Opinion
No. COA09-38.
Filed August 4, 2009.
Appeal by defendant from judgments entered 10 July 2008 by Judge Douglas B. Sasser in Columbus County Superior Court. Heard in the Court of Appeals 20 July 2009.
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Richard E. Jester for defendant-appellant.
Defendant appeals from judgments entered after a jury found him guilty of first-degree kidnapping and robbery with a dangerous weapon. After careful review, we find no error at trial.
Facts
On 1 December 2006, Inez Cummings ("victim") was employed at Delco Family Entertainment Center ("Delco"). Delco is an establishment that has video poker machines, pool tables, foosball games, arcade games, and an open area for dances, birthday parties, and wedding receptions. The victim's responsibilities at Delco included serving sodas, water, and snacks to customers, and explaining how to play the video poker machines, fixing the games if anything went wrong, and providing change if needed to play the games. There were several customers who were regulars, including defendant's girlfriend, Drusilla Martin ("Martin"). Defendant would occasionally visit Delco with Martin.
At approximately 2:00 p.m. on 1 December 2006, defendant, Martin, and Martin's young daughter arrived at Delco. There were already several other customers present, and Martin had to wait to use the video poker machine. Defendant and Martin played pool until a video poker machine was available. Once a video poker machine was available, Martin played for about five minutes, and then returned to finish her game of pool. After finishing her game of pool, Martin went back to the video poker machine. Martin continued to play the video poker machine until she needed to get money from the ATM. After a discussion between defendant and Martin, defendant left Delco. Several minutes later, defendant returned to Delco and stated that he had a flat tire. Subsequently, defendant and Martin left. Around 4:30 p.m., defendant and Martin returned to Delco and asked the victim how much longer Delco would be open. The victim told them Delco would be open for about another hour. Defendant and Martin left once again, stating they would return.
Around 5:30 p.m., defendant and Martin returned to Delco. At the time, there were no other customers present. Martin played the video poker machine for five to ten minutes and then went to the restroom. While Martin was in the restroom, another regular customer, Carolyn Brown ("Brown") called Delco. The victim told Brown that Delco was still open, but she did not have any change for the video poker machines. During this time, the victim was seated in the office behind the cash register. Defendant entered the office and approached the victim. Defendant pressed a gun to the victim's throat and demanded her to open the cash register and give him all of the money. The victim opened the register and gave defendant all of the money, which totaled $24.20. Defendant then demanded the keys to the video poker machines. The victim told defendant that she did not have the keys. Defendant searched the victim's pockets for money, and put his hand down the front of her shirt and found the three one hundred dollar bills she had inside her shirt. Defendant continued to ask the victim for the keys to the video poker machines, and she continued to tell him that she did not have the keys. Defendant moved the gun from the front of the victim's throat and pressed it behind her ear. The victim was crying and telling defendant she did not have the keys. Defendant turned around and told the victim to follow him. Defendant left the office and went into the main room of Delco. Defendant forced the victim to lay on the floor on her stomach. He pressed the gun against the victim's head and told her not to move. Defendant got an extension cord, tied the victim's hands behind her back, and told her not to move. Defendant left the victim and went to the game room and began banging on the video poker machines, apparently trying to open the cash drawers. Defendant then went back to the office and the victim could hear him opening the drawers to the desk. Defendant ran out of the office with something black in his hands and went back to banging on the video poker machines. At some point, defendant told Martin, who had come out of the restroom, to wait for him in the car. However, Martin remained in Delco.
Eventually, Brown arrived at Delco. Brown approached Delco's front door while defendant was still banging on the video poker machines. Martin told defendant that there was someone at the door. Defendant told Martin to tell Brown that Delco was closed. Martin complied, but Brown would not leave. Thereafter, Martin and her daughter left Delco, and Brown entered.
The victim asked Brown to call 911 and not to leave her. Defendant ran out of the game room into the backroom, and exited Delco through the back door. Brown called 911 and called Ethel Fields Purcell ("Purcell"), the owner of Delco. Purcell's son arrived at Delco and untied the victim's hands.
Columbus County Sheriff's Office Detective Mack Brazelle ("Brazelle") responded to Brown's 911 call. Brazelle spoke with the victim, Martin, and Brown. The victim told Brazelle that she was robbed by a man with a gun and that the man was Martin's boyfriend. Martin gave Brazelle defendant's phone number and on 4 December 2006, Brazelle called defendant. Defendant told Brazelle that he had been in Fayetteville since 1 December 2006, and the two did not discuss the case further on the telephone.
Later that afternoon, defendant arrived at the Sheriff's Office. Brazelle asked defendant to tell him what happened.
Defendant stated that he went to Delco with Martin on 1 December 2006. Defendant stated that someone told him the video poker machines had been played all day and that the machines contained $5,000.00. Defendant further stated that the person told him to fake a robbery and that she would get the money from the machines and pay him $1,500.00 later. Defendant said he tied up this person while Martin was in the bathroom and then ran out of the backdoor. Defendant denied attempting to break into the video poker machines.
Defendant was indicted for first-degree kidnapping and robbery with a dangerous weapon. Defendant's case was called for trial on 23 June 2008. On 25 June 2008, a jury found defendant guilty of first-degree kidnapping and robbery with a dangerous weapon. On 10 July 2008, the trial court found defendant to be a prior record level I offender and sentenced him to fifty-eight to seventy-nine months imprisonment for first-degree kidnapping and fifty-two to seventy-two months imprisonment for robbery with a dangerous weapon, set to run consecutively. Defendant appeals.
Defendant's sole argument on appeal is that the trial court erred when it denied his motion to dismiss the first-degree kidnapping charge because the restraint or removal of the victim was an inherent part of the robbery with a dangerous weapon and no separate or independent restraint or removal occurred. We disagree.
"When a defendant moves for dismissal, the trial court must determine whether the State has presented substantial evidence of each essential element of the offense charged and substantial evidence that the defendant is the perpetrator." State v. Cross, 345 N. C. 713, 716-717, 483 S. E.2d 432, 434 (1997) (citation omitted). "If substantial evidence of each element is presented, the motion for dismissal is properly denied." Id. at 717, 483 S. E.2d at 434. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N. C. 71, 78, 265 S. E.2d 164, 169 (1980) (citations omitted). "In considering the motion, the trial court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence, and resolving any contradictions in favor of the State." State v. Anderson, 181 N.C. App. 655, 659, 640 S. E.2d 797, 801, disc. review denied, 361 N. C. 430, 648 S. E.2d 846 (2007).
The offense of kidnapping is established upon proof of an unlawful, nonconsensual restraint, confinement or removal of a person from one place to another, for the purpose of: (1) holding the person for ransom, as a hostage or using them as a shield; (2) facilitating flight from or the commission of any felony; or (3) terrorizing or doing serious bodily harm to the person.
State v. Smith, 160 N.C. App. 107, 119, 584 S. E.2d 830, 838 (2003); see also N.C. Gen. Stat. § 14-39(a) (2007). "If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree[.]" N.C. Gen. Stat. § 14-39(b)(2007).
"A person may not be convicted of kidnapping and another felony if the restraint or removal is an inherent and inevitable element of the other felony, such as robbery with a dangerous weapon." State v. Morgan, 183 N.C. App. 160, 166, 645 S. E.2d 93, 99 (2007) (citation omitted), appeal dismissed and disc. rev. denied, 362 N. C. 241, 660 S. E.2d 536 (2008). "The key question . . . is whether the kidnapping charge is supported by evidence from which a jury could reasonably find that the necessary restraint for kidnapping `exposed [the victim] to greater danger than that inherent in the armed robbery itself.'" State v. Pigott, 331 N. C. 199, 210, 415 S. E.2d 555, 561 (1992) (quoting State v. Irwin, 304 N. C. 93, 103, 282 S. E.2d 439, 446 (1981)).
In Pigott, during the commission of an armed robbery, the defendant threatened the victim with a gun, forced the victim to lie on the floor, bound his hands, and searched the apartment and office for money. Id. Our Supreme Court held that:
all the restraint necessary and inherent to the armed robbery was exercised by threatening the victim with the gun. When defendant bound the victim's hands and feet, he exposed the victim to a greater danger than that inherent in the armed robbery itself. This action, which had the effect of increasing the victim's helplessness and vulnerability . . . constituted such additional restraint as to satisfy that element of the kidnapping crime.
Id. (internal quotations and citations omitted).
Here, defendant tied the victim's hands behind her back with an extension cord and forced her to lie face down on the floor. dangerous weapon was effectuated when defendant pressed the gun The restraint necessary and inherent to the robbery with a against the victim's throat. Tying the victim's hands increased her helplessness and placed her in greater danger than that inherent in the offense of robbery with a dangerous weapon.
Defendant further contends that the victim's removal from one place to another was not an action separate and apart from the robbery with a dangerous weapon and therefore cannot support the first-degree kidnapping conviction. We disagree.
"[T]he phrase `removal from one place to another' . . . require[s] a removal separate and apart from that which is an inherent, inevitable part of the commission of another felony." Irwin, 304 N. C. at 103, 282 S. E.2d at 446. "[A] trial court, in determining whether a defendant's asportation of a victim during the commission of a separate felony offense constitutes kidnapping, must consider . . . whether the movement was `a mere technical asportation.'" State v. Ripley, 360 N. C. 333, 340, 626 S. E.2d 289, 293-294 (2006).
If the asportation is a separate act independent of the originally committed criminal act, a trial court must consider additional factors such as whether the asportation facilitated the defendant's ability to commit a felony offense, or whether the asportation exposed the victim to a greater degree of danger than that which is inherent in the concurrently committed felony offense.
Id. at 340, 626 S. E.2d at 294.
In State v. Joyce, 104 N.C. App. 558, 567, 410 S. E.2d 516, 521 (1991), victims of an armed robbery were moved from one room to another where they were confined. This Court stated that "[t]he removals were not an integral part of the crime nor necessary to facilitate the robberies, since the rooms where the victims were ordered to go did not contain safes, cash registers or lock boxes which held property to be taken." Id. at 567, 410 S. E.2d at 521. This Court held this evidence was sufficient to support the kidnapping charges. Id.
In State v. Davidson, 77 N.C. App. 540, 541, 335 S. E.2d 518, 519 (1985), the defendant forced the victims, at gunpoint, to walk from the front of the store to a dressing room at the back of the store. Defendant then bound the victims with tape and robbed them and the store. This Court stated that "[s]ince none of the property was kept in the dressing room, it was not necessary to move the victims there in order to commit the robbery. Removal of the victims to the dressing room thus was not an inherent and integral part of the robbery." Id. at 543, 335 S. E.2d at 520. This Court reasoned that defendants "remove[d] the victims from the view of passersby who might have hindered the commission of the crime." Id. The Court held this evidence was sufficient to support the kidnapping charges. Id.
This case is analogous to Joyce and Davidson. Defendant did not need to move the victim to the main room in order to complete his objective of stealing money. The cash register and the video poker machines were not in the main room. We hold that defendant's removal of the victim was not an integral part of the robbery, it was an action separate and apart from that inherent in the robbery with a dangerous weapon.
The trial court properly denied defendant's motion to dismiss the first-degree kidnapping charge. There was sufficient evidence presented to show that the restraint and removal of the victim was separate and apart from that inherent in the robbery with a dangerous weapon.
No error.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).