State v. Skinner and N.ington

• Court: Court of Appeals of North Carolina
• Decided: December 2, 2014
• Docket: 14-404
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-404 NORTH CAROLINA COURT OF APPEALS

Filed: 2 December 2014

STATE OF NORTH CAROLINA

v. Onslow County No. 12 CRS 54423 DARREN LYCELL SKINNER Defendant

______________________________

v. Onslow County Nos. 12 CRS 54424-25 HARRY D. NORTHINGTON, JR. Defendant

Appeal by defendants from judgments entered 20 December

2013 by Judge Jack W. Jenkins in Onslow County Superior Court.

Heard in the Court of Appeals 10 September 2014.

Roy Cooper, Attorney General, by David W. Boone, Special Deputy Attorney General, and M. Denise Stanford, Assistant Attorney General, for the State.

Patterson Harkavy LLP, by Narendra K. Ghosh, for defendant- appellant Darren Lycell Skinner.

Staples S. Hughes, Appellate Defender, by Paul M. Green, Assistant Appellate Defender, for defendant-appellant Harry D. Northington, Jr.

DAVIS, Judge. -2-

Darren Lycell Skinner (“Skinner”) and Harry D. Northington,

Jr. (“Northington”) (collectively “Defendants”) appeal from

their respective convictions for extortion and nonfelonious

obstruction of justice. Northington also appeals from his

convictions for second-degree kidnapping and conspiracy to

commit second-degree kidnapping. After careful review, we

conclude that Defendants received a fair trial free from

prejudicial error.

Factual Background

The State’s evidence at trial tended to establish the

following facts: On the evening of 15 June 2012, Jane Roe1

(“Roe”) went to the home of Sarah Baglioni (“Baglioni”) to

babysit Baglioni’s two children. Roe arrived at the house at

approximately 10:45 p.m., and Baglioni, her boyfriend Chris

Jones (“Jones”), and another woman, Brittany Morgan, left

shortly afterward to go to Alexander’s, a local nightclub. The

children went to sleep, and Roe went outside on the porch to

smoke marijuana and drink a shot of liquor. She then went back

inside, turned on the TV, and fell asleep on the couch in the

1 A pseudonym is used throughout this opinion to protect the privacy of the victim and for ease of reading. -3- living room. When Roe woke up, Baglioni had returned, and Roe

overheard her informing someone over the telephone that a safe

was gone. Approximately five minutes later, Jones arrived at

the house and began questioning Roe about the safe’s

whereabouts. When Roe explained that she had been asleep and

did not know where the safe was, Jones repeatedly hit her in the

face. Jones then picked up a kitchen knife and threatened to

stab her. Roe maintained that she did not know where the safe

was, and Jones informed her that “one of his boys was coming

over . . . [and] he was kind of crazy.” Jones referred to the

person as “Moisture,” a nickname that Roe later discovered

belonged to Northington.

When Defendants arrived at the house, Northington ordered

that Roe be placed in the bathroom. Roe complied because she

was afraid of Defendants and Jones. At that point, Northington,

Jones, and Skinner — who went by the nickname “Menace” —

followed her into the bathroom. Northington “smack[ed]” Roe’s

face with a butcher knife and then proceeded to place the tip of

the knife to the back of her head, telling her that if she did

not tell him where the safe was he was going to cut through the

back of her head like “how butter slices.” Northington told Roe

to take off her clothes, and when she complied, he ran the -4- butcher knife up and down her body and told her he was going to

slit her throat.

Northington instructed Roe to touch herself, causing Roe to

fear that he was going to rape her. Jones then told Northington

“that it was enough” and allowed Roe to put on her clothing.

After Roe dressed, Skinner told her if she told anyone what

happened, he would be the last person she saw from “the other

end of the barrel.” Northington told her that if she talked to

anyone, they would come to her house and rape and kill her in

front of her son and his father. Before she was allowed to

leave, she was warned that she “was going to be followed home,

to make sure [she] didn’t stop at the police station.” Roe left

the residence and drove straight to the home of her son’s

father.

The next day, Roe told her mother and younger sister about

these events. Roe’s mother urged her to tell the police, but

Roe refused at first because of Defendants’ warning that they

would kill her if she told anyone what had happened. She agreed

to go to the hospital at around 10:00 p.m. that night because

her head was hurting. Two law enforcement officers interviewed

Roe at the hospital, took a statement, and photographed the

injuries to her face and body. -5- On 12 February 2013, an Onslow County grand jury indicted

Defendants on charges of first-degree kidnapping, felony

conspiracy, extortion, and felonious obstruction of justice.

The grand jury also returned bills of indictment charging

Skinner with simple assault and charging Northington with

assault with a deadly weapon.2 The cases were joined, and a jury

trial was held beginning on 16 December 2013.

On 20 December 2013, the jury returned verdicts finding

Skinner guilty of nonfelonious obstruction of justice and

extortion and not guilty of all remaining charges. The jury

found Northington guilty of nonfelonious obstruction of justice,

extortion, second-degree kidnapping, and conspiracy to commit

second-degree kidnapping. The trial court sentenced Skinner to

a presumptive-range term of 21 to 35 months imprisonment for

extortion and 120 days imprisonment for nonfelonious obstruction

of justice to begin at the expiration of the first sentence.

The trial court consolidated Northington’s kidnapping and

conspiracy offenses and sentenced him to a presumptive-range

term of 33 to 52 months imprisonment. The trial court

consolidated the extortion and nonfelonious obstruction of

justice offenses and sentenced Northington to 21 to 35 months

2 The State later dismissed the assault charges against both Defendants. -6- imprisonment following the expiration of the first sentence.

Defendants gave notice of appeal in open court.

Analysis

On appeal, Defendants contend that the trial court erred in

denying their motions to dismiss the obstruction of justice

charges based on the insufficiency of the evidence. Northington

also argues that the trial court committed plain error in its

instructions to the jury. We address each argument in turn.

I. Obstruction of Justice

Defendants argue that their charges for obstruction of

justice should have been dismissed because “there was no

evidence that [Defendants’] conduct actually hindered the

administration of justice.” We disagree.

When reviewing a trial court’s denial of a motion to

dismiss for insufficient evidence, this Court must determine de

novo “whether there is substantial evidence (1) of each

essential element of the offense charged, or of a lesser offense

included therein, and (2) of defendant’s being the perpetrator .

. . .” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455

(citation omitted), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150

(2000). “Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a -7- conclusion. Evidence must be viewed in the light most favorable

to the State with every reasonable inference drawn in the

State’s favor.” State v. Lucas, ___ N.C. App. ___, ___, 758

S.E.2d 672, 676 (2014) (internal citations and quotation marks

omitted).

In In re Kivett, 309 N.C. 635, 670, 309 S.E.2d 442, 462 (1983), our Supreme Court confirmed that “[o]bstruction of justice is a common law offense in North Carolina” that was not abrogated by Article 30 of Chapter 14 of the General Statutes, which sets out statutory “obstruction of justice” offenses. The Court then adopted the following definition of the common law offense: “‘At common law it is an offense to do any act which prevents, obstructs, impedes or hinders public or legal justice. The common law offense of obstructing public justice may take a variety of forms . . . .’” Id. (quoting 67 C.J.S. Obstructing Justice §§ 1,2 (1978)).

State v. Wright, 206 N.C. App. 239, 241, 696 S.E.2d 832, 834-35

(2010). Thus, in order to survive Defendants’ motions to

dismiss the obstruction of justice charges, the State was

required to present substantial evidence that Defendants

“committed an act that prevented, obstructed, impeded, or

hindered public or legal justice.” State v. Cousin, ___ N.C.

App. ___, ___, 757 S.E.2d 332, 338, disc. review denied, ___

N.C. ___, 762 S.E.2d 446 (2014).

At trial, Roe testified that both Defendants threatened her -8- life if she spoke with law enforcement officers or anyone else

about what had happened to her. Specifically, Skinner told her

if she told anyone what happened, he would be the last person

she saw from “the other end of the barrel,” and Northington said

that if she talked to anyone, they would come to her home and

rape and kill her in front of her son and his father. She

further testified that once she was finally permitted to leave

Baglioni’s house, Defendants and Jones told her that she “was

going to be followed home, to make sure [she] didn’t stop at the

police station.” Roe stated that she drove by the police

station that evening and thought about stopping to report the

crimes committed against her but decided against it “because

they told [her] they were going to kill [her], and [she] didn’t

want to put [her] family or [her]self in any more danger.”

Roe testified that the next day, she spoke to her mother,

who urged her to speak to the police but that she “didn’t want

to go” and “wasn’t going to tell anybody” based on the threats

Defendants made to her. That night, Roe acquiesced to her

mother’s request that she go to the hospital to seek treatment

for her injuries. Her mother then informed her that two law

enforcement officers were going to be there and would want to

talk to her about what happened. It was only then that Roe gave -9- a statement and allowed the officers to photograph the injuries

to her face and body.

Taken in the light most favorable to the State, Roe’s

testimony that because of Defendants’ threats she delayed

notifying law enforcement personnel about the crimes committed

against her for approximately 18 hours constitutes substantial

evidence that Defendants committed an act which prevented,

obstructed, impeded or hindered public or legal justice. See

Merriam-Webster’s Collegiate Dictionary 623 (11th ed. 2005)

(defining “impede” as “to interfere with or slow the progress

of”); id. at 588 (defining “hinder” as “to make slow or

difficult the progress of”; “to hold back”; or “to delay,

impede, or prevent action”). Thus, because there was

substantial evidence of each essential element of obstruction of

justice and that Defendants were the perpetrators, we conclude

that the trial court properly denied Defendants’ motions to

dismiss.

II. Jury Instructions

Northington also argues that the trial court’s jury

instructions concerning the charge of felonious conspiracy were

improper “because the doctrine of acting in concert, applied to

the conspiracy charge, had the effect of eliminating the -10- requirement of a specific agreement to commit kidnapping.” He

admits that he failed to object to the jury instructions at

trial and that our review is consequently limited to determining

whether the alleged instructional error rose to the level of

plain error.

Under the plain error standard, defendant must show that the instructions were erroneous and that absent the erroneous instructions, a jury probably would have returned a different verdict. The error in the instructions must be so fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him. It is the rare case in which an improper instruction will justify the reversal of a criminal conviction when no objection has been made in the trial court. In deciding whether a defect in the jury instruction constitutes plain error, the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury’s finding of guilt.

State v. Smith, ___ N.C. App. ___, ___, 736 S.E.2d 847, 850-51

(2013) (citation and quotation marks omitted).

Northington points to the following portion of the trial

court’s instructions as the basis for his plain error argument:

The defendant, Harry D. Northington, Jr., has been charged with feloniously conspiring to commit first-degree kidnapping.

For a defendant to be guilty of a crime, it is not necessary that the -11- defendant do all of the acts necessary to constitute the crime. If two or more persons join in a common purpose to commit felonious conspiracy, each of them, if actually or constructively present, is guilty of a crime and also guilty of any other crime committed by the other, in pursuance of the common purpose to commit felonious conspiracy, or as a natural and probable consequence thereof.

The trial court then instructed the jury as to the elements of

conspiracy to commit first-degree kidnapping. Northington

contends that by instructing on the theory of acting in concert

in conjunction with conspiracy to commit first-degree

kidnapping, the trial court permitted the jury to find him

guilty of conspiracy “based on mere guilt by association with

Jones.” He asserts that the acting in concert component of the

instruction eviscerated the requirement of a specific agreement

to commit kidnapping and instead allowed a finding of guilt

based simply on proof that Northington shared a common purpose

with Jones to “conspir[e] to commit some unspecified unlawful

act.” We disagree.

After explaining the elements of conspiracy to commit

first-degree kidnapping, the trial court continued its

instructions as follows:

If you find from the evidence, beyond a reasonable doubt, that on or about the alleged date, the defendant, Harry D. -12- Northington, Jr., agreed with Chris Jones and Darren Skinner to commit first degree kidnapping and that the defendant, Harry D. Northington, Jr., and those persons intended, at the time the agreement was made, that it would be carried out, it would be your duty to return a verdict of guilty as to the defendant, Harry D. Northington, Jr. If you do not so find, or have a reasonable doubt as to one or more of these things, you would not return a verdict of guilty of felonious conspiracy to commit first-degree kidnapping as to the defendant, Harry D. Northington, Jr., but will determine whether he is guilty of felonious conspiracy to commit second-degree kidnapping.

For you to find the defendant, Harry D. Northington, Jr., guilty of felonious conspiracy to commit second-degree kidnapping, the State must prove three things, beyond a reasonable doubt. First, that the defendant, Harry D. Northington, Jr., and Chris Jones and Darren Skinner entered into an agreement. Second, that the agreement was to commit second-degree kidnapping.

Second-degree kidnapping is the unlawful removal of a person from one place to another, without that person’s consent, for the purpose of terrorizing that person.

And third, that the defendant, Harry D. Northington, Jr., and Chris Jones and Darren Skinner intended that the agreement be carried out at the time it was made.

If you find from the evidence, beyond a reasonable doubt, that on or about the alleged date, the defendant, Harry D. Northington, Jr., agreed with Chris Jones and Darren Skinner to commit second-degree -13- kidnapping and that the defendant, Harry D. Northington, Jr., and those persons intended at the time the agreement was made that it would be carried out, it would be your duty to return a verdict of guilty as to the defendant, Harry D. Northington, Jr. If you do not so find, or have a reasonable doubt as to one or more of these things, it would be your duty to find the defendant, Harry D. Northington, Jr., not guilty.

These instructions, when viewed in their entirety, make

clear that in order to find Northington guilty of conspiracy to

commit kidnapping, the jury was required to determine that he

specifically (1) entered into an agreement with his co-

conspirators (2) to commit a kidnapping (3) that they intended

to carry out at the time the agreement was made. See State v.

Roach, 358 N.C. 243, 304, 595 S.E.2d 381, 420 (2004) (“[W]hen

instructions, viewed in their entirety, present the law fairly

and accurately to the jury, the instructions will be upheld.”);

see also State v. Canady, 191 N.C. App. 680, 689, 664 S.E.2d

380, 385 (2008) (“When reviewing jury instructions, 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.” (citation and internal quotation marks omitted)), disc.

review denied, 363 N.C. 132, 673 S.E.2d 662 (2009).

Although an instruction on the theory of acting in concert -14- generally permits a finding of guilt when the defendant does not

complete each particular act constituting the crime himself but

rather shares in a common purpose to commit the crime with his

co-perpetrators, we believe that the instructions here —

considered in their totality — were sufficiently clear in

informing the jury that it was required to find that Northington

himself entered into an agreement with others to commit a

kidnapping. See State v. Ledwell, 171 N.C. App. 328, 333, 614

S.E.2d 412, 415 (“The crime of conspiracy is an agreement to

commit a substantive criminal act . . . .”), disc. review

denied, 360 N.C. 73, 622 S.E.2d 624 (2005). Moreover, we note

that the jury ultimately found Northington guilty of conspiracy

to commit second-degree kidnapping, and the trial court only

included an instruction on acting in concert in its charge on

conspiracy to commit first-degree kidnapping. Thus, assuming —

without deciding — that the challenged portion of the jury

instructions was erroneous, we conclude that Northington has

failed to show plain error.3

3 Northington also appears to make a brief argument that his conviction for conspiracy to commit second-degree kidnapping must be set aside because “[he] alone stands convicted of conspiracy” since Skinner was acquitted of the offense and the State voluntarily dismissed the conspiracy charge against Jones. While “[t]he general rule is that if all participants charged in a conspiracy have been legally acquitted, except the defendant, -15- Conclusion

For the reasons stated above, we conclude that Defendants

received a fair trial free from prejudicial error.

NO PREJUDICIAL ERROR.

Judges HUNTER, Robert C., and DILLON concur.

Report per Rule 30(e).

then the inconsistent charge or conviction against the sole remaining defendant must be set aside[,] . . . . the dismissal of a charge[] pursuant to a plea agreement does not constitute an acquittal at law.” State v. Saunders, 126 N.C. App. 524, 527-28, 485 S.E.2d 853, 855 (1997). Thus, because Jones and Skinner were not both acquitted of conspiracy, the trial court was not required to set aside Northington’s conspiracy conviction. See State v. Essick, 67 N.C. App. 697, 701, 314 S.E.2d 268, 271 (1984) (“In the absence of acquittals of all named co-conspirators, the defendant’s conviction will stand.”).