              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-560

                                Filed: 1 March 2016

Wake County, Nos. 13CRS200567, 13CRS200568, 13CRS200650, 13CRS000789,
13CRS000791, 13CRS000794, 13CRS000795

STATE OF NORTH CAROLINA

             v.

JAHAAD TARIEM MARSHALL, Defendant.


      Appeal by defendant from judgments entered 28 March 2014 by Judge Henry

W. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 5

November 2015.


      Attorney General Roy Cooper, by Assistant Attorney General Mary Carla Babb,
      for the State.

      Assistant Appellate Defender Paul M. Green, for defendant.


      DIETZ, Judge.


      On 7 January 2013, Jahaad Marshall and his brother broke into a Raleigh

home, woke a husband and wife in their downstairs bedroom, and demanded money.

Marshall and his brother separated the couple as they rummaged through the house.

While Marshall stood at the top of the stairs, Marshall’s brother took the wife into a

room downstairs, forced her to remove her clothes, and then forced her to perform

oral sex on him.
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                                   Opinion of the Court



      Marshall’s brother then led the wife, still nearly naked, up the stairs, where

Marshall was waiting. As Marshall’s brother went back downstairs to check on the

husband, Marshall ran his hand over the wife’s breast and buttocks and said, “Nice.”

      At this point, the husband, who was being held in the downstairs bedroom,

realized his wife was in danger. He began fighting with Marshall and his brother,

both of whom were armed with handguns. His struggle with the two armed men

lasted long enough for his wife to escape and call for help, but he was shot in the back,

struck in the head, and left for dead as Marshall and his brother fled the scene.

      After a high-speed chase, police caught Marshall and his brother and recovered

numerous items stolen from the home, including the husband’s wallet and the wife’s

phone. A jury convicted Marshall of more than a dozen felonies, including attempted

murder, assault with intent to kill, burglary, and numerous attempted sex offenses.

The trial court sentenced Marshall to nearly 250 years in prison.

      Marshall raises two issues on appeal. First, during deliberations the jury

asked the trial court to explain “the legal definition of intent.” The State proposed

that the court read to the jury the pattern instruction on intent. Marshall proposed

a custom instruction that discussed specific intent, a standard applicable to some, but

not all, of the charges. The court chose to give the State’s instruction. Marshall

argues on appeal that the trial court erred by choosing the State’s instruction over




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his, and also by adding a sentence not requested by the State and not contained in

the pattern instruction.

       As explained below, the trial court’s decision to use the State’s requested

instruction was well within the court’s broad discretion and was not erroneous. With

respect to the sentence added by the trial court, Marshall did not object to that portion

of the instruction and did not argue plain error on appeal. Thus, we decline to review

the issue because it is unpreserved. We note, however, that in light of the substantial

evidence of guilt in this case, even if we were to review this issue for plain error, we

would fine none.

       Marshall also argues that there was insufficient evidence to convict him of both

attempted first-degree sex offense and attempted first-degree rape.            Marshall

contends that the evidence was only sufficient to permit the jury to infer the intent

to commit one of those offenses, not both.

       As explained below, we reject this argument. Marshall and his brother isolated

the victim from her husband and one said, “Maybe we should,” to which the other

responded, “Yeah.” Marshall’s brother then forced the victim to remove her clothes

and perform fellatio on him at gunpoint. Marshall later groped the victim’s breast

and buttocks and said, “Nice.” At this point, the victim’s husband, who had been

confined in another room, realized his wife was in danger and fought back to protect

her.



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                                   Opinion of the Court



      Under long-standing legal precedent discussed in more detail below, this

evidence is sufficient for a reasonable jury to infer that Marshall intended to engage

in a continuous sexual assault involving both fellatio (like his brother) and ultimately

rape, and that this continuous sexual assault was thwarted only because the victim’s

husband sacrificed himself so that his wife could escape. Accordingly, we reject

Marshall’s argument and find no error in his conviction and sentence.

                          Facts and Procedural History

      At approximately 3:00 a.m. on 7 January 2013, the victims in this case, a

husband and wife, awoke to find Jahaad Marshall and his brother standing at the

foot of their bed in their downstairs bedroom. Marshall and his brother, clad in ski-

masks, ordered the couple out of the bed and onto the floor. The two brothers were

armed with handguns and demanded money.

      After rummaging through the home, Marshall and his brother ordered the wife

into the hallway. Once they had isolated the wife from her husband, she overheard

one of the brothers say, “Maybe we should” and the other respond, “Yeah,” followed

by laughter. Marshall’s brother then led the wife to another room, forced her to

remove her clothes, and forced her to perform fellatio while he held a gun to the side

of her head. During this time, Marshall waited at the top of the stairs. Marshall’s

brother later pushed the wife toward the stairs where Marshall waited. When she




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                                  Opinion of the Court



reached the top of the stairs, Marshall, also holding a gun, grabbed her and ran his

hand over her breast and buttocks and said, “Nice.”

      As Marshall groped the wife near the stairs, Marshall’s brother went to the

downstairs bedroom where the husband was held.           The husband noticed that

Marshall’s brother was adjusting his pants and he yelled “Where’s my wife? Is my

wife ok?” The husband then began to struggle with Marshall’s brother in an effort to

escape and protect his wife. Marshall heard the struggle and joined the fight. This

provided the wife with an opportunity to escape, and she jumped over the side of the

stairs and ran out the front door. As she fled, she heard a gunshot.

      When police arrived, they found the husband on the floor severely wounded.

He had been shot in the spine, rendering him a paraplegic. He also suffered life-

threatening internal bleeding from a bullet that had lodged just centimeters from his

heart. He also sustained at least one severe blow to the head, a bruised lung, and a

broken finger that required surgery.

      A neighbor saw Marshall and his brother fleeing the scene and informed police.

After a high-speed chase, police caught Marshall and his brother when the two

wrecked their car. Police found the husband’s wallet, the wife’s iPhone, a black ski

mask, and other evidence tying the brothers to the crime.

      The State charged Marshall with numerous counts of burglary, kidnapping,

sex offense, attempted rape, attempted sex offense, armed robbery, assault,



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attempted murder, larceny, possession of stolen goods, and possession of a firearm by

a felon. Many of these charges relied on the theory that Marshall acted in concert

with his brother, whom the State alleged directly committed the acts. The case went

to trial and the jury found Marshall guilty of two counts of first-degree kidnapping,

assault with a deadly weapon with intent to kill inflicting serious injury, attempted

murder, two counts of armed robbery, first-degree sex offense, attempted first-degree

rape, attempted first-degree sex offense, and possession of a firearm by a convicted

felon. The trial court sentenced Marshall to a minimum of 2,975 months in prison.

Marshall appealed.1

                                              Analysis

    I.       Jury Instructions

         Marshall first argues that the trial court erred when it answered the jury’s

question about the meaning of “intent.” Specifically, Marshall argues that the trial

court should have read to the jury the response that Marshall proposed and that the

response the court actually provided was erroneous. As explained below, we reject

Marshall’s arguments.




         1After pronouncing its sentence, the trial court stated that Marshall “objects and gives notice
to the North Carolina Court of Appeals,” but it is not clear from the record that Marshall in fact stated
verbally, on the record, that he appealed. Marshall filed a petition for writ of certiorari in the event
that his notice of appeal was inadequate. To ensure that this Court has appellate jurisdiction to
address the merits of the case, we allow the petition for writ of certiorari.

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                                   Opinion of the Court



      We first address Marshall’s argument that the trial court erred by failing to

give his requested instruction on specific intent. Section 15A-1234 of the General

Statutes permits the judge “to give appropriate additional instruction to . . . [r]espond

to an inquiry of the jury made in open court.” N.C. Gen. Stat. § 15A-1234(a)(1).

Importantly, the trial court is not required to respond to a jury’s questions during

deliberations and, if it chooses to do so, the court’s choice of whether to use counsel’s

requested response is “a matter within its discretion and will not be overturned

absent a showing of abuse of discretion.” State v. Herring, 322 N.C. 733, 742, 370

S.E.2d 363, 369 (1988).

      Here, the jury asked the court for an explanation of “the legal definition of

intent.” The State requested that the court respond by providing the pattern jury

instruction on intent:

          Intent is a mental attitude seldom provable by direct evidence. It
          must ordinarily be proved by circumstances from which it may be
          inferred. You arrive at the intent of a person by such just and
          reasonable deductions from the circumstances proven as a
          reasonably prudent person would ordinarily draw therefrom.

N.C.P.I. -Crim. 120. 10.

      Notably, this pattern jury instruction also includes a footnote setting out

additional, optional instructions relating to specific intent and general intent. Id. In

this case, the State charged Marshall with multiple offenses that included both

specific intent and general intent crimes.



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                                   Opinion of the Court



      Marshall asked the court to read a special, prepared instruction that did not

include the pattern jury instruction language for intent but included language from

the footnote in the pattern instruction concerning specific intent. Marshall’s proposed

instruction also referenced the crimes with which Marshall was charged that

required specific intent, but not the other crimes with which Marshall was charged

that required only general intent. This is Marshall’s full proposed supplemental

instruction:

          Attempted Murder and Assault with a Deadly Weapon with
          Intent to Kill Inflicting Serious Injury are specific intent crimes.
          Specific Intent is a mental purpose, aim or design to accomplish
          a specific harm or result. If you do not find beyond a reasonable
          doubt that Jahaad Marshall acted with a specific intent to kill
          John Smith, then it would be your duty to return a verdict of not
          guilty on these charges.

Marshall’s proposed instruction appeared to assume that the jury’s intent question

only related to the specific intent crimes, although the jury did not say that.

      The State objected to the use of Marshall’s proposed instruction on the ground

that it was too specific and did not answer the question the jury actually asked. After

hearing from the parties, the trial court chose to answer the jury’s question using the

pattern jury instruction on intent requested by the State, rather than Marshall’s

proposed instruction.

      That decision was not an abuse of discretion. As noted above, a trial court is

not required to adopt the precise language requested by either party, even if that



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                                  Opinion of the Court



language is a correct statement of the law. Herring, 322 N.C. at 742, 370 S.E.2d at

369. And here, the instruction requested by Marshall addressed only two of the many

offenses with which Marshall was charged and, by referencing specific intent but not

general intent, risked confusing the jury. Thus, we hold that the trial court did not

abuse its discretion in declining to use Marshall’s requested instruction.

      Marshall next argues that the trial court deviated from the pattern jury

instruction on intent by adding an additional sentence stating that “[i]ntent is what

a person reasonably expects or wants to occur.” As explained below, this issue is not

preserved for review.

      It is well-settled that when the trial court proposes its own jury instruction

during a charge conference—particularly when that instruction was not requested by

either party—a party who wishes to challenge that newly added instruction must

object and state distinctly which portion of the instruction is objectionable and why.

See N.C. R. App. P. 10(a)(2); State v. Roache, 358 N.C. 243, 305, 595 S.E.2d 381, 420-

21 (2004), State v. Carver, 221 N.C. App. 120, 124, 725 S.E.2d 902, 905 (2012) aff'd,

366 N.C. 372, 736 S.E.2d 172 (2013) (per curiam).

      Here, both Marshall and the State submitted proposed instructions to be given

in response to the jury’s question. The court chose the pattern jury instruction

requested by the State, but then added its own final sentence that neither party




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requested. The transcript of this conference, out of the jury’s presence, demonstrates

that the parties knew the court added that final, unrequested sentence:

          THE COURT: Well, I’m considering giving the jury, without
          instruction, that intent is a mental attitude seldom proved by
          direct evidence. It must ordinarily be proved by circumstances by
          which it may be inferred. You arrive at the intent of a person by
          such just and reasonable deductions from the circumstances
          proven as a reasonably prudent person would ordinarily draw
          therefrom. Intent is what a person reasonably expects or wants to
          occur. How says the State?

          MR. ZELLINGER: Your Honor, could you read that last sentence
          again?

          THE COURT: Intent is what a person reasonably expects or wants
          to occur.

          MR. ZELLINGER: State’s satisfied.

          THE COURT: How says the defendant?

          MR. THOMAS: Your Honor, we would request an instruction for
          that specific intent, but we don't need to be heard any further.

      Marshall’s request that the court use his specific intent instruction is

insufficient to preserve an objection to the newly added language from the trial court.

The court already had heard from the parties and decided to provide the pattern jury

instruction requested by the State, rather than the custom specific intent instruction

submitted by Marshall. Now, the court proposed adding a new sentence not contained

in the pattern jury instruction.     To preserve an objection to that newly added

sentence, which departed from the pattern instruction, Marshall needed to



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specifically object to that sentence and tell the trial court why it was improper. See

State v. Tirado, 358 N.C. 551, 574, 599 S.E.2d 515, 531 (2004); State v. Ballard, 193

N.C. App. 551, 554, 668 S.E.2d 78, 80 (2008).

      If we were to hold that simply requesting that the court provide Marshall’s

desired instruction—which is what Marshall did—was sufficient to preserve an

objection to this newly added sentence, it would undermine the purpose of requiring

parties to state distinctly what portion of the jury instruction is objectionable and

why. See N.C. R. App. P. 10(a)(2); State v. Oliphant, 228 N.C. App. 692, 696, 747

S.E.2d 117, 121 (2013) (Rule 10(a)(2)’s purpose is to encourage parties to inform the

trial court of instructional errors so that it can correct them before the jury

deliberates, thereby eliminating the need for a new trial.).

      The parties already had debated which of their two proposed instructions was

appropriate—the State’s pattern jury instruction on intent, or Marshall’s custom

instruction on specific intent. The court chose the State’s pattern jury instruction.

When the trial court added its new sentence, not contained in the pattern instruction,

and asked the parties if there were any objections, Marshall stated only “Your Honor,

we would request an instruction for that specific intent, but we don't need to be heard

any further.” This fails to inform the trial court that Marshall found the newly added

sentence to be erroneous. Accordingly, we hold that Marshall did not preserve his

argument concerning the sentence added by the trial court.



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         If an instructional error is not preserved below, it nevertheless may be

reviewed for plain error when that error “is specifically and distinctly contended to

amount to plain error” in the appellant’s brief. N.C. R. App. P. 10(a)(4); State v.

Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). But Marshall does not argue

plain error in his brief. In very rare circumstances, typically involving capital cases,

our state’s appellate courts have invoked Rule 2 of the Rules of Appellate Procedure

to suspend the requirements of Rule 10 and review an argument under plain error

analysis even where the appellant did not request that we do so. See Gregory, 342

N.C. at 584-85, 467 S.E.2d at 31-32.

         Our Supreme Court recently reiterated that a finding of plain error should be

“applied cautiously and only in the exceptional case” where the error “seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.” State v.

Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333 (2012). Here, in light of the

substantial evidence supporting each of Marshall’s convictions, we would not find

that the trial court’s alleged error rose to the level of plain error. Accordingly, we

decline to invoke Rule 2 and hold that this issue is not preserved for appellate review.

   II.      Sufficiency of the Evidence

         Marshall next argues that the trial court should have granted his motion to

dismiss the charge of attempted first-degree sexual offense for insufficient evidence.

Specifically, Marshall argues that there was insufficient evidence for the jury to infer



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that he intended to force the victim to perform fellatio, the sexual act upon which the

jury was instructed for that offense. As explained below, we reject this argument and

find that there was sufficient evidence to support the jury’s verdict.

      “In reviewing a motion to dismiss based on the sufficiency of the evidence, the

scope of the court’s review is to determine whether there is substantial evidence of

each element of the charged offense.” State v. Hardison, ___ N.C. App. ___, 779 S.E.2d

505, 507 (2015). Substantial evidence is “relevant evidence that a reasonable mind

might accept as adequate to support a conclusion.” Id.         The evidence must be

considered in the light most favorable to the State and the State is entitled to every

reasonable inference that might be drawn therefrom. Id.

      Here, there was sufficient evidence for the jury to infer Marshall’s intent to

compel the victim to perform fellatio. The evidence showed that, after Marshall

separated the victim from her husband, the victim overheard Marshall or his brother

say, “Maybe we should,” and the other respond, “Yeah.” Shortly after, Marshall’s

brother forced the victim to remove her clothes and then forced her to perform fellatio

on him at gunpoint.

      Marshall’s brother then pushed the victim toward the stairs where Marshall

was waiting. When she reached the top of the stairs, Marshall, also armed with a

gun, grabbed the victim, ran his hand over her breast and buttocks, and said, “Nice.”

This evidence, taken together and viewed in the light most favorable to the State, is



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                                   Opinion of the Court



sufficient for a reasonable jury to infer that, had the victim’s husband not fought back

in an effort to protect his wife, Marshall would have forced the victim to perform

fellatio, as his brother previously had done.

       Marshall also argues that there was insufficient evidence to infer that he

intended to commit both first-degree rape and first-degree sex offense. We disagree.

In State v. Hall, a case repeatedly cited by both parties, this Court noted that

“sexually motivated assaults may give rise to an inference that defendant intended

to rape his victim notwithstanding that other inferences also are possible.” 85 N.C.

App. 447, 452, 355 S.E.2d 250, 253-54 (1987). The Court then summarized a number

of previous decisions, including the Supreme Court’s decision in State v. Whitaker,

316 N.C. 515, 342 S.E.2d 514 (1986). In Whitaker, the assailant told the victim “I

want to eat you”—a slang phrase often used to describe cunnilingus—and instructed

the victim to pull her pants down, at which point the victim resisted and ultimately

escaped. Id. at 517, 342 S.E.2d at 516. The Supreme Court held there was sufficient

evidence to infer intent to commit rape from that conduct. Id. at 519; 342 S.E.2d at

517.

       We see nothing in Whitaker that suggests the State in that case could not also

have charged the defendant with attempted first-degree sex offense based on the

defendant’s intent to commit cunnilingus, as evidenced from the statement “I want

to eat you.” As the Supreme Court observed in Whitaker, juries can infer that a



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defendant intends to engage in “continuous” sexual assaults that involve rape as well

as other sex offenses. 316 N.C. at 520, 342 S.E.2d at 518.

      When viewed in the light most favorable to the State, the particular facts in

this case support that inference. Marshall and his brother isolated the victim from

her husband and one said, “Maybe we should,” to which the other responded, “Yeah.”

Marshall’s brother then forced the victim to remove her clothes and perform fellatio

on him at gunpoint. Marshall later groped the victim’s breast and buttocks and said,

“Nice.” At this point, the victim’s husband, who had been confined in another room,

discovered that his wife was in danger and fought back to protect her.        Under

Whitaker and Hall, this evidence is sufficient for a reasonable jury to infer that

Marshall intended to engage in a continuous sexual assault involving both fellatio

(like his brother) and ultimately rape, and that this continuous sexual assault was

prevented only because the victim’s husband intervened and saved her from these

crimes. Accordingly, we reject Marshall’s argument.

                                    Conclusion

      We find no error in the trial court’s judgments.

      NO ERROR.

      Judges MCCULLOUGH and TYSON concur.




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