Opinion
No. COA09-864
Filed 4 May 2010 This case not for publication
Appeal by defendant from judgment entered 17 March 2009 by Judge Gregory Bell in Cumberland County Superior Court. Heard in the Court of Appeals 19 November 2009.
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Sue Genrich Berry for defendant-appellant.
Cumberland County No. 07 CRS 58964.
Defendant Keith James Sears ("defendant") appeals from a 17 March 2009 judgment entered in accordance with a jury verdict finding him guilty of first-degree kidnapping, assault by strangulation, and assault on a female. The trial court sentenced defendant to an active term of 116 to 149 months' imprisonment. Defendant appeals, and argues the trial court erred by: (1) denying his motion to dismiss the charge of first-degree kidnapping, and (2) sentencing defendant as a prior record level III offender.
This case presents the question of whether the State presented sufficient evidence of first-degree kidnapping, specifically whether the State presented sufficient evidence that the victim was not released in a safe place. After review, we hold that the State met its burden, and that the trial was free of prejudicial error.
While the trial may have been free of prejudicial error, however, this appeal also involves the question of whether a criminal defendant can stipulate to prior record level points assigned on the basis of prior out-of-state convictions. We find that the trial court erred in accepting defendant's "stipulation" as to the points he should have been assigned for his out-of-state offense, because the trial court failed to make findings as to which North Carolina offense is "substantially similar." Lacking such findings, a meaningful review is not possible, and we remand to allow the trial court to make the requisite findings and resentence defendant.
I. BACKGROUND
The State's evidence tended to show that in March 2007, defendant met Ms. Janet Cummings ("Cummings") through an internet dating website. Ms. Cummings is a schoolteacher working in Robeson County, and residing in Cumberland County. After communicating by the website, and later on the telephone, defendant and Cummings met in person on 20 March 2007. They began dating, and shortly thereafter, Cummings began driving defendant to work. By the end of April 2007, defendant was regularly spending the night at Cummings' residence, and later moved into the residence at the end of May 2007.
Ms. Cummings testified that after defendant moved into the residence, he started to become jealous, possessive, and controlling of Cummings. She testified that on one occasion, defendant grabbed Cummings by the arms, bruising them. On another occasion, defendant jumped on top of Cummings, causing her to strike her head against a dresser drawer. Defendant broke Cummings' cellular phone.
Ms. Cummings testified that on 20 June 2007, she and defendant went to Wal-Mart, and defendant accused Cummings of "looking at somebody." An argument ensued. Defendant and Cummings returned to Cummings' residence at around 9:30 that evening, and at around 10:00 p.m., Cummings checked her email. This angered defendant, and he accused Cummings of cheating on him and demanded that she open her MySpace account. Defendant told Cummings that he wanted to see if Cummings "ha[d] any guys on there," and told Cummings that if she was cheating on him, he would kill her. Ms. Cummings testified that defendant then grabbed her by the cheek and told her, "if I catch you cheating on me I am going to F[] kill you."
Cummings opened her MySpace account. Cummings had one male friend on her account, who was a coworker. Defendant accused Cummings of having a romantic relationship with the coworker, which Cummings denied. According to Ms. Cummings, defendant then closed the bedroom door, picked her up, and threw her on the bed. Cummings landed on her back on the bed, and defendant straddled her and began to choke her. Cummings stated that defendant was screaming, and demanding to know whether Cummings was going to kick him out of the house, and told her that he had nowhere else to go. Cummings responded that she no longer desired to remain in a relationship with defendant. Cummings stated that she felt as if she was fading in and out of consciousness, and feared for her life.
Ms. Cummings testified that around 11:00 p.m., defendant abruptly got off of her, punching her in the cheek as he did so. He paced around the bedroom threatening to kill Cummings, and continuing to accuse her of cheating on him. Cummings stood up from the bed, and defendant grabbed a clothes iron and wrapped the cord around her neck, although he did not choke her with it. Defendant also wrapped the cord around Cummings' ankles. Cummings stated that she attempted to calm defendant by saying that she was sorry and that she loved him. Cummings assured defendant that she was not going to kick him out, nor was she going to report defendant's actions to law enforcement. She testified that defendant continued to threaten her, told her that she was "going to call the cops," that he was "done," and he "might as well kill [her]."
Cummings stated that defendant then grabbed a picture frame from Cummings' dresser and threw it against a wall, breaking the glass. Defendant picked up a piece of the glass, and held it against his neck, telling Cummings that if she ended their relationship, he would kill himself. He continued to pace the room, and then stepped behind Cummings and placed his hand over her mouth and nose. Cummings testified that she was again unable to breathe, and fell to the floor when defendant released her.
She explained that defendant then said that he was tired, and laid down on the bed. Cummings laid down next to him. Cummings asked defendant if she could use the restroom, and defendant watched her as she went. Defendant and Cummings then went into the living room, where defendant ripped out the telephone cord. Defendant picked up Cummings, carried her to the bedroom, and closed and locked the bedroom door.
Around 5:00 a.m., defendant and Cummings again laid down on the bed. Cummings told defendant that she needed to call her ex-husband to tell him not to bring her two daughters back to the residence. Cummings shared custody of her daughters with her ex-husband, and he was scheduled to deliver them to her that morning. Cummings was concerned about the children coming into the situation. Defendant told Cummings to put makeup on the marks on her neck, and followed her into the living room so that she could retrieve makeup from her purse. Cummings told defendant that he too needed makeup on his neck, because he had cut himself with the broken glass. When defendant entered the bedroom to examine his neck in a mirror, Cummings ran out the front door to a neighbor's house. After calling her ex-husband to warn him not to bring the children, she called 911.
When law enforcement arrived, defendant was standing on the porch of Cummings' residence, and Cummings crossed the street from the neighbor's to speak with the deputy. Cummings recounted the events of the previous night and morning. Defendant was taken into custody, and charged with first-degree kidnapping, assault by strangulation, and assault on a female.
Defendant was indicted on 30 October 2007. Trial began on 16 March 2009, and the jury returned a verdict of guilty on all charges on 17 March 2009. Defendant moved for a dismissal of all charges at the close of the State's evidence.
At sentencing, the State offered a prior record level worksheet showing that defendant had been convicted of a prior Class E, F, or G felony, in addition to two prior misdemeanors, and indicated that defendant should be assigned six prior record level points based on these convictions. The State stated that the felony conviction was for an assault on defendant's child. Defense counsel informed the court that the conviction occurred in Pennsylvania, and elaborated on the events surrounding the conviction. He stated that defendant had been
smoking marijuana on the night in question and fell down the stairs with the child. They originally charged him as if he had done that intentionally. When the truth came out, he basically did, my understanding, kind of like an Alford plea but it wasn't an Alford plea. But he basically admitted that he fell down the stairs with the child while subject to an impairing substance and the Court sentenced him as a result of that.
When defendant was given an opportunity to address the Court, he stated that his attorney was incorrect.
[A]t that time in my life, I was so sick from doing drugs that I was blacking out. And what happened, when I was carrying her down the staircase, I blacked out and fell down the staircase with her. I pled guilty not because it was done intentionally but because I was at fault. I took responsibility for that. It cost me six years of my life and all four of my children.
At no time at sentencing did the State offer any evidence regarding the similarity of this offense to any North Carolina offense nor any justification for treating the offense as a Class E felony. The Court did not conduct any inquiry on this issue. The State offered the signed Prior Record Level Worksheet, and the Court sentenced defendant to a minimum of 116 months to a maximum of 149 months in the North Carolina Department of Corrections based on the worksheet alone.
II. JURISDICTION AND STANDARD OF REVIEW
Jurisdiction in this Court is proper pursuant to N.C. Gen. Stat. § 7A-27(b) (2009). As to defendant's claim that the trial court erred in refusing to grant his motion to dismiss, "[t]he denial of a motion to dismiss for insufficient evidence is a question of law, which this Court reviews de novo[.]" State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007) (citations omitted).
As to the error assigned to defendant's sentencing, "[w]hen a defendant assigns error to the sentence imposed by the trial court, [this Court's] standard of review is `whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing.'" State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997) (citation omitted). "However, `the question of whether a conviction under an out-of-state statute is substantially similar to an offense under North Carolina statutes is a question of law' requiring de novo review on appeal." State v. Fortney, ___ N.C. App. ___, ___, 687 S.E.2d 518, 524 (2010) (quoting State v. Hanton, 175 N.C. App. 250, 255, 623 S.E.2d 600, 604 (2006)).
III. ANALYSIS
A. Motion to Dismiss
On appeal, defendant argues that it was error for the trial court to deny his motion to dismiss the charge of first-degree kidnapping at the close of all of the evidence. Specifically, defendant contends that the State failed to present evidence sufficient to establish that he had failed to release Cummings in a "safe place," and therefore the State did not meet its burden in offering evidence of all of the elements of first-degree kidnapping. We disagree.
"In ruling on a motion to dismiss, the trial court need only determine whether there is substantial evidence of each essential element of the offense charged and of defendant's being the perpetrator of the crime." State v. Sexton, 336 N.C. 321, 361, 444 S.E.2d 879, 902 (1994). "Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (2002) (citing State v. Frogge, 351 N.C. 576, 584, 528 S.E.2d 893, 899 (2000)). "The trial court's function is to determine whether the evidence permits a reasonable inference that the defendant is guilty of the crime charged." Sexton, 336 N.C. at 361, 444 S.E.2d at 902. "[A]ll the evidence admitted, whether competent or incompetent, must be considered by the trial judge in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom. Any contradictions or discrepancies in the evidence are for resolution by the jury." State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
Defendant asserts that the evidence introduced by the State failed to establish each essential element of the crime of first-degree kidnapping, in that it was insufficient to "persuade a rational juror to accept [the] conclusion" that he had failed to release Cummings in a safe place. N.C. Gen. Stat. § 14-39 (2007) provides, in pertinent part:
(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person . . . shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:
. . . .
(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony[.]
. . . .
(b) There shall be two degrees of kidnapping as defined by subsection (a). 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[.]
The State did not attempt to rely on a sexual assault or any injury to the victim to satisfy the elements of first-degree kidnapping, but only sought to prove that defendant did not release Cummings in a "safe place." Defendant disputes only whether the evidence was sufficient for a reasonable jury to find that he did not release Cummings in a safe place.
While defendant is correct that the General Assembly has not defined what constitutes a "safe place," defendant also acknowledges in his brief that a "[m]ere relinquishment of dominion or control over the person is not sufficient to effectuate a release in a safe place." State v. Ly, 189 N.C. App. 422, 428, 658 S.E.2d 300, 305, disc. review denied, 362 N.C. 512, 668 S.E.2d 567-68 (2008). Defendant contends that his return to the bedroom while leaving Cummings in the living room is sufficient to show that he "released" her from his control or restraint.
The case law of this State is well established that "[r]eleasing a person in a safe place `implies a conscious, willful action on the part of the defendant to assure that his victim is released in a place of safety.'" Ly, 189 N.C. App. at 428, 658 S.E.2d at 305 (citation omitted). In State v. Jerrett, our Supreme Court was presented with a case in which the defendant kidnapped his victim after burglarizing her home and fatally shooting victim's husband. 309 N.C. 239, 243-44, 307 S.E.2d 339, 341-42 (1983). He forced her to drive him away from the home, and instructed her to take him to Tennessee. Id. at 244, 307 S.E.2d at 342. The victim told the defendant that the car was low on gas, and persuaded him to stop at a gas station. Id. She further informed him once there that the pumps would only be activated after he paid for the gas purchase. Id. at 245, 307 S.E.2d at 342. He forced her to accompany him into the store while armed with a pistol. Id. Upon entering the store, the victim observed a police officer at the counter, and walked away from the defendant. Id. The Supreme Court held that these facts were not sufficient to show that the defendant had voluntarily released the victim in a safe place. The Court stated:
While it is true that G.S. 14-39(b) does not expressly state that defendant must voluntarily release the victim in a safe place, we are of the opinion that a requirement of "voluntariness" is inherent in the statute. G.S. 14-39(b) provides that in order for the offense to constitute kidnapping in the second degree, the person kidnapped must be released "in a safe place by the defendant . . ." (emphasis added). This implies a conscious, willful action on the part of the defendant to assure that his victim is released in a place of safety.
We further note that defendant's argument is more theoretical than real for it is difficult to envision a situation when a release of the victim by the defendant could be other than voluntary. It seems the defendant would either release the victim voluntarily, or the victim would reach a place of safety by effecting an escape or by being rescued.
Id. at 262, 307 S.E.2d at 351. In State v. Mayse, the defendant also forced the victim to accompany him in her vehicle. 97 N.C. App. 559, 565, 389 S.E.2d 585, 588 (1990). The defendant took and kept her car keys, but the victim escaped through the use of a duplicate set that the defendant was unaware of. Id. This Court held that the defendant did not release the victim. Id.
In the recent case of State v. Cole, this Court considered a case similar to the one at bar. See ___ N.C. App. ___, 681 S.E.2d 423, disc. review denied, 363 N.C. 658, 686 S.E.2d 678 (2009). In Cole, the defendants held the victim in her friend's home. Id. at ___, 681 S.E.2d at 426. When a friend of the victim pulled her car into the driveway, one of the defendants permitted her to go outside and find out what the friend wanted, with the instructions that "she would be shot if she `tr[ied] anything stupid.'" Id. at ___, 681 S.E.2d at 429. Notwithstanding the threat, the victim ran to the car of her friend, got in, and made her escape. Id. at ___, 681 S.E.2d at 426. This Court found that "[the defendant's] failure to chase or do any additional harm to [the victim] does not convert her escape into a release." Id. at ___, 681 S.E.2d at 429.
In the case at bar, defendant did not ever "voluntarily release" Cummings. Indeed, Ms. Cummings escaped by her wits in much the same way as the victims in Jerrett and Mayse: by manipulating or deceiving her captor. Similar to the situation in Cole, Cummings was temporarily out of the immediate control of her captor, but still under the threat of bodily harm should she attempt to escape. In Jerrett, the Court determined that
[a]lthough th[e] evidence presents a close question as to whether defendant released [the victim] in a safe place, we are of the opinion that it was sufficient to permit the jury to reasonably infer that [the victim] escaped. . . . Conversely, this evidence would have permitted the jury to reasonably infer that defendant released Mrs. Parsons in a safe place. It was for the jury to resolve the conflicting inferences arising from this evidence.
Jerrett, 309 N.C. at 263, 307 S.E.2d at 352.
Under a de novo standard of review, the evidence presented here by the State, like that in Jerrett, was sufficient to support the inference that defendant did not release Cummings in a safe place, and it was for the jury to determine whether, in fact, he did so. Accordingly, the trial court's decision to allow the question to proceed to the jury was correct, and it did not err in denying defendant's motion to dismiss. This assignment of error is overruled.
B. Prior Record Level
Defendant argues that either the trial court erred as a matter of law, or committed plain error, in finding either that the parties stipulated or that the State carried its burden of proof that defendant had sufficient prior criminal convictions to be sentenced as a prior record level III for felony sentencing purposes, and sentencing defendant in accordance with that finding. Defendant maintains that the trial court erred in sentencing him as a prior record level III offender because the State failed to introduce any evidence that his out-of-state conviction was "substantially similar" to an offense in this State, and therefore the State did not meet the statutory requirement for elevating the classification of the out-of-state conviction above that of a Class I felony. We agree.
i. Mootness
The State argues that defendant stipulated to his prior criminal history, and thus his assignment of error is moot.
When, as in this case, an offender being sentenced has a prior conviction in another state, N.C. Gen. Stat. § 15A-1340.14(e) (2009) provides in pertinent part:
If the State proves by the preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the conviction is treated as that class of felony for assigning prior record level points. If the State proves by the preponderance of the evidence that an offense classified as a misdemeanor in the other jurisdiction is substantially similar to an offense classified as a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as a Class A1 or Class 1 misdemeanor for assigning prior record level points.
In State v. Henderson, this Court recently held that a defendant
could and did stipulate to the existence of his out-of-state convictions, and he could stipulate that they were felonies or misdemeanors, [but] he could not stipulate to a question of law, i.e., whether "the State prove[d] by the preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina[.]
Henderson, ___ N.C. App. ___, 689 S.E.2d 462 (2009) (quoting N.C.G.S. § 15A-1340.14(e) (1999)).
In this case, even if defendant stipulated to the existence of his Pennsylvania conviction, the State was still required to prove by the preponderance of the evidence that the offense resulting in that conviction is substantially similar to a North Carolina offense in order to assign the conviction a point value higher than that of the default, a Class I felony. Id. This Court has held that defendants may not stipulate to the assignment of point values to out-of-state convictions, and thus the State's argument that defendant stipulated to the points assigned to the Pennsylvania conviction is without merit. See State v. Palmateer, 179 N.C. App. 579, 581-82, 634 S.E.2d 592, 593-94 (2006); State v. Moore, 188 N.C. App. 416, 425-26, 656 S.E.2d 287, 293-94 (2008). The trial court committed error in finding that defendant's Pennsylvania conviction warranted the assignment of four prior record level points.
As such, we remand the case for resentencing in accordance with N.C.G.S. § 15A-1340.14(e), as interpreted by this Court in Hanton, 175 N.C. App. at 254, 623 S.E.2d at 604 ("`The law is the proper application of the law to the fact of [a] defendant's criminal record[,]' which often involves, as the present case does, comparing `the elements of a defendant's prior convictions under the statutes of foreign jurisdictions with the elements of crimes under [North Carolina] statutes.'") Id. (citation omitted).
ii. Harmless Error
The State argues in the alternative that, even in the presence of error, any such error would be harmless because the Pennsylvania offense "aggravated assault" and the North Carolina offense "assault inflicting serious injury" are substantially similar. The State contends that, if the trial court had properly conducted the inquiry into similarity, the outcome would have been the same and defendant would have been sentenced as a prior record level III offender. We disagree.
The Pennsylvania statute under which defendant was convicted includes the state of mind of "recklessly" as sufficient for culpability, in addition to "intentionally" and "knowingly." The statute provides, in pertinent part, that "[a] person is guilty of aggravated assault if he: . . . attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly." 18 Pa. C.S.A. § 2702 (2007) (emphasis added). In contrast, the North Carolina statute that the State maintains is "substantially similar" requires a mens rea of an "intentional" act. N.C. Gen. Stat. § 14-32.4 (2009). This Court has defined the elements of N.C.G.S. § 14-32.4 as: "(1) an intentional assault on another person (2) resulting in serious bodily injury." State v. Williams, 154 N.C. App. 176, 180, 571 S.E.2d 619, 622 (2002) (emphasis added).
On remand, the trial court must compare the elements of these two offenses to determine whether they are "substantially similar." Hanton, 175 N.C. App. at 254, 623 S.E.2d at 604; State v. Sapp, 190 N.C. App. 698, 713, 661 S.E.2d 304, 312 (2008), disc. review denied, 363 N.C. 661, 685 S.E.2d 799 (2009) ("[T]he requirement set forth in N.C. Gen. Stat. § 15A-1340.14(e) is not that the statutory wording precisely match, but rather that the offense be `substantially similar.'")).
Because of the contrast between the mens rea requirements of these statutes, it is possible that the trial court could find that the crime in Pennsylvania was not "substantially similar" to "assault inflicting serious injury," but instead akin to a North Carolina statute requiring only recklessness for a guilty state of mind. See N.C. Gen. Stat. § 14-318.4(a5) (2009) (A parent supervising a child less than 16 years old "whose willful act or grossly negligent omission in the care of the child shows a reckless disregard for human life is guilty of a Class H felony if the act or omission results in serious physical injury to the child."). (Emphasis added.) Should the trial court find the Pennsylvania offense "substantially similar" to N.C.G.S. § 14-318.4(a5), then defendant would be sentenced as a prior record level II offender. Thus, the State's argument that any error of the trial court was harmless is without merit.
III. CONCLUSION
We conclude that the trial court properly denied defendant's motion to dismiss the charge of first-degree kidnapping. We also hold that the trial court erred by assigning four prior record points to defendant's out-of-state conviction, because the State failed to present evidence establishing a substantial similarity between defendant's out-of-state conviction and a North Carolina offense. Accordingly, we remand for resentencing.
Remanded.
Judges STROUD and ERVIN concur.
Report per Rule 30(e).