{
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  "name_abbreviation": "State v. Holloman",
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    "judges": [
      "Judges STEELMAN and DILLON concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. JAMES EDWARD HOLLOMAN III, Defendant"
    ],
    "opinions": [
      {
        "text": "MARTIN, Chief Judge.\nDefendant James Edward Holloman III appeals from judgments entered upon jury verdicts finding him guilty of first-degree kidnapping, second-degree sexual offense, simple assault, violation of a domestic violence protective order, and impaired driving. For the reasons stated herein, we find no error in the trial but remand the case to the trial court for a new sentencing' hearing with respect to the convictions for first-degree kidnapping and second-degree sexual offense.\nComplainant and defendant dated for about five years and had a child together. Complainant ended their relationship in February 2011 and obtained a domestic violence protective order against defendant shortly thereafter. In compliance with the protective order, complainant communicated with defendant with regards to their child and met with him to exchange the child for visits. Relations between complainant and defendant became increasingly more cordial during the meetings, and a few days before the incident which gave rise to the charges in this case, complainant and defendant had consensual sex.\nOn the night of 2 April 2011, complainant and defendant went out for drinks at a club. Complainant testified that defendant began to behave jealously when other men looked at her, grabbing her when she moved away from him and stating \u201c[t]his is mine.\u201d Alarmed by his behavior, complainant asked the club\u2019s bouncers to keep defendant away from her, and the bouncers arranged for a cab for complainant.\nWhen complainant arrived at her house, defendant was standing by his car parked in the driveway. In an effort to get away from defendant, complainant asked defendant to pay her cab fare, and as he did so, she got in his car, locked the doors, and started backing out of the driveway. Defendant jumped onto the hood of the car and hung onto the windshield wipers while complainant backed out of the driveway and drove up the street. Not wanting to run over defendant, complainant pulled the car back into the driveway.\nOnce the car was parked, defendant kicked in the car window, grabbed complainant by her neck, and forced her into the passenger seat. Complainant screamed and struggled to get away as defendant positioned himself on top of her and choked her until she nearly lost consciousness. When he finally let go of her neck, defendant told complainant to shut up, to put on her seat belt, and that she had \u201cfour days of this hell coming.\u201d Defendant drove the car away, while continuously hitting complainant, calling her names, and accusing her of having sexual relations with other men. Defendant was looking at complainant and hitting her while driving when the car veered off the road and crashed into a ditch. Once the car was stopped, defendant told complainant to perform oral sex on him, and complainant complied out of fear for her life. When defendant finally appeared relaxed and nearly asleep, complainant got out of the car and ran for the nearest house. Just as complainant approached the house, defendant caught up to her. Complainant grabbed a wooden pole that was by the door of the house and attempted to hit defendant with it. Defendant, however, grabbed the pole, yanked complainant down the stairs, and dragged her across the yard while continuing to beat her with it. Defendant then instructed complainant to get up off of the ground, and when she did not do so, defendant kicked her in the face.\nComplainant testified that she did not recall exactly how, but that she ended up back in the car with defendant where he threatened to kill her if she tried to escape again. Defendant then forced complainant to perform oral sex and have vaginal and anal sex. Defendant fell asleep thereafter, and complainant flickered the car lights in an attempt to stop passing cars for help while defendant slept.\nDefendant later woke up and told complainant to get out of the car and walk with him to get help. Complainant, however, stayed behind because her foot was injured and continued to flicker the car lights until a passerby stopped and called the police. Defendant returned to the car as the police arrived. Defendant told the police that he had no recollection of the events that occurred after he and complainant had drinks at the club. The State\u2019s expert testified that swabs from complainant\u2019s vagina and rectum tested positive for defendant\u2019s DNA.\nDefendant was indicted on two counts of second-degree sexual offense, second-degree rape, first-degree kidnapping, simple assault, violation of a domestic violence protective order, and impaired driving. A jury unanimously acquitted defendant of second-degree rape and one count of second-degree sexual offense and convicted him of the remaining counts. Defendant appeals.\nOn appeal, defendant contends that the trial court erred by (I) failing to inquire into a potential conflict of interest between defendant and his appointed trial counsel, and (II) sentencing defendant for both first-degree kidnapping and second-degree sexual offense.\nI.\nDefendant first argues that the trial court committed reversible error by failing to conduct an adequate inquiry to determine whether a conflict of interest existed between defendant and his appointed trial counsel when he informed the court of his dissatisfaction with counsel and requested the appointment of new counsel. The court\u2019s failure to make such an inquiry, defendant argues, denied him his right to counsel. We disagree.\nWe review the denial of a defendant\u2019s request for the appointment of substitute counsel for an abuse of discretion. State v. Sweezy, 291 N.C. 366, 371-72, 230 S.E.2d 524, 529 (1976). An indigent defendant\u2019s right to appointed counsel in a criminal prosecution is guaranteed by both the North Carolina Constitution and the Sixth Amendment to the United States Constitution. State v. Taylor, 155 N.C. App. 251, 254, 574 S.E.2d 58, 61-62 (2002), cert. denied, 357 N.C. 65, 579 S.E.2d 572 (2003). The right to appointed counsel, however, does not \u201cinclude the privilege to insist that counsel be removed and replaced with other counsel merely because defendant becomes dissatisfied with his attorney\u2019s services.\u201d Sweezy, 291 N.C. at 371, 230 S.E.2d at 528.\nA trial court must appoint substitute counsel \u201cwhenever representation by counsel originally appointed would amount to denial of defendant\u2019s right to effective assistance of counsel.\u201d State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252, 255 (1980). It is thus \u201cthe obligation of the court to inquire into defendant\u2019s reasons for wanting to discharge his attorney [] and to determine whether those reasons [are] legally sufficient to require the discharge of counsel.\u201d State v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981). \u201cA disagreement over trial tactics does not, by itself, entitle a defendant to the appointment of new counsel.\u201d Id. Rather, in order to warrant the appointment of substitute counsel a \u201cdefendant must show good cause, such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict.\u201d Sweezy, 291 N.C. at 372, 230 S.E.2d at 529 (internal quotation marks omitted).\nWhen a defendant requests the appointment of substitute counsel based on an alleged conflict of interest, \u201cthe trial court must satisfy itself only that present counsel is able to render competent assistance and that the nature or degree of the conflict is not such as to render that assistance ineffective.\u201d Thacker, 301 N.C. at 353, 271 S.E.2d at 256. \u201cOnce it becomes apparent that the assistance of counsel has not been rendered ineffective, the trial judge is not required to delve any further into the alleged conflict.\u201d State v. Poole, 305 N.C. 308, 311-12, 289 S.E.2d 335, 338 (1982). Denial of a defendant\u2019s request for substitute counsel is therefore proper, where it appears that counsel is reasonably competent and there is no conflict between defendant and appointed counsel that renders counsel ineffective to represent defendant. Thacker, 301 N.C. at 352, 271 S.E.2d at 255.\nIn the instant case, defendant informed the trial court at a pretrial hearing that he wished to have his appointed counsel relieved so that he could retain other counsel. Defendant did not express'any concerns with his appointed counsel, nor did he give the court any reason for wanting to replace his appointed counsel. The court allowed defendant to seek alternate counsel but declined to relieve appointed counsel until defendant had retained new counsel. Defendant did not retain new counsel, and, thus, appointed counsel represented him at trial.\nAt trial, the court, defendant, and his appointed counsel engaged in the following dialogue:\nTHE COURT: The constitution requires that the court appoint you an attorney, not an attorney of your choosing. Mr. Freeman is certainly competent and capable and has been determined to be such to represent individuals charged with these offences [sic]. Is there some specific concern that you have about Mr. Freeman that you\u2019d like to share with the Court?\nTHE DEFENDANT: I just feel as if I\u2019m being misrepresented, Your Honor. I\u2019ve asked Mr. Freeman to retrieve some information that would give some validity to my innocence, and I\u2019ve asked him to subpoena some character witnesses, which he has not done. And I\u2019ve asked him many things. And even yesterday he misrepresented me because there\u2019s [sic] certain things that I believe should have been brought forth that were not. So at this point, I\u2019m being misrepresented, Your Honor.\nTHE COURT: Mr. Freeman, do you wish to be heard? I don\u2019t need to hear about your strategic choices in this case, but are there concerns that you need to bring to my attention that you believe the Court ought to be aware of?\nMR. FREEMAN: No, Your Honor.\nTHE COURT: All right. Based on what I\u2019ve heard, sir, I\u2019m not going to permit substitution of counsel at this late date. And so the motion is denied.\nDefendant argues that the trial court committed reversible error because its inquiry was inadequate to ensure that a conflict of interest did not exist between defendant and his appointed counsel after defendant informed the court that he was \u201cbeing misrepresented.\u201d Defendant, however, presents no direct authority suggesting that a trial court must inquire into a potential conflict of interest where a defendant merely expresses dissatisfaction with appointed counsel.\nWhile we have held that a failure to conduct an adequate inquiry into a potential conflict of interest is reversible error, we have not held that a conviction may be reversed based on conflicts that are neither alleged nor apparent at trial. See State v. James, 111 N.C. App. 785, 791, 433 S.E.2d 755, 758-59 (1993) (holding that a trial court\u2019s failure to inquire into whether a conflict of interest exists between a defendant and counsel once the court is made aware of the possibility of a conflict constitutes reversible error). Defendant\u2019s statements to the trial court regarding his appointed counsel neither alleged nor indicated the possibility of a conflict of interest. Rather, his statements merely amounted to statements of his dissatisfaction with his appointed counsel and disagreements over trial tactics; defendant\u2019s statements, therefore, did not trigger the need for additional inquiry and did not entitle defendant to the appointment of substitute counsel. See Hutchins, 303 N.C. at 335, 279 S.E.2d at 797; see also State v. Prevatte, 356 N.C. 178, 216, 570 S.E.2d 440, 461 (2002) (\u201cAn indigent defendant has no right to replace appointed counsel merely because the defendant is dissatisfied with the present attorney\u2019s work or because of a disagreement over trial tactics.\u201d), cert. denied, 538 U.S. 986, 155 L. Ed. 2d 681 (2003). Because appointed counsel was reasonably competent and there was no alleged or apparent conflict between defendant and counsel that would render counsel ineffective to represent defendant, we conclude that the trial court\u2019s denial of defendant\u2019s request for substitute counsel was proper. Accordingly, defendant\u2019s argument is overruled.\nII.\nDefendant next argues that his conviction and sentencing for both first-degree kidnapping and second-degree sexual offense violate the prohibition against double jeopardy. The State concedes error. We agree.\nThe offense of kidnapping is elevated to first-degree kidnapping upon proof that the victim was either not released in a safe place, seriously injured, or.sexually assaulted. N.C. Gen. Stat. \u00a7 14-39(b) (2011). Where a jury is presented with more than one statutory ground upon which to convict a defendant of first-degree kidnapping and does not specify which one it relied upon to reach its verdict, \u201c[s]uch a verdict is ambiguous and should be construed in favor of defendant.\u201d State v. Whittington, 318 N.C. 114, 123, 347 S.E.2d 403, 408 (1986), appeal after remand, 321 N.C. 115, 361 S.E.2d 560 (1987). A defendant may not be punished for both first-degree kidnapping and the underlying sexual assault that raised the kidnapping to the first degree. State v. Freeland, 316 N.C. 13, 23, 340 S.E.2d 35, 40-41 (1986).\nThe trial court in this case instructed the jury that, to convict defendant of first-degree kidnapping, it had to find that complainant \u201cwas not released in a safe place, had been sexually assaulted, or had been seriously injured.\" The jury returned guilty verdicts for both first-degree kidnapping and second-degree sexual offense but did not specify the statutory ground upon which it relied on in finding defendant guilty of first-degree kidnapping. We must, therefore, construe the ambiguous verdict in favor of defendant and \u201cassume that the jury relied on defendant\u2019s commission of the sexual assault in finding him guilty of first-degree kidnapping.\u201d Whittington, 318 N.C. at 123, 347 S.E.2d at 408. Because defendant was also convicted of second-degree sexual offense, principles of double jeopardy preclude the use of the underlying sexual assault to support the first-degree kidnapping conviction. See Freeland, 316 N.C. at 23, 340 S.E.2d at 40-41. Accordingly, we remand the case to the trial court for resentencing.\nAt the resentencing hearing, the trial court may arrest judgment on the first-degree kidnapping conviction and resentence defendant for second-degree kidnapping or it may arrest judgment on the second-degree sexual offense conviction.\nNo error, remanded for resentencing.\nJudges STEELMAN and DILLON concur.",
        "type": "majority",
        "author": "MARTIN, Chief Judge."
      }
    ],
    "attorneys": [
      "Roy Cooper, Attorney General, by Daniel D. Addison, Special Deputy Attorney General, for the State.",
      "Law Offices of John R. Mills NPC, by John R. Mills, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMES EDWARD HOLLOMAN III, Defendant\nNo. COA13-559\nFiled 17 December 2013\n1. Constitutional Law \u2014 effective assistance of counsel\u2014 appointed counsel \u2014 not replaced\nThe trial court\u2019s denial of defendant\u2019s request for substitute counsel in a prosecution for rape, kidnappig and other offenses was proper where appointed counsel was reasonably competent and there was no alleged or apparent conflict between defendant and counsel that would have rendered counsel ineffective.\n2. Constitutional Law \u2014 double jeopardy \u2014 sentencing\u2014first-degree kidnapping and sexual offense\nDefendant\u2019s conviction and sentencing for both first-degree kidnapping and second-degree sexual offense violated the constitutional prohibition against double jeopardy where the jury returned guilty verdicts for both first-degree kidnapping and second-degree sexual offense but did not specify the statutory ground upon which it relied in finding defendant guilty of kidnapping. Principles of double jeopardy preclude the use of the underlying sexual assault to support first-degree kidnapping and second-degree sexual offense: the ambiguous verdict is construed in favor of defendant by assuming that the jury relied on the sexual assault in finding defendant guilty of first-degree kidnapping.\nAppeal by defendant from judgments entered 18 October 2012 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 21 October 2013.\nRoy Cooper, Attorney General, by Daniel D. Addison, Special Deputy Attorney General, for the State.\nLaw Offices of John R. Mills NPC, by John R. Mills, for defendant-appellant."
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