Appeal by defendant from judgments entered 31 January 2002 by
Judge William C. Gore, Jr. in Superior Court, Cumberland County.
Heard in the Court of Appeals 13 March 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Sueanna P. Sumpter, for the State.
Leslie C. Rawls for defendant-appellant.
McGEE, Judge.
Tanna Barnard Sakobie (defendant) was convicted of first
degree kidnapping, larceny of a motor vehicle, and possession of a
stolen automobile. The trial court determined that defendant had
a prior record level of III. The trial court arrested judgment as
to the charge of possession of a stolen vehicle. The trial court
sentenced defendant to a minimum of 95 months to a maximum of 125
months active imprisonment for first degree kidnapping. The trial
court sentenced defendant to a minimum of 10 months and to a
maximum of 12 months suspended with 24 months of supervised
probation for the larceny of a motor vehicle, to run consecutively
from the first degree kidnapping sentence. Defendant appeals.
The evidence presented by the State at trial tended to show
that on the evening of 4 October 2000, Joi Rivers (Rivers) drove tothe Quick Stop convenience store in Hope Mills, North Carolina in
her Chevrolet Cavalier to purchase soft drinks. Rivers' five-year-
old son (the child) was with Rivers in the vehicle. When Rivers
pulled up to the Quick Stop, she left the child in the front seat
of the vehicle with the engine running. While Rivers was inside
the Quick Stop, a woman, later identified as defendant, got into
River's vehicle and drove away with the child still in the vehicle.
When Rivers reached the counter to pay for her purchases, she did
not see her vehicle outside. Rivers ran outside into the parking
lot, saw that her vehicle and the child were gone, and began to
scream and cry. Rivers went back into the Quick Stop and the store
clerk called the police.
As defendant pulled out of the Quick Stop parking lot she
almost caused a collision. Defendant drove approximately six and
a half miles to a second convenience store, the Pit Stop, in Hope
Mills, arriving around 10:30 p.m. Defendant got out of the
vehicle, pulled the child out of the vehicle, and took him into the
Pit Stop with her. Defendant told the child to stand at the
counter and not say a word. The child remained at the counter,
crying, while defendant purchased a forty-ounce bottle of beer.
Defendant then grabbed the child by the arm and pulled him back out
of the Pit Stop.
Defendant drove the child to a trailer, where she left him in
the vehicle while she got a bag from the occupants of the trailer.
Defendant then drove 12.7 miles into the countryside to the home of
defendant's acquaintance, Robert Johnson (Johnson). Johnson's son,Robert "Shakeel" Johnson, and Johnson's cousin, Sarah Pennick, were
also living at the home. Several other people were also on the
premises when defendant arrived. Defendant had a conversation with
some of these people and a man struck her. The child was crying
and told Johnson that he wanted to go back to the store where his
mother was. However, defendant went inside the house to drink
wine, leaving the child outside in the car for at least five to ten
minutes. When defendant came out of the house, Johnson said he
would accompany defendant to return the child to the child's
mother. However, defendant did not accept Johnson's offer and
drove away with the child.
Around midnight, defendant drove approximately 3.7 miles to a
trailer where Vicky Ray (Vicky) and Jerome Leak (Jerome) lived.
The trailer was in a rural area, with only one other trailer behind
it, and a house across the road. The trailer was approximately
12.6 miles from the Quick Stop. There were lights on in the
trailer. Defendant stopped about twenty feet from the backdoor of
the trailer and told the child his mother was inside. The child
responded that his mother did not go to trailers; however,
defendant pushed him out of the car. The child heard a dog barking
and went to the back door of the trailer and knocked. Defendant
drove away while the child was knocking at the door.
Vicky answered the door and found the child standing there.
Vicky saw a car turning onto the main road. The child kept saying
that he wanted his mother, so Vicky told him to come in because it
was cold. Vicky did not own a telephone or a car and there was notelephone within miles of the trailer. Vicky put the child to bed
on a couch and told him that she would try and find a way to return
him to his mother in the morning. Defendant, after leaving the
child at Vicky and Jerome's trailer, returned to Johnson's
residence to have a few more drinks. Defendant later left with
Larry Johnson, Robert Johnson's brother.
At approximately 2:45 a.m., Officer Garrett Gwin of the Hope
Mills Police Department saw defendant driving Rivers' vehicle and
stopped defendant. Defendant was placed in police custody.
Officer Gwin determined the child was not in the vehicle, and an
extensive search for the child began, involving several officers
and a helicopter. Defendant initially led the officers to many
irrelevant locations in the search for the child. However, after
about an hour, an officer became angry and told defendant he was
going to take her to jail, to which defendant responded by leading
the officers to Vicky and Jerome's trailer. The officers located
the child in the trailer and returned him to Rivers.
Defendant's witness, Dewey Jackson (Jackson), testified that
he and defendant lived together between 1996 and June of 2000.
Jackson testified that he was acquainted with Vicky and Jerome. He
testified that his car was stolen in February of 2000, and that
James Baldwin (Baldwin) and Vicky's niece were involved. Baldwin
and Vicky's niece had previously lived with Vicky and Jerome and
had left their baby with Vicky and Jerome. Jackson testified that
Vicky had taken him to various locations in search of her niece and
Baldwin. He also testified that he and defendant had occasionallytaken Vicky to pay her rent and to get groceries, and that they
once drank beer in Vicky's trailer. However, Vicky testified at
trial that she was not acquainted with defendant. Jerome also
testified that he did not recognize defendant. Further facts will
be set out below as necessary.
Defendant failed to put forth an argument in support of
assignments of error 1, 2, 3, 4, 6, and 7. These assignments of
error are therefore deemed abandoned. N.C.R. App. P. 28(b)(6).
I.
Defendant assigns as plain error the trial court's allowing
the State to argue that, for the purposes of first degree
kidnapping, the only safe place to leave a child is with his parent
or with someone who has a duty of care, and by failing to take
adequate steps to correct the misstatement. We note that where a
defendant has failed to object at trial to a prosecutor's closing
argument but attempts to challenge the argument on appeal, the
standard of review is gross impropriety, rather than plain error.
State v. Thomas, 350 N.C. 315, 360-61, 514 S.E.2d 486, 514,
cert.
denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999). We are therefore
required to determine whether the prosecutor's jury argument was so
grossly improper as to warrant the trial court's intervention
ex
mero motu.
State v. Cummings, 352 N.C. 600, 621, 536 S.E.2d 36, 52
(2000),
cert. denied, 532 U.S. 997, 151 L. Ed. 2d 286 (2001). Our
Supreme Court recently summarized:
"Under this standard, '[o]nly an extreme
impropriety on the part of the prosecutor will
compel this Court to hold that the trial judge
abused his discretion in not recognizing andcorrecting
ex mero motu an argument that
defense counsel apparently did not believe was
prejudicial when originally spoken.'
State v.
Richardson, 342 N.C. 772, 786, 467 S.E.2d 685,
693,
cert. denied, 519 U.S. 890, 136 L. Ed. 2d
160 (1996). '[D]efendant must show that the
prosecutor's comments so infected the trial
with unfairness that they rendered the
conviction fundamentally unfair.'"
State v.
Davis, 349 N.C. [1,] 23, 506 S.E.2d [455,] 467
[(1998),
cert. denied, 526 U.S. 1161, 144 L.
Ed. 2d 219 (1999)].
State v. Nicholson, 355 N.C. 1, 41-42, 558 S.E.2d 109, 137,
cert.
denied, ___ U.S. ___, 154 L. Ed. 2d 71 (2002) (quoting
State v.
Anthony, 354 N.C. 372, 427-28, 555 S.E.2d 557, 592 (2001),
cert.
denied, ___ U.S. ___, 153 L. Ed. 2d 791 (2002)).
Defendant challenges the prosecutor's statement to the jury
that defendant refused to take the child to his mother, "the only
place, the [S]tate submits, that that child was safe or to someone
that had a duty of care." If such a statement stood in isolation
as the only explanation of the element of failure to release a
victim in a safe place, such a statement could arguably be
classified as "an extreme impropriety on the part of the
prosecutor." However, the prosecutor's statement quoted above was
just a small part of the argument she made concerning the element
of failure to release the victim in a safe place, the rest of which
defendant does not challenge.
The prosecutor several times foreshadowed how the judge would
instruct the jury in relation to that portion of the charge;
however, the prosecutor did not do so as to the statement defendant
now challenges. In fact, the State emphasized that the challenged
statement was the State's opinion of what would have been a safeplace in the present case by using the language, "the [S]tate
submits."
The General Assembly has not provided a definition or guidance
to the courts in defining the term, "safe place."
See N.C. Gen.
Stat. § 14-39 (2001). Nor do our pattern jury instructions
include such a definition.
See N.C. Pattern Jury Instructions for
Criminal Cases § 210.20. Further, the cases that have focused on
whether or not the release of a victim was in a safe place have
been decided by our Courts on a case-by-case approach, relying on
the particular facts of each case.
See State v. Heatwole, 333 N.C.
156, 161, 423 S.E.2d 735, 738 (1992);
State v. Sutcliff, 322 N.C.
85, 89, 366 S.E.2d 476, 479 (1988);
State v. Pratt, 306 N.C. 673,
682-83, 295 S.E.2d 462, 468 (1982);
State v. Pratt, 152 N.C. App.
694, 700, 568 S.E.2d 276, 280 (2002);
State v. White, 127 N.C. App.
565, 573, 492 S.E.2d 48, 53 (1997);
State v. Smith, 110 N.C. App.
119, 137, 429 S.E.2d 425, 434,
aff'd per curiam, 335 N.C. 162, 435
S.E.2d 770 (1993). The trial court therefore did not have a
clearly defined standard with which to compare the prosecutor's
statement. While the challenged statement may have been
inappropriate, we do not agree that the statement rose to the level
of an "extreme impropriety on the part of the prosecutor" that "so
infected the trial with unfairness that [it] rendered the
conviction fundamentally unfair."
Nicholson, 355 N.C. at 41, 558
S.E.2d at 137 (citations omitted).
See also State v. Haselden, ___
N.C. ___, ___, ___ S.E.2d ___ , ___ (2003) ("defendant must show
that the prosecutor's argument 'so infected the trial withunfairness as to render the resulting conviction a denial of due
process.'") (citations omitted).
Therefore, we hold that the trial
court did not err in
failing to correct, on its own motion, the
prosecutor's challenged statement in her closing argument. This
assignment of error is overruled.
II.
Defendant also assigns as error the trial court's denial of
defendant's motion to dismiss. Defendant argues the evidence was
insufficient to support the charges of first degree kidnapping and
larceny of a motor vehicle, even taken in the light most favorable
to the State. The trial court did not err in refusing to dismiss
either of these charges.
When reviewing a defendant's motion to dismiss for
insufficiency of the evidence, "the evidence must be considered in
a light most favorable to the State and the State must be given the
benefit of every reasonable inference arising therefrom."
State v.
Davis, 97 N.C. App. 259, 264, 388 S.E.2d 201, 204,
aff'd per
curiam, 327 N.C. 467, 396 S.E.2d 324 (1990) (citations omitted).
We must determine "whether there is substantial evidence of each
essential element of the crime charged and that the defendant
committed it."
State v. Damon, 78 N.C. App. 421, 422, 337 S.E.2d
170, 170 (1985) (citing
State v. Riddle, 300 N.C. 744, 746, 268
S.E.2d 80, 81 (1980)).
A.
Defendant in the present case was charged with first degree
kidnapping, based on the unlawful confinement, restraint, orremoval of the child without consent, for the purpose of
facilitating the commission of a felony, being larceny of a motor
vehicle, and the failure of defendant to release the child in a
safe place.
See N.C.G.S. § 14-39. It is the State's burden to
prove the applicable elements of first degree kidnapping,
including, in this case, that defendant failed to release the child
in a safe place.
State v. Corley, 310 N.C. 40, 55, 311 S.E.2d 540,
549 (1984). Defendant specifically argues that the State did not
present sufficient evidence that defendant failed to release the
child in a safe place, and thus the charge of second degree
kidnapping should have been submitted to the jury, instead of the
charge of first degree kidnapping.
We again note that the General Assembly has neither defined
nor given guidance as to the meaning of the term "safe place" in
relation to the offense of first degree kidnapping.
See N.C.G.S.
§ 14-39. Further, our case law in North Carolina has not set out
any test or rule for determining whether a release was in a "safe
place." Several of the cases that have addressed the question of
whether the defendant released the victim in a safe place have
centered on whether there was a voluntary release by the defendant.
See Heatwole, 333 N.C. at 161, 423 S.E.2d at 738 (holding that
releasing a victim when the kidnapper is aware he is cornered and
outnumbered by law enforcement officials is not "voluntary");
State
v. Jerrett, 309 N.C. 239, 263, 307 S.E.2d 339, 352 (1983) (holding
the evidence sufficient to permit the jury to infer the victim
escaped from the defendant at a convenience store, as opposed tobeing released in a safe place);
State v. Parker, 143 N.C. App.
680, 688, 550 S.E.2d 174, 178-79 (2001) (finding no evidence the
defendants voluntarily released the victims in a safe place where
the evidence showed that the defendants fled after shooting one
victim and chasing another victim);
State v. Raynor, 128 N.C. App.
244, 251, 495 S.E.2d 176, 180 (1998) (holding the evidence
supported the inference that the victim was not released in a safe
place where the victim overpowered the defendants and effected his
own escape). Other cases, which do address whether a place is safe
or not, have not provided any clear standard to apply, taking a
case-by-case approach.
See Heatwole, 333 N.C. at 161, 423 S.E.2d
at 738 (holding,
inter alia,
that sending a victim out into the
focal point of law enforcement officers' weapons is not a safe
place);
Sutcliff, 322 N.C. at 89, 366 S.E.2d at 479 (permitting the
inference that the victim was not released in a safe place where
the victim, who was new to the area and disoriented, was released
at approximately 5:00 a.m. on a mid-January morning at an
intersection a mile from a shopping mall, with no source of
protection until after she reached the shopping mall);
Pratt, 306
N.C. at 682-83, 295 S.E.2d at 468 (holding the evidence supported
a finding that the handicapped victim was not in a safe place where
the victim was tied and undressed in the wintertime and left in an
unfamiliar area);
Pratt, 152 N.C. App. at 700, 568 S.E.2d at 280
(stating that there was evidence before the trial court that the
victims were not left in a safe place when they were left bound and
gagged in the woods at night);
White, 127 N.C. App. at 573, 492S.E.2d at 53 (holding the evidence established the victim was
released in a safe place when the victim was taken to a motel near
a major shopping center in the middle of the afternoon, was
voluntarily dropped off with change to make a phone call, and
received assistance from hotel employees in the office);
Smith, 110
N.C. App. at 137, 429 S.E.2d at 434 (holding sufficient evidence
existed that the victim was not released in a safe place where the
victim was left tied to a tree in a damp wooded area, forty-five
feet off a dirt road, and ninety-three feet down a path).
In the present case, defendant did voluntarily release the
child behind the trailer where Vicky and Jerome lived, telling him
to go knock on the door of the trailer because his mother would be
inside. Defendant had no knowledge that the child's mother would
be inside, and based on the record, all reasonable inferences would
indicate defendant knew the child's mother was not in the trailer.
The evidence shows that the five-year old child was released in the
middle of the night, in an isolated rural, wooded area the child
was unfamiliar with. It was a cold evening, a dog was barking at
the child, and defendant had pushed him out of the vehicle into
this foreign environment.
Defendant argues that she knew Vicky and Jerome, the occupants
of the trailer, and therefore the release of the child was in a
safe place. Vicky and Jerome both testified that they did not know
defendant. Defendant's alleged knowledge of the occupants was
questionable at best, and taken in a light most favorable to the
State, fails to establish that the child was released in a safeplace. Further, it is not clear that defendant even waited to see
if Vicky and Jerome were indeed the occupants of the trailer before
pulling away and leaving the child by the trailer. Taken in a
light most favorable to the State, there was substantial evidence
that the child was not released in a safe place. Based on these
facts we hold that the trial court did not err in submitting the
charge of first degree kidnapping to the jury.
B.
In order to prove larceny of a motor vehicle, the State must
show that defendant "(1) took the [motor vehicle] of another; (2)
carried it away; (3) without the owner's consent, and (4) with the
intent to deprive the owner of his [motor vehicle] permanently."
State v. Perry, 305 N.C. 225, 235 n.7, 287 S.E.2d 810, 816 n.7
(1982). On appeal defendant contends that the State presented
insufficient evidence of the fourth element, that defendant
intended to deprive Rivers of her vehicle permanently. We reject
this argument.
The evidence taken in a light most favorable to the State,
Davis, 97 N.C. App. at 264, 388 S.E.2d at 204 (citations omitted),
tended to show that defendant stole River's vehicle from the Quick
Stop parking lot at approximately 9:00 p.m. on 4 October 2002. She
drove the vehicle for her personal use all through the night until
she was stopped at approximately 2:45 a.m. on 5 October 2000 by law
enforcement officers. When defendant was first located by law
enforcement officers at approximately 2:45 a.m, she had just driven
past the location where she had stolen the automobile. At no timedid defendant give any indication that she intended to return
Rivers' vehicle. In fact, defendant did relinquish possession of
Rivers' child, who had been in the vehicle when defendant stole
it, but continued in her possession of the stolen vehicle. The
evidence is more than sufficient to establish that defendant
intended to permanently deprive Rivers of the possession of her
vehicle. There is substantial evidence of each element of larceny
of a motor vehicle.
See Damon, 78 N.C. App. at 422, 337 S.E.2d at
170 (citation omitted). This assignment of error is overruled.
No error.
Judges HUDSON and STEELMAN concur.
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