STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 00 CRS 013021,
RICKY DENARD COSTON 028695
Attorney General Roy Cooper, by Assistant Attorney General
Neil Dalton, for the State.
Kay S. Murray for defendant-appellant.
McGEE, Judge.
Defendant was indicted on 17 July 2000 for second degree
kidnapping and being an habitual felon. The State presented
evidence at trial which tended to show that defendant called his
wife, Nujma Abdul Smith (Smith), and asked her to drive over to his
grandmother's house on 16 March 2000. Earlier in the morning,
Smith had tried to locate defendant and found his truck parked at
a local hotel. Smith was angry with defendant for staying out all
night. She left a note on defendant's truck stating that she had
reported the truck as stolen. Upon arriving at the house, Smith
and defendant began to argue, with defendant explaining why he had
not come home the night before. Defendant's mother left, anddefendant's mood began to change. Smith testified that defendant
told her that he believed she liked it when he got violent, and
defendant began to choke Smith and punched her in the face. Smith
was in the driver's seat of her car at the time and she jumped into
the passenger's seat to get away from defendant. Defendant pulled
Smith out of the car and began hitting and kicking her. Smith
yelled for help. She got up and tried to get back in the car, but
defendant entered the car and got into the driver's seat.
Defendant ordered Smith to drive, but she refused. Defendant began
driving the car while the bottom part of Smith's body was hanging
out of the car. Smith testified that she tried to get away, but
defendant had her by her shirt and pulled her back into the car.
Smith told defendant she wanted to go to the hospital and to
school, but defendant refused. Smith testified that defendant
told her he was going to drown her, and that when he pulled up to
a field, she was scared because she thought he would drown her.
Defendant drove to a gas station and very briefly went into the
store. Smith testified that she stayed in the car because she was
too weak to get out. Defendant drove the car back to his
grandmother's house, and again Smith stayed in the car.
A police officer drove by, but Smith testified that she did
not do anything to get the officer's attention because defendant
had threatened to hurt her if she did. Defendant came back to the
car and told Smith he wanted to have sex with her. Smith testified
that she did not want to have sex with defendant but did so because
she was afraid of what would happen if she refused. Finally,defendant took Smith to the hospital.
Defendant was found guilty by a jury of second degree
kidnapping. Defendant admitted his habitual felon status.
Defendant was sentenced to a term of 108 to 139 months
imprisonment. Defendant appeals.
Defendant first argues that the trial court erred in denying
his motion to dismiss because there was insufficient evidence that
he kidnapped Smith for the purpose of terrorizing her. Defendant
contends that the acts relied upon by the State to show that
defendant terrorized her were completed before the removal or
restraint. Specifically, defendant argues that the assault ended
before he drove away with Smith. Additionally, defendant contends
that the evidence presented by the State did not rise to the level
of terror required by the kidnapping statute. We disagree.
In order to survive a motion to dismiss, the State must
present substantial evidence of each essential element of the
charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d
432, 434 (1997). "'Substantial evidence is relevant evidence that
a reasonable mind might accept as adequate to support a
conclusion.'" Id. at 717, 483 S.E.2d at 434 (quoting State v.
Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)).
The elements charged in defendant's indictment for second
degree kidnapping were (i) removal, (ii) restraint, and (iii) for
the purpose of terrorizing Smith. "Terrorizing is defined as 'more
than just putting another in fear. It means putting that person in
some high degree of fear, a state of intense fright orapprehension.'" State v. Davis, 340 N.C. 1, 24, 455 S.E.2d 627,
639, cert. denied, 516 U.S. 846, 133 L. Ed. 2d 83 (1995)(quoting
State v. Moore, 315 N.C. 738, 745, 340 S.E.2d 401, 405 (1986)). In
the case before us, Smith testified that she tried to get away, but
defendant pulled her back into the car. Defendant then told her he
was going to drown her, knowing that Smith could not swim. Smith
stated that she was scared by defendant's threats. Smith further
testified that when they went back to defendant's grandmother's
house, defendant left her in the car, but she did not attempt to
contact a police officer who drove by because defendant threatened
to hurt her if she did, and Smith believed him. Finally, defendant
told her he wanted to have sex with her, and she agreed. Smith
testified that she did not want to have sex with defendant, but did
so because she feared that if she refused, "something would have
happened." We conclude that this evidence, when taken in the light
most favorable to the State, was sufficient to prove that defendant
restrained and removed Smith for the purpose of terrorizing her.
See State v. Williams, 127 N.C. App. 464, 468, 490 S.E.2d 583, 586
(1997) (defendant's pointing of gun at victim during restraint plus
threats to kill are sufficient evidence of intent to terrorize).
Accordingly, this assignment of error is overruled.
Defendant next argues that the combined use of the Structured
Sentencing Law and the Habitual Felon Act constitutes double
punishment for the same offense in violation of the double jeopardy
clause of the United States Constitution. However, as defendant
acknowledges, his argument was rejected by this Court in State v.Brown, 146 N.C. App. 299, 552 S.E.2d 234, disc. review denied,
appeal dismissed, 354 N.C. 576, 559 S.E.2d 186 (2001), and we are
bound by Brown. See In the Matter of Appeal from Civil Penalty,
324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (where one panel of
Court of Appeals "has decided the same issue, albeit in a different
case, a subsequent panel of the same court is bound by that
precedent, unless it has been overturned by a higher court"). We
therefore find no error.
No error.
Judges WYNN and CAMPBELL concur.
Report per Rule 30(e).
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