STATE OF NORTH CAROLINA
v
.
Alexander County
Nos. 99 CRS 3022-23
PLEAS MANUEL SMITH 99 CRS 3026-27
Attorney General Roy Cooper, by Assistant Attorney General
Nancy E. Scott, for the State.
Carlton M. Mansfield, for the defendant-appellant.
WYNN, Judge.
Defendant appeals from his convictions for first-degree
kidnaping under N.C. Gen. Stat. § 14-39 (1999), attempted first-
degree rape under N.C. Gen. Stat. § 14-27.2 (1999), felonious
larceny of a firearm under N.C. Gen. Stat. § 14-72(b)(4) (1999),
and assault with a deadly weapon inflicting serious injury under
N.C. Gen. Stat. § 14-32(b) (1999). We find no error.
The evidence at trial tended to show that on the evening of 8
September 1999, defendant knocked on the door of a female neighbor
shortly after her husband left to go to work. Defendant had met
the neighboring couple on a previous occasion when he came over to
use the phone. On this occasion, the female neighbor allowed him
to use the phone but instead of placing his call, defendant sat onthe couch beside his female neighbor and picked up her husband's
pistol, which was in a holster on the table next to the couch. A
struggle over the gun ensued between the two and the female
neighbor tried to escape from the house; however, defendant pulled
her back by her hair and began hitting her. The two fell to the
floor and defendant continued to hit her; he also choked her to the
verge of unconsciousness. Thereafter, defendant removed her to the
bedroom and threw her onto the bed, but she rolled off the bed.
The two continued to struggle and defendant hit her repeatedly with
the pistol. Eventually, the female neighbor got up and ran outside
with defendant chasing her; she managed to reach a neighbor's
house, whereupon she called the police.
Following his convictions on charges of first-degree
kidnaping, attempted first-degree rape, felonious larceny of a
firearm, and assault with a deadly weapon inflicting serious
injury, Judge Kimberly S. Taylor entered judgment on each offense.
Defendant appeals.
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Defendant argues that the trial court erred in denying his
motions to dismiss the charge of first-degree kidnaping at the
close of the State's evidence and again at the close of all the
evidence on the basis of insufficient evidence. We disagree.
In reviewing the sufficiency of the evidence
needed to survive defendant's motion to
dismiss, we are guided by several principles.
The evidence is to be viewed in the light most
favorable to the State. State v. Thomas, 296
N.C. 236, 250 S.E.2d 204 (1978). All
contradictions in the evidence are to be
resolved in the State's favor. State v.Brown, 310 N.C. 563, 313 S.E.2d 585 (1984).
State v. Reese, 319 N.C. 110, 138, 353 S.E.2d 352, 368 (1987),
overruled on other grounds by State v. Barnes, 345 N.C. 184, 481
S.E.2d 44 (1997).
In the instant case, defendant contends that there was
insufficient evidence of any confinement, restraint or removal of
the female neighbor to support the kidnaping conviction, separate
from the confinement, restraint or removal inherent in the
underlying felony offenses of attempted first-degree rape, assault
with a deadly weapon inflicting serious injury, and felonious
larceny of a firearm. We disagree.
In State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978), our
Supreme Court stated that “certain felonies (e.g., forcible rape
and armed robbery) cannot be committed without some restraint of
the victim.” 294 N.C. at 523, 243 S.E.2d at 351. “[A] restraint,
which is an inherent, inevitable feature of such other felony,”
cannot also form the basis of a kidnaping conviction under G.S. §
14-39. Id. Nonetheless, “two or more criminal offenses may grow
out of the same course of action,” id., and there is no barrier to
convicting a defendant for kidnaping, “by restraining his victim,
and also of another felony to facilitate which such restraint was
committed, provided the restraint, which constitutes the
kidnapping, is a separate, complete act, independent of and apart
from the other felony.” Id. at 524, 243 S.E.2d at 352. See also
State v. Silhan, 297 N.C. 660, 256 S.E.2d 702 (1979). Moreover,
“[a]sportation of a rape victim is sufficient to support a chargeof kidnapping if the defendant could have perpetrated the offense
when he first threatened the victim, and instead, took the victim
to a more secluded area to prevent others from witnessing or
hindering the rape.” State v. Walker, 84 N.C. App. 540, 543, 353
S.E.2d 245, 247 (1987).
In the case at bar, the female neighbor testified that when
she tried to escape out the back door, defendant grabbed her by her
ponytail and threw her to the ground. He punched her repeatedly
and choked her to the verge of passing out. While she was on the
floor, defendant kissed her and licked her neck. Defendant then
allowed her to stand and removed her to the bedroom, throwing her
on the bed. While in the bedroom, defendant licked her thigh; he
also ripped her shirt and grabbed her breasts. Viewed in the light
most favorable to the State, we conclude that there was sufficient
evidence at trial that defendant's confinement, restraint or
removal of the female neighbor was a separate and complete act,
independent and apart from the attendant felonies of attempted
first-degree rape, assault with a deadly weapon inflicting serious
injury, and felonious larceny of a firearm. This was sufficient to
support defendant's conviction for first-degree kidnaping.
Defendant also contends that he should not have been convicted
of first-degree kidnaping where the sexual assault was used to
elevate the kidnaping from second-degree to first-degree under G.S.
§ 14-39(b). This contention is without merit.
Under G.S. § 14-39(b), a kidnaping under G.S. § 14-39(a)
constitutes first-degree kidnaping if the victim “either was notreleased by the defendant in a safe place or had been seriously
injured or sexually assaulted[.]” To properly indict a defendant
for first-degree kidnaping, the indictment must specifically allege
the applicable element of G.S. § 14-39(b) that elevates the
kidnaping to first degree.
In the instant case, the indictment for first-degree kidnaping
alleges that the female neighbor was “seriously injured”; there is
no assertion that she was sexually assaulted. Furthermore, there
is ample evidence that the female neighbor was seriously injured
during the encounter with defendant.
Defendant next argues that the trial court erred in denying
his motions to dismiss the charge of attempted first-degree rape at
the close of the State's evidence and again at the close of all the
evidence on the basis of insufficient evidence. He contends that
there was insufficient evidence of attempted first-degree rape as
there was no evidence of an overt act going beyond mere
preparation. He also argues that there was no evidence that he
intended to engage in vaginal intercourse with the female neighbor.
Again, we disagree.
“[T]here are two elements of attempted rape: the intent to
commit the rape and an overt act done for that purpose which goes
beyond mere preparation but falls short of the completed offense.”
State v. Freeman, 307 N.C. 445, 449, 298 S.E.2d 376, 379 (1983).
While the State need not show that the defendant made “an actual
physical attempt to have sexual intercourse with the victim, there
must be substantial evidence that defendant had the intent togratify his passion upon the victim notwithstanding any resistance
on her part.” State v. Nicholson, 99 N.C. App. 143, 145, 392
S.E.2d 748, 750 (1990). Furthermore, “sexually motivated assaults
may give rise to an inference that [a] defendant intended to rape
his victim notwithstanding that other inferences are also
possible.” State v. Hall, 85 N.C. App. 447, 452, 355 S.E.2d 250,
253-54, disc. review denied, 320 N.C. 515, 358 S.E.2d 525 (1987).
See also State v. Dunston, 90 N.C. App. 622, 369 S.E.2d 636 (1988).
In the present case, there is evidence that defendant kissed
the female neighbor's ear and licked her neck; groped her breast;
ripped her shirt; removed her to the bedroom; threw her on the bed;
and kissed and licked her inner thigh. As in Dunston, “this
constitutes sufficient evidence of overt sexual behavior from which
the jury could properly infer, notwithstanding the possibility of
other inferences, that defendant intended to engage in vaginal
intercourse” with the female neighbor. Dunston, 90 N.C. App. at
626, 369 S.E.2d at 638. Furthermore, these acts constitute overt
acts going beyond mere preparation but falling short of the
completion of the offense of rape.
Defendant next contends that the trial court erred in allowing
certain testimony over his objection in violation of N.C. Gen.
Stat. § 1A-1, Rule 403 (1999). This contention is without merit.
The State's evidence at trial included testimony by a work
colleague of the female neighbor, and a sexual abuse counselor who
treated the female neighbor. Their testimony concerned the female
neighbor's mental and emotional state following the attempted rapeby defendant. Both witnesses testified over defendant's objection
that the female neighbor became extremely fearful, anxious and
withdrawn following the attack. Defendant argues on appeal simply
that this testimony was more prejudicial than probative, and
therefore may have been excluded under N.C. Gen. Stat. § 8C-1, Rule
403 (2002).
We note that serious injury was an element of both the first-
degree kidnaping and assault with a deadly weapon inflicting
serious injury charges in this case. See G.S. § 14-32(b); G.S. §
14-39(a)(3). Furthermore, serious mental injury is included within
the meaning and intent of “serious injury” as that term is used in
G.S. § 14-32(b). See State v. Everhardt, 326 N.C. 777, 392 S.E.2d
391 (1990). The testimony of the two witnesses in this case was
therefore relevant to the injury component of the charge of assault
with a deadly weapon inflicting serious injury, and defendant has
failed to demonstrate that the probativity of this testimony was
“substantially outweighed by the danger of unfair prejudice[.]”
G.S. § 8C-1, Rule 403. Furthermore, defendant has failed to show
that the trial court abused its discretion in admitting this
testimony. See State v. Anderson, 350 N.C. 152, 513 S.E.2d 296,
cert. denied, 528 U.S. 973, 145 L. Ed. 2d 326 (1999).
Defendant further argues that the trial court erred in
charging the jury on the offense of assault with a deadly weapon
inflicting serious injury by including certain language pertaining
to mental injury. However, as noted above, serious mental injury
may constitute “serious injury” for purposes of G.S. § 14-32. SeeEverhardt. Furthermore, “[w]hether serious injury has been
inflicted must be determined according to the particular facts of
each case and is a question for the jury.” State v. Hensley, 90
N.C. App. 245, 248, 368 S.E.2d 208, 210 (1988). In the instant
case, there was sufficient evidence to bring the case to the jury
on the question of serious injury. This assignment of error is
also without merit.
Lastly, defendant argues that the trial court erred in
sentencing him on the offense of first-degree kidnaping as well as
on the offense of attempted first-degree rape. He cites our
Supreme Court's decision in State v. Freeland, 316 N.C. 13, 340
S.E.2d 35 (1986), arguing “that he was placed in double jeopardy by
being convicted of first degree kidnapping where attempted rape of
the victim was the only sexual assault which could have formed the
'sexual assault' element of first degree kidnapping.” As noted
above, however, the basis alleged for elevating the kidnaping
charge under G.S. § 14-39(b) to first-degree kidnaping in the
instant case is that the victim was “seriously injured”; there is
no allegation therein that the victim was sexually assaulted.
Defendant's argument is without merit.
No error.
Judges McCULLOUGH and BIGGS concur.
Report per Rule 30(e).
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