{ "id": 4161462, "name": "STATE OF NORTH CAROLINA, Plaintiff v. GREGORY LAMONT JOHNSON, Defendant", "name_abbreviation": "State v. Johnson", "decision_date": "2008-10-21", "docket_number": "No. COA08-55", "first_page": "412", "last_page": "419", "citations": [ { "type": "official", "cite": "193 N.C. App. 412" } ], "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": "362 N.C. 479", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12642018, 12642022, 12642023 ], "year": 2008, "pin_cites": [ { "parenthetical": "\"When a defendant does not object to instructions, the alleged error is subject to review for plain error only.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/667/0274-01", "/se2d/667/0275-03", "/se2d/667/0276-01" ] }, { "cite": "654 S.E.2d 730", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640071 ], "year": 2008, "pin_cites": [ { "page": "735", "parenthetical": "\"When a defendant does not object to instructions, the alleged error is subject to review for plain error only.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/654/0730-01" ] }, { "cite": "663 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641523, 12641524, 12641525 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/663/0431-01", "/se2d/663/0431-02", "/se2d/663/0431-03" ] }, { "cite": "653 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639903 ], "year": 2007, "pin_cites": [ { "page": "207", "parenthetical": "citation, semicolon, ellipses, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0200-01" ] }, { "cite": "453 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2520644, 2521382, 2520494, 2517361, 2518303 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0671-03", "/nc/338/0671-02", "/nc/338/0671-04", "/nc/338/0671-05", "/nc/338/0671-01" ] }, { "cite": "449 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "33" }, { "page": "33" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 534", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524822 ], "year": 1994, "pin_cites": [ { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0534-01" ] }, { "cite": "388 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "434", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "326 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305404 ], "year": 1990, "pin_cites": [ { "page": "164-65", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0155-01" ] }, { "cite": "360 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "679", "parenthetical": "citation and quotation marks omitted" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "320 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729998 ], "year": 1987, "pin_cites": [ { "page": "750", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0746-01" ] }, { "cite": "188 N.C. App. 207", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155136 ], "year": 2008, "pin_cites": [ { "page": "213", "parenthetical": "\"When a defendant does not object to instructions, the alleged error is subject to review for plain error only.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0207-01" ] }, { "cite": "524 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "810", "parenthetical": "citation, quotation marks, and brackets omitted" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 515", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240802 ], "year": 2000, "pin_cites": [ { "page": "517", "parenthetical": "citation, quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0515-01" ] }, { "cite": "554 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "840", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 741", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11364485 ], "year": 2001, "pin_cites": [ { "page": "744", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0741-01" ] }, { "cite": "229 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "174", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "291 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557269 ], "year": 1976, "pin_cites": [ { "page": "54", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0037-01" ] }, { "cite": "370 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "369", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "322 N.C. 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518633 ], "year": 1988, "pin_cites": [ { "page": "742", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0733-01" ] }, { "cite": "360 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3793161, 3797483, 3791532, 3796496, 3787408, 3791676, 3794045, 3795358 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc/360/0653-03", "/nc/360/0653-01", "/nc/360/0653-06", "/nc/360/0653-07", "/nc/360/0653-04", "/nc/360/0653-02", "/nc/360/0653-08", "/nc/360/0653-05" ] }, { "cite": "187 N.C. App. 308", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8373949 ], "year": 2007, "pin_cites": [ { "page": "314", "parenthetical": "citation, semicolon, ellipses, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0308-01" ] }, { "cite": "330 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "461", "parenthetical": "\"Where evidence is admitted without objection, the benefit of a prior objection to the same or similar evidence is lost, and the defendant is deemed to have waived his right to assign as error the prior admission of the evidence.\"" } ], "opinion_index": 0 }, { "cite": "313 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719603 ], "year": 1985, "pin_cites": [ { "page": "532", "parenthetical": "\"Where evidence is admitted without objection, the benefit of a prior objection to the same or similar evidence is lost, and the defendant is deemed to have waived his right to assign as error the prior admission of the evidence.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0516-01" ] }, { "cite": "319 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "588", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "311 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681279 ], "year": 1984, "pin_cites": [ { "page": "661", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0656-01" ] } ], "analysis": { "cardinality": 718, "char_count": 15806, "ocr_confidence": 0.745, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1357200747997277 }, "sha256": "400c911be0ca203111fe70d04d75ff91ffeb0f7cc3648383cecf9cfdbe5f7984", "simhash": "1:c7aff07f162e94f4", "word_count": 2577 }, "last_updated": "2023-07-14T16:30:29.332614+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA, Plaintiff v. GREGORY LAMONT JOHNSON, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant appeals from convictions for first degree burglary, first degree arson, and violation of a domestic violence protective order. The issues before the Court are whether the trial court erred in (1) allowing testimony about a witness\u2019 prior inconsistent statement, (2) refusing to give defendant\u2019s proposed jury instruction, and (3) giving a jury instruction on flight. For the following reasons, we find no error.\nI. Background\nThe State\u2019s evidence tended to show the following: During the early hours of 15 March 2005, Lisa Stewart (\u201cMs. Stewart\u201d) made two calls to 911 regarding a domestic dispute with her ex-boyfriend, defendant. Ms. Stewart made the first call to 911, stating that defendant had a knife and was pacing on her back porch. Defendant\u2019s presence at Ms. Stewart\u2019s residence was in violation of a domestic violence protection order which Ms. Stewart had obtained against him. Corporal A.N. Swaim (\u201cCorporal Swaim\u201d) with the Winston-Salem Police Department arrived at Ms. Stewart\u2019s apartment shortly thereafter, but defendant was not present when she arrived. Ms. Stewart stated that she did not want to press charges for violation of the domestic violence protective order.\nShortly thereafter, Ms. Stewart again contacted 911 regarding defendant, and Corporal Swaim returned to Ms. Stewart\u2019s apartment. When Corporal Swaim arrived, defendant was pulling on Ms. Stewart\u2019s screen door while holding a knife and yelling \u201cplease let me in.\u201d Ms. Stewart\u2019s door was \u201crigged\u201d in a way that made it difficult to open. Corporal Swaim repeatedly told defendant to put the knife down and drew her service weapon. Defendant told Officer Swaim, \u201cYou\u2019re going to have to kill me. I\u2019m not going back to jail[,J\u201d and resumed demanding that Ms. Stewart \u201cfl]et [him] in.\u201d Other officers arrived at the scene.\nCorporal Swaim and Officer Banville both sprayed defendant with pepper spray, but defendant merely \u201cwiped it off.\u201d Defendant became more agitated and continued yelling \u201clet me in,\u201d while wielding the knife. Eventually defendant was able \u2022 to pull the storm door open.\nOnce inside, defendant pushed Ms. Stewart, slammed the front door shut, and locked it. Officer Swain then heard defendant say, \u201cI\u2019m going to kill you.\u201d The officers unsuccessfully attempted to kick in the front door. Approximately a minute and a half to two minutes after defendant entered Ms. Stewart\u2019s apartment, Corporal Swaim observed defendant light curtains on fire with a cigarette lighter. The officers were able to gain entrance with a key from Ms. Stewart who had exited her apartment out the back door shortly after defendant had entered the front door.\nOfficer Swaim then observed defendant running up the stairs with the knife. By this time the apartment was considerably ablaze, and the officers unsuccessfully tried to stop the fire. Officer Swaim went outside and observed defendant who had come out of an upstairs bedroom window and onto the porch roof. Defendant was pacing back and forth saying, \u201cYou\u2019re going to have to kill me. I\u2019m not going back to jail.\u201d Defendant then jumped from the porch roof to an adjacent apartment and crawled into the apartment through a window.\nAs members of the Winston-Salem Police Department Special Enforcement Team were trying to open the door to the room where defendant was barricaded, defendant brandished a knife through an opening in the door and stated \u201cI\u2019ll cut you\u201d and \u201ctake one of you out\u201d. Eventually defendant told the police he was \u201ccoming out[,]\u201d and he was taken into custody.\nThe fire investigator from the scene testified that there was considerable damage to Ms. Stewart\u2019s apartment and that the point of origin of the fire was at the window beside the front door. The fire investigator believed that an accelerant was used because of the extent of the damage, the odor of gasoline, and the fact that he found an open gasoline can near the point of origin of the fire. Furthermore, on 6 July 2004, Ms. Stewart had called the police and reported that defendant had threatened to kill her and to burn her house down.\nOn or about 25 July 2005, a grand jury indicted defendant for first degree burglary (\u201cburglary\u201d), first degree kidnapping, violation of a domestic violence protective order (\u201c50B violation\u201d), habitual misdemeanor assault, and assault with a deadly weapon. In a separate indictment defendant was also indicted for first degree arson (\u201carson\u201d). On or about 3 April 2006, a superceding indictment was issued on the charge of arson.\nThe jury found defendant guilty of burglary, arson, and the 50B violation. Defendant was sentenced to a consolidated term of 117 to 150 months imprisonment for the burglary and arson. Defendant received a consecutive sentence of 150 days for the 50B violation.\nOn or about 10 April 2007, this Court allowed defendant an appeal through the issuance of a writ of certiorari. Defendant argues the trial court erred in (1) allowing testimony about a witness\u2019 prior inconsistent statement, (2) refusing to give defendant\u2019s proposed jury instruction, and (3) giving a jury instruction on flight. For the following reasons, we find no error.\nII. Prior Inconsistent Statement\nDefendant first contends that \u201cthe trial court erred in allowing Officer Kearns to testify to a statement allegedly made by Ms. Stewart at an earlier time that was not consistent with her trial testimony . . . .\u201d The specific statement with which defendant contends Officer Keams should not have been allowed to testify to was Ms. Stewart telling Officer Kearns defendant told her, \u201cI\u2019m going to kill you.\u201d Defendant contends this is error because Ms. Stewart testified \u201cshe never heard the defendant say at any time that he was going to kill her.\u201d\nHowever, Officer Swaim testified without objection that she heard defendant say to Ms. Stewart, \u201cI\u2019m going to kill you.\u201d \u201cWhere evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.\u201d State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984) (citations omitted); see State v. Wilson, 313 N.C. 516, 532, 330 S.E.2d 450, 461 (1985) (\u201cWhere evidence is admitted without objection, the benefit of a prior objection to the same or similar evidence is lost, and the defendant is deemed to have waived his right to assign as error the prior admission of the evidence.\u201d). This argument is overruled.\nIII. Jury Instructions\nDefendant\u2019s next two arguments allege errors in the trial court\u2019s jury instructions.\nA. Intent Required for First Degree Burglary\nDefendant\u2019s first argument as to the jury instructions is that \u201cthe trial court erred in refusing to instruct the jury that in order to convict the defendant of first degree burglary the defendant had to enter the building with the intent to commit arson . . . .\u201d Defendant contends that\nthe pattern jury instruction did not adequately instruct the jury on when the defendant had to possess the requisite intent to commit a felony . . . [as] the jury would be misled into believing that they had to find the intent element once the State had proven that an arson was committed after entry.\nDefendant requested that the jury instructions contain the following language:\nThe offense of burglary is the breaking and entering with the requisite intent. It is complete when the building is entered or it does not occur. A breaking and an entry without, the intent to commit a felony in the building is not converted into burglary by the subsequent commission therein of a felony subsequently conceived.\nHere,\n[w]e review jury instructions contextually and in its entirety. The charge will be held to be sufficient if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed. The party asserting error bears the burden of showing that the jury was misled or that the verdict was affected by the instruction. Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury.\nState v. Hall, 187 N.C. App. 308, 314, 653 S.E.2d 200, 207 (2007) (citation, semicolon, ellipses, and brackets omitted), disc. review denied, 360 N.C. 653, 663 S.E.2d 431 (2008).\nThe trial court instructed the jury in pertinent part,\nFor you to find the defendant guilty of this offense, first degree burglary, the State must prove six things beyond a reasonable doubt. . . . Sixth, that at the time of the breaking and entering, the defendant intended to commit arson... .\nSo if you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant broke into and entered an occupied dwelling house, without the owner\u2019s consent, during the nighttime, and at that time intended to commit felonious arson, it would be your duty to return a verdict of guilty of first degree burglary.\n(Emphasis added.)\nWe conclude that though the trial court did not give defendant\u2019s requested instructions verbatim it gave them in substance as the actual instructions twice state that defendant had to have the requisite intent to commit a felony, arson, \u201cat the time of the breaking and entering ....\u201d See, e.g., State v. Herring, 322 N.C. 733, 742, 370 S.E.2d 363, 369 (1988) (citation omitted) (\u201cWhether the trial court instructs using the exact language requested by counsel is a matter within its discretion and will not be overturned absent a showing of abuse of discretion.\u201d); State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163, 174 (1976) (citation omitted) (\u201c[T]he trial court is not required to give a requested instruction in the exact language of the request.\u201d); State v. West, 146 N.C. App. 741, 744, 554 S.E.2d 837, 840 (2001) (citation omitted) (\u201cThus, while Defendant\u2019s proposed jury instructions were certainly a correct statement of the law, the trial court\u2019s jury instructions were proper as they presented in substance what Defendant had requested.\u201d); State v. Duncan, 136 N.C. App. 515, 517, 524 S.E.2d 808, 810 (2000) (citation, quotation marks, and brackets omitted) (\u201cThe trial court has discretion in selecting the language used in its jury instructions . . . but if a request is made for a jury instruction which is correct in itself and supported by evidence, the trial court must give the instruction at least in substance.\u201d). This argument is overruled.\nB. Flight\nFinally, defendant claims \u201cthe trial court committed plain error when it instructed the jury that they could consider flight from the crime as evidence of guilt.\u201d Defendant contends, \u201cThere was no evidence of flight at all.\u201d We disagree.\nDefendant concedes that no objection to this instruction was made at trial, and thus plain error review should apply. State v. Smith, 188 N.C. App. 207, 213, 654 S.E.2d 730, 735, disc. review denied, 362 N.C. 479, \u2014 S.E.2d-(2008) (\u201cWhen a defendant does not object to instructions, the alleged error is subject to review for plain error only.\u201d) However, \u201c[a] prerequisite to our engaging in a \u2018plain error\u2019 analysis is the determination that the instruction complained of constitutes \u2018error\u2019 at all.\u201d State v. Johnson, 320 N.C. 746, 750, 360 S.E.2d 676, 679 (1987) (citation and quotation marks omitted). Where \u201cthe challenged instruction was not error,... \u2018plain error\u2019 analysis is not required.\u201d Id. (citation omitted).\nA trial court may instruct a jury on a defendant\u2019s flight where \u201cthere is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.\u201d State v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 434 (1990) (citations and quotation marks omitted). \u201c[M]ere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension.\u201d State v. Westall, 116 N.C. App. 534, 549, 449 S.E.2d 24, 33, disc. review denied, 338 N.C. 671, 453 S.E.2d 185 (1994).\nDuring the trial, the State presented evidence of several instances when defendant fled from the police and sought to avoid apprehension. When Officer Swaim first arrived at Ms. Stewart\u2019s apartment and attempted to stop him from entering, defendant told her, \u201cYou\u2019re going to have to kill me. I\u2019m not going back to jail[,]\u201d and continued his efforts to enter the apartment. Neither a gun pointed at him nor pepper spray deterred defendant. Once defendant entered Ms. Stewart\u2019s apartment, he slammed the metal door shut and deadbolted it. When the police finally entered Ms. Stewart\u2019s apartment, defendant ran up the stairs with the knife and out an upstairs window onto the porch roof. While the police were trying to negotiate with defendant, he jumped across the porch roof to another apartment, crawled though a window, and barricaded himself inside. As the police were trying to open the door behind which defendant was barricaded, defendant stuck the knife outside the door, slashing it up and down and saying \u201cI\u2019ll cut you\u201d and \u201ctake one of you out\u201d. Thus, there was ample evidence that defendant fled and took steps to avoid apprehension. See Westall at 549, 449 S.E.2d at 33. The admission of these jury instructions was not in error, and this argument is overruled.\nIV. Conclusion\nFor the foregoing reasons we conclude that defendant failed to properly preserve any contentions as to allegedly prior inconsistent statements and that the trial court properly instructed the jury as to first degree burglary and flight.\nNO ERROR.\nJudges McGEE and McCULLOUGH concur.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III,- by Assistant Attorney General LaToya B. Powell, for the State.", "Glover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, Plaintiff v. GREGORY LAMONT JOHNSON, Defendant\nNo. COA08-55\n(Filed 21 October 2008)\n1. Evidence\u2014 prior inconsistent statements \u2014 similar evidence without object\nThe trial court did not err in a first-degree burglary, first-degree arson, and violation of a domestic violence protective order case by allowing an officer to testify to a statement allegedly made by the victim at an earlier time that defendant stated he was going to kill her which was not consistent with her trial testimony because: (1) the officer testified without objection that she heard defendant say to the victim that he was going to kill her; and (2) where evidence is admitted over objection and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.\n2. Burglary and Unlawful Breaking or Entering\u2014 first-degree burglary \u2014 requested instruction given in substance\nThe trial court did not err by failing to give defendant\u2019s requested instruct to the jury that in order to convict defendant of first-degree burglary, defendant had to enter the building with the intent to commit arson because, although the trial court did not give defendant\u2019s requested instructions verbatim, it gave them in substance since the actual instructions twice stated that defendant had to have the requisite intent to commit a felony, arson, at the time of the breaking and entering.\n3. Criminal Law\u2014 instruction \u2014 flight\nThe trial court did not err or commit plain error in a first-degree burglary, first-degree arson, and violation of a domestic violence protective order case when it instructed the jury that it could consider flight from the crime as evidence of guilt because there was ample evidence that defendant fled and took steps to avoid apprehension.\nAppeal by defendant from judgments entered on or about 5 April 2\u00d306 by Judge Andy Cromer in Superior Court, Forsyth County. Heard in the Court of Appeals 9 September 2008.\nAttorney General Roy A. Cooper, III,- by Assistant Attorney General LaToya B. Powell, for the State.\nGlover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant." }, "file_name": "0412-01", "first_page_order": 444, "last_page_order": 451 }