which defendant was unfamiliar, and Hinton, Bellfield, and Porter got out of the car and opened the trunk, stating that they would be back shortly. Defendant remained in the car.\nSoon after, at around 6:00 p.m., Hinton, Bellfield, and Porter came running back to the car. Defendant asked what had happened, but the men did not answer. Next, the car was spotted by the police, a high-speed chase ensued, and the car crashed into a ditch. Defendant testified that the reason he chose not to run from the police was because he knew he had done nothing wrong. Defendant testified that the police had fabricated the written statement admitted into evidence by the State.\nDefendant was found guilty of first-degree burglary and second-degree kidnapping. He received consecutive terms of imprisonment of 87 to 124 months.\nOn appeal, defendant argues that the trial court erred by: (1) denying defendant\u2019s motion to dismiss the first-degree burglary charge; (2) improperly instructing the jury with respect to both the first-degree burglary charge and the second-degree kidnapping charge; and (3) failing to strike portions of the State\u2019s closing argument.\nI. Motion to Dismiss\nDefendant first contends that the trial court erred in denying his motion to dismiss the first-degree burglary charge.\nIn ruling on a motion to dismiss, the trial judge must consider the evidence in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). The court must find that there is substantial evidence of each element of the crime charged and of the defendant\u2019s perpetration of such crime. Id. \u201cSubstantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.\u201d Id.\nThe elements of first-degree burglary are: (1) the breaking, (2) and entering, (3) in the nighttime, (4) into a dwelling house or sleeping apartment of another, (5) which is actually occupied at the time of the offense, (6) with the intent to commit a felony therein. State v. Barnett, 113 N.C. App. 69, 74, 437 S.E.2d 711, 714 (1993). The actual commission of the intended felony is not an essential element of the crime. State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974).\nIn the case at hand, the indictment alleged, inter alia, that, at the time of the breaking and entering, defendant intended to commit felonious assault. Defendant contends that while the State\u2019s evidence tended to show intent to murder, it did not show intent to feloniously assault, as alleged in the indictment, and was thus insufficient to satisfy the felonious intent element of the first-degree burglary charge. We disagree.\nUnder North Carolina General Statutes, a person is guilty of felonious assault where he (1) commits an assault on another, (2) with a deadly weapon, (3) with intent to kill. N.C. Gen. Stat. \u00a7 14-32(c) (2005). Common law assault is \u201c \u2018an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force . . . must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.\u2019 \u201d State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967) (citation omitted).\nViewed in the light most favorable to the State, the evidence tended to show that defendant and three conspirators kicked down the front door of Dana Hayes\u2019s house, wearing ski masks and carrying loaded guns. While inside the house, the men terrorized and assaulted its occupants, pointing guns at them and threatening to \u201cblow [their] heads off.\u201d Bellfield specifically testified that the men entered the home intending to kill at least one person and that they only abandoned their plan upon discovering that they had entered the wrong house. We agree with the State that there was substantial evidence for a reasonable mind to conclude that, at a minimum, defendant unlawfully entered Dana Hayes\u2019s home with the intent to commit felonious assault, though this same evidence would also support an intent to murder theory. Therefore, the trial court properly denied defendant\u2019s motion to dismiss the first-degree burglary charge.\nII. Jury Instructions\nDefendant makes several assignments of error to the jury instructions.\nA. First-degree Burglary Charge\nDefendant first contends that the trial judge erred in instructing the jury on an intent to feloniously assault theory, where the evidence was only sufficient to demonstrate intent to murder. For the reasons previously discussed, we disagree.\nDefendant did not object to this instruction at trial, and therefore, asks this Court for plain error review. \u201cUnder a plain error analysis, defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.\u201d State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).\n\u201cThe trial court\u2019s jury instructions on possible theories of conviction must be supported by the evidence.\u201d State v. Osborne, 149 N.C. App. 235, 238, 562 S.E.2d 528, 531, aff'd, 356 N.C. 424, 571 S.E.2d 584 (2002). As previously discussed, the State presented sufficient evidence to support a finding of intent to feloniously assault. Therefore, there was no error in instructing the jury on that theory.\nNext, defendant contends that, because there was conflicting evidence as to whether defendant entered Hayes\u2019s residence during the nighttime, the trial court committed reversible error in denying defendant\u2019s motion to instruct the jury on the lesser included offense of felonious breaking and entering. Because we find no conflict as to the time period in which the unlawful entry occurred, we disagree.\n\u201c \u2018[Necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor.\u2019 \u201d State v. Collins, 334 N.C. 54, 58, 431 S.E.2d 188, 191 (1993) (emphasis in original) (quoting State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547 (1954)). Where the State\u2019s evidence is sufficient to fully satisfy its burden of proving each element of the greater offense and defendant\u2019s denial that he committed the offense is the only evidence to negate those elements, the defendant is not entitled to an instruction on the lesser offense. State v. Smith, 351 N.C. 251, 267-68, 524 S.E.2d 28, 40, cert. denied, 531 U.S. 862, 148 L. Ed. 2d 100 (2000).\n\u201c \u2018The law considers it to be nighttime when it is so dark that a man\u2019s face cannot be identified except by artificial light or moonlight.\u2019 \u201d State v. Garrison, 294 N.C. 270, 279, 240 S.E.2d 377, 383 (1978) (quoting State v. Frank, 284 N.C. 137, 145, 200 S.E.2d 169, 175 (1973)). As our Supreme Court did in Garrison, we take judicial notice that in Chowan County on 12 December 2003, the sun set at 4:52 p.m., and the end of civil twilight occurred at 5:21 p.m. See the schedule for \u201cSunrise and Sunset\u201d computed by the Nautical Almanac Office, United States Naval Observatory. See also N.C. Gen. Stat. \u00a7 8C-1, Rule 201(f) (providing that a court may take judicial notice at any stage of a proceeding).\nThe uncontroverted evidence in the record shows that Turner\u2019s daughter had already come home from work at the health department by the time the unlawful entry occurred; the perpetrators were only in Hayes\u2019s residence for a brief time before discovering their mistake and fleeing the scene; the victims contacted the police immediately after the perpetrators left the residence; and Officer Chamblee received a phone call reporting the incident at 6:49 p.m. Thus, the evidence clearly shows that the breaking happened shortly before 6:49 p.m. Given that 5:21 p.m. marked the end of civil twilight, we find the State\u2019s uncontroverted evidence sufficient to fully satisfy its burden of proving that the breaking and entering occurred well after 5:21 p.m., at some point during the nighttime.\nWhile Turner testified that she was too upset to notice the lighting conditions after the breaking and entering occurred, she testified that it was turning dark before she went over to Hayes\u2019s house. Turner\u2019s testimony is wholly consistent with the time line established by Officer Chamblee\u2019s phone records and does not tend to establish that it was daytime when the unlawful entry occurred. The only evidence tending to support a finding that the unlawful entry occurred in the daytime is defendant\u2019s testimony that the men returned to their car at about 6:00 p.m, when it was \u201cjust turning dark.\u201d Defendant\u2019s denial alone, however, is insufficient to negate the nighttime element. There is no other evidence in the record from which a juror could rationally find that the incident occurred prior to 5:21 p.m., which marked the end of civil twilight. Therefore, we find no error in the trial judge\u2019s decision not to instruct on the lesser included offense of felonious breaking and entering.\nB. Kidnapping Charge\nDefendant next assigns plain error to the trial court\u2019s instruction that, in order to find defendant guilty of second-degree kidnapping, the jury must find that defendant \u201cunlawfully restrained a person . . . for the purpose of facilitating the Defendant\u2019s commission of first degree burglary[.]\u201d Defendant contends that the evidence did not support the giving of this instruction. We agree.\nUnder North Carolina General Statutes, to be guilty of kidnapping, a defendant must \u201cunlawfully confine, restrain, or remove from one place to another, any person 16 years of age or over without the consent of such person\u201d for one of four specified purposes, including \u201c[fjacilitating the commission of any felony[.]\u201d N.C. Gen. Stat. \u00a7 14-39(a)(2) (2005). Where the victim is released to a safe place and is not seriously injured or sexually assaulted, the defendant is guilty of second-degree kidnapping. N.C. Gen. Stat. \u00a7 14-39(b).\nIt is well settled that an indictment under N.C. Gen. Stat. \u00a7 14-39(a)(2) need not allege the exact type of felony furthered by the restraint or confinement, and any additional language such as \u201crape or robbery\u201d in the indictment is harmless surplusage, which may properly be disregarded. State v. Moore, 284 N.C. 485, 493, 202 S.E.2d 169, 174 (1974). However, it is plain error to allow a jury to convict a defendant upon a theory not supported by the evidence. See State v. Tucker, 317 N.C. 532, 539-40, 346 S.E.2d 417, 422 (1986); State v. Brooks, 138 N.C. App. 185, 190-92, 530 S.E.2d 849, 852-53 (2000). This Court has recognized that the felony that is the alleged purpose of the kidnapping must occur after the kidnapping. Id. at 192, 530 S.E.2d at 854; State v. Brodie, 171 N.C. App. 363, 615 S.E.2d 97, disc. review denied, 360 N.C. 67, 621 S.E.2d 881 (2005).\nIn this case, the trial court instructed the jury that defendant could be found guilty of kidnapping only if defendant restrained the victims for the purpose of committing first-degree burglary. The court did not instruct as to any other possible purpose. Defendant argues that the evidence shows that, if any burglary occurred, it was completed before the restraint, and therefore, the jury instruction was unsupported by the evidence. We agree.\n\u201cThe elements of first-degree burglary are: (i) the breaking (ii) and entering (iii) in the nighttime (iv) into the dwelling house or sleeping apartment (v) of another (vi) which is actually occupied at the time of the offense (vii) with the intent to commit a felony therein.\u201d State v. Singletary, 344 N.C. 95, 101, 472 S.E.2d 895, 899 (1996). In this case, the burglary was complete as soon as defendant kicked down the front door and entered Hayes\u2019s residence with the intent to murder; whereas, the kidnapping was not complete until the defendant and his accomplices unlawfully restrained the victims by ordering them at gunpoint to lie on the ground. Thus, the evidence shows that the felony that is the only alleged purpose for the kidnapping occurred before, not after, the kidnapping; the evidence is, thus, inconsistent with the theory upon which the jury was instructed.\nThe State contends that evidence of defendant\u2019s walking down the hall toward the back of the house supports an inference that defendant was searching for property to steal and that the burglary was, thus, on-going in nature, occurring after the victims had been restrained. Given that the State conceded at trial that any evidence of intent to steal was insufficient to support the attempted armed robbery charge and, accordingly, the trial judge granted a directed verdict with respect to that charge, we find this argument unpersuasive.\nWe cannot uphold a jury verdict based upon a theory that is not supported by the evidence. The instruction as to the kidnapping charge constitutes plain error, and defendant must receive a new trial with respect to this charge. Tucker, 317 N.C. 532, 540, 346 S.E.2d 417, 422.\nAlthough the kidnapping conviction cannot stand, we note that defendant also assigns plain error to the jury instruction\u2019s use of the term \u201crestrained,\u201d while the indictment alleged \u201cconfined.\u201d Given the strength of the evidence against defendant, we find no reasonable basis to conclude that use of the word \u201cconfine\u201d would have altered the jury\u2019s verdict, and this instructional error would not have constituted plain error. However, because this type of error is likely to reoccur, we note that the terms \u201crestrain\u201d and \u201cconfine\u201d are not synonymous. Instead, we conclude that evidence showing that the victims were held at gunpoint in the kitchen was sufficient to find that the victims were both \u201crestrained\u201d and \u201cconfined.\u201d See State v. Gainey, 355 N.C. 73, 95, 558 S.E.2d 463, 478, cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002), (recognizing that \u201c \u2018the term \u201cconfine\u201d connotes some form of imprisonment within a given area, such as a room, a house or a vehicle. The term \u201crestrain,\u201d while broad enough to include a restriction upon freedom of movement by confinement, connotes also such a restriction, by force, threat or fraud, without a confinement.\u2019 \u201d) Id. (citation omitted). Nonetheless, the kidnapping conviction cannot stand due to plain error in the trial court\u2019s instruction on the felonious purpose element.\nIII. Closing Argument\nFinally, defendant contends that the prosecutor improperly vouched for the credibility of the State\u2019s witness during closing argument. The pertinent portion of the prosecutor\u2019s argument relates to the credibility of Sheriff Tilley\u2019s testimony concerning defendant\u2019s unsigned, written statement. The prosecutor argued, \u201c[W]e contend that the Sheriff is an honest man and he has told you what happened. He\u2019s not trying to convict somebody for something they didn\u2019t do. He wouldn\u2019t want to do that. He is the elected Sheriff of this county.\u201d Because defendant did not object to the closing argument at trial, we review to determine whether the remarks were so grossly improper that the trial court committed reversible error in failing to intervene ex mero motu. State v. Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80 (1999). \u201cTo establish such an abuse, defendant must show that the prosecutor\u2019s comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair.\u201d State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999). In determining whether an argument is grossly improper, we must examine the context in which it was given and the circumstances to which it refers. See State v. Cummings, 353 N.C. 281, 297, 543 S.E.2d 849, 859, cert. denied, 534 U.S. 965, 151 L. Ed. 2d 286 (2001). Under this standard, we find that the prosecuting attorney\u2019s argument did not require the court to intervene ex mero motu.\n\u201cIt is well settled that the arguments of counsel are left largely to the control and discretion of the trial judge and that counsel will be granted wide latitude in the argument of hotly contested cases.\u201d State v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986). To that end, counsel are permitted to argue the evidence presented and all inferences reasonably drawn therefrom. Id. \u201cEven so, counsel may not, by argument. . ., place before the jury incompetent and prejudicial matters by injecting his own knowledge, beliefs, and personal opinions not supported by the evidence.\u201d State v. Britt, 288 N.C. 699, 711, 220 S.E.2d 283, 291 (1975).\nOur Supreme Court has recognized that while counsel may not personally vouch for the credibility of the State\u2019s witnesses or for his own credibility, counsel may give the jurors reasons why they should believe the State\u2019s evidence. State v. Bunning, 338 N.C. 483, 489, 450 S.E.2d 462, 464 (1994) (concluding that a prosecutor\u2019s argument that a law enforcement officer would not risk his professional reputation merely to convict the defendant was proper); State v. Rogers, 355 N.C. 420, 453, 562 S.E.2d 859, 880 (2002), cert. denied, 360 N.C. 294, 629 S.E.2d 283 (2006) (finding no impropriety in prosecutor\u2019s argument that the State\u2019s witness had no \u201caxe to grind\u201d or reason to lie).\nLikewise, we conclude that the prosecutor\u2019s argument is properly characterized as one giving the jurors reasons why they should believe the State\u2019s evidence, as opposed to one personally vouching for the sheriff\u2019s credibility. As such, the argument did not require the court to intervene ex mero mo tu.\nBased on the foregoing, we find no error in defendant\u2019s conviction of first-degree burglary. We reverse the trial court\u2019s judgment regarding defendant\u2019s conviction of second-degree kidnapping.\nReversed in part, no error in part.\nJudges CALABRIA and STEPHENS concur.\n. The State presented conflicting evidence as to whether defendant was one of the men who entered the residence. At trial, Kathy Turner testified that four men entered Dana Hayes\u2019s residence, but in a statement to Officer Chamblee, Turner only reported three men. Rashie Bellfield testified that defendant never entered the residence.",
        "type": "majority",
        "author": "McCullough, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Dahr Joseph Tanoury, for the State.",
      "Appellate Defender Staple Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ANDREW JERMAINE JORDAN\nNo. COA07-69\n(Filed 6 November 2007)\n1. Burglary and Unlawful Breaking or Entering\u2014 first-degree burglary \u2014 motion to dismiss \u2014 sufficiency of evidence\u2014 felonious intent\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of first-degree burglary even though defendant contends the State\u2019s evidence tended to show intent to murder but not to commit felonious assault as alleged in the indictment because there was substantial evidence for a reasonable mind to conclude that, at a minimum, defendant unlawfully entered the victim\u2019s home with the intent to commit felonious assault even if this same evidence would also support' an intent to murder theory.\n2. Burglary and Unlawful Breaking or Entering\u2014 first-degree burglary \u2014 instruction\u2014intent to feloniously assault\nThe trial court did not commit plain error in a first-degree burglary case by its instruction to the jury on an intent to felo-niously assault theory even though defendant contends the evidence was only sufficient to demonstrate intent to murder, because the State presented sufficient evidence to support a finding of intent to feloniously assault.\n3. Burglary and Unlawful Breaking or Entering\u2014 first-degree burglary \u2014 instruction\u2014failure to instruct on lesser-included offense of felonious breaking and entering\u2014 nighttime\nThe trial court did not err in a first-degree burglary case by denying defendant\u2019s motion to instruct the jury on the lesser-included offense of felonious breaking and entering, because: (1) there was no conflict as to the time period in which the unlawful entry occurred; (2) the evidence showed that the breaking happened shortly before 6:49 p.m., and given the court took judicial notice that 5:21 p.m. marked the end of civil twilight that day, the State\u2019s uncontroverted evidence was sufficient to fully satisfy its burden of proving that the breaking and entering occurred at some point during the nighttime; and (3) defendant\u2019s denial alone was insufficient to negate the nighttime element.\n4. Kidnapping\u2014 second-degree \u2014 instruction\u2014plain error\u2014 evidence inconsistent with theory upon which jury was instructed\nThe trial court committed plain error in a second-degree kidnapping case by instructing the jury that defendant could be found guilty of kidnapping only if defendant restrained the victims for the purpose of committing first-degree burglary, and defendant is entitled to a new trial because: (1) the evidence showed, that the burglary occurred before, not after, the kidnapping; and (2) the evidence is inconsistent with the theory upon which the jury was instructed.\n5. Kidnapping\u2014 second-degree \u2014 instruction\u2014plain error analysis \u2014 restrained\u2014confined\nThe trial court did not commit plain error in a second-degree kidnapping case by its use of the term \u201crestrained\u201d while the indictment alleged \u201cconfined,\u201d because given the strength of the evidence against defendant, there was no reasonable basis to conclude that use of the word \u201cconfine\u201d would have altered the jury\u2019s verdict. Since this type of error is likely to reoccur, the Court of Appeals noted that the terms \u201crestrain\u201d and \u201cconfine\u201d are not synonymous. Instead, it concluded that evidence showing that the victims were held at gunpoint in the kitchen was sufficient to find that the victims were both \u201crestrained\u201d and \u201cconfined.\u201d\n6. Criminal Law\u2014 prosecutor\u2019s argument \u2014 reasons to believe State\u2019s evidence instead of vouching for credibility of witness\nThe trial court did not err in a first-degree burglary and second-degree kidnapping case by failing to intervene ex mero motu to strike portions of the State\u2019s closing argument that a sheriff who testified for the State was an honest man and that he was not trying to convict somebody for something they didn\u2019t do because: (1) while counsel may not personally vouch for the credibility of the State\u2019s witnesses or for his own credibility, counsel may give the jurors reasons why they should believe the State\u2019s evidence; and (2) the prosecutor\u2019s argument is properly characterized as one giving the jurors reasons why they should believe the State\u2019s evidence, as opposed to one personally vouching for the sheriff\u2019s credibility.\nAppeal by defendant from judgments entered 25 July 2006 by Judge J. Richard Parker in Perquimans County Superior Court. Heard in the Court of Appeals on 19 September 2007.\nAttorney General Roy Cooper, by Assistant Attorney General Dahr Joseph Tanoury, for the State.\nAppellate Defender Staple Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant appellant."
  },
  "file_name": "0576-01",
  "first_page_order": 606,
  "last_page_order": 617
}
