State of North Carolina v. Jaquale Markece Burnette (COA25-837) is an unpublished opinion of the North Carolina Court of Appeals from a case out of Alamance County. This case is interesting because Mr. Burnette was convicted of second-degree kidnapping among other things, however, he appealed based on the jury instruction that the trial court gave for first-degree kidnapping.
Mr. Burnette and the victim were in a relationship. In December of 2023, while they were showering together, Mr. Burnette punched the victim in her face. Later, the victim was talking on the telephone with her cousin when Mr. Burnette grabbed her and told her that he was taking her to Burlington, North Carolina. As victim was gathering and packing her belongings, Mr. Burnette was hitting her and yelling at her. The cousin became concerned and requested law enforcement conduct a wellness check. By the time law enforcement arrived, Mr. Burnette and the victim had already left.
On their way to Burlington, Mr. Burnette received a phone call informing him that law enforcement had been looking for them. Mr. Burnette then exited off the highway and stopped at the dead end of a dirt road. The victim did not give Mr. Burnette consent to take her anywhere but Burlington. Mr. Burnette told the victim to get out of the car. As the victim was gathering her belongings, Mr. Burnette put her in a chokehold and starting hitting her in her face. Mr. Burnette then took the victim out of the car, shoved her face into a mud puddle, and told her to die and give up. He jumped on her back several times using both of his knees to put her face into the mud. He pulled her by her hair and began punching her again. He finally stopped when she told him that she did not want to leave her children. Mr. Burnette drove them back to his house. The victim sustained an injured hip, a ripped ear, black eyes, and lesions on the back of her head.
In October of 2024, Mr. Burnette was indicted by a grand jury for first-degree kidnapping, assault on a female, misdemeanor crime of domestic violence, and communicating threats. The jury trial took place in January of 2025. Mr. Burnette was found guilty of second-degree kidnapping, assault on a female, domestic violence, and communicating threats. Judgment was imposed on all but the assault on a female. Judgment was arrested on the assault on a female charge. Mr. Burnette gave notice of appeal.
Mr. Burnette did not object to the jury instructions during the trial. On appeal, Mr. Burnette requested that the appellate Court review the trial court’s jury instruction on first-degree kidnapping for plain error. It was Mr. Burnette’s contention that the trial court should have instructed the jury that it needed to find that he “restrained or removed” the victim separate and apart from the restraint In the assault on a female or domestic violence charges.
North Carolina appellate Courts have determined that plain should be applied cautiously and only in exceptional cases. Plain error is to be found where a grave error has occurred which amounts to a denial of a fundamental right of a defendant. Plain error is found where there has been a miscarriage of justice or a defendant has been denied a fair trial.
Here the Court looked at the elements of the kidnapping statute drawing particular attention to the distinctions between first and second degree kidnapping. First-degree kidnapping requires that : “…the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted…” Whereas in second-degree kidnapping: “…the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted…” The jury in Mr. Burnette’s case was given an instruction for second-degree kidnapping.
The appellate Court did not see how Mr. Burnette could have been prejudiced by the first-degree kidnapping instruction given that he was not convicted of first-degree kidnapping but of second-degree kidnapping. Furthermore, in giving its instruction to the jury, the trial court used the language contained in the pattern jury instruction. In part this language stated:”…this restraint or removal was a separate, complete act independent of and apart from the intended injury.” The trial court also arrested judgment on the assault on a female charge which should address any double jeopardy concerns.
Given the facts, the jury instructions, and the judgment entered by the trial court, the North Carolina Court of Appeals found no plain error in Mr. Burnette’s case. There was nothing with respect to the trial court’s jury instruction that constituted a miscarriage of justice or lead to Mr. Burnette receiving an unfair trial.
Recent appellate cases that we have discussed have shown the trial court denying a defendant’s request for an instruction on a lesser included offense. Here we see that an instruction on a lesser included offense was given by the trial court. Based on the facts, the jury arguably could have found either first or second degree kidnapping. The distinction here probably turned on both the extent of the victim’s injuries and that she was returned to what may be considered a safe place.
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