STATE v. COUSAR,

STATE OF NORTH CAROLINA

v. Pitt County
No. 06 CRS 54050-53
MICHELLE ANITA COUSAR

Appeal by defendant from judgments entered 25 January 2007 by
Judge Clifton W. Everett, Jr. in Pitt County Superior Court. Heard
in the Court of Appeals 12 December 2007.

Attorney General Roy Cooper, by Assistant Attorney General
Charles E. Reese, for the State.

Charns & Charns, by M. Alexander Charns, for the defendant-
appellant.

STEELMAN, Judge.

The trial court did not err in its evidentiary rulings, in
instructing the jury, or in entering judgment on the jury’s second-
degree kidnapping verdict where the State proved restraint beyond
that inherent in the underlying felony. The court did not err in
sentencing defendant to consecutive sentences that were suspended
with concurrent probationary periods.

I. Factual and Procedural Background

The evidence at trial tended to show that, shortly before
midnight on 9 April 2006, Amanda Rush (hereinafter “Rush”) heard
knocking at her apartment door. Rush, who is legally blind, at
first ignored the knocking, but when it continued, she got out of
bed and asked who was at the door. A man’s voice responded “Rich”and asked for Rush by name. Believing it might be a co-worker,
Rush opened the door and briefly spoke with the man. A second
person, who never spoke, entered the apartment during the
conversation. Rush realized that she did not know these people,
and the man finally said that he had the wrong address. As the
strangers left, Rush attempted to close the door. Instead, one of
the strangers pushed the door back open, pushed Rush three or more
feet into the apartment, pushed her to the floor, and held her down
with a hand over her mouth. He asked if she had any money, and
removed his hand long enough for her to answer “no.” He told her
to be quiet. When she cooperated, he released her, and she moved
to a recliner a few feet away.
The two intruders took a DVD player, a cellphone, and her
wallet. Shortly thereafter, defendant Michelle Cousar used one of
the two credit cards in Rush’s wallet for purchases at a local
grocery store and gas station, obtaining $20 in cash and gasoline
in the amounts of $25, $5.32, and $20.01.
When questioned by police, Rush mentioned that defendant was
a former co-worker who had previously tricked her out of money in
an ATM transaction. Defendant and two male suspects, including
defendant’s boyfriend, Avery Holly, were subsequently arrested.
All three co-defendants admitted to the crime but denied being
inside the apartment. Each co-defendant identified the other two
as the persons who went inside the apartment and stole Rush’s
property. In a voluntary statement to police, defendant admitted “I told them where Amanda Rush [lived.] . . . I did attempt to use
the credit card.”
Defendant was indicted for common law robbery; first-degree
burglary, larceny after breaking and entering, and second-degree
kidnapping; and financial card theft plus four counts of financial
card fraud.
The jury returned guilty verdicts on all charges. The trial
court entered four judgments, arresting judgment on the common law
robbery charge, and sentenced defendant to: 96-125 months
imprisonment on the first-degree burglary conviction; 46-65 months
imprisonment on the second-degree kidnapping charge, to begin at
the expiration of the burglary sentence; 11-14 months (suspended
for 36 months with supervised probation) on the larceny charge, and
8-10 months (also suspended) on the financial card charges, to run
at the expiration of the larceny sentence. Defendant appeals.

II. Analysis

A. Kidnapping Charge: Fulcher Issue

In defendant’s first argument, she contends that the trial
court erred in failing to arrest judgment on the kidnapping charge
because any restraint of Rush was inherent in the crimes of robbery
and burglary. We disagree.
Defendant cites but one case, State v. Ripley, 360 N.C. 333,
626 S.E.2d 289 (2006), in support of her argument. In that case,
a group of robbers entered the lobby of a motel and robbed the
front desk clerk at gunpoint. Motel patrons entered the lobby
during the robbery. Some of the patrons were ordered at gunpoint,in the course of the robbery, to move from one side of a motel
lobby door to the other side of the door. The Supreme Court,
relying on the decision of State v. Irwin, 304 N.C. 93, 282 S.E.2d
439 (1981), held this to be a “mere technical asportation” that was
an inherent part of the armed robbery. Ripley, 360 N.C. at 338,
626 S.E.2d at 293-94.
The analysis in Ripley is based upon the seminal case of State
v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978). The key holding
in that case was as follows:
It is self-evident that certain felonies
(e.g., forcible rape and armed robbery) cannot
be committed without some restraint of the
victim. We are of the opinion, and so hold,
that G.S. 14-39 was not intended by the
Legislature to make a restraint, which is an
inherent, inevitable feature of such other
felony, also kidnapping so as to permit the
conviction and punishment of the defendant for
both crimes. To hold otherwise would violate
the constitutional prohibition against double
jeopardy. Pursuant to the above mentioned
principle of statutory construction, we
construe the word “restrain,” as used in G.S.
14-39, to connote a restraint separate and
apart from that which is inherent in the
commission of the other felony.

Id. at 523, 243 S.E.2d at 351.
Thus, the rationale of Fulcher and its progeny, including
Ripley, is that a defendant may not be punished twice for the same
conduct, i.e. restraint, under principles of double jeopardy.
Defendant argues in her brief that the element of restraint
and force supporting the second degree kidnapping was inherent in
the charge of common law robbery. We find no fault in defendant’s
argument in this regard. However, defendant fails to recognizethat the trial court arrested judgment on the common law robbery
charge. This action eliminated any possibility of the defendant
being punished twice for the restraint involved in the common law
robbery and second degree kidnapping.
Other than the second degree kidnapping charge, only the
charge of common law robbery had as an inherent element of the
offense the use of restraint or force against a person. The only
force inherent in burglary or in larceny pursuant to a breaking and
entering is forcible entry into the property, which was achieved
when the intruders forced the door open and not by pushing Ms. Rush
to the floor and holding her there. Thus, under the rationale of
Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306 (1932),
there are no double jeopardy implications that arose from the
convictions for second degree kidnapping, first degree burglary,
and felonious larceny. See State v. Gardner, 315 N.C. 444, 340
S.E.2d 701 (1986)(applying the Blockburger test to single
prosecution situations).
This argument is without merit.

B. Jury Instructions

In her second argument, defendant contends that she was
unfairly prejudiced when the trial court deferred to the prosecutor
and, in effect, permitted the prosecutor “to instruct the jury” on
the second degree kidnapping charge. We disagree.
The record reflects that the trial court requested both
counsel to intervene rather than to allow him to misinstruct the
jury during a complex charge. Defendant assented to this request. When the trial court confused the underlying felony in
administering the kidnapping instruction, the prosecutor
intervened, as requested, to clarify. Because defense counsel
raised no objection to the instructions at trial, we review this
argument on a “plain error” basis, which requires defendant to show
that the claimed error is so fundamental and prejudicial that a
different verdict would have otherwise been reached. State v.
Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000).
A bare “assertion of plain error, without supporting argument
or analysis of prejudicial impact, does not meet the spirit or
intent of the plain error rule.” Id. at 636-37, 535 S.E.2d at 61.
Although defendant claims “no adversarial fairness[,]” she fails to
demonstrate how the claimed error so influenced the jury that a
different verdict would otherwise have been reached. Id. This
argument is without merit.

C. Preservation of Evidentiary Issue

In defendant’s third argument, she contends that the trial
court erred in sustaining the State’s objection to testimony that
her boyfriend would have killed her if she had not followed his
orders. We disagree.
At trial, defendant raised an affirmative defense of duress.
Defendant testified to an abusive relationship with co-defendant
Holly, stating that he threatened her life and the lives of her
family if she refused to cooperate and participate in the crime.
Holly testified that: defendant did “basically whatever I told her
to do;” he had frequently used physical means to induce compliancewith his wishes; he had previously threatened to kill her; and she
was afraid of him. He further testified that she used the credit
cards at his direction. Defense counsel asked Holly “what would
have happened to Michelle Cousar if she refused to cooperate with
you?” The court sustained the State’s objection, and defendant did
not request a proffer of Holly’s response for the record.
“In order for a party to preserve for appellate review the
exclusion of evidence, the significance of the excluded evidence
must be made to appear in the record and a specific offer of proof
is required unless the significance of the evidence is obvious from
the record.” State v. Ray, 125 N.C. App. 721, 726, 482 S.E.2d 755,
758 (1997) (citations omitted). When the defendant assigns as
error the exclusion of testimony, but has not made an offer of
proof for the record of what the resulting testimony would be, this
Court “cannot assess the significance of the evidence sought to be
elicited[.]” Id., 482 S.E.2d at 758-59. Holly’s answer to the
question is not readily apparent from the context within which the
question was asked. N.C. Gen. Stat. § 8C-1, Rule 103(a)(2). We
will not speculate as to what Holly’s answer might have been. See
State v. Barton, 335 N.C. 741, 749, 441 S.E.2d 306, 310-11 (1994).
This argument is without merit.

D. Rule 404(b): Evidence of Prior Bad Acts

In her fourth argument, defendant contends that the trial
court erred by allowing evidence of her prior bad acts. We
disagree. Ms. Rush testified to a previous incident in which, after
agreeing to loan defendant $60, she allowed defendant to assist her
with an automated withdrawal of $120, where defendant instead
withdrew approximately $320. Outside the presence of the jury, the
State proffered defendant’s arrest warrant and plea transcript from
that incident, arguing that, under Rule 404(b), the evidence was
relevant to the financial card fraud charges to show motive,
intent, knowledge, plan, absence of mistake, and identity.
Defendant at first objected but then conceded that the evidence was
within the ambit of 404(b) as long as a limiting instruction was
provided.
When the State offered the warrant and transcript into
evidence, defendant made no objection. At defendant’s request, the
court gave a limiting instruction prior to publication of the items
to the jury. Defendant did not object to the introduction of the
mug shot from her arrest for the instant charges. Nor did
defendant object to the trial court’s limiting instructions. We
review this argument on a “plain error” basis. Cummings, 352 N.C.
at 636, 535 S.E.2d at 61.
Defendant now contends that the limiting instruction regarding
Ms. Rush’s testimony was factually incorrect and damaging to her.
In relevant part, the court instructed the jury:
“[Y]ou just heard Ms. Rush testify and
evidence has been received tending to show
that at an earlier time the defendant… well
made an unauthorized transaction with Ms.
Rush’s credit card without her approval in
exceeding what she told her to draw out, and
this evidence was received specifically with
reference to the four charges of financialtransaction card fraud that I have previously
told you about that occurred on or about the
10^th day of April, 2006[.]

Defendant now claims that this instruction was unduly prejudicial
because it erroneously instructed the jury that “Ms. Cousar had
previously stolen money from Ms. Rush by trick using the victim’s
credit card.” We note that defendant pled guilty to obtaining
property by false pretenses in the earlier case. In the instant
case, defendant admitted to attempted use of Rush’s card and there
was video evidence tending to show that she used the card. The
evidence of defendant’s prior conduct was admissible under N.C. R.
Evid. 404(b) to prove motive, intent, knowledge, and absence of
mistake, and we cannot say that its admission or the limiting
instructions were erroneous or influenced the jury such that,
without them, a different verdict would have been reached.
This argument is without merit.

E. Sentencing Challenge

In her fifth argument, defendant contends that the imposition
of consecutive probationary sentences was reversible error. We
disagree.
Defendant argues that the trial court imposed two consecutive
terms of probation upon defendant, citing to State v. Canady, 153
N.C. App. 455, 570 S.E.2d 262 (2002). The State concedes that
defendant is correct. Neither defendant nor the State are correct
in their analysis. We hold that Canady is not controlling in this
matter. The trial court imposed consecutive active sentences for the
first degree burglary (case 06 CRS 54052-51) and the second degree
kidnapping (case 06 CRS 54052-53) convictions. The trial court
then entered judgment on the felonious larceny conviction (case 06
CRS 54052-52). The sentence in the larceny conviction was to run
at the expiration of the kidnapping sentence. This sentence was
suspended and defendant was placed on probation for 36 months, with
the probation to commence upon defendant’s release from
incarceration on the kidnapping convictions. A fourth judgment was
entered upon the convictions for financial card theft and financial
card fraud (case 06 CRS 54050-51). This sentence was to run at the
expiration of the felonious larceny conviction. The judgment
provided that the defendant was placed on probation for 36 months,
and the court ordered compliance with the conditions of probation
set forth in the felonious larceny judgment.
While the two probationary sentences were ordered to run
consecutively, the two probationary judgments are devoid of any
language that would suggest that the defendant was to have two
consecutive terms of 36 months probation. In the absence of any
specific language, the provisions of N.C. Gen. Stat. § 15A-1346
control and the period of probation “[i]f not specified, . . . runs
concurrently.” N.C. Gen. Stat. § 15A-1346 (2007). Our holding in
Canady dealt only with consecutive periods of probation, not
consecutive sentences that were suspended. This argument is
without merit.

F. Remaining Assignments of Error

Finally, defendant preserves an argument that she received
ineffective assistance of counsel in that her attorney failed to
request recordation of jury selection, opening statements, and
closing arguments. Because she acknowledges that she cannot
satisfy the “prejudice” prong of the Strickland test, we do not
reach the merits of this claim. Strickland v. Washington, 466 U.S.
668, 80 L. E. 2d 674 (1984) (requiring defendant to show that
counsel’s performance was so seriously deficient that her Sixth
Amendment rights were compromised and that the alleged deficiency
prejudiced the defense to a degree that there is a reasonable
probability that but for counsel’s errors, the result of the
proceedings would have been different); see also State v. Verrier,
173 N.C. App. 123, 129-30, 617 S.E.2d 675, 679-80 (2005) (holding
that, while “appellate counsel may be at a disadvantage when
preparing an appeal for a case in which he did not participate at
the trial level, . . . It is outside the realm of this Court’s
function as the judiciary to modify statutory law.”)
The remaining assignments of errors asserted in the record on
appeal, but not argued in defendant’s brief, are deemed abandoned.
N.C. R. App. P. 28(b)(6) (2007).
NO ERROR.
Judges McCULLOUGH and GEER concur.

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