{ "id": 4166846, "name": "STATE OF NORTH CAROLINA v. ANTAVIO DERRELL BEST", "name_abbreviation": "State v. Best", "decision_date": "2009-04-07", "docket_number": "No. COA08-659", "first_page": "220", "last_page": "234", "citations": [ { "type": "official", "cite": "196 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": "604 N.W.2d 103", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 11492335 ], "year": 1999, "pin_cites": [ { "page": "105", "parenthetical": "restitution award against accessory-after-the-fact to murder only appropriate for \"any losses [the victim's] parents experienced as a result of Latimer's actions to cover up the murder.\"" } ], "opinion_index": 0, "case_paths": [ "/nw2d/604/0103-01" ] }, { "cite": "2008 WL 163569", "category": "reporters:specialty_west", "reporter": "WL", "year": 2008, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "9 F. App'x. 264", "category": "reporters:federal", "reporter": "F. App'x", "case_ids": [ 143902 ], "weight": 4, "year": 2001, "pin_cites": [ { "parenthetical": "unpublished" }, { "page": "265" }, { "page": "268" }, { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/f-appx/9/0264-01" ] }, { "cite": "570 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "266", "parenthetical": "\"Where a defendant fails to object to the judgment or the amount of restitution ordered at the sentencing hearing or to a trial court's order that a defendant make restitution, an appeal concerning the appropriateness of an imposition of restitution is not properly before this Court.\"" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 455", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250387 ], "year": 2002, "pin_cites": [ { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0455-01" ] }, { "cite": "185 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "676", "parenthetical": "arresting judgment on felonious breaking and entering and felonious larceny convictions where those convictions provided basis for felony murder conviction" } ], "opinion_index": 0 }, { "cite": "280 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570854 ], "year": 1972, "pin_cites": [ { "page": "217", "parenthetical": "arresting judgment on felonious breaking and entering and felonious larceny convictions where those convictions provided basis for felony murder conviction" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0202-01" ] }, { "cite": "49 L. Ed. 2d 1208", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 903", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183298, 6181252, 6182756, 6183146, 6182571, 6181805, 6182223, 6181423, 6181585, 6182964, 6182388, 6181945, 6182076 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0903-13", "/us/428/0903-01", "/us/428/0903-10", "/us/428/0903-12", "/us/428/0903-09", "/us/428/0903-04", "/us/428/0903-07", "/us/428/0903-02", "/us/428/0903-03", "/us/428/0903-11", "/us/428/0903-08", "/us/428/0903-05", "/us/428/0903-06" ] }, { "cite": "213 S.E.2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "246-47" } ], "opinion_index": 0 }, { "cite": "286 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569931 ], "year": 1975, "pin_cites": [ { "page": "610-11" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0597-01" ] }, { "cite": "470 U.S. 856", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300388 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/470/0856-01" ] }, { "cite": "352 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "683", "parenthetical": "citing Ball v. United States, 470 U.S. 856, 84 L. Ed. 2d 740 (1985)" }, { "page": "683" } ], "opinion_index": 0 }, { "cite": "319 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741158 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "50", "parenthetical": "citing Ball v. United States, 470 U.S. 856, 84 L. Ed. 2d 740 (1985)" }, { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0034-01" ] }, { "cite": "459 U.S. 359", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6196436 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "368-69" }, { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/us/459/0359-01" ] }, { "cite": "340 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "712" }, { "page": "712" } ], "opinion_index": 0 }, { "cite": "315 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717320 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "460" }, { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0444-01" ] }, { "cite": "344 S.E.2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774343 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0193-01" ] }, { "cite": "298 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "\"No act done 'fully under the compulsion of fear' could be a willful act under this instruction. The jury was required to find that the defendant did not act voluntarily (willfully), but rather in response to coercion based on fear.\"" } ], "opinion_index": 0 }, { "cite": "307 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562214 ], "year": 1983, "pin_cites": [ { "page": "297", "parenthetical": "\"No act done 'fully under the compulsion of fear' could be a willful act under this instruction. The jury was required to find that the defendant did not act voluntarily (willfully), but rather in response to coercion based on fear.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0274-01" ] }, { "cite": "334 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "792" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 45", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520388 ], "year": 1985, "pin_cites": [ { "page": "52-53" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0045-01" ] }, { "cite": "65 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "333" } ], "opinion_index": 0 }, { "cite": "234 N.C. 30", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617054 ], "year": 1951, "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0030-01" ] }, { "cite": "467 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1996, "pin_cites": [ { "page": "641", "parenthetical": "citations omitted" }, { "parenthetical": "citations omitted" }, { "page": "641", "parenthetical": "citations omitted" }, { "page": "641" }, { "page": "641", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "342 N.C. 742", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796051 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "751-52", "parenthetical": "citations omitted" }, { "page": "751-52" }, { "page": "751-52" }, { "page": "751-52" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0742-01" ] }, { "cite": "229 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557269 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0037-01" ] }, { "cite": "296 S.E.2d 261", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "267", "parenthetical": "citing State v. Monk, 291 N.C. 37, 229 S.E.2d 163 (1976)" }, { "page": "267", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "307 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560661 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "86", "parenthetical": "citing State v. Monk, 291 N.C. 37, 229 S.E.2d 163 (1976)" }, { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0079-01" ] }, { "cite": "119 S.E.2d 461", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "464", "parenthetical": "where State relies on a defendant's exculpatory statements, which are \"not contradicted or shown to be false by any other facts or circumstances in evidence,\" dismissal is appropriate" } ], "opinion_index": 0 }, { "cite": "254 N.C. 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626914 ], "year": 1961, "pin_cites": [ { "page": "479", "parenthetical": "where State relies on a defendant's exculpatory statements, which are \"not contradicted or shown to be false by any other facts or circumstances in evidence,\" dismissal is appropriate" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0475-01" ] }, { "cite": "164 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "619", "parenthetical": "dismissal not appropriate in homicide prosecution where State relied upon statement by defendant containing exculpatory and inculpatory evidence on whether killing was accidental" } ], "opinion_index": 0 }, { "cite": "3 N.C. App. 353", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554955 ], "year": 1968, "pin_cites": [ { "page": "355", "parenthetical": "dismissal not appropriate in homicide prosecution where State relied upon statement by defendant containing exculpatory and inculpatory evidence on whether killing was accidental" } ], "opinion_index": 0, "case_paths": [ "/nc-app/3/0353-01" ] }, { "cite": "525 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "837" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 683", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241611 ], "year": 2000, "pin_cites": [ { "page": "695" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0683-01" ] }, { "cite": "284 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 557", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569514 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0557-01" ] }, { "cite": "275 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "849" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 684", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2675775 ], "year": 1981, "pin_cites": [ { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc-app/50/0684-01" ] }, { "cite": "447 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "480", "parenthetical": "citing State v. Duvall, 50 N.C. App. 684, 691, 275 S.E.2d 842, 849, rev'd on other grounds, 304 N.C. 557, 284 S.E.2d 495 (1981)" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 311", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523689 ], "year": 1994, "pin_cites": [ { "page": "316", "parenthetical": "citing State v. Duvall, 50 N.C. App. 684, 691, 275 S.E.2d 842, 849, rev'd on other grounds, 304 N.C. 557, 284 S.E.2d 495 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0311-01" ] }, { "cite": "148 L. Ed. 2d 150", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 2000, "pin_cites": [ { "parenthetical": "citation omitted" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "531 U.S. 890", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9564641, 9565507, 9564931, 9565413, 9565127, 9565834, 9565727, 9565933, 9565644, 9565235, 9564441, 9564731, 9564539, 9564829, 9565023 ], "year": 2000, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/531/0890-03", "/us/531/0890-11", "/us/531/0890-06", "/us/531/0890-10", "/us/531/0890-08", "/us/531/0890-14", "/us/531/0890-13", "/us/531/0890-15", "/us/531/0890-12", "/us/531/0890-09", "/us/531/0890-01", "/us/531/0890-04", "/us/531/0890-02", "/us/531/0890-05", "/us/531/0890-07" ] }, { "cite": "526 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "455", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "351 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155599 ], "year": 2000, "pin_cites": [ { "page": "378", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0373-01" ] } ], "analysis": { "cardinality": 1098, "char_count": 32795, "ocr_confidence": 0.743, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.35558019019641685 }, "sha256": "7a6c42e0fc96584f4243c0d13ec6f718c4bb90ced31aadbdc39aef6a98c9e5b8", "simhash": "1:8e7f6e21f6643672", "word_count": 5146 }, "last_updated": "2023-07-14T15:08:58.268450+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge STEPHENS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ANTAVIO DERRELL BEST" ], "opinions": [ { "text": "WYNN, Judge.\nA defendant \u201cmay not be punished both for felony murder and for the underlying, \u2018predicate\u2019 felony, even in a single prosecution.\u201d Defendant Antavio Derrell Best argues that his sentences for accessory-after-the-fact to first-degree murder and accessory-after-the-fact to first-degree kidnapping violate double jeopardy. Because the jury could have found Defendant guilty of accessory after the fact to first-degree murder based on the kidnapping, pursuant to the felony murder rule, we arrest judgment on Defendant\u2019s convictions for accessory-after-the-fact to first-degree kidnapping. We also vacate the award of restitution because there is an insufficient causal link to support the award.\nOn 15 November 2003, Defendant drove his car to pick up his friends Stephen Antonio Bell and Rafty Brown. After spending 20 to 60 minutes at a \u201cbootleg liquor house,\u201d Defendant drove to a store, where Mr. Brown gave him money to buy duct tape. Defendant bought the tape, gave it to Mr. Brown, and said he needed to get home to his family. However, Mr. Brown said he needed to go to someone\u2019s house, and gave directions as Defendant drove there. Mr. Brown instructed Defendant to turn out the headlights and to wait in the car; thereafter, he and Mr. Bell went inside the house.\nAbout 10 to 15 minutes later, Mr. Brown returned to the car and told Defendant that he had duct taped some people and needed to take them away. Defendant told Mr. Brown that \u201che didn\u2019t want any part of this.\u201d In response, Mr. Brown pointed a shotgun at Defendant and told him that he would kill Defendant and his family if Defendant did not help. Mr. Brown instructed Defendant to open the trunk of his car, and Defendant complied. Thereafter, Mr. Brown and Mr. Bell led three people, one after the other, out of the house to Defendant\u2019s car; they placed a male (later identified as Randolph Carr) and a female (later identified as Carrie Jones) into the trunk, and another male (later identified as Jimmy Ray Turner) into the back seat. Mr. Bell got into the front passenger\u2019s seat and Mr. Brown sat in the back seat on the driver\u2019s side, directly behind Defendant.\nDefendant drove, following Mr. Brown\u2019s directions. In a statement he later gave to police, Defendant recalled hearing Mr. Brown scream at the male victim in the back seat, \u201cWhere are the drugs, Jimmy?\u201d\nAt some point after riding for several miles, Mr. Brown directed Defendant to stop the car; he got out of the car, removed some logs from a driveway, and instructed Defendant to back his car in. Mr. Brown told Defendant to open the trunk, and not to move. Then, Mr. Bell took the male victim out of the backseat of the car; Mr. Brown removed the other victims from the trunk. Mr. Brown and Mr. Bell then walked the three victims into the woods while Defendant stayed in the car. Defendant stated that he heard Mr. Brown tell the three victims, \u201cYou are going to die.\u201d After Mr. Bell came back and stood by the driver\u2019s side window of Defendant\u2019s car, Defendant heard sounds of people being beaten and a shotgun being cocked, but not discharged. Mr. Brown came back to Defendant\u2019s car, retrieved a cinder block, and returned to the woods. Defendant stated that he heard sounds of people being beaten for the next 10 to 15 minutes.\nThereafter, Mr. Brown returned to Defendant\u2019s car with blood on his face, and without his shirt. Mr. Brown then instructed Defendant to drive to Mr. Brown\u2019s mother\u2019s house where he obtained a large gasoline jug, got back into Defendant\u2019s car, and instructed him to drive back to where the three victims were located.\nWhen they returned to the scene, Mr. Brown told Mr. Bell to burn the three bodies, but Mr. Bell refused. Mr. Brown then took the gas container into the woods, and Defendant recalled seeing flames shortly thereafter. Mr. Brown returned to Defendant\u2019s car and instructed him to drive back to Mr. Brown\u2019s mother\u2019s house, where Mr. Brown left the gas container. Mr. Brown got back into the car, and directed Defendant to drive to the Village Inn Motel in Warsaw. When they arrived, Mr. Brown and Mr. Bell got out, and Mr. Brown told Defendant that he would kill him and his family if Mr. Brown heard anything about the murders.\nAfter leaving Mr. Brown and Mr. Bell, Defendant washed the exterior and vacuumed the interior of his car. In his statement to police, Defendant said that he did not report the crimes after leaving Mr. Brown and Mr. Bell because he feared for the safety of himself and his family. The next morning, Mr. Bell called Defendant from the motel for a ride to Mount Olive. Defendant went to pick up Mr. Brown and Mr. Bell, but they had already checked out when he arrived.\nAt trial, Cassandra Harding testified that she had been in a relationship with Mr. Brown, knew Mr. Bell and Defendant, and that she had picked up Mr. Brown and Mr. Bell from the motel on 16 November 2003. Ms. Harding also testified that she attended a party that evening, where she saw Defendant and Mr. Bell \u201cstanding side-by-side basically the whole time that I was there.\u201d\nOn 21 November 2003, Defendant went with his father to the police station to give a statement. After giving his statement, Defendant was placed under arrest and read his Miranda rights. He then gave a second statement which was substantially similar to the first.\nDefendant was indicted for three counts each of first-degree murder, first-degree kidnapping, accessory-after-the-fact to first-degree murder, accessory-after-the-fact to first-degree kidnapping, one count of burglary, and one count of accessory-after-the-fact to burglary. A jury acquitted Defendant of the three first-degree murder charges, but deadlocked on the remaining charges. At a second trial on the remaining charges, the jury found Defendant not guilty of the three counts of kidnapping, the count of first-degree burglary, and the count of accessory-after-the-fact to burglary. However, Defendant was found guilty of three counts each of accessory-after-the-fact to first-degree murder and accessory-after-the-fact to first-degree kidnapping.\nDefendant appeals from these judgments arguing: (I) the evidence was insufficient to support the accessory-after-the-fact to first-degree murder and accessory-after-the-fact to first-degree kidnapping charges; (II) the trial court committed plain error by failing to instruct the jury that duress could be a defense to accessory-after-the-fact to first-degree murder and accessory-after-the-fact to first-degree kidnapping; (III) the trial court erred by failing to instruct that Defendant could rely on evidence presented in the State\u2019s case-in-chief; (IV) his convictions for accessory-after-the-fact to first-degree murder and accessory-after-the-fact to first-degree kidnapping violate his right against double jeopardy because the same evidence was used to establish elements of both crimes, and because kidnapping was the predicate offense to his accessory-after-the-fact to first-degree murder convictions; (V) the trial court committed plain error by giving a confusing and incomplete instruction; (VI) the trial court committed plain error by omitting an element from its instruction on accessory-after-the-fact to first-degree murder; and (VII) the trial court erred by ordering him to pay restitution.\nI.\nIn his first assignment of error, Defendant argues that the trial court should have granted his motion to dismiss the accessory-after-the-fact charges because the State introduced exculpatory evidence and its case-in-chief established, if anything, that Defendant was a principal offender, not an accessory. We disagree.\nTo withstand a motion to dismiss, the State must present \u201csubstantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense.\u201d State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000) (citation omitted). The State is entitled to the most favorable view of the evidence, including all reasonable inferences. Id. (citation omitted).\nThe elements of accessory-after-the-fact are: (1) a principal has committed the felony; (2) Defendant gave assistance to the principal to evade detection, arrest or punishment; and (3) Defendant knew the principal committed the felony. State v. Barnes, 116 N.C. App. 311, 316, 447 S.E.2d 478, 480 (1994) (citing State v. Duvall, 50 N.C. App. 684, 691, 275 S.E.2d 842, 849, rev\u2019d on other grounds, 304 N.C. 557, 284 S.E.2d 495 (1981)). Moreover, accessory-after-the-fact \u201cis a substantive crime-not a lesser degree of the principal crime,\u201d so a defendant may not be charged and tried as a principal, but convicted as an accessory. State v. Johnson, 136 N.C. App. 683, 695, 525 S.E.2d 830, 837 (2000).\nHere, notwithstanding any exculpatory evidence in its case-in-chief, the State presented substantial evidence of each element of accessory-after-the-fact to first-degree murder and kidnapping. Specifically, the State\u2019s evidence showed that Defendant watched Mr. Brown and Mr. Bell put the bound victims into his car. He heard Mr. Brown telling the victims they were going to die as Mr. Brown led them into the woods. After hearing the sounds of people being beaten, he drove Mr. Brown and Mr. Bell from the crime scene to Mr. Brown\u2019s mother\u2019s house, and then back to the crime scene. Defendant heard Mr. Brown tell Mr. Bell to set the victims on fire; he also heard Mr. Bell\u2019s refusal. After watching Mr. Brown go back into the woods with the gas container, and seeing flames and smoke coming from the crime scene, Defendant drove Mr. Brown and Mr. Bell to the motel. Significantly, he washed the exterior and vacuumed the interior of his car the same night. Finally, he went back to pick up Mr. Brown and Mr. Bell the next day, and appeared at a party with Mr. Bell the next night. Defendant reported the events to police several days later.\nMoreover, any evidence in the State\u2019s case-in-chief tending to show that Defendant acted under duress did not require the trial court to dismiss the accessory-after-the-fact charges. Defendant\u2019s duress defense presented a question of fact for the jury to decide; indeed, in the face of conflicting evidence, duress was not an appropriate ground for the trial court to grant Defendant\u2019s motion to dismiss. Compare State v. Lane, 3 N.C. App. 353, 355, 164 S.E.2d 618, 619 (1968) (dismissal not appropriate in homicide prosecution where State relied upon statement by defendant containing exculpatory and inculpatory evidence on whether killing was accidental); with State v. Carter, 254 N.C. 475, 479, 119 S.E.2d 461, 464 (1961) (where State relies on a defendant\u2019s exculpatory statements, which are \u201cnot contradicted or shown to be false by any other facts or circumstances in evidence,\u201d dismissal is appropriate). Giving the State the most favorable view of the evidence, substantial evidence was presented on each element of both accessory-after-the-fact charges. Accordingly, Defendant\u2019s first two assignments of error are without merit.\nII.\nDefendant next argues that the trial court committed plain error by failing to instruct the jury that the duress defense also applied to the accessory-after-the-fact charges.\nA trial court is required to give a requested instruction \u201cat least in substance if it is a correct statement of the law and supported by the evidence.\u201d State v. Corn, 307 N.C. 79, 86, 296 S.E.2d 261, 267 (1982) (citing State v. Monk, 291 N.C. 37, 229 S.E.2d 163 (1976)). A jury instruction must be construed contextually, and if \u201cthe charge as a whole presents the law fairly and clearly to the jury, the fact that isolated expressions, standing alone, might be considered erroneous will afford no ground for a reversal.\u201d State v. Chandler, 342 N.C. 742, 751-52, 467 S.E.2d 636, 641 (1996) (citations omitted). \u201cFurthermore, insubstantial technical errors which could not have affected the result will not be held prejudicial.\u201d Id. (citations omitted).\nDefendant cites State v. Sherian, 234 N.C. 30, 34, 65 S.E.2d 331, 333 (1951), in support of his argument that the trial court\u2019s failure to specifically instruct that duress is applicable to accessory-after-the-fact amounts to plain error. However, this Court recognized in State v. White, 77 N.C. App. 45, 52-53, 334 S.E.2d 786, 792 (1985), that in Sherian \u201cthe court failed entirely to instruct the jury on the defense of duress.\u201d In White, on the other hand, the trial court \u201crepeatedly and fully instructed on the elements of [duress].\u201d Therefore, this Court deemed any omission insignificant, and distinguished Sherian on that basis. Id. Thus, the Court in White held that the defendant received a trial free of prejudicial error.\nLikewise, Sherian is also distinguishable from this case. Here, the trial court fully instructed on the elements of duress, although not specifically in reference to the accessory-after-the-fact charges. The trial court gave the following instruction on duress:\nThere is evidence in this case tending to show that the defendant acted only because of duress. The burden of proving duress is upon the.defendant. It need not be proven beyond a reasonable doubt, but only proved to your satisfaction. The defendant would not be guilty of these crimes if his actions were caused by a reasonable fear that he or another would suffer immediate death or serious bodily injury if he did not commit the crime. His assertion of duress is a denial that he committed any crime. The burden remains on the State to prove the defendant\u2019s guilt beyond a reasonable doubt.\nThereafter, and with specific reference to the accessory-after-the-fact to first-degree murder charge, the trial court instructed as follows:\nSo I charge you that if you find from the evidence beyond a reasonable doubt that another person committed three counts of first-degree murder . . . and that thereafter, on or about the alleged date, the defendant, knowing another person to have committed three counts of first-degree murder knowingly and willfully assisted him in attempting to escape detection, arrest and punishment, it would be your duty to return a verdict of guilty as an accessory after the fact to first-degree murder.\nTherefore, considering the jury instructions contextually, the trial court in fact instructed on duress as a defense to all charges. By generally instructing that Defendant would not be guilty of \u201cthese crimes\u201d if the jury found duress, and that Defendant\u2019s assertion of duress is a denial that he committed \u201cany crime,\u201d the trial court\u2019s failure to specifically instruct on duress in reference to the accessory-after-the-fact charges was not prejudicial to Defendant.\nMoreover, the trial court specifically instructed that the jury would have to find that Defendant \u201cknowingly and willfully\u201d assisted the principal before it could find him guilty as an accessory-after-the-fact to first-degree murder. The concept of \u201cknowingly and willfully\u201d giving assistance is contrary to the concept of duress; therefore, the jury necessarily found that Defendant did not act under duress when it found him guilty of \u201cknowingly and willfully\u201d rendering assistance. See State v. Strickland, 307 N.C. 274, 297, 298 S.E.2d 645, 660 (1983) (\u201cNo act done \u2018fully under the compulsion of fear\u2019 could be a willful act under this instruction. The jury was required to find that the defendant did not act voluntarily (willfully), but rather in response to coercion based on fear.\u201d), overruled on other grounds, State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986). Accordingly, this assignment of error is without merit.\nIII.\nDefendant next argues that the trial court erred by failing to instruct that Defendant could rely on evidence presented in the State\u2019s case-in-chief.\nAs noted above, a trial court must give a requested instruction if it is a correct statement of the law and it is supported by substantial evidence. Corn, 307 N.C. at 86, 296 S.E.2d at 267 (citations omitted). Still, the trial court\u2019s instructions must be viewed contextually and insubstantial technical errors will not be deemed prejudicial. Chandler, 342 N.C. at 751-52, 467 S.E.2d at 641 (citations omitted).\nIn this case, although the trial court declined to give the specific instruction Defendant requested, he still received the benefit of such instruction from the following:\nYou should consider all of the evidence, arguments, contentions, and positions urged by attorneys and any other contention that arises from the evidence and using your common sense, you must determine the truth in this case.\nThus, the trial court gave the requested instruction in substance, even though the court declined to give it specifically. Accordingly, this assignment of error is without merit.\nIV.\nDefendant next makes two related arguments that his convictions for accessoryrafter-the-fact to first-degree kidnapping should be vacated because of double jeopardy concerns: (1) evidence that the victims were seriously injured was used to establish first-degree murder and first-degree kidnapping; and (2) the jury could have found first-degree murder based on the kidnapping, pursuant to the felony murder rule. Defendant did not object at sentencing, or move to amend or arrest judgment, nor did he assign plain error in this appeal. Thus, he has failed to preserve this assignment of error for our review. However, finding that the second of Defendant\u2019s double jeopardy arguments has merit, we address that issue pursuant to N.C. R. App. P. 2 (2007).\nUnder the Double Jeopardy Clause, a defendant \u201cmay not be punished both for felony murder and for the underlying, \u2018predicate\u2019 felony, even in a single prosecution.\u201d State v. Gardner, 315 N.C. 444, 460, 340 S.E.2d 701, 712 (1986). However, the legislature may specifically approve cumulative punishments for the same conduct without offending the Double Jeopardy Clause. Id. (citing Missouri v. Hunter, 459 U.S. 359, 368-69, 74 L. Ed. 2d 535, 544 (1983)). In the absence of legislative authorization, the consolidation of multiple convictions for the same conduct does not alleviate double jeopardy concerns \u201cbecause the separate convictions may still give rise to adverse collateral consequences.\u201d State v. Etheridge, 319 N.C. 34, 50, 352 S.E.2d 673, 683 (1987) (citing Ball v. United States, 470 U.S. 856, 84 L. Ed. 2d 740 (1985)).\nHere, after the trial judge rendered her judgment of sentencing in open court, the Assistant District Attorney asked: \u201cYour Honor, are you arresting judgment on the kidnappings?\u201d The judge responded: \u201cI consolidated them, consolidated all three of them. There are three judgments, so there\u2019s three. I have consolidated them into that.\u201d However, Defendant points out that the jury\u2019s verdict sheets do not indicate whether it found first-degree murder on the basis of premeditation and deliberation, or felony murder based on first-degree kidnapping. Thus, if the jury found felony murder based upon the kidnapping, consolidation of the convictions did not cure a double jeopardy violation. Etheridge, 319 N.C. at 50, 352 S.E.2d at 683.\nThe State argues that double jeopardy is not implicated by Defendant\u2019s sentencing for both offenses because accessory-after-the-fact is a separate and distinct crime from both of the principal felonies. This would be a persuasive argument if the jury\u2019s verdicts indicated that it found first-degree murder on the basis of premeditation and deliberation, and not pursuant to the felony murder rule, because the kidnapping would not be the \u201cpredicate\u201d offense to first-degree murder. However, the jury\u2019s verdict is ambiguous, and it was instructed on both theories of first-degree murder. Therefore, this Court must treat the convictions as if the jury found first-degree murder pursuant to the felony murder rule. See, e.g., State v. McLaughlin, 286 N.C. 597, 610-11, 213 S.E.2d 238, 246-47 (1975), death sentence vacated, 428 U.S. 903, 49 L. Ed. 2d 1208 (1976).\nWe are persuaded that the rationale for the general rule \u2014 that a principal may not be punished for felony murder and the underlying felony \u2014 should be equally applicable to convictions for being an accessory-after-the-fact to felony murder and the underlying felony. The State cites no authority holding otherwise. Accordingly, we arrest judgment on Defendant\u2019s convictions for accessory-after-the-fact to first-degree kidnapping. See State v. Thompson, 280 N.C. 202, 217, 185 S.E.2d 666, 676 (1972) (arresting judgment on felonious breaking and entering and felonious larceny convictions where those convictions provided basis for felony murder conviction).\nV.\nDefendant next argues that the trial court\u2019s confusing instruction on accessory-after-the-fact to first-degree kidnapping was plain error. In support of his contention, Defendant points to the following excerpt of the trial court\u2019s instructions:\nIf you find from the evidence beyond a reasonable doubt that another person committed first-degree kidnapping, then it would be your duty to find that another committed first-degree kidnapping. If you do not so find or if you have a reasonable doubt as to one or more of these things, then you will not find that another person committed first-degree kidnapping.\nIf you do not so find or have a reasonable doubt that the other person committed first-degree kidnapping, then you must consider whether the other person committed first-degree burglary.\nDefendant points only to this excerpt, ignoring the preceding portion of the accessory-after-the-fact to first-degree kidnapping instruction, which correctly stated the law as follows:\nNow I charge that for you to find the defendant guilty as an accessory after the fact to first-degree kidnapping, you must find that the other person unlawfully confined a person or restrained a person or removed a person from one place to another; that the person did not consent to this restraint or removal; that the other person restrained or confined or removed that person for the purpose of doing serious bodily injury to that person; that the confinement or restraint or removal was a separate, complete act, independent of and apart from the injury or for the purpose of terrorizing that person; that the person was not released in a safe place or had been seriously injured.\n\u201cA charge must be construed contextually, and isolated portions of it will not be held prejudicial when the charge as a whole is correct.\u201d Chandler, 342 N.C. at 751-52, 467 S.E.2d at 641. Moreover, the alleged confusing portion of the trial court\u2019s instruction cannot be considered prejudicial to Defendant in light of the clear, extensive, and repeated instructions the trial court gave on accessory-after-the-fact to burglary and accessory-after-the-fact to first-degree murder. Accordingly, this assignment of error is without merit.\nVL\nIn his sixth assignment of error, Defendant argues that the trial court committed plain error by omitting the second element from its substantive instruction on accessory-after-the-fact to first degree murder.\nIn his brief, however, Defendant concedes that \u201cduring the mandate the trial court instructed the jury that the State had the burden of proving the second element i.e. \u2018the defendant, knowing another person to have committed thre\u00e9 counts of first-degree murder knowingly and willfully assisted him in attempting to escape detection, arrest and punishment . . . .\u201d Assuming the trial court erroneously omitted the second element from the substantive portion of its instructions, \u201cinsubstantial technical errors which could not have affected the result will not be held prejudicial.\u201d Chandler, 342 N.C. at 751-52, 467 S.E.2d at 641 (citations omitted). Therefore, this assignment of error is without merit.\nVII.\nIn his final assignment of error, Defendant argues that the trial court erred by ordering him to pay restitution. Here again, Defendant made no objection to the trial court\u2019s award of restitution, and did not move to amend judgment. Therefore, this issue is not properly before this Court. See State v. Canady, 153 N.C. App. 455, 460, 570 S.E.2d 262, 266 (2002) (\u201cWhere a defendant fails to object to the judgment or the amount of restitution ordered at the sentencing hearing or to a trial court\u2019s order that a defendant make restitution, an appeal concerning the appropriateness of an imposition of restitution is not properly before this Court.\u201d) (citations omitted). Nevertheless, this issue has merit, so we reach it pursuant to N.C. R. App. P. 2 to prevent a manifest injustice.\nNorth Carolina\u2019s restitution statute authorizes an award of restitution to a crime victim, defined as \u201ca person directly and proximately harmed as a result of the defendant\u2019s commission of the criminal offense.\u201d N.C. Gen. Stat. \u00a7 15A-1340.34(a) (2007) (emphasis added). There is a dearth of guidance in North Carolina caselaw regarding an accessory-after-the-fact\u2019s liability for restitution on the principal offenses. Therefore, we find helpful guidance in two federal cases cited by the State.\nUnited States v. Quackenbush, 9 F. App\u2019x. 264 (4th Cir. 2001) (unpublished), addressed an accessory-after-the-fact\u2019s liability for restitution under a nearly identical federal restitution statute. See 18 U.S.C.A. \u00a7 3663A(a)(2) (2000). In Quackenbush, the defendant was convicted of being an accessory-after-the-fact to a bank robbery because he drove the principal offenders to various locations after the robbery and helped them spend the money. Quackenbush, 9 F. App\u2019x. at 265. The trial court held the defendant jointly and severally liable with the principal offenders for restitution to the bank. The Fourth Circuit identified the \u201crelevant question\u201d as \u201cwhether the victims\u2019 losses were proximately caused by the specific conduct for which Quackenbush was convicted, i.e., being an accessory-after-the-fact by virtue of his acts of driving the bank robbers to and from various locations following the bank robbery, harboring them, helping them count and spend the money, and helping them hide from the police.\u201d Id. at 268. The Fourth Circuit upheld the defendant\u2019s liability for restitution, finding that \u201cthe district court very well could have found that the bank\u2019s inability to recover the stolen money was directly attributable to Quackenbush\u2019s act of helping the bank robbers hide after the robbery.\u201d Id. at 269. There was a direct causal link between the defendant\u2019s actions as an accessory-after-the-fact and the bank\u2019s losses.\nSimilarly, in United States v. Roach, 2008 WL 163569 (W.D.N.C. 2008) (unpublished), the District Court found that an accessory-after-the-fact to murder could be liable for restitution to the victim\u2019s family. In Roach, the defendant shot and killed the victim. Codefendant \u201cSlee\u201d was present at the murder scene, drove the defendant from the murder scene, and later accepted cash and drugs from the defendant as an inducement not to reveal his knowledge of the murder. Id. at *1-2. Another codefendant, \u201cSquirrel,\u201d disposed of the murder weapon after the defendant told \u201cSquirrel\u201d about the murder. Id. The - District Court ruled that \u201cSlee\u201d and \u201cSquirrel\u201d could be jointly and severally liable for restitution to the victim\u2019s family, as accessories-after-the-fact, because they \u201cdeliberately obstructed the murder investigation by authorities and delayed the apprehension of Roach.\u201d Id. at 6. Accord State v. Latimer, 604 N.W.2d 103, 105 (Minn. Ct. App. 1999) (restitution award against accessory-after-the-fact to murder only appropriate for \u201cany losses [the victim\u2019s] parents experienced as a result of Latimer\u2019s actions to cover up the murder.\u201d).\nIn this case, the only evidence that Defendant attempted to cover up the murders and kidnappings was that he washed the exterior and vacuumed the interior of his car, and attempted to pick up Mr. Brown and Mr. Bell at the motel the day after the murders. However, there was no evidence that these actions actually obstructed the murder investigation, or assisted the principals in evading detection, arrest, or punishment. Moreover, there was contrary evidence tending to show that Defendant ultimately assisted in Mr. Brown\u2019s and Mr. Bell\u2019s apprehension. Defendant voluntarily went to the police station and gave a statement, although it was several days after his involvement. The cases above make it clear that there must be a direct causal link between an accessory-after-the-fact\u2019s actions and the harm to the \u201cvictim\u201d defined in the restitution statute; in the case of accessory-after-the-fact to murder, the direct causal link is obstruction of the investigation, or covering up evidence. Defendant\u2019s actions after the principal crimes were committed \u2014 cleaning the car and making a failed attempt to pick up Mr. Brown and Mr. Bell \u2014 did not cover up any evidence or obstruct the investigation. Therefore, there is no \u201cdirect and proximate\u201d causal link between Defendant\u2019s actions as an accessory-after-the-fact and the harm caused to the victims\u2019 families. N.C. Gen. Stat. \u00a7 15A-1340.34(a). Accordingly, we vacate the trial court\u2019s award of restitution.\nIn sum, we arrest judgment on the accessory-after-the-fact to first-degree kidnapping convictions, remand this matter for resentencing on the three remaining charges of accessory-after-the-fact to first-degree murder, and vacate the award of restitution.\nReversed in part and remanded for resentencing; vacated in part.\nChief Judge MARTIN and Judge STEPHENS concur.\n. State v. Gardner, 315 N.C. 444, 460, 340 S.E.2d 701, 712 (1986).\n. Defendant does not contest that these three individuals were murder victims; accordingly, we refer to them in this opinion as victims.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Richard, L. Harrison, for the State.", "Parish, Cooke & Condlin, by James R. Parish, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANTAVIO DERRELL BEST\nNo. COA08-659\n(Filed 7 April 2009)\n1. Accomplices and Accessories\u2014 accessory after the fact\u2014 duress \u2014 conflicting evidence\nDuress would not have been an appropriate ground for dismissal of charges of being an accessory after the fact to first-degree murder and first-degree kidnapping where the evidence was conflicting. The trial court\u2019s denial of defendant\u2019s motion to dismiss was correct.\n2. Criminal Law\u2014 duress \u2014 accessory after-the-fact \u2014 instructions in context\nThe court\u2019s failure to specifically instruct on duress in reference to the accessory after the fact charges was not prejudicial to the defendant because, considered contextually, the trial court instructed on duress as a defense to all of the charges. Moreover, the jury necessarily found that defendant did not act under duress when it found him guilty of \u201cknowingly and willfully\u201d rendering assistance.\n3. Criminal Law\u2014 requested instructions \u2014 given in substance\nA requested instruction was given in substance even though it was not given specifically where the requested instruction was that defendant could rely on evidence presented in the State\u2019s case-in-chief and the given instruction was that the jury should consider all of the evidence.\n4. Constitutional Law\u2014 double jeopardy \u2014 accessory to kidnapping and accessory to murder \u2014 basis of murder not clear\nDouble jeopardy forbids punishing a defendant for both a felony murder and the underlying felony. Judgment on a conviction for being an accessory after the fact to first-degree kidnapping was arrested where defendant was also convicted of being an accessory after the fact to first-degree murder and the jury\u2019s verdict did not indicate whether that conviction was based on premeditation or on felony murder derived from the kidnapping.\n5. Accomplices and Accessories\u2014 instructions \u2014 not confusing in context\nAn allegedly confusing instruction on accessory after the fact to first-degree kidnapping was not plain error when considered in context with the clear, extensive, and repeated instructions on accessory after the fact to burglary and first-degree murder.\n6. Criminal Law\u2014 omission of element from substantive instruction \u2014 included in mandate \u2014 no plain error\nThe omission of an element of accessory after the fact to first-degree murder from the substantive instruction was not plain error where defendant conceded that the mandate was correct.\n7. Sentencing\u2014 restitution \u2014 accessory after the fact \u2014 causal link to harm\nA restitution award after convictions for being an accessory after the fact to first-degree murder and kidnapping was vacated because there was no direct and proximate causal link between defendant\u2019s actions as an accessory and the harm caused to the victims\u2019 families.\nAppeal by defendant from judgments entered 3 October 2007 by Judge Phyllis Gorham in Superior Court, Sampson County. Heard in the Court of Appeals 17 November 2008.\nAttorney General Roy Cooper, by Special Deputy Attorney General Richard, L. Harrison, for the State.\nParish, Cooke & Condlin, by James R. Parish, for defendant." }, "file_name": "0220-01", "first_page_order": 248, "last_page_order": 262 }