Opinion
No. COA08-904.
Filed August 18, 2009.
Union County Nos. 04CRS50462, 04CRS50463.
Appeal by defendant from judgments entered 27 April 2006 by Judge Susan C. Taylor in Union County Superior Court. Heard in the Court of Appeals 12 February 2009.
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Brian Michael Aus for defendant-appellant.
Defendant Terry Lee Webb appeals from his convictions of attempted robbery with a dangerous weapon and first degree kidnapping. In his sole argument on appeal, defendant contends that the trial court erred in denying his motion to dismiss the charge of first degree kidnapping, maintaining that the State failed to produce sufficient evidence of confinement, restraint, or removal beyond that which was inherent in the robbery with a dangerous weapon. Based upon our review of the record, we hold that the State's evidence that defendant pulled the victim to the ground as she was trying to escape from the convenience store (leaving the cash register unattended), that he wrestled with her to keep her from leaving, and that, in the process, he slit her blouse with his knife was sufficient to meet the requirements of State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978), and its progeny. The trial court, therefore, properly denied defendant's motion to dismiss.
Facts
At trial, the State's evidence tended to show the following facts. On 27 January 2004, Bonnie Gardner was working at a Citgo gas station in Monroe, North Carolina. It had snowed that day, so business was slow. Between 1:30 and 2:00 p.m., a man later identified by Gardner as defendant walked into the store wearing a jacket and a scarf that partially covered his face. Gardner was standing at the cash register behind the store counter.
Defendant told Gardner that he had a toothache and asked to purchase some Orajel and a $300 money order. Gardner rang up the Orajel and began preparing the money order. Defendant then reached into the sleeve of his jacket and pulled out a knife. Defendant lunged towards Gardner and demanded all of the money from the cash register. Gardner pressed the panic button under the store counter and ran towards the back door of the store, but could not exit through the back door because it was closed.
Gardner turned around and was running through the store towards the front when defendant grabbed her and dragged her down to the floor. Defendant and Gardner struggled on the floor for two or three minutes, knocking over a store display. Gardner eventually freed herself and ran out of the store's front door. She later noticed a slit in the back of her shirt that had not existed before that day.
Jason McBride, a regular store customer who had just pulled into the store's parking lot, saw Gardner run out of the store with defendant running less than three feet behind her. Defendant was holding a knife and was trying to grab Gardner. Gardner ran towards McBride's truck, yelling "[l]et me in." McBride opened the truck door to let Gardner in the truck and called 911. Defendant ran around the side of the store.
When the police arrived a few minutes later, Gardner described defendant as a tall black male wearing a red scarf and a blue, white, and black jacket. Monroe Police Chief Bobby Haulk was patrolling the area around the store in an unmarked vehicle when he observed a man — defendant — matching this description and walking towards him. Officer Dennis Nash, also patrolling the area around the store, heard the description and saw defendant walk towards Haulk's vehicle.
Haulk stopped his vehicle and, as defendant approached, Haulk noticed he was not wearing a jacket or a scarf, but was still sweating even though it was only 35 degrees outside. When defendant took off running, Haulk and Nash chased and caught him, handcuffed him, and escorted him to the unmarked patrol vehicle. In addition, an officer brought a bloodhound named Chipper, who trailed a scent from the spot in the store where defendant had wrestled with Gardner to the unmarked patrol vehicle. When Chipper's handler opened the door to the vehicle, Chipper jumped into defendant's lap indicating that Chipper had been tracking defendant's scent. Gardner subsequently also identified defendant as the man who had attempted to rob the store.
Later that day, after waiving his Miranda rights, defendant made the following statement to the police:
When I went into the store I asked for some Orajel for my mouth. She told me I should go to Food Lion to get it, that it is cheaper. I said my mouth hurt too much. I then asked her for a three hundred dollar money order and some cigarettes. She then told me it was going to be a little over three hundred dollars. I paused for a second, then pulled the knife out of my right sleeve. I then told her to give me the fucking money order or the cigarettes. She then backed up and started running. I got scared. She then ran into some sodas and fell. She got up, ran out the door and I ran out behind her, then ran down towards the car wash. I was running and threw the knife. A little further down I got rid of my scarf and jacket. The police pulled up and asked my name. I got scared and ran.
On 1 March 2004, defendant was charged with robbery with a dangerous weapon and first degree kidnapping. Defendant presented no evidence at trial, but moved to dismiss the charge of first degree kidnapping for insufficient evidence at the close of the State's evidence and at the conclusion of all evidence presented. The trial court denied these motions. On 27 April 2006, the jury found defendant guilty of attempted robbery with a dangerous weapon and first degree kidnapping. The trial court sentenced defendant degree kidnapping and a consecutive presumptive-range sentence of to a presumptive-range sentence of 84 to 110 months for first 77 to 102 months for attempted robbery with a dangerous weapon. Defendant timely appealed to this Court.
Discussion
Defendant's sole contention on appeal is that the trial court should have dismissed the charge of first degree kidnapping because the State failed to present sufficient evidence that defendant restrained Gardner separately and independently from the restraint inherent in the commission of robbery with a dangerous weapon. "This Court reviews the trial court's denial of a motion to dismiss de novo." State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). "The standard of review on a motion to dismiss for insufficient evidence is whether the State has offered substantial evidence of each required element of the offense charged." State v. Goblet, 173 N.C. App. 112, 118, 618 S.E.2d 257, 262 (2005). Substantial evidence is that amount of evidence "sufficient to persuade a rational juror to accept a particular conclusion." Id. "In ruling on a motion to dismiss for insufficient evidence, the court must view the evidence in the light most favorable to the State and every reasonable inference drawn from the evidence must be afforded to the State." Id.
"Under N.C.G.S. § 14-39, a defendant commits the offense of kidnapping if he: (1) confines, restrains, or removes from one place to another; (2) a person; (3) without the person's consent; (4) for the purpose of facilitating the commission of a felony, doing serious bodily harm to the person, or terrorizing the person." State v. Mann, 355 N.C. 294, 302, 560 S.E.2d 776, 782, cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403, 123 S. Ct. 495 (2002). The Supreme Court has recognized that "this statute presents the potential for a defendant to be prosecuted twice for the same act." State v. Boyce, 361 N.C. 670, 672, 651 S.E.2d 879, 881 (2007). This is so because "certain felonies ( e.g., forcible rape and armed robbery) cannot be committed without some restraint of the victim." Fulcher, 294 N.C. at 523, 243 S.E.2d at 351.
In Fulcher, id., our Supreme Court held "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." On the other hand, the Court reasoned that "there is no constitutional barrier to the conviction of a defendant for kidnapping, by restraining his victim, and also of another felony to facilitate which such restraint was committed, provided the restraint, which constitutes the kidnapping, is a separate, complete act, independent of and apart from the other felony." Id. at 524, 243 S.E.2d at 352.
Therefore, in order to survive defendant's motion to dismiss, the State must have presented sufficient evidence to enable the jury to reasonably find that defendant committed a restraint of the victim that was "a separate, complete act, independent of and apart from the other felony." Id. In State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981), our Supreme Court further explained this separate restraint requirement, holding that the State could survive a motion to dismiss a kidnapping charge if the victim was "exposed to greater danger than that inherent in the armed robbery itself."
In this case, when defendant threatened Gardner with a knife and demanded the money in the cash register, she pushed the panic button, abandoned the cash register, and tried to escape by running out of the store. At that point, rather than trying to obtain the money from the cash register — defendant's objective in attempting to rob the convenience store — defendant caught Gardner, pulled her to the floor, and wrestled with her for two to three minutes, thereby restraining her from leaving the store for two to three minutes.
This restraint was not necessary to accomplish the robbery of the cash register, but rather a reasonable jury could find that it was to prevent Gardner from escaping. As such, it was a restraint separate from the attempted armed robbery. See Boyce, 361 N.C. at 674-75, 651 S.E.2d at 882-83 (holding that State presented sufficient evidence of restraint apart from robbery with dangerous weapon when it showed that defendant prevented victim's escape by pulling her back into her home prior to onset of robbery); Fulcher, 294 N.C. at 524, 243 S.E.2d at 352 (holding that defendant's restraint of women to prevent their ability to escape room during commission of crime against nature was sufficient to support conviction of kidnapping); State v. Robertson, 149 N.C. App. 563, 569, 562 S.E.2d 551, 556 (2002) (holding that when defendant, after attempting to rape victim at knife-point, further kept victim from leaving bedroom even after he left bedroom, State presented sufficient evidence to support kidnapping conviction as well as attempted rape conviction); State v. Muhammad, 146 N.C. App. 292, 295-96, 552 S.E.2d 236, 238 (2001) (holding that defendant's placing victim in choke hold, wrestling with him on floor, hitting victim in side three times, and pointing gun at victim "constituted restraint beyond what was necessary for the commission of common law robbery"). It is immaterial that the restraint lasted only two to three minutes. See Fulcher, 294 N.C. at 522, 243 S.E.2d at 351 (observing that "resort to a tape measure or a stop watch [is] unnecessary in determining whether the crime of kidnapping has been committed").
In addition, by dragging Gardner to the floor and wrestling with her while he was holding a knife, resulting in Gardner's shirt being slit, defendant exposed Gardner to greater danger than that inherent in the armed robbery itself. See, e.g., State v. Beatty, 347 N.C. 555, 559, 495 S.E.2d 367, 370 (1998) (holding that defendant's forcing one victim to lie on floor, binding that victim with duct tape, and kicking him twice supported kidnapping conviction for that victim because it "increased the victim's helplessness and vulnerability beyond what was necessary to enable him and his comrades to rob the restaurant"); State v. Simpson, 187 N.C. App. 424, 432, 653 S.E.2d 249, 254 (2007) ("Defendant's acts to restrain [the victim] while they struggled in the kitchen clearly subjected her to greater danger and vulnerability than was inherent in the attempted rape that [previously] occurred on the couch."). The trial court, therefore, properly denied defendant's motion to dismiss.
No error.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).