{ "id": 4158759, "name": "STATE OF NORTH CAROLINA v. MICHELLE ANITA COUSAR", "name_abbreviation": "State v. Cousar", "decision_date": "2008-06-03", "docket_number": "No. COA07-850", "first_page": "750", "last_page": "758", "citations": [ { "type": "official", "cite": "190 N.C. App. 750" } ], "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": "617 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633747 ], "year": 2005, "pin_cites": [ { "page": "679-80", "parenthetical": "holding that, while \"appellate counsel may be at a disadvantage when preparing an appeal for a case in which he did not participate at the trial level, ... It is outside the realm of this Court's function as the judiciary to modify statutory law.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0675-01" ] }, { "cite": "626 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635152 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "293-94" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0289-01" ] }, { "cite": "173 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353010 ], "year": 2005, "pin_cites": [ { "page": "129-30", "parenthetical": "holding that, while \"appellate counsel may be at a disadvantage when preparing an appeal for a case in which he did not participate at the trial level, ... It is outside the realm of this Court's function as the judiciary to modify statutory law.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0123-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "570 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "153 N.C. App. 455", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250387 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/153/0455-01" ] }, { "cite": "441 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "310-11" } ], "opinion_index": 0 }, { "cite": "335 N.C. 741", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530091 ], "year": 1994, "pin_cites": [ { "page": "749" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0741-01" ] }, { "cite": "482 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "758", "parenthetical": "citations omitted" }, { "page": "758-59" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 721", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11871576 ], "year": 1997, "pin_cites": [ { "page": "726", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0721-01" ] }, { "cite": "536 S.E.2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "61" } ], "opinion_index": 0 }, { "cite": "352 N.C. 600", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685069 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "636" }, { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0600-01" ] }, { "cite": "340 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "applying the Blockburger test to single prosecution situations" } ], "opinion_index": 0 }, { "cite": "315 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717320 ], "year": 1986, "pin_cites": [ { "parenthetical": "applying the Blockburger test to single prosecution situations" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0444-01" ] }, { "cite": "284 U.S. 299", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5719289 ], "weight": 2, "year": 1932, "opinion_index": 0, "case_paths": [ "/us/284/0299-01" ] }, { "cite": "243 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "351" } ], "opinion_index": 0 }, { "cite": "294 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574036 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0503-01" ] }, { "cite": "282 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565336 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0093-01" ] }, { "cite": "360 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797218 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0333-01" ] } ], "analysis": { "cardinality": 865, "char_count": 18597, "ocr_confidence": 0.731, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.30814325468396037 }, "sha256": "479f0c89fc6053cfc84a875cdefad745887f9e896265f8ba06479426885ae1c4", "simhash": "1:e72c8029c63e3e5a", "word_count": 2998 }, "last_updated": "2023-07-14T19:40:45.332452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHELLE ANITA COUSAR" ], "opinions": [ { "text": "STEELMAN, Judge.\nThe trial court did not err in its evidentiary rulings, in instructing the jury, or in entering judgment on the jury\u2019s second-degree kidnapping verdict where the State proved restraint beyond that inherent in the underlying felony. The court did not err in sentencing defendant to consecutive sentences that were suspended with concurrent probationary periods.\nI. Factual and Procedural Background\nThe evidence at trial tended to show that, shortly before midnight on 9 April 2006, Amanda Rush (hereinafter \u201cRush\u201d) heard knocking at her apartment door. Rush, who is legally blind, at first ignored the knocking, but when it continued, she got out of bed and asked who was at the door. A man\u2019s voice responded \u201cRich\u201d and asked for Rush by name. Believing it might be a co-worker, Rush opened the door and briefly spoke with the man. A second person, who never spoke, entered the apartment during the conversation. Rush realized that she did not know these people, and the man finally said that he had the wrong address. As the strangers left, Rush attempted to close the door. Instead, one of the strangers pushed the door back open, pushed Rush three or more feet into the apartment, pushed her to the floor, and held her down with a hand over her mouth. He asked if she had any money, and removed his hand long enough for her to answer \u201cno.\u201d He told her to be quiet. When she cooperated, he released her, and she moved to a recliner a few feet away.\nThe two intruders took a DVD player, a cellphone, and her wallet. Shortly thereafter, defendant Michelle Cousar used one of the two credit cards in Rush\u2019s wallet for purchases at a local grocery store and gas station, obtaining $20 in cash and gasoline in the amounts of $25, $5.32, and $20.01.\nWhen questioned by police, Rush mentioned that defendant was a former co-worker who had previously tricked her out of money in an ATM transaction. Defendant and two male suspects, including defendant\u2019s boyfriend, Avery Holly, were subsequently arrested. All three co-defendants admitted to the crime but denied being inside the apartment. Each co-defendant identified the other two as the persons who went inside the apartment and stole Rush\u2019s property. In a voluntary statement to police, defendant admitted \u201cI told them where Amanda Rush [lived.] ... I did attempt to use the credit card.\u201d\nDefendant was indicted for common law robbery; first-degree burglary, larceny after breaking and entering, and second-degree kidnapping; and financial card theft plus four counts of financial card fraud.\nThe jury returned guilty verdicts on all charges. The trial court entered four judgments, arresting judgment on the common law robbery charge, and sentenced defendant to: 96-125 months imprisonment on the first-degree burglary conviction; 46-65 months imprisonment on the second-degree kidnapping charge, to begin at the expiration of the burglary sentence; 11-14 months (suspended for 36 months with supervised probation) on the larceny charge, and-8-10 months (also suspended) on the financial card charges, to run at the expiration of the larceny sentence. Defendant appeals.\nII. Analysis\nA. Kidnapping Charge: Fulcher Issue\nIn defendant\u2019s first argument, she contends that the trial court erred in failing to arrest judgment on the kidnapping charge because any restraint of Rush was inherent in the crimes of robbery and burglary. We disagree.\nDefendant cites but one case, State v. Ripley, 360 N.C. 333, 626 S.E.2d 289 (2006), in support of her argument. In that case, a group of robbers entered the lobby of a motel and robbed the front desk clerk at gunpoint. Motel patrons entered the lobby during the robbery. Some of the patrons, were ordered at gunpoint, in the course of the robbery, to move from one side of a motel lobby door to the other side of the door. The Supreme Court, relying on the decision of State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981), held this to be a \u201cmere technical asportation\u201d that was an inherent part of the armed robbery. Ripley, 360 N.C. at 338, 626 S.E.2d at 293-94.\nThe analysis in Ripley is based upon the seminal case of State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978). The key holding in that case was as follows:\nIt is self-evident that certain felonies (e.g., forcible rape and armed robbery) cannot be committed without some restraint of the victim. We are of the opinion, and so hold, that G.S. 14-39 was not intended by the Legislature to make a restraint, which is an inherent, inevitable feature of such other felony, also kidnapping so as to permit the conviction and punishment of the defendant for both crimes. To hold otherwise would violate the constitutional prohibition against double jeopardy. Pursuant to the above mentioned principle of statutory construction, we construe the word \u201crestrain,\u201d as used in G.S. 14-39, to connote a restraint separate and apart from that which is inherent in the commission of the other felony.\nId. at 523, 243 S.E.2d at 351.\nThus, the rationale of Fulcher and its progeny, including Ripley, is that a defendant may not be punished twice for the same conduct, i.e. restraint, under principles of double jeopardy.\nDefendant argues in her brief that the element of restraint and force supporting the second degree kidnapping was inherent in the charge of common law robbery. We find no fault in defendant\u2019s argument in this regard. However, defendant fails to recognize that the trial court arrested judgment on the common law robbery charge. This action eliminated any possibility of the defendant being punished twice for the restraint involved in the common law robbery and second degree kidnapping.\nOther than the second degree kidnapping charge, only the charge of common law robbery had as an inherent element of the offense the use of restraint or force against a person. The only force inherent in burglary or in larceny pursuant to a breaking and entering is forcible entry into the property, which was achieved when the intruders forced the door open and not by pushing Ms. Rush to the floor and holding her there. Thus, under the rationale of Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306 (1932), there are no double jeopardy implications that arose from the convictions for second degree kidnapping, first degree burglary, and felonious larceny. See State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986) (applying the Blockburger test to single prosecution situations).\nThis argument is without merit.\nB. Jury Instructions\nIn her second argument, defendant contends that she was unfairly prejudiced when the trial court deferred to the prosecutor and, in effect, permitted the prosecutor \u201cto instruct the jury\u201d on the second degree kidnapping charge. We disagree.\nThe record reflects that the trial court requested both counsel to intervene rather than to allow him to misinstruct the jury during a complex charge. Defendant assented to this request. When the trial court confused the underlying felony in administering the kidnapping instruction, the prosecutor intervened, as requested, to clarify. Because defense counsel raised no objection to the instructions at trial, we review this argument on a \u201cplain error\u201d basis, which requires defendant to show that the claimed error is so fundamental and prejudicial that a different verdict would have otherwise been reached. State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000).\nA bare \u201cassertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error rule.\u201d Id. at 636-37, 535 S.E.2d at 61. Although defendant claims \u201cno adversarial faimess[,]\u201d she fails to demonstrate how the claimed error so influenced the jury that a different verdict would otherwise have been reached. Id. This argument is without merit.\nC. Preservation of Evidentiary Issue\nIn defendant\u2019s third argument, she contends that the trial court erred in sustaining the State\u2019s objection to testimony that her boyfriend would have killed her if she had not followed his orders. We disagree.\nAt trial, defendant raised an affirmative defense of duress. Defendant testified to an abusive relationship with co-defendant Holly, stating that he threatened her life and the lives of her family if she refused to cooperate and participate in the crime. Holly testified that: defendant did \u201cbasically whatever I told her to do;\u201d he had frequently used physical means to induce compliance with his wishes; he had previously threatened to kill her; and she was afraid of him. He further testified that she used the credit cards at his direction. Defense counsel asked Holly \u201cwhat would have happened to Michelle Cousar if she refused to cooperate with you?\u201d The court sustained the State\u2019s objection, and defendant did not request a proffer of Holly\u2019s response for the record.\n\u201cIn order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record.\u201d State v. Ray, 125 N.C. App. 721, 726, 482 S.E.2d 755, 758 (1997) (citations omitted). When the defendant assigns as error the exclusion of testimony, but has not made an offer of proof for the record of what the resulting testimony would be, this Court \u201ccannot assess the significance of the evidence sought to be elicited[.]\u201d Id., 482 S.E.2d at 758-59. Holly\u2019s answer to the question is not readily apparent from the context within which the question was asked. N.C. Gen. Stat. \u00a7 8C-1, Rule 103(a)(2). We will not speculate as to what Holly\u2019s answer might have been. See State v. Barton, 335 N.C. 741, 749, 441 S.E.2d 306, 310-11 (1994). This argument is without merit.\nD. Rule 404(b\u2019): Evidence of Prior Bad Acts\nIn her fourth argument, defendant contends that the trial court erred by allowing evidence of her prior bad acts. We disagree.\nMs. Rush testified to a previous incident in which, after agreeing to loan defendant $60, she allowed defendant to assist her with an automated withdrawal of $120, where defendant instead withdrew approximately $320. Outside the presence of the jury, the State proffered defendant\u2019s arrest warrant and plea transcript from that incident, arguing that, under Rule 404(b), the evidence was relevant to the financial card fraud charges to show motive, intent, knowledge, plan, absence of mistake, and identity. Defendant at first objected but then conceded that the evidence was within the ambit of 404(b) as long as a limiting instruction was provided.\nWhen the State offered the warrant and transcript into evidence, defendant made no objection. At defendant\u2019s request, the court gave a limiting instruction prior to publication of the items to the jury. Defendant did not object to the introduction of the mug shot from her arrest for the instant charges. Nor did defendant object to the trial court\u2019s limiting instructions. We review this argument on a \u201cplain error\u201d basis. Cummings, 352 N.C. at 636, 535 S.E.2d at 61.\n. Defendant now contends that the limiting instruction regarding Ms. Rush\u2019s testimony was factually incorrect and damaging to her. In relevant part, the court instructed the jury:\n\u201c[Y]ou just heard Ms. Rush testify and evidence has been received tending to show that at an earlier time the defendant . . . well made an unauthorized transaction with Ms. Rush\u2019s credit card without her approval in exceeding what she told her to draw out, and this evidence was received specifically with reference to the four charges of financial transaction card fraud that I have previously told you about that occurred on or about the 10th day of April, 2006[.J\nDefendant now claims that this instruction was unduly prejudicial because it erroneously instructed the jury that \u201cMs. Cousar had previously stolen money from Ms. Rush by trick using the victim\u2019s credit card.\u201d We note that defendant pled guilty to obtaining property by false pretenses in the earlier case. In the instant case, defendant admitted to attempted use of Rush\u2019s card and there was video evidence tending to show that she used the card. The evidence of defendant\u2019s prior conduct was admissible under N.C. R. Evid. 404(b) to prove motive, intent, knowledge, and absence of mistake, and we cannot say that its admission or the limiting instructions were erroneous or influenced the jury such that, without them, a different verdict would have been reached.\nThis argument is without merit.\nE. Sentencing Challenge\nIn her fifth argument, defendant contends that the imposition of consecutive probationary sentences was reversible error. We disagree.\nDefendant argues that the trial court imposed two consecutive terms of probation upon defendant, citing to State v. Canady, 153 N.C. App. 455, 570 S.E.2d 262 (2002). The State concedes that defendant is correct. Neither defendant nor the State are correct in their analysis. We hold that Canady is not controlling in this matter.\nThe trial court imposed consecutive active sentences for the first degree burglary (case 06 CRS 54052-51) and the second degree kidnapping (case 06 CRS 54052-53) convictions. The trial court then entered judgment on the felonious larceny conviction (case 06 CRS 54052-52). The sentence in the larceny conviction was to run at the expiration of the kidnapping sentence. This sentence was suspended and defendant was placed on probation for 36 months, with the probation to commence upon defendant\u2019s release from incarceration on the kidnapping convictions. A fourth judgment was entered upon the convictions for financial card theft and financial card fraud (case 06 CRS 54050-51). This sentence was to run at the expiration of the felonious larceny conviction. The judgment provided that the defendant was placed on probation for 36 months, and the court ordered compliance with the conditions of probation set forth in the felonious larceny judgment.\nWhile the two probationary sentences were ordered to run consecutively, the two probationary judgments are devoid of any language that would suggest that the defendant was to have two consecutive terms of 36 months probation. In the absence of any specific language, the provisions of N.C. Gen. Stat. \u00a7 15A-1346 control and the period of probation \u201c[i]f not specified, . . . runs concurrently.\u201d N.C. Gen. Stat. \u00a7 15A-1346 (2007). Our holding in Canady dealt only with consecutive periods of probation, not consecutive sentences that were suspended. This argument is without merit.\nF. Remaining Assignments of Error\nFinally, defendant preserves an argument that she received ineffective assistance of counsel in that her attorney failed to request recordation of jury selection, opening statements, and closing arguments. Because she acknowledges that she cannot satisfy the \u201cprejudice\u201d prong of the Strickland test, we do not reach the merits of this claim. Strickland v. Washington, 466 U.S. 668, 80 L. E. 2d 674 (1984) (requiring defendant to show that counsel\u2019s performance was so seriously deficient that her Sixth Amendment rights were compromised and that the alleged deficiency prejudiced the defense to a degree that there is a reasonable probability that but for counsel\u2019s errors, the result of the proceedings would have been different); see also State v. Verrier, 173 N.C. App. 123, 129-30, 617 S.E.2d 675, 679-80 (2005) (holding that, while \u201cappellate counsel may be at a disadvantage when preparing an appeal for a case in which he did not participate at the trial level, ... It is outside the realm of this Court\u2019s function as the judiciary to modify statutory law.\u201d)\nThe remaining assignments of errors asserted in the record on appeal, but not argued in defendant\u2019s brief, are deemed abandoned. N.C. R. App. P. 28(b)(6) (2007).\nNO ERROR.\nJudges McCULLOUGH and GEER concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Charles E. Reece, for the State.", "Chams & Chams, by M. Alexander Chams, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHELLE ANITA COUSAR\nNo. COA07-850\n(Filed 3 June 2008)\n1. Constitutional Law\u2014 double jeopardy \u2014 kidnapping and other crimes \u2014 restraint or force against person\nThere were no double jeopardy implications that arose from convictions for second-degree kidnapping, first-degree burglary, and felonious larceny because restraint or force against a person was not an inherent element of burglary or larceny. Judgment was arrested on a common law robbery charge.\n2. Criminal Law\u2014 multiple crimes \u2014 instructions\u2014intervention of counsel\nThere was no plain error when the trial court requested both counsel to intervene rather than allow him to misinstruct the jury on a complex charge, the court confused the underlying felony in giving the kidnapping instruction, and the prosecutor intervened. Defendant did not demonstrate how.the claimed error so influenced the jury that a different result would otherwise have been reached.\n3. Appeal and Error\u2014 preservation of issues \u2014 no offer of proof\nDefendant did not preserve for appellate review the sustaining of the State\u2019s objection to a certain question where she did not make an offer of proof arid the answer to the question was not readily apparent from the context.\n4. Evidence\u2014 prior bad acts \u2014 admission to prove motive, knowledge, absence of mistake \u2014 limiting instruction\nThe trial court did not err by allowing evidence of prior bad acts in a prosecution for burglary, larceny, kidnapping and other crimes against a blind woman. The evidence of defendant\u2019s prior conduct was admissible under Rule 404(b) of the Rules of Evidence to prove motive, intent, knowledge, and absence of mistake, and it cannot be said that its admission or the limiting instructions were erroneous or influenced the jury such that a different verdict would have been reached otherwise.\n5. Sentencing\u2014 probationary terms \u2014 concurrent\u2014consecutive sentences suspended\nThere was no error in sentencing defendant where defendant contended that he was given consecutive probationary sentences. The court properly gave defendant consecutive sentences that were suspended with concurrent probationary periods.\n6. Constitutional Law\u2014 ineffective assistance of counsel \u2014 no prejudice\nThe merits of an ineffective assistance of counsel claim were not reached on appeal where defendant acknowledged that she could not satisfy the prejudice prong of the test.\nAppeal by defendant from judgments entered 25 January 2007 by Judge Clifton W. Everett, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 12 December 2007.\nAttorney General Roy Cooper, by Assistant Attorney General Charles E. Reece, for the State.\nChams & Chams, by M. Alexander Chams, for the defendant-appellant." }, "file_name": "0750-01", "first_page_order": 782, "last_page_order": 790 }