An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-16
                         NORTH CAROLINA COURT OF APPEALS

                                Filed: 21 October 2014


STATE OF NORTH CAROLINA

      v.                                            New Hanover County
                                                    No. 10CRS055472-74
                                                        11CRS10750
NEIL STANLEY PAGE, JR.



      Appeal by Defendant from judgments entered 23 May 2013 by

Judge   Claire      V.   Hill    in       New    Hanover     County    Superior    Court.

Heard in the Court of Appeals 13 August 2014.


      Attorney General Roy A. Cooper, III, by Special Deputy
      Attorney General Grady L. Balentine, Jr., for the State.

      McCotter Ashton, P.A., by Kirby H. Smith, III, and Rudolph
      A. Ashton, III, for the Defendant.


      DILLON, Judge.


      Neil     Stanley      Page,          Jr.     (“Defendant”),        appeals     from

judgments     entered upon a jury verdict finding him guilty of

robbery      with    a    dangerous         weapon;        felonious     breaking     and

entering;     assault      with       a    deadly     weapon     inflicting       serious

injury; first-degree kidnapping; and second-degree kidnapping.

                                      I.        Background
                                     -2-
      The evidence at trial tended to establish the following

facts: On 26 May 2010, Defendant went to the home of Tracy Moore

and asked her whether any of the cars in her yard were for sale.

Ms. Moore replied that they were not.

      The following day, Ms. Moore was upstairs in her home with

her newborn grandchild and with the baby’s mother, referred to

herein as Ms. Allen, when she heard a loud noise downstairs.

Ms. Moore went downstairs to investigate and discovered three

men at her door.         One of the intruders pointed a gun at Ms.

Moore and demanded money, asking her where her safe was located.

He dragged her into her den and attempted to tie her up with a

telephone     cord.      He   pistol-whipped       her    in   the    face    and

threatened to kill her as he continued demanding that she tell

him where her money was hidden.            Eventually, this intruder told

Ms. Moore that if she did not tell him where she kept her money,

one   of   the   other   intruders   would    go   upstairs     and   take    her

grandchild.       Ms.    Moore   finally    relented     and   told    him    the

location of a small safe, which contained approximately $700.

      Overhearing the commotion, Ms. Allen shut herself in an

upstairs bathroom and dialed 911.            One of the other intruders

noticed    Ms.   Allen’s   presence,   kicked      in    the   bathroom      door,
                                              -3-
pulled     Ms.    Allen’s      shirt         over     her    face,      and    dragged      her

downstairs to the den.

     Ms.     Moore      told     one    of     the     investigating          officers      who

arrived     at    her     home     shortly          after    the     break-in       that    she

recognized       the    intruder       who    struck        her    as   the   man    who    had

inquired about the car for sale the day before.                               However, the

officer was unable to complete his interview with Ms. Moore at

that time as Ms. Moore was experiencing pain from her injuries.

A friend took her to a nearby hospital for treatment.                                      As a

result of the attack, Ms. Moore suffered bruising, a swollen

head, a broken toe, and an injury to her right eye.

     Later, Ms. Moore was shown a photo line-up which included a

picture of Defendant, but she failed to identify Defendant as

one of the intruders.                  However, at trial, during her direct

examination       by    the      State,       Ms.     Moore       positively     identified

Defendant as one of the intruders.                          Ms. Allen, on the other

hand, failed to identify Defendant at either the photo line-up

or in court.

     At trial, the jury found Defendant guilty of robbery with a

dangerous weapon; felonious breaking and entering; assault with

a   deadly       weapon       inflicting            serious       injury;      first-degree

kidnapping; and second-degree kidnapping.                          Defendant admitted to
                                         -4-
his status as a habitual felon.                The trial court entered two

judgments.       First, the trial court consolidated the robbery,

breaking   and     entering,     and     kidnapping     charges        and   sentenced

Defendant to prison for 110 months to 141 months.                        Second, the

trial   court     entered   a    separate      judgment      on   the     charge    for

assault    with     a   deadly     weapon      inflicting         serious     injury,

sentencing Defendant to prison for 110 months to 141 months.

The trial court ordered that the sentences run consecutively.

Defendant noted his appeal in open court.

                                   II.    Analysis

       Defendant    makes   five       arguments       on    appeal.         We     have

carefully reviewed each argument; and, for the reasons stated

below, we find no reversible error.

                                  A. Fair Trial

       Defendant    first   contends       that   one       of   the    jurors     slept

during portions of the trial, depriving him of his right to a

fair    trial     and   verdict    rendered       by    twelve         impartial    and

competent jurors.       We disagree.

       The record reveals that the trial judge noticed that one of

the jurors appeared fatigued during a morning session of the

trial and alerted counsel to this fact after the jury had left

the courtroom for a morning recess.               The judge asked counsel for
                                              -5-
recommendations          on    how       to   proceed.             Defendant’s    counsel

requested       that    the    judge      address      the    issue    with   the      juror

privately during the lunch break.                     During the lunch break, the

judge assured Defendant’s counsel that she had been monitoring

the situation and that the juror had been more attentive after

the morning recess.           The judge then met with the juror privately

and stressed the importance of being alert and attentive.                               Once

the judge was satisfied that the juror understood, the other

jurors were called back into the courtroom for the afternoon

session.        Defendant’s counsel never suggested that the juror’s

conduct        prejudiced      Defendant        and     the    record     contains        no

indication to the contrary.

       Our holding in State v. Williams, 33 N.C. App. 397, 235

S.E.2d 86, disc. review denied, 293 N.C. 258, 237 S.E.2d 540

(1977), is instructive.                In Williams, the trial judge noticed

that     one     of    the    jurors      had       fallen    asleep     during     cross-

examination.          Id. at 398, 237 S.E.2d at 87.                 The judge asked the

jurors to stand and told them that they were not allowed to

sleep.     Id.        We observed that the defendant’s counsel proceeded

with cross-examination “without so much as suggesting to the

court     that     there      was    a    possibility         of    prejudice     to     the

defendant.”       Id.     We held that the trial court did not abuse its
                                                 -6-
discretion in failing to declare a mistrial where there was

neither     a     suggestion          by    counsel           that     the     defendant         was

prejudiced nor any indication in the record otherwise.                                   Id.

       In   the    present        case,         like     in    Williams,           there    is    no

indication        in     the     record          that    Defendant           was     prejudiced.

Furthermore, unlike in Williams, there is nothing in the record

in the present case              indicating that the juror actually fell

asleep during any portion of the proceedings.                               Accordingly, this

argument is overruled.

                              B. In-Court Identification

       Defendant        next     asserts         that    the        trial    court       erred    in

allowing Ms. Moore’s in-court identification of him as one of

the    intruders        when     she       had    previously          failed        to     identify

Defendant from the photo line-up.                       Defendant failed to object to

Ms.    Moore’s     in-court        identification              at    trial.          Unpreserved

issues related to the trial court’s rulings on the admissibility

of    evidence     are        subject      to    plain    error        review.           State    v.

Gregory,    342        N.C.    580,     584,     467    S.E.2d        28,    31    (1996).        To

establish       plain          error,       Defendant          bears         the     burden       of

demonstrating that a different result probably would have been

reached but for the error.                       State v. Lawrence, 365 N.C. 506,

518, 723 S.E.2d 326, 334 (2012).
                                   -7-
    Generally,    a    witness   is     allowed   to   make   an    in-court

identification of a defendant; and any uncertainty goes to the

weight of the testimony rather than its admissibility.              State v.

Billups, 301 N.C. 607, 615-16, 272 S.E.2d 842, 849 (1981).                In

evaluating the credibility of a witness, a jury may consider the

witness’s prior inconsistent statements.             See, e.g., State v.

Lynn, 157 N.C. App. 217, 225, 578 S.E.2d 628, 634 (2003).                The

final    credibility      determination     nevertheless      remains    the

responsibility of the jury.      State v. Legins, 184 N.C. App. 156,

159, 645 S.E.2d 835, 837 (2007), aff’d per curiam, 362 N.C. 83,

653 S.E.2d 144 (2007).

    In    his    brief,     Defendant     contends     that   Ms.    Moore’s

identification was based on “information subsequently                learned

from law enforcement officers and prosecutors during the course

of the investigation and prosecution of [the] case” rather than

her own personal knowledge.           Defendant’s theory was advanced

vigorously by his counsel at trial.          We believe, however, that

Ms. Moore’s inability to identify Defendant from the photo line-

up went to the weight and not to admissibility, see Billups, 301

N.C. at 616, 272 S.E.2d at 849, and that it was the jury’s

responsibility to evaluate the credibility of her testimony.
                                         -8-
       Defendant cites the Eyewitness Identification Reform Act as

the basis for finding that it was plain error for the trial

court to allow Ms. Moore’s in-court identification.                         See N.C.

Gen.    Stat.     §    15A-284.50,     et      seq.   (2010).         Specifically,

Defendant cites to the portion of the Act which requires that if

a   witness     identifies    a    suspect      in    a    line-up,   the    line-up

administrator “shall seek and document a clear statement from

the eyewitness, at the time of the identification and in the

eyewitness’s own words, as to the eyewitness’s confidence level

that    the     person    identified     in     the       given   line-up    is    the

perpetrator.”         Id. § 15A-284.52(b)(12).            In citing this statute,

Defendant complains in his brief that the line-up administrator

did not testify at trial, nor was any statement from Ms. Morgan

offered   “indicating       that   she      identified      [Defendant]     in    this

line-up as one of her attackers.”                Defendant’s reliance on this

statute is misplaced.          The record shows that Ms. Moore did not

positively identify Defendant from the photo line-up.                       Further,

the State relied upon Ms. Moore’s in-court identification of

Defendant.

       Defendant has failed to demonstrate error; and, therefore,

this argument is overruled.

                      C. Guilty Pleas and Plea Arrangements
                                              -9-
       Defendant next asserts it was plain error for the trial

court     to    allow       testimony        regarding          guilty     pleas       and       plea

arrangements from Defendant’s accomplices.

       Our courts have long recognized “[t]he ‘clear rule’ [] that

evidence       of     convictions,          guilty       pleas,     and        pleas    of       nolo

contendere          of    non-testifying           co-defendants          is         inadmissible

unless introduced for a legitimate purpose, i.e., used for a

purpose other than evidence of the guilt of the defendant on

trial.”        State v. Batchelor, 157 N.C. App. 421, 430, 579 S.E.2d

422, 429, disc. review denied, 357 N.C. 462, 586 S.E.2d 101

(2003).        Our Supreme Court has explained that the rationale for

this    rule    is       twofold:      First,       “a     defendant’s         guilt        must   be

determined solely on the basis of the evidence presented against

him;” and second, “the introduction of such a plea by a co-

defendant,       when      he   or   she     has     not    testified          at    defendant's

trial, would also deprive the defendant of his constitutional

right     of     confrontation         and     cross-examination.”                     State       v.

Rothwell,       308      N.C.   782,   785-86,        303       S.E.2d    798,        801    (1983)

(emphasis in original).                However, “if evidence of a testifying

co-defendant’s            guilty     plea     is     introduced          for     a     legitimate

purpose, it is proper to admit it.”                        Id. at 786, 303 S.E.2d at

801.      Furthermore,          “[a]   defendant           is    not   prejudiced           by     the
                                -10-
granting of relief which he has sought or by error resulting

from his own conduct.”    N.C. Gen. Stat. § 15A-1443(c) (2010).   A

defendant thus cannot complain of error he invites.      State v.

Rivers, 324 N.C. 573, 575-76, 380 S.E.2d 359, 360 (1989).

    In the present case, it was counsel for Defendant rather

than the prosecutor who initially brought out the guilty pleas

of the accomplices.      Specifically, the following colloquy took

place between counsel for Defendant and Ms. Moore during cross-

examination:

         Q. Then at some point you actually spoke to
         the District Attorney?

         A. Yes.

         Q. And you did that a few times, didn’t you?

         A. Uh-huh.

         Q. You had to do it on at least one occasion
         when Aaron Spicer pled guilty to this
         charge, didn’t you?

         A. Yes.

         Q. You did it again when E. J. Dukes pled
         out, Ernest Dukes, didn’t you, ma’am?

         A. Yes.

         Q. You did it again when they were arranging
         the plea agreement for Mr. Chambers, didn’t
         you, ma’am?

         A. Yes, I did.
                                       -11-
Despite    the     fact   that       Defendant’s       counsel        elicited    this

testimony, Defendant        now alleges it was plain error for the

trial court not to rule on its own motion to exclude it.

    In Rivers, the defendant similarly argued that the trial

court committed plain error by not ruling on its own motion that

hearsay    testimony      elicited     by     the    defendant’s        counsel    was

inadmissible.      Id. at 575-76, 380 S.E.2d at 360.                   The defendant

neither objected to the testimony nor moved to strike it at

trial; and our Supreme Court held that the trial court had not

erred,    observing    that    the    defendant      could      not    “invalidate   a

trial by . . . eliciting evidence on cross-examination which he

might have rightfully excluded if the same evidence had been

offered by the State.”         Id. at 576, 380 S.E.2d at 360.

    Just as in Rivers, in the present case we conclude that the

trial court did not commit plain error in not ruling on its own

motion that this excludable evidence elicited by the defense was

inadmissible.

                              D. Jury Instructions

    Defendant next argues that the following portion of the

trial    court’s    instruction       to    the     jury   on    the    first-degree

kidnapping charge was erroneous:

            For you to find the defendant guilty . . . ,
            the State must prove five things beyond a
                                             -12-
             reasonable doubt.

             . . .

             Third, that the defendant confined, . . . or
             removed that person for the purpose of
             facilitating his commission of robbery or
             breaking and entering or terrorizing that
             person or another person. Terrorizing means
             more than just putting another in fear.   It
             means putting that person in some high
             degree of fear, a state of intense fright or
             apprehension.

Defendant contends that this instruction was erroneous in two

respects.

      First, Defendant contends that there was no evidence that

he   intended          to    terrorize     Ms.    Moore.         We    are    unpersuaded.

Rather, we believe that there was sufficient evidence from which

a    jury    could          reasonably     find        that   Defendant       intended    to

terrorize Ms. Moore.                 For instance, there was evidence which

tended      to        show    that    Defendant         pistol-whipped        Ms.   Moore,

attempted        to    tie    her    up   with    a    telephone      cord,   dragged    her

through     the       house,    threatened        to    kidnap   her    grandchild,      and

threatened to kill her.

      Second, Defendant contends that the instruction puts “the

focus on the issue of terrorizing on the [victim’s perception],

and not the Defendant[’s intent].”                       Again, we are unpersuaded.

Though the instruction does define terrorizing as “putting a
                                -13-
person in some high degree of fear[,]” the instruction does not

provide that the jury need find that Ms. Moore was put in a high

degree of fear but rather that Defendant acted “for the purpose

of” putting Ms. Moore in some high degree of fear.       Furthermore,

this Court has approved a jury instruction containing a nearly

identical definition of “terrorizing” in State v. Bonilla, 209

N.C. App. 576, 585, 706 S.E.2d 288, 295 (2011).          Accordingly,

this contention is overruled.

                        E. Double Jeopardy

    In   Defendant’s   final    argument,    he   contends   that   his

conviction for both first-degree kidnapping and assault with a

deadly   weapon   inflicting     serious      injury   violates     the

constitutional guarantee against double jeopardy.       Specifically,

he asserts his consecutive sentences for both offenses qualify

as double punishment for a single crime because liability for

each offense was predicated on the same serious injury, citing

State v. Freeland, 316 N.C. 13, 340 S.E.2d 35 (1986).

    In 1979, our Legislature amended our kidnapping statute,

dividing kidnapping into two degrees.       Freeland, 316 N.C. at 23,

340 S.E.2d at 40.      Under the statute, a person is guilty of

first-degree kidnapping if the person kidnapped “either was not

released by the defendant in a safe place or had been seriously
                                            -14-
injured or sexually assaulted[.]”                     N.C. Gen. Stat. § 14-39(b)

(2010).      In     Freeland,        our    Supreme     Court   held    that    where   a

defendant commits a single sexual assault during a kidnapping,

our Legislature did not intend for that defendant to be punished

“for both the first degree kidnapping and the underlying sexual

assault.”     Freeland, 316 N.C. at 23, 340 S.E.2d at 40-41.

      We    believe    Freeland       is     distinguishable      from    the   present

case.      Here, there was sufficient evidence from which the jury

could conclude that Ms. Moore suffered serious injury to support

Defendant’s       first-degree             kidnapping      conviction      which      was

separate     from      her     serious       injuries      supporting      Defendant’s

assault conviction.           Defendant’s assault conviction was based on

the   injuries      Ms.      Moore    suffered      from    being      pistol-whipped.

However, the evidence also showed that Defendant hit Ms. Moore

before he pistol-whipped her; that he threw Ms. Moore on the

floor;     that   he   dragged       Ms.    Moore     across    the    house   and   down

stairs; that he applied force to Ms. Moore’s back with his knee

while pinning her down on the floor; that he manhandled her;

that she suffered bruising and a broken toe; and that her body

was sore for over two weeks following the incident.                        Whether the

injuries suffered by Ms. Moore, apart from the injuries caused

by the pistol-whipping, were “serious” was a question of fact
                                     -15-
for the jury.      See, e.g., State v. Everhardt, 96 N.C. App. 1,

12, 384 S.E.2d 562, 569 (1989), aff’d, 326 N.C. 777, 392 S.E.2d

391   (1990).     Accordingly,   Defendant’s    argument    is   overruled.

See State v. Romero, 164 N.C. App. 169, 175, 595 S.E.2d 208, 212

(2004) (finding no error where the defendant was convicted of

both first-degree kidnapping and assault with a deadly weapon

inflicting serious injury).

                              III. Conclusion

      For   the   reasons   stated   above,   Defendant    has   failed   to

demonstrate reversible error.

      NO ERROR.

      Judge HUNTER, Robert C and Judge DAVIS concur.

      Report per Rule 30(e).
