Copyright 1997 - N.C. Administrative Office of the Courts


No. COA96-1489

(Filed 4 November 1997)

1.    Appeal and Error § 212 (NCI4th)-- extension of time for taking appeal -- trial court without authority

    The trial court exceeded its authority by entering an order extending the time for taking an appeal. N.C. R. App. P. 27(c).

2.    Kidnapping and Felonious Restraint § 2 (NCI4th)-- continuing offense

    The offense of kidnapping under N.C.G.S. § 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 own free will. Therefore, each place of confinement or each act of asportation occurring during a kidnapping does not constitute a separate unit of prosecution.

3.    Kidnapping and Felonious Restraint § 16 (NCI4th)-- one act of kidnapping -- erroneous submission of three counts

    Defendant committed only one act of kidnapping which encompassed the period beginning when a codefendant removed the victim from her vehicle until the victim was released in a motel parking lot, and the trial court improperly submitted three separate counts of kidnapping to the jury, even though sentence was imposed for only one count.

4.    Constitutional Law § 200 (NCI4th)-- double jeopardy -- first-degree kidnapping and underlying sexual assault

    Imposition of separate punishments on a defendant for the offenses of first-degree kidnapping and the underlying sexual assault on which the first-degree kidnapping charge was based violates the double jeopardy clauses found in U.S. Const. amend. V and N.C. Const. art.I, § 19.

5.    Kidnapping and Felonious Restraint § 14 (NCI4th)-- release in safe place

    A kidnapping victim was released in a "safe place" at the end of her confinement so that the place of her release could not elevate the crime to first-degree kidnapping where the victim was voluntarily dropped off in a motel parking lot in the middle of the afternoon, was given change to make a phone call, and was able to go the motel office to seek assistance.

6.    Rape and Allied Sexual Offenses § 27 (NCI4th)-- first-degree sexual offense -- aiding and abetting -- sufficient evidence

    The evidence supported defendant's conviction of first- degree sexual offense by aiding and abetting a codefendant's penetration of the victim's vagina with his fingers while in defendant's vehicle where it tended to show that defendant had made a lewd comment to a female restaurant employee just minutes before his vehicle collided with the victim's vehicle; after the collision, the codefendant forced the victim into the back seat of defendant's vehicle; defendant repeatedly reached over the seat while he was driving and hit the victim in the head; both defendant and the codefendant drove the victim from place to place, discussed killing her, and eventually raped her; after the codefendant took the victim to his house, defendant twice visited the house; and both men subsequently removed the victim from the house and released her in a motel parking lot.

    Judge WALKER concurring.

    Appeal by defendant from judgments entered 16 June 1994 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 16 September 1997.

    Attorney General Michael F. Easley, by Assistant Attorney General Mary D. Winstead, for the State.

    Glover & Petersen, P.A., by Ann B. Petersen, for defendant appellant.

    SMITH, Judge.

    The State's evidence tended to show the following: On 14 April 1993, the victim worked the late shift at Bennigan's Restaurant in Greensboro and left the restaurant at approximately 2:30 a.m. on 15 April 1993. While stopped at a traffic light on South Chapman Street, a speeding vehicle approached from the rear and collided with her vehicle. Someone yelled, "[a]re you all right?" and directed her to pull over in order to call the police. After pulling into a parking lot, one of the occupants of the other vehicle, who was later identified as Vernon Easterling ("Easterling"), got out and looked at the damage to both vehicles. Easterling approached the victim's vehicle and the victim rolled her window down slightly. He asked if she was all right, and as she turned to look at him, he punched her in the jaw, knocking her into the passenger seat. The next thing she remembered, Easterling was choking her and hitting her head against the passenger seat. The victim attempted to escape through the passenger door, but Easterling pulled her by the hair back into the vehicle, across the console and emergency brake and out onto the parking lot. He then dragged her across the parking lot into the rear floorboard of the vehicle that had hit her vehicle.

    The driver of the vehicle, who was later identified as defendant, told her to shut up or he would shoot her, and asked her where her money was. She looked up and saw he had her purse which she had placed in the backseat of her vehicle before she left work. Defendant and Easterling looked through her wallet which contained an ATM card and $9.00. Defendant said he wanted to take the victim to the bank in order to get money from an ATM machine. The victim told them she did not have any money in the bank and that she had surpassed her limit on her credit cards. Because she feared for her life, she offered them her paycheck which was in her pocket. Easterling took her paycheck and he and defendant decided to take her to cash it.

    While defendant drove the vehicle, Easterling rode in the backseat with the victim. During this time, defendant reached over the backseat and hit her repeatedly, telling her to shut up or he would kill her. Easterling, who also hit and kicked her, repeatedly inserted his fingers in her vagina and fondled her breasts.

    Because the victim was extremely upset, defendant and Easterling decided against cashing her paycheck. Easterling suggested taking her to Heath Park. When they arrived there, Easterling pulled the victim out of the vehicle and tied her wrists behind her back. Defendant and Easterling walked her down a hill and threw her to the ground. They tied her hands and feet with her suspenders and told her it was her own fault. They then walked a few feet away and discussed killing her and moving her vehicle. As they finished their conversation, a truck approached. They untied her feet, put her back in defendant's vehicle, and proceeded to drive to another park. When they arrived at the second park, Easterling took the victim out of the vehicle and down a hill. He threw her to the ground, tore her clothes off and put his tongue in her vagina. He then had forcible sexual intercourse with her. At the same time, defendant was kneeling on top of her and trying to force her to perform oral sex on him. When Easterling finished, he held her down while defendant placed his tongue and then his penis in her vagina.

    When defendant finished, they again shoved the victim into the floorboard of the rear passenger seat of defendant's vehicle and started to drive, arguing about what to do with her. Defendant began driving fast and said he was going to kill all of them. The vehicle ran into something, and Easterling told defendant to stop. Easterling pulled the victim out of the vehicle and took her to his house, where he repeatedly raped and beat her. Defendant went to Easterling's house twice, the second time at approximately 11:00 a.m. While the victim pretended to sleep, defendant and Easterling discussed what they were going to do with her. Later, the three of them watched the news, which aired a story about the victim's disappearance. The two men eventually agreed to release the victim if she agreed to tell authorities she had not seen her assailants. Easterling gave her baggy clothes and sunglasses to disguise her as they left the house, and he also gave her a quarter to make a phone call. The three of them got into defendant's vehicle and drove to the Economy Inn Motel. Defendant and Easterling released the victim in the back parking lot of the motel at approximately 2:30 p.m.

    The State's evidence also tended to show that, on the night of 14 April 1993, Ms. Deborah McDonald was employed at New York Pizza, a bar in Greensboro. As she was closing the bar at approximately 2:35 a.m. on 15 April 1993, she attempted to lock the back door but someone pulled it open. She told the person he needed to go and he repeatedly said, "[s]ee you later." He then said, "[y]ou know you won't say '[s]ee you later,' because I'll go all up in you and make you come." McDonald walked away from the door and told her coworker to get the person away from the door. Her coworker locked the door and they thereafter left the building. As McDonald drove home, she stopped for a red light at the intersection of Chapman and Spring Garden Streets. She saw two vehicles on Chapman Street that were positioned to turn onto Spring Garden Street but were stopped at the green light. She saw the same man who had spoken to her while she was closing New York Pizza standing at the driver's side of the front vehicle. As McDonald drove off, she saw the two vehicles pull into a parking lot. McDonald later identified the person she had seen at New York Pizza and at the intersection as defendant.

    Defendant was charged with armed robbery, two counts of first degree rape, three counts of first degree sexual offense and three counts of first degree kidnapping. The first count of kidnapping charged defendant with confining the victim in his vehicle at the intersection of Spring Garden and Chapman Streets for the purpose of facilitating the commission of robbery and not releasing her in a safe place. The second count of kidnapping charged defendant with removing the victim from the intersection to a park for the purpose of facilitating the commission of rape or sexual offenses and sexually assaulting the victim and not releasing her in a safe place. The third count of kidnapping charged defendant with removing the victim from the park to Easterling's residence for the purpose of facilitating the commission of rape or sexual offenses and sexually assaulting the victim and not releasing her in a safe place.

    On 16 June 1994, defendant was convicted by a jury of robbery, two counts of first degree rape, two counts of first degree sexual offense, and three counts of first degree kidnapping. The trial court arrested judgment on Counts I and III of the first degree kidnapping charges. Defendant was sentenced to four consecutive terms of life imprisonment for the two counts of first degree rape and two counts of first degree sexual offense. He was also sentenced to forty years' imprisonment for the first degree kidnapping and ten years' imprisonment for common law robbery.

    On appeal, defendant first contends the trial court erred by denying his motion to submit only a single count of kidnapping to the jury. Defendant argues that the kidnapping was a single, continuing offense, and that arresting judgment on counts I and III of the kidnapping charges was insufficient to cure the prejudice arising from the submission of three counts of kidnapping.

    [1]We first note that defendant's appeal was not perfected within the times prescribed by our Rules of Appellate Procedure. The record contains an order entered by the trial court on 12 September 1996 allowing defendant to appeal as of right from the judgments and sentences imposed on 16 June 1994. According to N.C.R. App. P. 27(c), "[c]ourts may not extend the time for taking an appeal . . . ." The trial court thus exceeded its authority in entering such an order. However, we choose to suspend the Rules pursuant to N.C.R. App. P. 21(a)(1) and treat the appeal as before us on a writ of certiorari. See Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997)(holding that this Court could review the merits of an appeal by certiorari even if the party failed to file notice of appeal in a timely manner).

    We now turn to the propriety of the trial court submitting three separate counts of kidnapping to the jury, rather than one, an issue of first impression in this jurisdiction. N.C. Gen. Stat. § 14-39 (1993) states 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:

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    WALKER, Judge, concurring.

    The question of whether the victim was "not released in a safe place" is ordinarily an issue of fact for the jury. In this case, however, I agree with defendant's contention that by submitting three counts of kidnapping, "the State creat[ed] the element of failure to release in a safe place for each count, causing the jury to focus on arbitrary points during the victim's confinement, rather than her ultimate release at the motel." This was especially true, as Count III of the kidnapping indictment charged, "he [defendant] did remove her [the victim] from a city park in the northeast section of Greensboro, N.C. to a home located at 2005 Lutheran Street...," but did not mention that the victim was ultimately released in the parking lot of a motel. As such, I conclude there was insufficient evidence for a jury to find the victim was not released in a safe place; therefore, the defendant should not have been sentenced for a crime greater than second degree kidnapping.

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