State v. King ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-765
Filed: 6 September 2016
Cleveland County, No. 05CRS56352, 12CRS848
STATE OF NORTH CAROLINA
v.
TONY KING, Defendant.
Appeal by defendant from judgment entered on or about 14 January 2015 by
Judge Yvonne Mims Evans in Superior Court, Cleveland County. Heard in the Court
of Appeals 13 January 2016.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Donna
D. Smith, for the State.
Michael E. Casterline, for defendant-appellant.
STROUD, Judge.
Defendant appeals judgment convicting him of second degree sexual offense
and second degree kidnapping. For the following reasons, we conclude there was no
error.
I. Background
The State’s evidence tended to show that in August of 2005, Marie1 contacted
defendant to look at a rental property. Defendant arranged to meet Marie and drove
1 A pseudonym will be used.
STATE V. KING
Opinion of the Court
her to the rental house. After they went inside for Marie to look at the house,
defendant grabbed Marie by the throat and began kissing her neck and breasts.
Defendant moved Marie from the hallway to a bedroom with his hands on her throat
and threw her onto a bed. Defendant ripped off Marie’s pants and placed his fingers
inside her vagina. Defendant tried to get Marie to perform oral sex on him, but she
refused. Marie tried to get away from defendant after they left the house, but she
ended up riding with defendant to return home. After Marie got back home, she told
her mother what had happened and Marie’s mother called the police. While she was
speaking with the police at her home, defendant called Marie asking, “Are you mad
at me?” and saying, “[I]f you meet me somewhere . . . I will pay you to keep your
mouth shut.” After a trial by jury, defendant was convicted of second degree sexual
offense and second degree kidnapping.2 Defendant appeals.
II. Mistrial
During defendant’s trial Sergeant Carl Duncan stated, “She’s been reliable to
me[,]” in regards to his prior interactions with Marie. The defense objected to this
statement, and the trial court sustained the objection. Defendant contends that “the
trial court erred in failing to declare a mistrial ex mero motu after Officer Duncan
improperly vouched for the credibility of the prosecuting witness.” (Original in all
caps.)
2 The trial court arrested judgment for a first degree kidnapping conviction.
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Opinion of the Court
The decision to grant a mistrial is within the trial
court’s discretion. This is particularly true where, as here,
defendant has not moved for a mistrial. A mistrial may be
granted only when the case has been prejudiced at trial to
such an extent that a fair and impartial verdict is
impossible. A trial court’s decision regarding a motion for
mistrial will not be disturbed on appeal unless the trial
court clearly has abused its discretion.
State v. Jaynes, 342 N.C. 249, 279, 464 S.E.2d 448, 467 (2005) (citations omitted).
Even assuming arguendo that Sergeant Duncan “vouched for the credibility of
the prosecuting witness[,]” his statement, which was both objected to and sustained,
did not prejudice defendant such “that a fair and impartial verdict is impossible.” Id.
(“In the present case, the trial court sustained each of defendant’s three objections.
As a result, no evidence prejudicial to defendant was introduced in response to the
prosecutor’s questions concerning defendant’s alleged prior crimes or convictions.
The trial court’s actions were sufficient to remedy any possible harm resulting from
the mere asking of the three questions by the prosecutor. The trial court did not err
by failing to declare a mistrial. This assignment of error is overruled.”) This
argument is overruled.
III. Motion to Dismiss
Defendant next argues that “the trial court erred in denying the motion to
dismiss the kidnapping charge, when the evidence was insufficient to prove that any
confinement or restraint was separate and apart from the force necessary to facilitate
the sex offense.” (Original in all caps.)
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Opinion of the Court
The standard of review for a motion to dismiss is
well known. A defendant’s motion to dismiss should be
denied if there is substantial evidence of: (1) each essential
element of the offense charged, and (2) of defendant’s being
the perpetrator of the charged offense. Substantial
evidence is relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. The Court must
consider the evidence in the light most favorable to the
State and the State is entitled to every reasonable
inference to be drawn from that evidence.
State v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and
quotation marks omitted).
The elements of kidnapping are: (1) confining,
restraining, or removing from one place to another; (2) any
person sixteen years or older; (3) without such person’s
consent; (4) if such act was for the purposes of facilitating
the commission of a felony. This Court has previously held
that the offense of kidnapping under N.C. Gen. Stat. § 14–
39 is a single continuing offense, lasting from the time of
the initial unlawful confinement, restraint or removal until
the victim regains his or her free will. . . .
In situations involving both kidnapping and sexual
offense, the restraint of the victim must be a complete act,
independent of the sexual offense.
It is self-evident that certain felonies (e.g.,
forcible rape and armed robbery) cannot be
committed without some restraint of the
victim. [O]ur Supreme Court has 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. 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
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STATE V. KING
Opinion of the Court
felony.
The test of the independence of the act is whether
there was substantial evidence that the defendant
restrained or confined the victim separate and apart from
any restraint necessary to accomplish the acts of rape,
statutory sex offense, or crime against nature. Further, the
test does not look at the restraint necessary to commit an
offense, rather the restraint that is inherent in the actual
commission of the offense.
State v. Martin, 222 N.C. App. 213, 220-21, 729 S.E.2d 717, 723 (2012) (citations,
quotation marks, ellipses, and brackets omitted). Furthermore, our Supreme Court
has clarified that “[t]he key question is whether the victim is exposed to greater
danger than that inherent in the [charged offense] itself or subjected to the kind of
danger and abuse the kidnapping statute was designed to prevent.” State v. Johnson,
337 N.C. 212, 221, 446 S.E.2d 92, 98 (1994) (citation and quotation marks omitted).
Both defendant and the State cite numerous cases turning on small factual
nuances to determine whether the restraint in each particular case was independent
from or an inherent part of each crime at issue. Such small distinctions are not
necessary in this particular case, since Marie testified that after defendant committed
his sexual offenses against her she wanted to “take [off] running[,]” but defendant
ordered her to “‘[f]ix [herself] up’” and told her “‘this is going to be our secret.’” Marie
walked out of the room “speed walking” and defendant told her, “‘You better slow
down.’” Marie then decided she was “going to cooperate just so I can get back – just
Lord get me back – get me back to my mama.” Marie had no other way to get home,
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STATE V. KING
Opinion of the Court
since she had ridden with defendant, and defendant had already told her not to try
to walk away from him. Defendant and Marie then got into defendant’s car. While
defendant did ultimately drive Marie back to her home, defendant also forced Marie
to get into a car with him immediately after he had sexually assaulted her. Forcing
Marie to ride in his car is exactly “the kind of danger and abuse the kidnapping
statute was designed to prevent” and “exposed [her] to greater danger” than that
inherent in the sexual offenses, and thus the State did show sufficient evidence of the
element of restraint for the charge of second degree kidnapping to proceed to the jury.
Id.; see also State v. Boyce, 361 N.C. 670, 674-75, 651 S.E.2d 879, 882-83 (2007) (“The
State’s evidence in the present case sufficiently established that defendant prevented
the victim’s escape by pulling her back into her residence before the onset of the
robbery with a dangerous weapon. This restraint and removal was a distinct criminal
transaction that facilitated the accompanying felony offense and was sufficient to
constitute the separate crime of kidnapping under North Carolina law. That the
victim was removed just a short distance and only momentarily before the robbery
is irrelevant, as this Court long ago dispelled the importance of distance and
duration.”) Therefore, this argument is overruled.
IV. Conclusion
For the foregoing reasons, we conclude there was no error.
NO ERROR.
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Opinion of the Court
Judges ELMORE and DIETZ concur.
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