STATE OF NORTH CAROLINA
v
.
Caswell County
No. 00 CRS 1392-93
No. 00 CRS 1855
RICKY ESQUIVEL
Attorney General Roy Cooper, by Assistant Attorney General
Sonya M. Allen, for the State.
Theresa K. Pressley, for the defendant-appellant.
WYNN, Judge.
From his convictions of first-degree kidnapping, second-degree
rape, and misdemeanor violation of a domestic violence protective
order, defendant Ricky Esquivel appeals the following issues: (1)
Did the trial court err by denying defendant's motions to dismiss
due to insufficient evidence? and (2) Did the trial court err by
entering judgment for first-degree kidnapping and second-degree
rape in violation of Double Jeopardy? We uphold the trial court's
denial of defendant's motions to dismiss the charges; however,
under the mandate of State v. Freeland, we hold that defendant was
erroneously subjected to double punishment, and therefore, remand
for a new sentencing hearing. The State's evidence tended to show that while defendant
worked at the same factory as Mr. and Mrs. X, he began an extra-
marital affair with Mrs. X in 1995. Eventually Mrs. X separated
from her husband and moved in with defendant for two years. During
their relationship, the couple experienced several instances of
domestic violence resulting in restraining orders against
defendant.
In April 1997, Mrs. X reconciled with her husband;
nonetheless, defendant made numerous attempts to contact Mrs. X.
On several occasions, defendant was arrested for violating domestic
violence restraining orders; and, Mrs. X and her husband moved
twice for the express purpose of avoiding defendant. On 2 June
1999, defendant hit Mrs. X in the mouth, knocked one of her teeth
loose, and fled the scene. Defendant was arrested and served jail
time for this incident.
The State's evidence further tended to show that on 15 June
2000, while Mrs. X fed chickens from her porch, defendant attacked
her from behind; covered her mouth with his hand and threatened to
kill her if she screamed. Thereafter, he dragged her into a wooded
area; forcibly inserted his fingers in her vagina; raped her; and
fled the scene when her husband began calling her name.
Defendant's evidence tended to show that on the date of the
incident, he walked twenty-two miles to Mrs. X's home and saw her
on the front porch when he arrived. Mrs. X told him that she
wanted to have intercourse with him, but they had to be quick
because her husband was inside; thereafter, they had consensualsexual intercourse and then walked into the woods. During a
subsequent conservation, defendant became angry, began hitting her,
and fled the scene when her husband came running towards him. In
sum, defendant denied raping or kidnapping Mrs. X, but admitted
that he hit and kicked her.
Following his convictions at trial, Judge Abraham Jones
sentenced defendant to consecutive terms of a minimum of 151 months
and a maximum of 191 months for first-degree kidnapping, a minimum
of 151 months and a maximum of 191 months for second-degree rape,
and 150 days for violating the domestic violence protective order.
On appeal, defendant first contends that the trial court erred
by denying his motion to dismiss the charge of first-degree
kidnapping because the evidence was insufficient to support a
conviction on that charge. We disagree.
“Upon a motion to dismiss by a defendant, the question for the
Court is whether there is substantial evidence (1) of each
essential element of the offense charged . . . and (2) of
defendant's being the perpetrator of such offense. If so, the
motion is properly denied.” State v. Brayboy, 105 N.C. App. 370,
373-74, 413 S.E.2d 590, 592 (1992). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” State v. Williams, 133 N.C. App. 326, 328,
515 S.E.2d 80, 82 (1999) (citation omitted). “In ruling on a
motion to dismiss for insufficient evidence, the trial court must
consider the evidence in the light most favorable to the State,
which is entitled to every reasonable inference which can be drawnfrom that evidence.” State v. Dick, 126 N.C. App. 312, 317, 485
S.E.2d 88, 91 (1997).
N.C. Gen. Stat. § 14-39 defines the felony of kidnapping as:
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:
(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.
Furthermore, the offense is kidnapping in the first-degree if the
victim is either released in an unsafe place or sexually assaulted.
N.C. Gen. Stat. § 14-39(b).
The evidence in this case, considered in the light most
favorable to the State, shows that defendant attacked Mrs. X,
dragged her into the woods, and forced her to have sexual
intercourse without consent. After the rape, Mrs. X was beaten and
kicked by defendant. There is substantial evidence that
defendant's restraint and removal of Mrs. X from the porch was done
with the purpose of either “doing serious bodily harm to or
terrorizing” her, or for the purpose of “facilitating the
commission of a felony.” Moreover, the evidence shows that
defendant sexually assaulted Mrs. X. Thus, there was sufficient
evidence showing that defendant's conduct constituted first-degreekidnapping as defined by N.C. Gen. Stat. § 14-39.
Second, defendant assigns error to the trial court's denial of
his motion to dismiss the second-degree rape charge. N.C. Gen.
Stat. § 14-27.2 states that “[a] person is guilty of rape in the
second-degree if the person engages in vaginal intercourse with
another person . . . [b]y force and against the will of the other
person.”
Viewed in the light most favorable to the State, the evidence
shows that defendant attacked Mrs. X; dragged her into the woods;
and had non-consensual intercourse with Mrs. X. While defendant
contended that the intercourse was consensual, the jury apparently
chose to believe Mrs. X's version of the incident and other
evidence presented which satisfied each element of second-degree
rape. Therefore, we hold that this assignment of error is without
merit.
Third, defendant assigns error to the trial court's denial of
his motion to dismiss the misdemeanor violation of a domestic
violence protective order. N. C. Gen. Stat. § 50B-4.1(a) provides
that “a person who knowingly violates a valid protective order
. . . [is] guilty of a Class A1 misdemeanor.”
In this case, the State's evidence showed that on 3 February
2000, a domestic violence protective order was entered in the
presence of defendant. The order extended from 3 February 2000
through 3 February 2001, and provided that defendant shall not
initiate contact with Mrs. X. The State's evidence further showed
that defendant initiated contact with Mrs. X by placing numerouscollect calls to her home from prison in August 2000. The calls
only stopped after Mrs. X's husband requested that the telephone
company block all calls placed from any North Carolina corrections
facility. Thus, the State presented evidence satisfying each
element of the offense and showing that defendant was the
perpetrator. Therefore, we hold that this assignment of error is
without merit.
Finally, the State concedes that the trial court committed
error by entering judgment on first-degree kidnapping and second-
degree rape in violation of Double Jeopardy. “Under the Double
Jeopardy Clause of the United States Constitution, a defendant may
not be subjected to trial and possible conviction more than one
time for an alleged offense.” State v. Wiggins, 136 N.C. App. 735,
741, 526 S.E.2d 207, 211 (2000). When a defendant is tried in a
single trial, for violating two statutes punishing the same
conduct, the amount of punishment permitted is determined by the
intent of the legislature. State v. Gardner, 315 N.C. 444, 340
S.E.2d 701 (1986). “If the legislature has specifically authorized
cumulative punishment for the same conduct under two statutes 'the
prosecutor may seek and the trial court or jury may impose
cumulative punishment under such statutes in a single trial.'”
State v. Freeland, 316 N.C. 13, 21, 340 S.E.2d 35, 39 (1986)
(citations omitted).
The State points out that defendant's conviction for rape is
a necessary element of first-degree kidnapping. See, Freeland, 316
N.C. at 23, 340 S.E.2d at 40-41 (holding that the North Carolinalegislature “did not intend that defendants be punished for both
the first-degree kidnapping and the underlying sexual assault.”)
Accordingly, we remand this case to the trial court for a new
sentencing hearing. Wiggins, 136 N.C. App. at 742, 526 S.E.2d at
211-12. On remand, the trial court may: (1) arrest judgment on the
first-degree kidnapping conviction and re-sentence for second-
degree kidnapping and second-degree rape; or (2) arrest judgment
for the second-degree rape conviction and sentence on first-degree
kidnapping. Id. (citation omitted).
No error in part, Remanded in part for a new sentencing
hearing.
Judges GREENE and BIGGS concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***