An unpublished opinion of the North Carolina Court of Appeals does not constitute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

______________________________

STATE OF NORTH CAROLINA

      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.”).
