State v. Chambers

PHILLIPS, Judge.

Defendant’s first of several contentions, none of which have merit, is that neither conviction is supported by evidence; and in support thereof he makes three arguments. His first argument is that the evidence did not establish, as State v. Fulcher, 294 N.C. 503, 523, 243 S.E. 2d 338, 351 (1978) requires, a restraint separate and apart from the restraint used in committing the other felony when the kidnapping is based upon a confinement or removal to facilitate the commission of a felony under G.S. 14-39(a)(2). But viewing the evidence in its most favorable light for the State it tends to show that defendant restrained Semantha Harmon for the kidnapping by firing a gun in the air and threatening to kill her and her brother if they did not stop walking away from the car; and restrained her to accomplish the sex offense by jerking her out of the car and with Sutton’s help forcing her onto the hood of the car. His second argument is that the degree of the kidnapping conviction should be reduced because the victim was released in a “safe place”; but the evidence indicates she was not released at all, but escaped. State v. Pratt, 306 N.C. 673, 682, 295 S.E. 2d 462, 468 (1982). His third argument is that the attempted rape was not proven because the evidence does not show that she resisted while on the hood of the car; but physical resistance was not necessarily required since he had a gun and had threatened to use it. State v. Stanley, 74 N.C. App. 178, 327 S.E. 2d 902, disc. rev. denied, 314 N.C. 546, 335 S.E. 2d 318 (1985).

Defendant next contends that Detective Gosnell was erroneously permitted to testify to a statement of his that was obtained by fraud or trickery. The statement was that Semantha’s “ass” prints might be on the hood of the car and with respect thereto Detective Gosnell testified in the voir dire hearing as follows:

[H]e made the statement that him and Semantha were sitting on the hood of the car. I asked him if they were clothed. He said yes. At that point I asked him, I said, “Robert, if you were clothed, then when I process the car for fingerprints, there is no reason I would find the girl’s ass print on the car, is there?” He said “Maybe,” and I asked him what was he talking about and he said she got off the hood to use the bathroom. I said “Wouldn’t her clothes have been back on her when she got back on the hood?” He said, “Well, they were down to her knees.” I asked if there was any way I would find his ass prints on the hood of the car. He said maybe because of the way he was sitting and indicated from the top part of his tail up from his hip. . . .

At that point he told me that him and the girl were messing around on the hood of the car; that she was letting him.

Gosnell further testified that although he had never had it done he believed that “ass prints” could be processed and the only reason he did not try to process them in this instance was defendant’s statement. Deceptive methods by police officers by themselves do not render a confession of guilt inadmissible. The admissibility of a confession depends upon several factors, one of which is “whether the means employed were calculated to procure an untrue confession.” State v. Jackson, 308 N.C. 549, 574, 304 S.E. 2d 134, 148 (1983). The circumstances here do not indicate either that the officer procured a false confession or that that was his purpose.

Next defendant contends that he was prejudiced because the court erroneously refused to permit Barbara Kinsey to testify that she had always found defendant to be trustworthy. Assuming arguendo that the testimony was admissible under the provisions of Rule 404(a)(1), N.C. Rules of Evidence, State v. Squire, 321 N.C. 541, 547, 364 S.E. 2d 354, 358 (1988), defendant could not have been prejudiced thereby in our opinion; because the witness had made the same point earlier, State v. Walden, 311 N.C. 667, 319 S.E. 2d 577 (1984), and probably with greater effect, by testifying that she had trusted him with the care of her children, allowed him to use her car, and “trusted Robert with everything.”

Finally, defendant argues that his convictions for both offenses are forbidden by the holding in State v. Freeland, 316 N.C. 13, 23, 340 S.E. 2d 35, 40 (1986) that a defendant cannot be “convicted of both first degree kidnapping and a sexual assault that raised the kidnapping to first degree.” But a sexual assault is not the only occurrence that can raise a kidnapping to first degree; G.S. 14-39(b) provides that a kidnapping can also be raised to that degree if the victim “was not released by the defendant in a safe place,” and here the verdict explicitly shows that what raised the kidnapping charge to first degree was not the sexual assault, but that defendant did not release the victim in a safe place.

No error.

Judges Eagles and Parker concur.