1. Homicide--attempted second-degree murder--crime does not exist in North Carolina
The trial court committed plain error by instructing the jury on the issue of attempted
second-degree murder because our Supreme Court has stated since defendant's conviction that
attempted second-degree murder does not exist under North Carolina law.
2. Sentencing--consolidation of judgment for attempted second-degree murder and
first-degree kidnapping--improper
Resentencing is required in a case where defendant's improper conviction for attempted
second-degree murder was consolidated for judgment with the conviction of first-degree
kidnapping, because whether the crime of first-degree kidnapping standing alone would support
the sentence of 116 to 149 months imposed in connection with the two crimes is a matter for the
trial court to reconsider.
3. Robbery--dangerous weapon--plural victims in indictment versus single victim in
jury instruction
The trial court did not err by submitting the charge of robbery with a dangerous weapon
to the jury even though there was an insertion of plural victims in the indictment compared to the
requirement of only a single victim in the jury instructions, because: (1) the use of a conjunctive
in the indictment does not require the State to prove various alternative matters alleged; (2) the
evidence showed that both defendants acting in concert forced the two victims into the bedroom
where one defendant stole a necklace; (3) there are no substantial discrepancies between the
allegations in the indictment and the evidence presented at trial; and (4) defendant has failed to
cite any authority in support of this assignment of error.
4. Kidnapping--first-degree and second-degree--proper resentencing based on
erroneous maximum term
A defendant was not improperly resentenced by the trial court for the consolidated
offenses of first-degree kidnapping and second-degree kidnapping, because: (1) the maximum
term established by N.C.G.S. § 15A-1340.17(e) should have been 129 months instead of 120
months; (2) N.C.G.S. § 15A-1340.17 does not provide for judicial discretion in the determination
of maximum sentences; and (3) defendant's sentence was properly corrected by the trial court to
reflect the maximum sentence required by statute.
5. Burglary; Kidnapping; Robbery--motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendants' motions to dismiss the charges of first-
degree burglary, first-degree kidnapping, second-degree kidnapping, and robbery with a
dangerous weapon, because the State presented evidence that: (1) three victims and eyewitnesses
of the crimes testified that two armed intruders entered the house late at night, forced two victims
out of the house at gun point, re-entered the house, stole jewelry, and shot one victim in the back
of the head; and (2) these witnesses knew the intruders and recognized them as the defendants.
6. Kidnapping--first-degree--failure to instruct on lesser included offense of second-
degree kidnapping
The trial court did not err by failing to instruct the jury on the charge of second-degree
kidnapping as a lesser included offense of the first-degree kidnapping instruction, because: (1)
the evidence reveals that defendants fled after shooting one victim and chased another victim as
she escaped, leaving the shot victim in the backyard and a third victim inside the house; and (2)
there was no evidence defendants consciously and willfully left the victims in a safe place.
Attorney General Michael F. Easley, by Special Deputy Attorney
General James Peeler Smith, for the State.
Batts, Batts & Bell, L.L.P., by Joseph L. Bell, Jr.; and
Charles E. Robinson, for defendants-appellants.
WALKER, Judge.
Defendant Parker appeals his conviction of attempted second
degree murder, first degree burglary, first degree kidnapping,
second degree kidnapping and robbery with a dangerous weapon.
Defendant Holloway appeals his conviction of first degree burglary,
first degree kidnapping, second degree kidnapping and robbery with
a dangerous weapon. Defendants were convicted in a joint trial and
sentenced on 13 April 1999. Defendant Parker was sentenced to
consecutive terms of 103 to 133 months, 116 to 149 months and 34 to
50 months. Defendant Holloway was sentenced to consecutive terms
of 100 to 129 months and 77 to 102 months.
The State's evidence at trial tended to show that both
defendants attended a cook-out at the home of Randy Perry (Perry),
Felicia Bynum (Bynum) and Teresa Moore (Moore) on Saturday, 28
March 1998. Around 4:00 a.m. on the following Monday morning,
Moore had just begun preparing breakfast when she heard loud
banging on the front door and someone yell, “Rocky Mount PoliceDepartment.” The noise woke up Perry and, as he approached the
front door, two armed men entered the back door. Moore testified
that although she could not see the men, she knew they were not
policemen. She hid in a space between the freezer and the counter
in the kitchen out of sight of the assailants. Perry testified
that the men were wearing ski masks on their heads but had not yet
pulled them down over their faces, allowing him to identify them.
Perry identified the men as defendants Parker and Holloway, whom he
had known for a number of years.
As the defendants approached Perry, they pulled their masks
down over their faces and forced Perry into the bedroom with Bynum.
They searched the room and then ordered Perry and Bynum out the
back door to Perry's car. Perry and Bynum were led back inside
briefly to allow Perry to get the keys to his car and to allow
Bynum to get her shoes. While inside, Perry testified that
defendant Parker stole a necklace from a shelf in the house.
During this time, Perry repeatedly spoke to Holloway, asking him
“B, man, why are you doing this?” Defendant Parker also called out
to defendant Holloway, referring to him as “B.” Outside, defendant
Perry unsuccessfully attempted to wrestle the gun away from
defendant Parker, after which defendant Holloway told defendant
Parker to kill Perry because he “knew exactly who he is.”
Defendant Parker then fired a shot which struck Perry in the back
of the head. Bynum was pursued by defendants as she ran away but
was able to escape.
Although Perry was seriously wounded, he was able to walk back
inside and call his family. Moore emerged from hiding and Bynumsoon returned. All three testified at trial that they were able to
recognize one or both of defendants on the night of the incident.
Defendants did not offer any evidence.
[1]Defendants raise issues on appeal both individually and
jointly. We first address defendant Parker's sole assignment of
error that the trial court committed plain error by instructing the
jury on the issue of attempted second degree murder. At the time
of defendant's trial in April 1999, attempted second degree murder
was recognized as a crime in this State. See State v. Cozart, 131
N.C. App. 199, 203, 505 S.E.2d 906, 909-10 (1998). However, since
defendant's conviction, our State Supreme Court has held that the
“crime denominated as 'attempted second-degree murder' does not
exist under North Carolina law.” State v. Coble, 351 N.C. 448,
453, 527 S.E.2d 45, 49 (2000). Thus, defendant's conviction of
that crime must be vacated. See State v. Tew, 352 N.C. 362, 544
S.E.2d 557 (2000).
[2]The State concedes that our Supreme Court's holding in
Coble is controlling. However, the State argues that because the
conviction of attempted second degree murder was consolidated for
judgment with the conviction of first degree kidnapping, and both
are classified as Class C felonies, resentencing is not required
for defendant Parker. The trial court consolidated both crimes for
judgment and sentenced defendant Parker to 116 to 149 months. The
presumptive minimum sentence for each of those offenses at
defendant Parker's prior record level is 93 to 116 months. N.C.
Gen. Stat. § 15A-1340.17(c)(1999). Thus, the State argues thatbecause defendant's conviction of first degree kidnapping remains,
resentencing is not necessary. We disagree.
In the case of State v. Brown, 350 N.C. 193, 513 S.E.2d 57
(1999), the defendant received a consolidated sentence of thirty
years in connection with her conviction of solicitation to commit
murder and conspiracy to commit murder. On appeal, the Supreme
Court vacated the conviction of solicitation to commit murder. The
Court held that judgment on the conspiracy to commit murder
conviction must be remanded to the trial court for resentencing
because “we cannot assume that the trial court's consideration of
two offenses, as opposed to one, had no affect [sic] on the
sentence imposed.” Brown at 213, 513 S.E.2d at 70.
In the case at bar, defendant Parker's conviction of first
degree kidnapping would support a sentence of 116 to 149 months.
However, whether that crime warrants the sentence imposed in
connection with the two crimes is a matter for the trial court to
reconsider. Thus, the case must be remanded for resentencing.
[3]We next address the assignments of error set forth by
defendant Holloway individually. Defendant Holloway first asserts
that the charge of robbery with a dangerous weapon was improperly
submitted to the jury because a fatal variance existed between the
indictment and the State's proof at trial. The indictment for
robbery with a dangerous weapon charged that defendant Holloway
“unlawfully, willingly and feloniously did steal, take, and carry
away another's personal property . . . from the presence, and
person of Randy Murphy Perry and Felicia Bynum.” However, the
trial court's instructions to the jury stated that a verdict ofguilty was proper if the jury believed defendant Holloway “took or
carried away property from the person or presence of a person.”
Defendant Holloway asserts that the insertion of plural victims in
the indictment as compared to the requirement of only a single
victim in the jury instructions constitutes reversible error.
“The use of a conjunctive in the indictment does not require
the State to prove various alternative matters alleged.” State v.
Montgomery, 331 N.C. 559, 569, 417 S.E.2d 742, 747 (1992), citing
State v. Williams, 314 N.C. 337, 356, 333 S.E.2d 708, 721 (1985).
Here, the evidence presented at trial showed that both defendants,
acting in concert, forced Perry and Bynum into the bedroom where
Parker stole the necklace. Although the indictment alleges two
victims, there are no substantial discrepancies between the
allegations in the indictment and the evidence presented at trial.
Further, defendant Holloway has failed to cite any authority in
support of this assignment of error. Thus, it is overruled.
[4]Defendant Holloway next contends that he was improperly
resentenced by the trial court, resulting in an unauthorized
increase of his sentence. Defendant Holloway was initially
sentenced for the consolidated offenses of first degree kidnapping
and second degree kidnapping to a minimum of 100 months and a
maximum of 120 months. The maximum term, as established by N.C.
Gen. Stat. § 15A-1340.17(e), should have been 129 months. The
sentence was later corrected so that defendant Holloway was
sentenced to a minimum of 100 months and a maximum of 129 months by
a subsequent trial court judge. Defendant Holloway now argues thatthe original sentence was not error but was an exercise of
discretion permitted by the Structured Sentencing Act. Thus,
defendant asserts he was improperly re-sentenced.
This Court has held that “absent precedent, we are bound by
the plain language of the act in determining the legislative
intent.” State v. Caldwell, 125 N.C. App. 161, 162, 479 S.E.2d
282, 283 (1997). N.C. Gen. Stat. § 15A-1340.17 provides “[u]nless
provided otherwise in a statute establishing a punishment for a
specific crime, for each minimum term of imprisonment in the chart
in subsection (c) of this section, expressed in months, the
corresponding maximum term of imprisonment, also expressed in
months, is as specified in the table below . . . .” See also N.C.
Gen. Stat. § 15A-1340.13(c)(1999).
The Structured Sentencing Act clearly provides for judicial
discretion in allowing the trial court to choose a minimum sentence
within a specified range. Caldwell at 162, 479 S.E.2d at 283.
However, the language of the Act provides for no such discretion in
regard to maximum sentences. The legislature did not provide a
range of possible maximum sentences nor did it create a vehicle to
alter the maximum sentences based on the circumstances of the case
as with minimum sentences. See N.C. Gen. Stat. § 1340.16 (1999).
Rather, the Act dictates that once a minimum sentence is
determined, the “corresponding” maximum sentence is “specified” in
a table set forth in the statute. Thus, N.C. Gen. Stat. § 15A-
1340.17 (1999) does not provide for judicial discretion in the
determination of maximum sentences. Defendant Holloway's sentencewas properly corrected by the trial court to reflect the maximum
sentence required by statute.
[5]We now address defendants' joint assignments of error, the
first of which is that the trial court improperly denied their
motion to dismiss for insufficiency of the evidence. Defendants
assert that the testimony of the three witnesses--Perry, Bynum and
Moore--differed in several respects and was “inherently
incredible.” Further, defendants point to the absence of any
physical evidence that would link these defendants to the crimes.
“In ruling on a motion to dismiss, the issue before the trial
court is whether substantial evidence of each element of the
offense charged has been presented, and that defendant was the
perpetrator of the offense.” State v. Carr, 122 N.C. App. 369,
371-72, 470 S.E.2d 70, 72 (1996). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” State v. Patterson, 335 N.C. 437, 449-50,
439 S.E.2d 578, 585 (1994). All the evidence, whether direct or
circumstantial, must be considered by the trial court, in the light
most favorable to the State, with all reasonable inferences to be
drawn from the evidence being drawn in favor of the State. State
v. Rose, 335 N.C. 301, 439 S.E.2d 518, cert. denied, 512 U.S. 1246,
129 L. Ed. 2d 883 (1994). “The trial court is not required to
determine that the evidence excludes every reasonable hypothesis of
innocence prior to denying a defendant's motion to dismiss.” State
v. Riddick, 315 N.C. 749, 759, 340 S.E.2d 55, 61 (1986).
Here, the State presented the testimony of three people whowere victims of and eyewitnesses to the criminal activit
y. These
witnesses testified that two armed intruders entered the house late
at night, forced Perry and Bynum out of the house at gun point, re-
entered the house, stole jewelry and shot Perry in the back of the
head. The State also presented evidence that these witnesses knew
the intruders and recognized them as the defendants. We find the
evidence, taken in the light most favorable to the State, to be
sufficient to uphold defendants' convictions.
[6]Defendants next argue that the trial court erred in
failing to instruct the jury on the charge of second degree
kidnapping as a lesser-included offense to the first degree
kidnapping instruction. The crime of kidnapping occurs when one
confines, restrains, or removes from one place to another a person
for the purpose of:
(1) Holding such other person for a ransom or
as a hostage or using such other person as a
shield; or
(2) Facilitating the commission of any felony
or facilitating flight of any person following
the commission of a felony; or
(3) Doing serious bodily harm to or
terrorizing the person so confined, restrained
or removed or any other person; or
(4) Holding such other person in involuntary
servitude in violation of G.S. 14-43.2.
N.C. Gen. Stat. § 14-39(a)(1999). However, the crimes of first and
second degree kidnapping are differentiated in section (b) of the
statute. First degree kidnapping occurs when “the person kidnapped
either [is] not released by the defendant in a safe place or [is]
seriously injured or sexually assaulted.” N.C. Gen. Stat. § 14-
39(b)(1999). Second degree kidnapping occurs when the victim is
“released in a safe place by the defendant and [is] not seriouslyinjured or sexually assaulted.” Id. Defendants argue th
at Perry
and Bynum were left in the back yard and Moore was left in the
house, both of which should constitute a “safe place.” Thus, the
trial court should have instructed the jury on second degree
kidnapping.
In the case of State v. Jerrett, 309 N.C. 239, 262, 307
S.E.2d 339, 351 (1983), the Supreme Court stated that in order to
leave a victim in a safe place within the meaning of the statute,
a “conscious, willful action on the part of the defendant to assure
that his victim is released in a place of safety” was required.
Furthermore, in the case of State v. Raynor, 128 N.C. App. 244, 495
S.E.2d 176 (1998), the defendant fled the victim's home after being
overpowered by the victim. This Court held that the defendant did
not release the victim in a safe place because there was no
evidence of any “willful action” by the defendant to release the
victim in a place of safety. Id.
In the case at bar, the evidence showed that defendants fled
after shooting Perry and chased Bynum as she escaped, leaving Perry
in the back yard and Moore inside the house. “The necessity for
instructing the jury as to an included crime of lesser degree than
that charged arises when and only when there is evidence from which
the jury could find that such included crime of lesser degree was
committed.” State v. Murry, 277 N.C. 197, 176 S.E.2d 738 (1970).
In accordance with Jerrett and Raynor, there was no evidence that
defendants consciously and willfully left the victims in a safe
place as required. Thus, the trial court did not err in refusingto instruct the jury on the lesser-included offense of second
degree kidnapping.
After careful review, we find the defendants' remaining
assignments of error to be without merit. Thus, for the reasons
discussed above, we find the defendants received a fair trial free
from prejudicial error.
In State v. Parker, No. 98 CRS 5278, vacated and remanded for
re-sentencing.
In State v. Parker, Nos. 98 CRS 5277, 5280, no error.
In State v. Holloway, Nos. 98 CRS 5327, 5329, no error.
Judges BIGGS and SMITH concur.
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