STATE OF NORTH CAROLINA
v
.
JAMES ADAMS ROBERTSON,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert O. Crawford, III, for the State.
J. Clark Fischer, for the defendant-appellant.
HUDSON, Judge.
Defendant was indicted 17 July 2000 for first degree
kidnapping and attempted first degree rape. On 3 October 2000, a
jury convicted defendant of attempted first degree rape and second
degree kidnapping. The trial judge sentenced him in the aggravated
range to consecutive sentences of 276 to 341 months for the
attempted first degree rape and 36 to 53 months for the second
degree kidnapping. Defendant appeals his convictions and his
sentences. We find no error in the convictions, but remand for re-
sentencing.
We begin with a brief review of the evidence presented at
trial. The victim, Margaret M. (“Margaret”), met Nicole M. D.
(“Nicole”) at a party on 26 February 2000. Margaret told Nicole
that she was interested in buying five hundred dollars worth of thedrug Ecstasy, and Nicole offered to help her make the purchase.
The two women drove Margaret's car, first to retrieve money from
Margaret's boyfriend, and then to an apartment complex to buy the
drugs. When they arrived at the complex, Nicole got out of the car
alone with Margaret's money, returned briefly, and then
disappeared. Margaret waited fifteen minutes before realizing that
Nicole had stolen her money.
Margaret got out of her car to look for Nicole when a man
named Adam Broom approached her. Although Margaret did not know
Broom, she told him what had happened and he agreed to take her to
someone who could help her find Nicole. Broom introduced Margaret
to defendant, who described himself as the “main Ex dealer in this
complex,” and told her he could help. After an unsuccessful search
of the neighborhood, Broom, Margaret, and defendant returned to
defendant's apartment, where Broom lit a “blunt” (a cigar rolled
with marijuana). He offered some to Margaret; she declined, saying
that she did not “have time to get high,” but needed to go and find
Nicole.
Defendant then asked Margaret to come into his bedroom so he
could “show [her] something.” When she entered the room, defendant
closed the door and pulled out a “steak knife.” Defendant
instructed Margaret to “[s]it on the bed and take your shirt off or
clothes off.” When Margaret refused, defendant took his shirt off
and attempted to get on top of Margaret. Margaret repeatedly
pushed him away, calling out “no,” “stop,” and “help,” to no avail.
Defendant began to masturbate and threatened to kill Margaret if hecould not have sex with her. She continued to push him off of her,
“probably a dozen times.”
Eventually, defendant assured Margaret that if she would let
him see her naked, he would let her go. But when Margaret pulled
down her jeans and opened her shirt, defendant came at her and
“grabbed her panties and . . . tried to rip them off.” Then he
pushed her against the wall, with his hand around her neck and the
steak knife “at [her] stomach and throat.” At that point,
defendant heard noise in the apartment and ordered Margaret into
the closet. She refused and watched from the cracked-open door
when he left the bedroom. When she saw other men speaking with
defendant in the apartment, Margaret left the bedroom. Defendant
saw her and called to her, but Margaret kept going. She unbolted
the door, ran out of the apartment, down the stairs and out of the
building. Defendant, still in his boxer shorts, began to chase
her, but his friends restrained him. Margaret banged on apartment
doors until someone let her in and called the police for her. The
police arrived and arrested defendant.
In his first argument, defendant contends that the trial court
erred by denying defendant's motion to dismiss the kidnapping
charge, saying the State did not present sufficient evidence of all
elements of the offense. Kidnapping is defined as:
[a]ny 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 or facilitating flight of any
person following the commission of a
felony.
N.C. Gen. Stat. § 14-39(a)(2) (1999). Pursuant to the same
statute, kidnapping is a second degree offense “[i]f the person
kidnapped was released in a safe place by the defendant and had not
been seriously injured or sexually assaulted.” N.C.G.S. § 14-
39(b). Defendant argues that the second degree kidnapping charge
should have been dismissed because the evidence of kidnapping was
not separate and distinct from that necessary to prove attempted
rape. Defendant argues that “the evidence of second degree
kidnapping merged into the offense of attempted first degree rape,
thus raising an issue of double jeopardy.” We disagree.
To sustain a conviction of kidnapping, the state must prove
the unlawful confinement or restraint of a person for the purpose
of committing the felony alleged in the indictment. See N.C.G.S.
14-39(a); State v. Morris, ___ N.C. App. ___, 555 S.E.2d 353 (2001)
(reversing a conviction for kidnapping where the evidence did not
support what was alleged in the indictment). “[T]he requisite
restraint need not be accomplished solely by physical force. It
may also be accomplished by trickery or by 'fraudulent
representations amounting substantially to a coercion of the will'
of the victim.” State v. Harris, 140 N.C. App. 208, 213, 535
S.E.2d 614, 618 (quoting State v. Murphy, 280 N.C. 1, 6, 184 S.E.2d
845, 848 (1971)), disc. rev. denied, 353 N.C. 271, 546 S.E.2d 121
(2000). Here, the trial court instructed the jury that “the State
must prove that the person did not consent to this confinement orrestraint. I further instruct you that consent obtained or induced
by fraud or fear is not consent.” The evidence supports an
inference that defendant fraudulently induced Margaret to return to
his apartment by assuring her that he would help her, and then
fraudulently induced her to enter his bedroom. Once there, he
restrained her, brandished a knife, and threatened either to have
sex with her or to kill her.
Here, the indictment alleged that defendant confined or
restrained the victim for the purpose of “facilitating the
commission of a felony, Attempted First Degree Rape.” Attempted
first degree rape is a Class B1 felony. See N.C. Gen. Stat § 14-
27.2(b) (1999). Pursuant to the statutory requirements for
kidnapping, “[t]he unlawful restraint must be an act independent of
the intended felony.” Harris, 140 N.C. App. at 213, 535 S.E.2d at
617. However, the “[r]estraint does not have to last for an
appreciable period of time.” State v. Brayboy, 105 N.C. App. 370,
375, 413 S.E.2d 590, 593, disc. rev. denied, 332 N.C. 149, 419
S.E.2d 578 (1992). The trial court properly instructed the jury
that:
the State must prove that the defendant
confined or restrained the person for the
purpose of facilitating his commission of the
felony of attempted first degree rape.
And, fourthly, the State must prove that
this confinement or restraint was a separate
and complete act independent of and apart from
the attempted first degree rape.
Defendant contends that the only restraint involved here was
an “inherent and inevitable part” of the commission of the
attempted rape. He relies on several cases, which he contendsillustrate this point, including State v. Ross, 133 N.C. App. 310,
515 S.E.2d 252 (1999), State v. Allred, 131 N.C. App. 11, 505
S.E.2d 153 (1998), and State v. Irwin, 304 N.C. 93, 282 S.E.2d 439
(1981), among others. We disagree and find that the cases
concerning attempted rape are also instructive on this matter.
[T]o convict a defendant of attempted
rape, the State must prove, beyond a
reasonable doubt, two essential elements: (i)
that defendant had the specific intent to rape
the victim and (ii) that defendant committed
an act that goes beyond mere preparation, but
falls short of the actual commission of the
rape. . . . The element of intent as to the
offense of attempted rape is established if
the evidence shows that defendant, at any time
during the incident, had an intent to gratify
his passion upon the victim, notwithstanding
any resistance on her part.
State v. Schultz, 88 N.C. App. 197, 200, 362 S.E.2d 853, 855 (1987)
(citations omitted), aff'd per curiam, 322 N.C. 467, 368 S.E.2d 386
(1988); see also Brayboy, 105 N.C. App. at 374, 413 S.E.2d at 593
(defining attempt in the context of an attempted rape). Here,
defendant plainly stated his specific intent. The evidence
indicating that defendant threatened Margaret with a knife and
began to disrobe is sufficient to raise inferences of overt acts
which are “beyond mere preparation,” but which fall short of
completing the rape. Schultz, 88 N.C. App. at 200, 362 S.E.2d at
855. Thus, the evidence established both elements of attempted
rape.
The defendant, however, argues that any evidence of restraint
to support the kidnapping was inherent in the attempted rape, so
that the kidnapping conviction cannot stand. He refers to Ross,133 N.C. App. 310, 515 S.E.2d 252, in which we reversed defendant's
convictions for kidnapping in connection with an armed robbery.
The defendant and others ordered the victims to first lie on the
floor in their apartment and then to take the defendants into their
bedrooms for their personal belongings. See id. We held that
“[defendant] Jackson's actions, while reprehensible, were an
inherent part of the armed robbery.” Id. at 315, 515 S.E.2d at 255
(citations and quotations omitted). Similarly, defendant cites
Irwin, 304 N.C. 93, 282 S.E.2d 439, in which the Court reversed a
kidnapping conviction. There, defendant was charged with
kidnapping in the commission of an attempted armed robbery of a
drug store. See id. The State alleged that defendant kidnapped
the victim when, during the attempted robbery, his accomplice
“forced Ms. Sasser at knifepoint to walk from her position near the
fountain cash register to the back of the store in the general area
of the prescription counter and safe.” Id. at 103, 282 S.E.2d at
446. In reversing the conviction for the kidnapping of Ms. Sasser,
the Supreme Court held that,
[her] removal to the back of the store was an
inherent and integral part of the attempted
armed robbery. To accomplish defendant's
objective of obtaining drugs it was necessary
that either Mr. Stewart [the store owner] or
Ms. Sasser go to the back of the store to the
prescription counter and open the safe. . . .
Ms. Sasser's removal was a mere technical
asportation and insufficient to support
conviction for a separate kidnapping offense.
Id. at 103, 282 S.E.2d at 446; see also Allred, 131 N.C. App. 11,
21, 505 S.E.2d 153, 159 (reversing three of defendant's convictions
for kidnapping and affirming the fourth conviction, where, as toone victim “removal was not an integral part of any robbery
committed against him, but a separate course of conduct designed to
prevent him from hindering defendant and his accomplice from
perpetrating the robberies against the other occupants.”).
More recently, in State v. Muhammad, 146 N.C. App. 292, 552
S.E.2d 236 (2001), we found no error in defendant's conviction for
common law robbery and second degree kidnapping. There, defendant
approached the victim from behind, put an arm around his throat,
and hit the victim in the side. See id. at 293, 552 S.E.2d at 236.
Defendant then walked the victim to the front of the restaurant
where the restaurant manager gave defendant cash from the safe and
register, and then defendant fled. See id. at 293, 552 S.E.2d at
237. There, we held that defendant's “actions constituted
restraint beyond what was necessary for the commission of common
law robbery.” Id. at 296, 552 S.E.2d at 238. Further, the Court
noted that “defendant did substantially more than just force [the
victim] to walk from one part of the restaurant to another,” and
affirmed defendant's conviction for both common law robbery and
second degree kidnapping. Id.; see also State v. Fulcher, 294 N.C.
503, 523, 243 S.E.2d 338, 351 (1978) (noting that like armed
robbery, forcible rape is a felony that “cannot be committed
without some restraint of the victim.”).
Here, however, defendant pulled a knife, stated his intent,
threatened to rape Margaret, and began to undress. Evidence of
these actions supports the defendant's conviction of attempted
rape, as defined in Schultz. See Schultz, 88 N.C. App. at 202, 362S.E.2d at 856. In addition, however, defendant induced Margaret
into the bedroom, kept her from leaving, and physically restrained
her when he repeatedly climbed on her. He confined her again when
he left the bedroom. Accordingly, the evidence of confinement or
restraint was separate and distinct from that necessary to prove
the attempted rape. Based on our analysis of these cases and
others, we conclude that the evidence of restraint or confinement
exceeded that needed to establish attempted rape, and that the
evidence in this case supports defendant's conviction for
kidnapping as well. This assignment of error is overruled.
In his second assignment of error, defendant contends that the
trial court erred in allowing evidence of defendant's illegal drug
activity, because it was “irrelevant to any issue before the jury
and any possible relevance was vastly outweighed by its prejudicial
impact.” Pursuant to Rule 401 of the North Carolina Rules of
Evidence, relevant evidence is defined as, “evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence.” Such evidence is generally
admissible, unless “its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or
misleading the jury . . .” N.C. R. Evid. 402 & 403 (1999). Here,
evidence was admitted concerning defendant's statements of illegal
drug activity. Margaret testified that she was looking for Nicole,
who had disappeared with her money, when she was introduced to
defendant. Defendant told her that he was the main Ecstasy dealerin the apartment complex and that he knew all of the places that
Nicole could be found.
We note that defendant did not properly preserve this issue
for appeal, because he did not object to the testimony on this
basis when it was presented at trial. See N.C. R. App. Proc.
10(b)(1) (1999). He objected only to Margaret's failure to specify
which person made the statements. Even though not properly
preserved for appeal, however, in our discretion, we address the
admission of this testimony, pursuant to Rule 2 of the North
Carolina Rules of Appellate Procedure (1999).
In State v. Agee, 326 N.C. 542, 546-48, 391 S.E.2d 171, 173-76
(1990), the trial court properly admitted evidence of defendant's
possession of marijuana which led to his arrest for possession of
LSD. The charges against defendant for possessing marijuana were
dropped, but the evidence concerning the marijuana was still
admissible because it gave rise to a chain of events or
circumstances resulting in defendant's conviction for possession of
LSD. See id. The Court in Agee held that this evidence was
admissible and described it as “[e]vidence tending to establish the
context or chain of circumstances of a crime, which incidentally
establishes the commission of a prior bad act.” Id. at 547, 391
S.E.2d at 174. In Agee, the Court also held that the admission of
this evidence did not violate Rules 401, 403, or 404(b) of the
North Carolina Rules of Evidence. See id. at 550, 391 S.E.2d at
176.
Here, Margaret's testimony concerning how she met defendantand came to believe that he could help her does tend to indicate
that he was involved with illegal drug activity. We do not believe
that the court admitted the testimony to show defendant's
propensity to commit a crime or his character, but as in Agee, to
establish the context which incidentally involved illegal drugs.
See State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)
(noting that “evidence of other offenses is admissible so long as
it is relevant to any fact or issue other than the character of the
accused”). Here, the trial court did not err in admitting this
evidence, and defendant's second assignment of error is overruled.
In his third assignment of error, defendant contends that the
“trial court committed reversible error by aggravating defendant's
sentence for conduct which was necessarily part of the sex offense
of which defendant was convicted, and which did not increase
defendant's criminal culpability.” N.C. Gen. Stat. § 15A-
1340.16(d) (1999) requires that “[e]vidence necessary to prove an
element of the offence . . . not be used to prove any factor in
aggravation.” During sentencing, the trial court did not find any
of the specific statutory grounds enumerated in N.C.G.S. § 15A-
1340.16(d) that would allow defendant to be sentenced in the
aggravated range. However, the trial court did find a non-
statutory factor in aggravation, described as,
evidence that the defendant unnecessarily and
maliciously subjected the victim to
degradation and undue humiliation by
shamefully performing a loathesome act of
masturbation in her presence and by compelling
the victim to disrobe and reveal her naked
body after leading her to believe she would be
released unharmed if she did so.
We agree with defendant that this nonstatutory factor does not
increase defendant's culpability.
Any non-statutory factor used to increase a defendant's
sentence to the aggravated range must comply with the requirements
of N.C.G.S. § 15A-1340.16(d)(20), that “[a]ny other aggravating
factor [be] reasonably related to the purposes of sentencing.” See
State v. Manning, 327 N.C. 608, 613-14, 398 S.E.2d 319, 322 (1990)
(holding that it was appropriate to use the non-statutory
aggravating factor of the crimes at issue being committed for
pecuniary gain, because the factor was reasonably related to the
purposes of sentencing). The purposes of sentencing are to:
impose a punishment commensurate with the
injury the offense has caused, taking into
account factors that may diminish or increase
the offender's culpability; to protect the
public by restraining offenders; to assist the
offender toward rehabilitation and restoration
to the community as a lawful citizen; and to
provide a general deterrent to criminal
behavior.
N.C. Gen. Stat. § 15A-1340.12 (“Purposes of sentencing.”). Here
defendant's behavior did not fit into any of the nineteen
statutorily specified aggravating factors, nor did his behavior
qualify as “reasonably related to the purposes of sentencing.” The
trial court found that “performing the loathesome [sic] act of
masturbation” subjected the victim to “degradation and undue
humiliation.” While observing this act may have been unpleasant
for Margaret, there was no showing that it increased any risk of
harm to her. Certainly she was more threatened by defendant's
jumping on top of her and grabbing her by the throat whilethreatening her with a knife. Therefore, we do not believe that
this factor was properly used to require that he be sentenced above
the presumptive range, and a new sentencing hearing is necessary.
See N.C.G.S. § 15A-1340.12.
No error; remanded for new sentencing hearing.
Judges TIMMONS-GOODSON and TYSON concur.
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