State v Nooe
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-1116 NORTH CAROLINA COURT OF APPEALS Filed: 6 May 2008 STATE OF NORTH CAROLINA v. Montgomery County No. 05CRS050832 WALTER CLEVELAND NOOE Appeal by defendant from judgment entered 28 March 2007 by Court of Appeals Judge Lindsay R. Davis, Jr. in Montgomery County Superior Court. Heard in the Court of Appeals 21 April 2008. Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Ted Williams and Assistant Attorney General Brandon L. Truman, for the State. Slip Opinion Paul M. Green for defendant-appellant. HUNTER, Judge. Walter Cleveland Nooe ( defendant ) appeals from a judgment entered on verdicts finding him guilty of assault with a deadly weapon with intent to kill inflicting serious injury and first degree kidnapping. After careful review, we find no prejudicial error. Gwendolyn Nooe testified that she married defendant on 9 May 2005 and that they resided in a tack room in his brother s barn. Defendant came in on 11 May 2005 angry about something. He punched her in the face several times over the course of several hours. At one point defendant laid a hammer on a shelf next to -2their bed and told her that he could strike her one time with the hammer and kill her. Defendant then punched her again, told her to remove her clothes, and to perform sexual acts because she was his wife now. She complied with his commands. After several hours of this abuse, she tried to escape past defendant, who was blocking the only door to the tack room. which flipped backwards. Defendant pushed her into a chair, She got up from the floor, grabbed a can of hair spray and attempted to spray defendant in the eyes. Defendant picked up the hammer and beat her in the head with it. At some point she blacked out and when she regained consciousness, she had a blood-soaked towel wrapped around her head. She ultimately persuaded defendant to transport her to the hospital for medical treatment. told hospital accident. Defendant carried her into the hospital and personnel that she had been in an automobile As the nurses and doctors attended to her, she saw defendant start to leave. She told a physician to stop defendant because he was the one who had injured her. She told the physician that defendant had struck her with a hammer. She heard the physician call hospital security. She did not see defendant again. Deputy Michael Concannon of the Montgomery County Sheriff s Department testified that on 12 May 2005 he received a dispatch to go to Montgomery Hospital. defendant in the emergency Deputy Concannon then encountered room parking lot. Defendant was distraught and crying and making several references to being sorry for what he did to -- to his wife at the time, Ms. Nooe there. Defendant said he was sorry for beating Gwen Nooe; his words, for -3beating my wife. He entered the emergency room and talked with Mrs. Nooe, who told him that her husband had assaulted her with a hammer. He photographed Mrs. Nooe s injuries, which included lacerations and bruises to her head, face, eye, ear, neck, arm, and chest. Dr. attending William Ralph physician Greenwood on duty in testified the that emergency he was the department of Montgomery Memorial Hospital on 12 May 2005. He examined Mrs. Nooe and found multiple significant lacerations to her scalp, a few minor lacerations to her extremities, facial contusions, a subconjunctivial hemorrhage on the right side of her face, and a nondisplaced nasal bone fracture. He closed the larger lacerations with approximately twenty surgical staples. Mrs. Nooe told him that her boyfriend struck her with a hammer. In his opinion a blunt object of some sort caused Mrs. Nooe s injuries. The acting director of the Crisis Council, a program to assist victims of domestic violence and sexual assault, testified that Mrs. Nooe told her on 12 May 2005 that defendant beat her around the head with a hammer earlier that day. Defendant s brother testified on defendant s behalf that defendant and Mrs. Nooe lived in a tack room behind his house and that he did not hear any arguments or screaming emanating from the tack room on the evening/morning in question. Defendant s former attorney testified that Mrs. Nooe called his office in February 2005 and offered to drop the charges against defendant if she received $2,000.00 in cash and a pickup truck. -4Defendant testified that on the evening in question, Mrs. Nooe consumed cocaine and went to cutting up. Mrs. Nooe slapped him, struck him in the groin, and hit him with a pocketbook. He grabbed her and they stumbled over a chair, after which he observed that Mrs. Nooe s head was bleeding. He wrapped a towel around her head and transported her to the hospital. He denied striking Mrs. Nooe with a hammer or confining her. The sole issue before us is whether the court committed plain error by instructing on a theory of kidnapping not charged in the indictment. The indictment charged that defendant unlawfully, willfully and feloniously did kidnap Gwen M. Nooe . . . by unlawfully confining and restraining said victim . . . for the purpose of facilitating the commission of a felony, to-wit: assault with a deadly weapon with intent to kill inflicting serious injury (and any lesser-included felony[.]) The court instructed the jury that the State had to prove defendant unlawfully confined a person -- that is, imprisoned her in a given area . . . for the purpose of doing serious bodily injury to that person. Because defendant did not object to the court s instruction, our review is for plain error. (2007). N.C.R. App. P. 10(b)(2), (c)(4) Under this standard of review, defendant must show that absent the erroneous instruction, a jury probably would have returned a different verdict. (2007). in which N.C. Gen. Stat. § 15A-1443(a) Our Supreme Court has stated that [i]t is the rare case an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial -5court. State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378 (1983) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212 (1977) (alteration in original)). To warrant appellate relief, the instructional error must be so fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him. State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993). As a general rule, a variance between a kidnapping indictment and the charge given to the jury as to confinement or restraint constitutes error. the theory of the State v. Tucker, 317 N.C. 532, 537-38, 346 S.E.2d 417, 420 (1986). Such error, however, will not amount to plain error if the evidence of the defendant s guilt is compelling or the erroneous instruction holds the State to a higher burden of proof. State v. Tirado, 358 N.C. 551, 576, 599 S.E.2d 515, 532-33 (2004). We hold the court did not commit plain error. of defendant s guilt is compelling. The evidence Defendant s testimony tending to indicate that Mrs. Nooe accidentally injured herself when she fell over the chair is overwhelmingly contradicted by the objective documentary evidence of Mrs. Nooe s extensive multiple injuries. In addition, defendant confessed to Deputy Concannon that he beat Mrs. Nooe. Moreover, the term serious bodily injury is defined as a bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or -6protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization. N.C. Gen. Stat. § 14-32.4(a) (2007). The term serious injury is defined simply as an injury that is serious but falls short of causing death. State v. Jones, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962). Thus, proof of a more severe injury is required to show serious bodily injury as compared to serious injury. State v. Hannah, 149 N.C. App. 713, 719, 563 S.E.2d 1, 5, disc. review denied, 355 N.C. 754, 566 S.E.2d 81 (2002). The instruction given by the court thus inured to defendant s benefit because it required the State to meet a higher standard of proof. No error. Judges McCULLOUGH and STEELMAN concur. Report per Rule 30(e).
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