State v. Brayboy , 105 N.C. App. 370 ( 1992 )

413 S.E.2d 590 (1992) 105 N.C. App. 370

STATE of North Carolina
v.
Timmy BRAYBOY

No. 914SC145.

Court of Appeals of North Carolina.

February 18, 1992.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. James Peeler Smith, Raleigh, for State.

Philip E. Williams, Roseboro, for defendant-appellant.

WELLS, Judge.

Defendant presents five assignments of error to this Court on appeal. He does not address his fourth and fifth assignments in his brief and they are therefore deemed abandoned. N.C.R.App.P., Rule 28. In his remaining assignments, defendant contends the trial court erred in denying his motions to dismiss for insufficiency of the evidence, refusing defendant's motion for a mistrial and allowing impeachment of a defense witness with his own prior inconsistent statement.

Defendant first assigns error to the trial court's denial of his motions to dismiss for insufficiency of the evidence. Defendant contends in his brief that the evidence relating to the charges of attempted first degree rape and second degree kidnapping to facilitate the felony of assault with a deadly weapon with intent to kill inflicting serious injury is insufficient to withstand a motion to dismiss.

Upon a motion to dismiss by a defendant, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). 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, 265 S.E.2d 164 (1980). The evidence is considered in the light most favorable to the State, "and the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom." State v. Bright, 301 N.C. 243, 271 S.E.2d 368 (1980), quoting State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975). However, if the evidence "is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion for [dismissal] should be allowed." Id., quoting State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967).

In the present case, defendant contends that the evidence, taken in a light most favorable to the State, does not support the conclusion that he committed the crime of attempted rape. We agree. The two elements of the crime of attempt are (1) there must be the intent to commit a specific crime and (2) an overt act which in the ordinary and likely course of events would result in the commission of the crime. State v. Rushing, 61 N.C.App. 62, 300 S.E.2d 445 (1983). An attempt is an act done with the specific intent to commit a crime. Id. (Emphasis in original). In the context of attempted rape, the State must have presented evidence sufficient to establish that (1) defendant forced Ms. Koehler to the ground with the intent to engage in forcible, nonconsensual intercourse with her and (2) in the ordinary and likely course of events, defendant's assaultive act would result in the commission of a rape.

It is clear that the evidence pertaining to defendant's acts does not support the conclusion that he intended to rape Ms. Koehler. There is no evidence that defendant forced himself upon her in a sexual manner or indicated that it was his intent to engage in forcible, nonconsensual intercourse with her. The evidence merely shows that defendant grabbed Ms. Koehler, forced her to the ground, pinned her arms behind her back and then straddled her following Jones' shooting Kauchak. The only evidence which could give any indication that defendant might have intended to commit some sexual act upon Ms. Koehler is Jones' statement, "Go on and do what you want to do with her." This evidence allows one only to speculate exactly what defendant may have intended to "do" with Ms. Koehler. Therefore, the trial court erred in denying defendant's motion to dismiss as to this charge.

Defendant also contests the charge and conviction of kidnapping Ms. Koehler for the purpose of facilitating the felony assault upon Kauchak. He contends, as with the charge of attempted rape, that there was insufficient evidence presented at trial for this charge to survive his motion to dismiss. We disagree.

N.C.Gen.Stat. § 14-39, in pertinent part, provides:

(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....

The terms "restrain" and "remove" have been defined for the purposes of this statute. The term "restrain" connotes restriction by force, threat or fraud with or without confinement. State v. Moore, 77 N.C.App. 553, 335 S.E.2d 535 (1985), citing State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978). Restraint does not have to last for an appreciable period of time and removal does not require movement for a substantial distance. Id. Restraint or removal of the victim for any of the purposes specified in the statute is sufficient to constitute kidnapping. Thus, no asportation is required where there is the requisite restraint. Id.

When an indictment alleges an intent to commit a particular felony, the State must prove the particular felonious intent alleged. State v. White, 307 N.C. 42, 296 S.E.2d 267 (1982). In order to withstand the defendant's motion to dismiss, the State [is], therefore, required to introduce substantial evidence tending to show that defendant had the intent [to commit the particular felony] at the time he [confined, restrained or removed the victim]. State v. Alston, 310 N.C. 399, 312 S.E.2d 470 (1984). Intent, or the absence of it, may be inferred from the circumstances surrounding the event and must be determined by the jury. Id., citing State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E.2d 583 (1970). It is not necessary that the felony which was facilitated by the kidnapping be committed against the victim of the kidnapping. The kidnapping statute clearly requires only that the kidnapping facilitate the commission of any felony. Moore, supra.

In the present case, the State has shown substantial evidence that would support the inference that defendant restrained Ms. Koehler with the intent of facilitating the assault upon Kauchak. The State has sufficiently shown that defendant restrained Ms. Koehler by forcing her to the ground, pinning her arms behind her back and getting on top of her. Defendant's act of restraint occurred immediately after the shot was fired but prior to any investigation as to why it was fired. Defendant informed Ms. Koehler that the shot was fired to kill a snake but restrained her upon her attempt to investigate the purpose of the shooting. Further, Jones immediately walked to where defendant held Ms. Koehler on the ground and said, "Go on and do what you want to do with her."

A jury could infer that defendant told Ms. Koehler that Jones had shot a snake to conceal the assault committed upon Kauchak and that defendant forced her to the ground to prevent her from interfering with the assault or aiding Kauchak once he had been assaulted. Further, a jury could infer that Jones' action immediately following his shooting Kauchak was intended to confirm to defendant that the assault had been accomplished. This would support an inference that defendant knew of Jones' intent to shoot Kauchak. Therefore, we find no error in the trial court's denial of defendant's motion to dismiss as to the charge of kidnapping to facilitate the felony assault upon Kauchak and overrule this assignment of error as to this charge.

Defendant combines his remaining assignments of error into one argument in his brief. He contends the trial court erred in denying defendant's request for a mistrial on the ground that the State attempted to elicit an admission of prior bad acts by defendant. Defendant also contends that the trial court erred by allowing the State to impeach a particular witness with his own prior inconsistent statements. Upon our review of the arguments presented in defendant's brief and the record before us, we deem these assignments of error to be totally without merit and overrule them.

For the reasons stated, defendant's conviction of attempted second degree rape is reversed and this case is remanded for resentencing based on the conviction of second degree kidnapping.

As to No. 90 CRS 3500,

Reversed.

As to No. 90 CRS 3501,

No error in the trial; remanded for resentencing.

HEDRICK, C.J., and JOHNSON, J., concur.