State v. Barnett, 245 N.C. App. 101 (Jan. 19, 2016)

rev’d on other grounds, 369 N.C. 298 (Dec. 21, 2016)

(1) The evidence was sufficient to support a conviction for deterring an appearance by a witness under G.S. 14-226(a). After the defendant was arrested and charged with assaulting, kidnapping, and raping the victim, he began sending her threatening letters from jail. The court concluded that the jury could reasonably have interpreted the letters as containing threats of bodily harm or death against the victim while she was acting as a witness for the prosecution. The court rejected the defendant’s contention that the state was required to prove the specific court proceeding that he attempted to deter the victim from attending, simply because the case number was listed in the indictment. The specific case number identified in the indictment “is not necessary to support an essential element of the crime” and “is merely surplusage.” In the course of its ruling, the court noted that the victim did not receive certain letters was irrelevant because the crime “may be shown by actual intimidation or attempts at intimidation.” (2) The trial court did not commit plain error in its jury instructions on the charges of deterring a witness. Although the trial court fully instructed the jury as to the elements of the offense, in its final mandate it omitted the language that the defendant must have acted “by threats.” The court found that in light of the trial court’s thorough instructions on the elements of the charges, the defendant’s argument was without merit. Nor did the trial court commit plain error by declining to reiterate the entire instruction for each of the two separate charges of deterring a witness and instead informing the jury that the law was the same for both counts.