Opinion
No. 06-1504.
Filed July 3, 2007.
Lenoir County No. 05 CRS 52402.
Appeal by defendant from judgments entered 30 March 2006 by Judge Kenneth F. Crow in Lenoir County Superior Court. Heard in the Court of Appeals 6 June 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Kelly L. Sandling, for the State. Richard E. Jester, for defendant-appellant.
On 1 June 2005, Brian Canady ("Canady") was working at the Wireless Company on 211B West Vernon Avenue in Kinston, North Carolina. Canady was the only person working in the store that day. The store had a register in the front of the store, and a safe in the back. In the store with Canady that day were customers Christy Moore ("Moore") and Bennie Dixon ("Dixon"). While Canady, Dixon and Moore were in the store, Sherrone Greene ("defendant") came in through the front door and inquired about a Nextel I860, the first Nextel camera phone. Canady told him that he did not have any in stock at the time. At that time, the Nextel I860 phone sold for $299.00. Canady testified that those types of phones were expensive, and the store normally did not keep them in stock. Canady noticed that defendant was a black male who was approximately five foot six inches to five foot seven inches in height, had a thin build and was wearing a gray sweatshirt with a hood and blue jeans. After inquiring about the phone, defendant spoke to Canady less than a minute or two before leaving the store.
Approximately one minute passed before defendant returned to the store and again stated that he wanted a phone. Canady asked defendant to sit down, and Canady gave him a profile sheet to fill out while Canady went to the back of the store. Canady went to the back of the store because that is where the cell phones were stored and he continued to work on Dixon's phone. As Canady was returning from the back of the store and coming to the front, he saw that defendant had a pistol pointed at customers Dixon and Moore, and at him. Defendant instructed all three of them to go to the back of the store. Once getting to the back of the store with the victims, defendant cocked the gun. Upon cocking the gun, Canady stated that a shell came out of it. Defendant instructed Canady that he wanted all of the Nextel phones the store had, which was a total of seven phones.
Canady stated that he followed defendant's instruction to get the phones, and he grabbed a bag and began placing the Nextel phones into the bag. While getting the phones, Canady heard defendant tell him, Dixon and Moore that he wanted their I.D.'s and cell phones. Canady did not have his cell phone on him that day and his I.D. was at the front of the store. Dixon gave defendant his I.D. and his phone. Moore's purse, along with her I.D. and cell phone, was located in the front of the store, so she did not give defendant any items.
After taking the Nextel phones in the back of the store, defendant ordered Canady to go out to the front of the store and put all of the money from the cash register in the bag. Approximately $150.00 was taken out of the cash register and placed in the bag. While Canady was retrieving the money in the front from the cash register, defendant held customers Dixon and Moore in the back of the store with the gun still pointed at them. Moore testified that while she and Dixon were in the back of the store with defendant, they were required to face the wall and place their hands up on the wall.
After Canady had finished placing the money from the cash register in the bag, defendant left Moore and Dixon in the back room and came to the front of the store to get the bag with the phones and money from Canady. After getting the money and phones, defendant ran out of the store with the bag and got into a white Chevrolet Corsica. Canady testified that including the phones and money from the cash register, the store lost a total of $2,250.00 due to defendant's robbery.
Defendant subsequently was arrested for the robbery on 16 June 2005. On 31 October 2005, defendant was indicted on two counts of robbery with a dangerous weapon, two counts of second degree kidnapping, attempted robbery with a dangerous weapon, and possession of stolen property. Following a trial by jury, defendant was found guilty of all charges, and was sentenced to six consecutive terms of imprisonment on 30 March 2006. Defendant appeals from his convictions.
Defendant first contends the trial court erred in denying his motion to dismiss the charges of kidnapping the two customers, based upon an insufficiency of the evidence. Defendant argues there was insufficient evidence of a kidnapping, or restraint, separate and apart from the armed robbery. He asserts that any moving of the two customers was inherent in the commission of the robbery, thus the moving of the victims is insufficient to sustain the separate convictions for kidnapping.
In reviewing a defendant's motion to dismiss based upon insufficiency of the evidence,
The trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence. The trial court must also resolve any contradictions in the evidence in the State's favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.
State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001) (internal citations and quotation marks omitted), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).
In order to survive a motion to dismiss a charge of second degree kidnapping, the State must present substantial evidence that the defendant 1) unlawfully confined, restrained, or removed from one place to another, 2) a person sixteen years of age or older, 3) without that person's consent, 4) the confinement, restraint, or removal was for the purpose of a) facilitating the commission of any felony, or b) doing serious bodily injury to the person confined, restrained or removed, and 5) the person was released in a safe place by defendant and was not seriously injured or sexually assaulted. N.C. Gen. Stat. § 14-39(a), (b) (2005). It is well established that in order to satisfy the requirements for proving kidnapping, "`the restraint, which constitutes the kidnapping, [must be] a separate, complete act, independent of and apart from the other felony.'" State v. Ripley, 360 N.C. 333, 338, 626 S.E.2d 289, 292 (2006) (quoting State v. Fulcher, 294 N.C. 503, 524, 243 S.E.2d 338, 352 (1978)). As the Court noted in Fulcher,
It is self-evident that certain felonies (e.g., forcible rape and armed robbery) cannot be committed without some restraint of the victim. We are of the opinion, and so hold, that G.S. 14-39 was not intended by the Legislature to make a restraint, which is an inherent, inevitable feature of such other felony, also kidnapping so as to permit the conviction and punishment of the defendant for both crimes. To hold otherwise would violate the constitutional prohibition against double jeopardy. Pursuant to the above mentioned principle of statutory construction, we construe the word "restrain," as used in G.S. 14-39, to connote a restraint separate and apart from that which is inherent in the commission of the other felony.
Fulcher, 294 N.C. at 523, 243 S.E.2d at 351.
Defendant analogizes his case to that in State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981), in which our Supreme Court held that a defendant's moving of a store clerk, at knife-point, from the front of the store to the back of the store was not sufficient to constitute a separate kidnapping conviction. The Court held that the clerk's removal to the back of the store
was an inherent and integral part of the attempted armed robbery. To accomplish defendant's objective of obtaining drugs it was necessary that either Mr. Stewart or Ms. Sasser go to the back of the store to the prescription counter and open the safe. Defendant was indicted for the attempted armed robbery of both individuals. Ms. Sasser's removal was a mere technical asportation and insufficient to support conviction for a separate kidnapping offense.
Id. at 103, 282 S.E.2d at 446. Defendant contends his removal of the customers from the front of the store to the back is analogous to the removal of the clerk in Irwin. Defendant argues that the customers were moved to the back of the store, along with the clerk, to the location where the object of the robbery was located, and thus their removal was an inherent part of the attempted armed robbery. Defendant contends the customers were not exposed "to greater danger than that inherent in the armed robbery itself, nor [were the victims] subjected to the kind of danger and abuse the kidnapping statute was designed to prevent." Id. at 103, 282 S.E.2d at 446. We disagree with defendant's contentions.
In the instant case, the object of the robbery was not just the cell phones located in the store's back room. Defendant also demanded that the customers give him their identification cards and personal cell phones. These objects were not located in the back of the store, as the customers had these items on their persons while they were located in the front of the store. In fact, Moore's purse, which contained the items defendant demanded, was not located in the back of the store with her. Therefore, the instant case is analogous to the facts and circumstances found in State v. Davidson, 77 N.C. App. 540, 335 S.E.2d 518 (1985). In Davidson, we held that when the victims were robbed in a location in which none of the property serving as the object of the robbery was located, the removal did not constitute an inherent and integral part of the robbery, and was in fact a separate course of conduct sufficient to sustain both a kidnapping and armed robbery conviction. Id. at 543, 335 S.E.2d at 520. In Davidson, we reaffirmed that an individual's removal from one place to another may be considered a separate course of conduct when the removal is "designed to remove the victims from the view of passersby who might have hindered the commission of the crime." Id.; see also State v. Newman, 308 N.C. 231, 239-40, 302 S.E.2d 174, 181 (1983).
In the instant case, defendant could have accomplished his robbery of Moore and Dixon in the front of the store, where the objects he wished to steal were located. It was unnecessary for him to remove the customers to the back of the store, at gun point, and his doing so only served the purpose of "remov[ing] the victims from the view of passersby who might have hindered the commission of the crime." Davidson, 77 N.C. App. at 543, 335 S.E.2d at 520. The facts of the instant case are different from those in Irwin, where the store clerk's removal from the front of the store was necessary as the object of the robbery, the prescription drugs, was located in the area to which the defendant took the clerk. This is not the case with defendant's removal of Moore and Dixon.
As there was sufficient evidence presented showing that defendant's removal of the two customers from the front of the store to the back room, at gun point, was not an inherent and integral part of his robbery of them, we hold the trial court did not err in denying defendant's motion to dismiss the kidnapping charges.
Finally, defendant contends the trial court erred, and was not impartial to all parties, when it suggested and allowed an amendment to defendant's indictment for armed robbery and attempted armed robbery.
During defendant's trial, the following discussion occurred outside the presence of the jury:
THE STATE: The State has an amendment to make to the indictment.
THE STATE: Your Honor, as to the indictment on count number two, count number four and count number five, each of which allege that this defendant committed the offense of attempted armed — one is — count two is attempted armed robbery. In the body of the robbery, Your Honor, if that the defendant committed this possession and use of a firearm, we have alleged in the body of the indictment that it is a shotgun of an undetermined caliber. Your Honor, that should be handgun of undetermined caliber.
The Court is, of course, aware the indictment only requires that firearm be used, that shotgun just qualifies that so the change does not prejudice the defendant in any way so we are asking to have leave to amend all three of those counts to reflect handgun instead of shotgun.
THE COURT: Okay. [Defense Counsel], before I entertain your argument let's create the record further.
Over the lunch break when I was reviewing the file I noticed that the indictments didn't seem to correspond with some of the evidence that was presented by testimony and I took the liberty of preparing part of the jury instruction over the lunch break.
And when [the Assistant District Attorney] came in, I asked him if he was proceeding under a theory that a shotgun was used in this armed robbery. And, [Defense Counsel], when you came in I believe I had the same discussion with you and we had a bench conference and at that bench conference I indicated to the District Attorney that I thought he might have some inconsistent wording in his bill of indictment.
He indicated to the Court and albeit in your presence at that time that he was going to seek to amend the indictment and then I asked you if you thought there was some fatal variance, I certainly would be willing to hear from you and give you an opportunity to argue to the Court how the Court allowing [the State] to amend would cause you any prejudice in defending your client.
Do you think that is an accurate statement as to what took place?
DEFENSE COUNSEL: That is an accurate statement, Judge, and we would just object for the record without argument, Your Honor.
THE COURT: Okay. Anything else that either of you would like to say?
THE STATE: No, sir.
THE COURT: The Court is of the opinion that while the indictment indicates a shotgun, [the Assistant District Attorney] has indicated that it appears to be an oversight and should have been worded as a handgun. The Court can't see what the prejudice is and does not determine that there is any fatal variance in the indictment. It does allege a firearm.
I don't believe there is any prejudice in the defense. At least [Defense Counsel] has not been able to articulate any to the Court and without further objection the Court would allow the motion to amend.
Anything else before we bring in this jury?
THE STATE: No, sir.
DEFENSE COUNSEL: No, sir, Your Honor.
Defendant contends the trial court's telling the District Attorney that the indictment did not correspond with the evidence, the recommendation that the indictment be amended, and the subsequent allowing of the amendment constitute obvious signs of a partial trial court. Defendant's argument on appeal is two-fold, and first we must address his contention that the trial court failed to remain impartial.
It is well-established in this State that "[t]he law imposes on the trial judge the duty of absolute impartiality." Nowell v. Neal, 249 N.C. 516, 520, 107 S.E.2d 107, 110 (1959).
The trial judge also has the duty to supervise and control a defendant's trial, including the direct and cross-examination of witnesses, to ensure fair and impartial justice for both parties. "Furthermore, it is well recognized that a trial judge has a duty to question a witness in order to clarify his testimony or to elicit overlooked pertinent facts."
State v. Fleming, 350 N.C. 109, 126, 512 S.E.2d 720, 732 (citations omitted), cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999). When reviewing a trial judge's comments and actions to determine if they cross into the realm impermissible acts, we must apply a totality of the circumstances test. Id. (citing State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995)). A trial judge's broad discretionary power to supervise and control the trial "will not be disturbed absent a manifest abuse of discretion." State v. Goldman, 311 N.C. 338, 350, 317 S.E.2d 361, 368 (1984).
In defendant's case, we hold the trial judge's comments to the District Attorney regarding the inconsistency between the indictments and the evidence presented fell within the judge's duty to "supervise and control a defendant's trial." Fleming, 350 N.C. at 126, 512 S.E.2d at 732. The trial judge's comments did not amount to signs of partiality, but instead the trial judge provided both parties with an opportunity to present argument to the court, which defense counsel declined to do beyond the objection. The trial court's comments, and the State's argument and motion were made outside of the presence of the jury, thus the jury did not witness any actions which could be seen as partial on the part of the trial judge. During the course of defendant's trial, the trial judge assisted both the State and defense counsel, including an instance in which the trial court interrupted the State during its cross examination of defendant, asked defense counsel if he wished to object, and then sustained defense counsel's objection.
We see nothing in the transcript to indicate that the trial court failed to comply with its duty to remain impartial, and we hold the trial court's comments regarding the inconsistency between the indictments and the evidence did not constitute an abuse of discretion.
Next, we must determine whether the trial court erred in allowing the State to amend defendant's armed robbery and attempted armed robbery indictment. Defendant's indictment for the charge of attempted armed robbery, and the two charges of armed robbery, each included the statement that "[t]he defendant committed this act by means of an assault, consisting of having in his possession and threatening the use of a firearm, a shotgun of undetermined caliber, whereby the life of [the victim] was threatened and endangered." The evidence presented at trial showed that at the time of the robbery, defendant had a handgun in his possession, with which he threatened the victims and held them at gun point, and that he did not have a shotgun as alleged in the indictment.
North Carolina General Statutes, section 15A-923(e) (2005) provides that "[a] bill of indictment may not be amended." This provision has been interpreted to mean that "a bill of indictment may not be amended in a manner that substantially alters the charged offense." State v. Silas, 360 N.C. 377, 380, 627 S.E.2d 604, 606 (2006). "In determining whether an amendment is a substantial alteration, we must consider the multiple purposes served by indictments, the primary one being `to enable the accused to prepare for trial.'" Id. (quoting State v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593, 600 (2003)).
In the instant case, defendant was indicted on one count of attempted armed robbery, and two counts of armed robbery. North Carolina General Statutes, section 14-87(a) provides that Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony.
N.C. Gen. Stat. § 14-87(a) (2005). Thus, one of the required elements of any armed robbery or attempted armed robbery charge is that the defendant had in his possession a "firearm[] or other dangerous weapon" at the time of the attempted unlawful taking of another's personal property, and that he threatened the life of the person with that "firearm[] or other dangerous weapon." As there is nothing in the statute requiring that the type of firearm or other dangerous weapon specifically be identified, we hold the trial court's amendment of defendant's indictment did not constitute error. Defendant's indictment alleged that at the time of the robbery offenses, he had in his possession, and threatened use of, a firearm. It was unnecessary that the indictment specify that the firearm used was a shotgun. Defendant's indictment alleged all of the required elements and facts necessary for defendant to prepare his defense for trial. Thus, we hold the amendment to the indictment did not constitute a substantial alteration which prejudiced defendant, and therefore the trial court did not err.
No error.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).