State v. HillÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-107
Filed: 16 October 2018
Brunswick County, Nos. 14CRS053475; 053546; 053566-69; 14CRS053571; 053574-
75; 053577-78; 16CRS2803-18; 2822-27
STATE OF NORTH CAROLINA
v.
DENZEL JAMAL HILL, Defendant.
Appeal by Defendant from judgments entered 2 May 2017 by Judge James
Gregory Bell in Brunswick County Superior Court. Heard in the Court of Appeals 19
September 2018.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Sonya
M. Calloway-Durham, for the State.
Richard Croutharmel for the Defendant.
DILLON, Judge.
Denzel Jamal Hill (“Defendant”) appeals from six judgments finding him guilty
of one count of first degree sex offense, five counts of statutory rape, and two counts
of second degree kidnapping. On appeal, Defendant argues: (A) the indictment for
assault with a deadly weapon was facially deficient and the indictment for assault
inflicting serious injury was wrongfully amended; (B) the State’s evidence was not
sufficient to support the fifty-two (52) counts of statutory rape, sexual offenses and
indecent liberties charges on which Defendant was indicted; (C) the court erroneously
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Opinion of the Court
defined “serious bodily injury” during its jury instructions; and (D) the court’s
sentencing violates the Eighth Amendment of the United States Constitution by
being grossly disproportionate to the crimes for which Defendant was convicted. We
find that the trial court did err in allowing the State to amend the second degree
kidnapping indictment in 14CRS053569. We find no error as to all other alleged
issues.
I. Background
Defendant was indicted for various crimes in connection with a series of sex
encounters with two minors, E.D. and F.H. A jury found the Defendant guilty of
sixty-nine (69) counts, which the trial court consolidated into six judgments.
Defendant was sentenced to consecutive terms of imprisonment. Defendant timely
appealed.
II. Analysis
A. Challenges to Certain Indictments
An indictment purported to be invalid on its face may be challenged at any
time. State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000). We review the
sufficiency of an indictment de novo. See State v. Sturdivant, 304 N.C. 293, 307-11,
283 S.E.2d 719, 729-31 (1981).
Defendant takes issue with two of the indictments.
1. Assault Indictment (14CRS053566)
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Opinion of the Court
First, Defendant argues that the indictment for one of the “assault with a
deadly weapon inflicting serious injury” charges (14CRS053566) is defective because
the indictment fails to include the word “assault” in its description of the offense.
It is not fatal if an indictment is not perfect with regard to form or grammar if
the meaning of the indictment is clearly apparent “so that a person of common
understanding may know what is intended.” State v. Coker, 312 N.C. 432, 435, 323
S.E.2d 343, 346 (1984).
Here, while the indictment does fail to include the word “assault,” the
indictment was sufficient in charging an assault by alleging that Defendant willfully
injured one of the victims with a screwdriver, stating as follows:
[T]he jurors for the State upon their oath present that on
or about the date(s) of offense shown and in the county
named above the defendant named above unlawfully,
willfully and feloniously did E.D. with a screwdriver, a
deadly weapon, inflicting serious injury, against the form
of the statute in such case made and provided and against
the peace and dignity of the State.
Additionally, the indictment correctly lists the offense as “AWDW SERIOUS
INJURY” and references the correct statute, namely, N.C. Gen. Stat. § 14-32(B). N.C.
Gen. Stat. § 14-32 (2013) (describing felonious assault with deadly weapon inflicting
serious injury). Viewing the indictment as a whole, it substantially follows the
language of N.C. Gen. Stat. § 14-32 and its essential elements, and apprised
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Defendant of the crime in question. Therefore, we conclude it meets the requirements
of law. State v. Randolph, 228 N.C. 228, 231, 45 S.E.2d 132, 134 (1947).
2. Kidnapping Indictment (14CRS043569)
Defendant also contends that the trial court erred in allowing the State to
amend the indictment of second degree kidnapping in 14CRS053569. We agree.
Pursuant to N.C. Gen. Stat. § 15A-923(e) (2013), a bill of indictment may not
be amended. This statute has been interpreted to mean “that an indictment may not
be amended in a way which ‘would substantially alter the charge set forth in the
indictment.’ ” State v. Brinson, 337 N.C. 764, 767, 448 S.E.2d 822, 824 (1994). “In
determining whether an amendment is a substantial alteration, we must consider
the multiple purposes served by indictments, the primary one being to enable the
accused to prepare for trial.” State v. Silas, 360 N.C. 377, 380, 627 S.E.2d 604, 606
(2006) (internal citations omitted).
One is guilty of kidnapping if he or she confines, restrains, or removes the
victim for one of six purposes enumerated in N.C. Gen. Stat. § 14-39. The statutory
purpose relevant to this case is where the confinement, restraint, or removal of the
victim is for “[f]acilitating the commission of any felony[.]” N.C. Gen. Stat. § 14-
39(a)(2) (2013).
Our Supreme Court has held that an indictment for kidnapping based on the
commission of a felony need not specify the felony. State v. Freeman, 314 N.C. 432,
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435-36, 333 S.E.2d 743, 745-46 (1985). Our Supreme Court has also held that if the
indictment does specify a crime, Defendant “must be convicted, if convicted at all,” on
the felony specified in the indictment. State v. Faircloth, 297 N.C. 100, 107-10, 253
S.E.2d 890, 894-96 (1979). Thus, if the indictment does state a specific underlying
felony, a jury may not convict on the basis of a different felony than the one included
in the indictment. State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986).
Here, the indictment in question alleges that Defendant restrained the victim
for the purpose of facilitating the following felony: “Assault Inflicting Serious Injury.”
However, “assault inflicting serious injury” is a Class A1 misdemeanor. N.C. Gen.
Stat. § 14-33(c) (2013). During trial, though, the State was allowed to amend its
indictment to add the term “bodily” such that the crime specified was “assault
inflicting serious bodily injury,” which is a Class F felony. N.C. Gen. Stat. § 14-32.4
(2013).
We hold that the State was bound by the crime as alleged in the original
indictment. As noted above, pursuant to N.C. Gen. Stat. § 15A-923(e), a bill of
indictment may not be amended “in a way which would substantially alter the charge
set forth in the indictment.” Brinson, 337 N.C. at 767, 448 S.E.2d at 824 (internal
citation omitted). As we have held, an amendment from “assault inflicting serious
injury” to “assault inflicting serious bodily injury” does constitute a substantial
change as it raises the underlying crime from a misdemeanor to a felony. See State
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v. Moses, 154 N.C. App. 332, 338, 572 S.E.2d 223, 228 (2002). Thus, the trial court
erred in allowing the amendment and sending the charge of second degree
kidnapping to the jury.
Nevertheless, the allegations in the indictment do constitute the crime of false
imprisonment, a lesser-included offense of kidnapping. State v. Harrison, 169 N.C.
App. 257, 265-66, 610 S.E.2d 407, 414 (2005), aff’d per curiam, 360 N.C. 394 (2006).
In Harrison, we stated that:
The difference between kidnapping and the lesser-included
offense of false imprisonment is the purpose of the
confinement, restraint, or removal of another person. If the
purpose of the restraint was to accomplish one of the
purposes enumerated in N.C. Gen. Stat. § 14-39, then the
offense is kidnapping. However, if the unlawful restraint
occurs without any of the purposes specified in the statute,
the offense is false imprisonment.
Id. Further, the jury did find that Defendant committed the acts as alleged in the
indictment. State v. Piggott, 331 N.C. 199, 210-11, 415 S.E.2d 555, 562 (1992).
Therefore, we vacate the judgment finding Defendant guilty of second degree
kidnapping and remand for judgment and resentencing for the lesser-included crime
of false imprisonment.
B. Motion to Dismiss based on Insufficient Evidence
Defendant next alleges that the trial court erred in denying his motion to
dismiss the thirty-three (33) counts of statutory rape, two counts of statutory sex
offense, and seventeen (17) counts of indecent liberties as to F.H. Defendant based
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his motion to dismiss on the ground that there was insufficient evidence put on by
the State to prove all of these counts.
In order to overcome the Defendant’s motion to dismiss, the State must have
sufficiently provided evidence of each essential element of the statutory rape
charge(s), the statutory sexual offense charge(s), and the indecent liberties charge(s).
The elements of both statutory rape and statutory sexual offense are “engag[ing] in
vaginal intercourse with another person who is 15 years of age or younger and the
defendant is at least 12 years old and at least six years older than the person, except
when the defendant is lawfully married to the person.” N.C. Gen. Stat. § 14-27.7a
(2013) (recodified as N.C. Gen. Stat. § 14-27.25 (2015)). The elements of taking
indecent liberties with a child are, where one “being 16 years of age or more and at
least five years older than the child in question . . . willfully takes or attempts to take
any immoral, improper, or indecent liberties with any child of either sex under the
age of 16 years for the purpose of arousing or gratifying sexual desire[.]” N.C. Gen.
Stat. § 14-202.1 (2013).
During the trial, the State provided evidence in the form of testimony from
victim F.H. F.H. testified that she was born on 4 December 1998 and that she was in
a relationship with Defendant from 1 March 2013 through 18 July 2014, at which
time she was fourteen (14) and fifteen (15) years old and Defendant was at least
twenty-one (21) years old. F.H. further testified to sexual contact during their
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relationship; F.H. stated that she and Defendant had vaginal intercourse at least
once a week, beginning the day that F.H. met Defendant, and that she performed oral
sex before, during, and after each occurrence of sexual intercourse. Two additional
witnesses testified to observing Defendant and F.H. have sexual intercourse during
this time, one of whom also testified to observing oral sex between Defendant and
F.H.
Defendant argues that since the State failed to provide a specific number of
times that F.H. and Defendant had sexual intercourse and oral sex and how many
times Defendant touched F.H. in an immoral way, the total number of counts is not
supported and his motion to dismiss should have been granted. We disagree.
While F.H. did not explicitly state a specific number of times that she and
Defendant had sexual relations, we conclude that a reasonable jury could find the
evidence, viewed in the light most favorable to the State, sufficient to support an
inference for the number of counts at issue. As the State points out in its brief, F.H.
testified that she and Defendant had sexual intercourse at least once a week for a
span of seventy-one (71) weeks. This testimony amounts to at least seventy-one (71)
incidents of sexual intercourse, and Defendant was only indicted and convicted of
thirty-three (33) incidents. Our Supreme Court has held that
if the evidence show[s] a greater number of incidents
committed by the defendant than the number of offenses
with which he was charged and convicted, no jury
unanimity problem existed regarding the convictions
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because, ‘while one juror might have found some incidents
of misconduct and another juror might have found different
incidents of misconduct, the jury as a whole found that
improper sexual conduct occurred.
State v. Massey, 361 N.C. 406, 408, 646 S.E.2d 362, 364 (2007) (internal citation
omitted). We conclude that the trial court was correct in denying Defendant’s motion
to dismiss.
C. Jury Instruction of “Serious Bodily Injury”
Defendant next appeals the jury instructions that the trial court gave for the
charge of assault inflicting serious bodily injury as to E.D. Specifically, Defendant
takes issue with the definition of “serious bodily injury.”
Defendant did not object to the jury instruction at the time it was given;
therefore, we review the instruction for plain error. State v. Lawrence, 365 N.C. 506,
518, 723 S.E.2d 326, 334 (2012). “Under the plain error rule, [a] defendant must
convince this Court not only that there was error, but that absent the error, the jury
probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440,
426 S.E.2d 692, 697 (1993).
While this court prefers the use of the North Carolina Pattern Jury
Instructions, an instruction is sufficient if it adequately explains each essential
element of an offense. State v. Avery, 315 N.C. 1, 31, 337 S.E.2d 786, 803 (1985). Jury
instructions are generally upheld where “it is highly unlikely that omission of [the
incorrect] portion of the charge would have produced a different result in the trial.”
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State v. Gaines, 283 N.C. 33, 42, 194 S.E.2d 839, 846 (1973). In State v. Jones, the
North Carolina Supreme Court held that, “[w]here the charge as a whole presents
the law fairly and clearly to the jury, the fact that isolated expressions, standing
alone, might be considered erroneous affords no grounds for a reversal.” 294 N.C.
642, 653, 243 S.E.2d 118, 125 (1978).
The North Carolina Pattern Jury Instruction provides that “[s]erious bodily
injury is bodily injury that creates or causes [a substantial risk of death][serious
permanent disfigurement].” N.C. P. I. 120.11. Here, the trial court’s instruction
stated, in pertinent part:
Serious bodily injury is injury that creates or causes a
substantial risk of serious permanent disfigurement.
While the trial court’s instruction was imperfect as to its definition of serious
bodily injury, we are not convinced that the jury was misled by the instructions as
given. The instruction, viewed as a whole, correctly placed the burden of proof on the
State for the two elements of felonious assault inflicting serious bodily injury. The
trial court merely conjoined the language of two parentheticals from the pattern jury
instruction. Moreover, the evidence put on by the State goes to prove the creation of
serious permanent disfigurement, not a risk of serious substantial disfigurement.
Therefore, even though the jury was incorrectly instructed that the State’s burden
may be satisfied by the Defendant causing a substantial risk of serious permanent
disfigurement, the State’s evidence sufficiently proved that E.D. actually suffered
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serious permanent disfigurement. We cannot say that it is reasonably probable that
the outcome would have been different, but for the error in the jury instruction.
D. Eighth Amendment Violation
Lastly, Defendant argues that the trial court’s consecutive sentences, totaling
a minimum of one hundred thirty-eight (138) years, violates his constitutional right
to be free from cruel and unusual punishment under the Eighth Amendment.
Defendant failed to object to the sentencing on constitutional grounds in the trial
court. Therefore, Defendant has failed to preserve this argument for appellate
review. See State v. Wilson, 363 N.C. 478, 484, 681 S.E.2d 325, 330 (2009).
In any event, we note that Defendant’s constitutional argument appears to lack
merit. Article I, Section 27 of the North Carolina Constitution mirrors the Eighth
Amendment of the federal constitution in that it protects individuals from “cruel or
unusual punishments.” A punishment may be “cruel or unusual” if it is not
proportionate to the crime for which the defendant has been convicted. State v.
Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 440 (1983). Our Supreme Court in
Ysaguire stated that “only in exceedingly unusual non-capital cases will the sentences
imposed be so grossly disproportionate as to violate the Eighth Amendment’s
proscription of cruel and unusual punishment.” Id. at 786, 309 S.E.2d at 441.
N.C. Gen. Stat. § 15A-1354 vests the trial court with the discretion to elect
between concurrent or consecutive sentences for a defendant faced with multiple
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sentences of imprisonment. Id. at 785, 309 S.E.2d at 440. “The imposition of
consecutive sentences, standing alone, does not constitute cruel and unusual
punishment.” Id., at 786, 309 S.E.2d at 441.
Here, the trial court utilized the discretion given to it by the legislature and
consolidated the seventy (70) verdicts into six identical judgments, each of which were
sentenced in the presumptive range. The trial court ordered that these two hundred
seventy-six-month (276-month) sentences be served consecutively. In light of the
crimes committed in this case, there appears to be no abuse of discretion in the
sentencing.
III. Conclusion
We vacate the judgment of guilty of second degree kidnapping in 14CRS053569
and remand the case back to the trial court for an entry of judgment of conviction and
sentencing for false imprisonment. We find no other error.
NO ERROR IN PART, VACATED AND REMANDED IN PART.
Judges ELMORE and DAVIS concur.
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