State v Forsythe and Lane, 156 NC App 698 (02-281) 03/18/2003

TIMMONS-GOODSON, Judge.

    Maurice Forsythe (“Forsythe”) and Khoian Ramone Lane (“Lane”) (collectively, “defendants”) appeal from judgments by the trial court entered upon jury verdicts finding each defendant guilty of first-degree burglary, second-degree kidnapping, and two counts of robbery with a firearm. After careful consideration, we find no error by the trial court.
    At trial, the State presented evidence tending to show thefollowing: On the evening of 2 November 2000, Tommy and Clara Stocks (“Mr. and Mrs. Stocks” or collectively, “the Stocks”) were home at their residence located in Walstonburg, North Carolina. Mr. Stocks was watching television in the living room, while Mrs. Stocks was in their bedroom. At approximately eight o'clock, three men forced their way into the Stocks' residence by kicking open the front door, which had been locked. The front door opened directly into the living room where Mr. Stocks was sitting. Mr. Stocks testified that, “by the time I looked around . . . there was a shotgun, a sawed-off shotgun, stuck in my face.” The man pointing the shotgun at Mr. Stocks demanded money and any weapons that the Stocks might own. He and one of the other two men then ordered the Stocks into the bedroom, where Mr. Stocks gave them a wallet containing $180.00 in cash, as well as a check for $250.00. The third intruder remained next to the front door. Each of the three men held his arm across his face in such a manner as to conceal any distinguishing features below the nose.
    After Mr. Stocks gave his wallet to the individual with the shotgun, the two men forced the Stocks to kneel on the floor of the bedroom with their faces toward the ground. The man held the shotgun to the back of Mr. Stocks' neck and repeated his demand for valuables and weapons. When Mr. Stocks replied for a third time that they did not own any weapons, the man struck Mr. Stocks with the barrel of the shotgun and kicked his lower back. The two men then ordered the Stocks into a bathroom and closed the door, warning them that “if we find any guns, we're going to kill youbecause you lied to us.” The men also threatened to kill the Stocks if they left the bathroom. The Stocks remained in the bathroom while the men proceeded to ransack the home, taking Mrs. Stocks' wallet, some jewelry and two cellular telephones. The intruders then departed, and the Stocks summoned law enforcement. During a photographic lineup and again at trial, Mr. Stocks identified defendants as the two men who had ordered them into the bedroom and bathroom. At trial, Mrs. Stocks also identified defendant Forsythe as the man who had held the shotgun during the incident. The third perpetrator was never identified.
    The State presented further evidence from Charles Tony (“Tony”), who testified that, on the evening of 2 November 2000, he visited his sister, who lived in a house located across from the Stocks' residence. As he approached his sister's home that evening, Tony observed a Ford Probe automobile with chrome trim and hubcab rims parked in a field next to the Stocks' residence. The vehicle was backed into the field, with the front of the car pointing toward the road. Tony stated that he particularly noticed the vehicle in part because he admired the chrome rims, and also because he thought it “looked strange . . . just a car being in a field and it was backed in.” At trial, Tony identified photographs of defendant Forsythe's automobile as being identical to the one he observed on 2 November 2000.
    Defendant Forsythe introduced evidence at trial tending to show that, on the evening of 2 November 2002, he visited his fiancée, Lavanda Coley (“Coley”), at her place of employment inWilson, North Carolina, until approximately 7:45 p.m. Coley testified that the distance between Wilson and Walstonburg was approximately twenty-five to twenty-eight miles, with an estimated driving time of thirty to forty-five minutes. Coley stated that defendant returned to her workplace in Wilson at approximately eleven o'clock that evening.
    Danny Roundtree (“Roundtree”) testified for Forsythe. Roundtree stated that he spent the day of 2 November 2000 at the residence of Forsythe's mother. According to Roundtree, defendant returned to his mother's home after visiting Coley at approximately 8:15 p.m. and was still there when Roundtree left the residence at 9:00 p.m. Forsythe's mother, Brenda Ann Forsythe, also testified that defendant was present at her home on 2 November 2000 from approximately 8:00 p.m. until shortly before 11:00 p.m., when Forsythe left in order to pick up Coley. A third individual, Sylvester Speight, Jr., testified that he was present at the Forsythe residence the evening of 2 November 2000 as well, and that defendant spent most of the evening there. Roundtree, Brenda Ann Forsythe, and Sylvester Speight, Jr., moreover testified that defendant Lane generally accompanied Forsythe on 2 November 2000 and was present at the Forsythe residence at similar times that day. Lane presented no evidence at trial.
    After considering the evidence, the jury found defendants guilty of two counts of robbery with a firearm, first-degree burglary and second-degree kidnapping. For each defendant, the trial court consolidated for judgment the two counts of robberywith a firearm, sentencing Forsythe to a minimum term of seventy- seven months and a maximum term of 102 months of imprisonment, while Lane received a minimum term of 103 months' and a maximum term of 133 months' imprisonment. Lane received the same sentence for the first-degree burglary conviction. The trial court sentenced Forsythe to a minimum of seventy-seven months and a maximum of 102 months of imprisonment for the first-degree burglary conviction, and a consecutive term of twenty-nine to forty-four months' imprisonment for the second-degree kidnapping conviction. Lane received a minimum term of thirty-four months and a maximum term of fifty months for the second-degree kidnapping conviction. Further facts are set out in the following opinion as necessary. From their convictions and resulting sentences, defendants appeal.
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    We address each defendant's appeal in turn.

    Defendant next argues that the trial court erred in denying his motion to suppress the pretrial identification of defendants by Mr. Stocks. After conducting a voir dire examination of the witnesses, the trial court entered findings of fact and concluded that the pretrial identification procedure was not impermissibly suggestive and did not result in a substantial likelihood of misidentification. Defendant argues that, contrary to the trial court's findings and conclusions, the pretrial identification procedures utilized in this case were impermissibly suggestive and thereby irreparably tainted the actual identification. Defendant contends that, given the impermissibly suggestive procedures utilized, there is a substantial likelihood of misidentification.
    “Identification evidence must be suppressed on due process grounds where the facts show that the pretrial identification procedure was so suggestive as to create a very substantial likelihood of irreparable misidentification.” State v. Wilson, 313 N.C. 516, 528-29, 330 S.E.2d 450, 459 (1985). We must examine the totality of the circumstances to determine whether the photographic lineup used was “so unnecessarily suggestive and conducive to irreparable mistaken identity as to offend fundamental standards ofdecency and justice.” State v. Hannah, 312 N.C. 286, 290, 322 S.E.2d 148, 151 (1984). Only if we conclude that the pretrial identification procedure was impermissibly suggestive do we reach the question of whether the procedures employed resulted in a substantial likelihood of misidentification. See id.     To support its conclusion that the pretrial identification procedure utilized in the instant case was not impermissibly suggestive, the trial court found the following facts:
        [1.]    [O]n November 29, Detective Peele [the investigating law enforcement officer] met in the home of the Stocks for the purpose of conducting a photo array in an effort to determine whether the Stocks could identify any of the three black males alleged to have committed the crimes;

        . . . .

        [3.]    During voir dire, the prosecutor introduced State's Exhibit 1, which was a photographic lineup which included the defendant Forsythe's among six other photos;

        [4.]    Mr. Stocks recognized State's Exhibit 1 as the one that he picked the defendant Forsythe out of on the night of November 29;

        [5.]    [Mr.] Stocks testified that he looked at each photograph on State's 1 and testified after looking at the page of photos, he picked out the one he thought was the perpetrator by identifying the eyes;

        . . . .

        [7.]    [The] prosecutor showed State's Exhibit Number 2 to Mr. Stocks. State's Exhibit 2 was the same as State's Exhibit 1, but it included the defendant Lane's photograph;

        [8.]    There were no names written on State's Exhibit 2;

        [9.]    There were no names written on State'sExhibit 1 to indicate the names of the respective photos contained within the exhibits;

        [10.]    Mr. Stocks testified that after looking at State's Exhibit Number 2, he picked out defendant Lane, once again based on the eyes of the defendant;

        [11.]    The prosecutor had the State's Exhibit 3 for Mr. Stocks to examine, and it also was a photo array of six individuals, and Mr. Stocks did not make any identification on this one; he did not recognize any defendants or anyone on State's Exhibit 3 that he thought had entered his house that night;

        [12.]    . . . Mr. Stocks testified that when Detective Peele showed him State's Exhibits 1, 2, and 3 at his trailer that night, that Detective Peele did not indicate one photo over another and did not suggest that one stood out over the other;

        [13.]    Detective Peele did not suggest any photo to be selected by Mr. Stocks;

        [14.]    While Mr. Stocks examined State's [Exhibits] 1, 2, and 3, he looked and he testified that he looked at each of the State's Exhibits about two to three minutes;

        [15.]    [Mr. Stocks] testified that at first he couldn't make a positive I.D., but he kept looking at each sheet; as he kept looking, he would use a piece of paper or either his fingers to isolate the portion of the photographs so as he would be looking at nothing but the eyes of the defendants;

        [16.]    Upon using this procedure, Mr. Stocks said that since the defendants covered the portion of their face below their eyes, that this procedure helped him to recognize the defendants that he thought were in his house that night;

        [17.]    [Mr.] Stocks testified that when he saw just the eyes, he had no hesitation as to who was in his house that night, as reflected by the photographic arrays;
                [18.]    Detective Peele made no statements such as: Do you recognize any one of these;

        [19.]    When Mr. Stocks pointed to the individual defendants as being the perpetrators, Detective Peele said nothing; Mr. Stocks pointed out photograph number 1 on State's Exhibit 1 and picked out photograph number 1 on State's Exhibit 2, and those picks correspond to the photos of the defendant Forsythe on State's Exhibit 1 and of defendant Lane on State's Exhibit number 2;

        [20.]    [Mr.] Stocks testified that his identification was based on his recollection of the mental images formed when the crime was committed;

        [21.]    Mr. Stocks['] level of certainty in the identification made in the photographic array was unequivocal upon reflection on the exhibits;

        [22.]    Mr. Stocks testified he did not know or have any contact with the accused before the commission of the crime;

        [23.]    Mr. Stocks made no prior misidentification of another person during any pretrial identification procedure;

        [24.]    Deputy Detective Peele made no suggestive statements to Mr. Stocks about the accused before, during, or after the identification procedure;

        [25.]    The State's Exhibits 1 and 2, each contained the photographs of six individuals, all of [whom] were black males with similar heights, weights, and hair colors;

        [26.]    State's Exhibits 1 and 2 contained no police identification or arrest numbers so as to make the photos of the defendants stand out from among the other photos in the array;

        [27.]    The State's Exhibits 1 and 2 were displayed to Mr. Stocks on single sheets;

        [28.]    There was no event or circumstance testified to that singled out either of the accused.
Based on the above-stated findings, the trial court concluded that the pretrial identification procedure was not so impermissibly suggestive as to violate defendant's rights of due process of law.
    “A trial court's findings entered upon a voir dire hearing are conclusive and binding on appeal if supported by competent evidence.” State v. White, 307 N.C. 42, 46, 296 S.E.2d 267, 270 (1982). The trial court's findings in the instant case amply support its conclusion that the pretrial identification procedure utilized was not impermissibly suggestive. The findings, and the evidence supporting such findings, tended to show that Detective Peele, the investigating law enforcement officer, presented Mr. Stocks with three pages of photographic lineups, each containing six photographs of individuals, all of whom were black males of similar heights, weights and hair color. The photographs displayed no identifying features, and Detective Peele made no suggestive statements or gestures during the procedure.
    Defendant nevertheless argues that the procedure was tainted, in that the photograph of each defendant appeared in the same position on two of the three pages of the photographic lineup. While we would discourage such practices, we are unprepared to hold that the identical location of defendants' photographs on two separate pages was “so unnecessarily suggestive and conducive to irreparable mistaken identity as to offend fundamental standards of decency and justice.” Hannah, 312 N.C. at 290, 322 S.E.2d at 151. We therefore agree with the trial court that the identification procedure utilized was not impermissibly suggestive.    Both defendants argue extensively in their briefs that their motions to suppress should have been granted because Mr. Stocks identified defendants on the basis of their eyes, rather than their entire faces. As Mr. Stocks identified defendants by their eyes alone, defendants contend that there was a substantial likelihood of misidentification. This argument would have been relevant, however, only had we concluded that the identification procedure employed by Detective Peele was unduly suggestive. Because the identification procedure was properly conducted, we do not reach the question of whether the procedure employed resulted in a substantial likelihood of misidentification. See Hannah, 312 N.C. at 290, 322 S.E.2d at 151. Defendants' argument concerning the basis of Mr. Stocks' identification of defendants and the potential for misidentification is more properly characterized as a question of witness credibility and the weight of the evidence, rather than its admissibility. See State v. Green, 296 N.C. 183, 187, 250 S.E.2d 197, 200 (1978) (noting that, where the trial court determines that the pretrial identification procedure is not impermissibly suggestive, the court's “inquiry is at an end” and the credibility of the identification evidence is left to the jury); State v. Smith, 130 N.C. App. 71, 78, 502 S.E.2d 390, 395 (1998) (stating that, “[q]uestions of credibility and the proper weight to be given eyewitness identification testimony are for the jury to decide”). At trial, defendants conducted extensive cross- examination of Mr. Stocks concerning the method of identification, effectively revealing to the jury any weakness in Mr. Stocks'testimony. We hold that the trial court did not err in denying defendant's motion to suppress, and we overrule this assignment of error.

    By his third assignment of error, defendant argues that the trial court erred in denying his motion to dismiss the charge of first-degree burglary, in that there was insufficient evidence to support a finding that defendant was the individual who committed the crime. We disagree.
    Upon a motion to dismiss in a criminal action, the trial court must view all of the evidence in the light most favorable to the State. See State v. Pierce, 346 N.C. 471, 491, 488 S.E.2d 576, 588 (1997). Contradictions or discrepancies in the evidence must be resolved by the jury, and the State should be given the benefit of any reasonable inference. See State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). The trial court must then decide whether there is substantial evidence of each element of the offense charged. See State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 78-79, 265 S.E.2d at 169.
    The elements of first-degree burglary are: (1) breaking, (2) and entering, (3) at night, (4) into the dwelling, (5) of another, (6) that is occupied, (7) with the intent to commit a felony therein. See N.C. Gen. Stat. § 14-51 (2001); State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721-22 (2001). Defendant assertsthat, given the lack of physical evidence linking him to the crime, and the inherently unreliable identification procedure employed in the instant case, there was insufficient evidence that defendant was the perpetrator of the crime charged. This argument is without merit.
    The State presented evidence at trial that, on the evening of 2 November 2000, defendant and Lane, along with a third, unidentified man, forcibly entered the Stocks' residence armed with a shotgun for the purpose of robbing the Stocks. Mr. Stocks identified defendant from a photographic lineup, as well as in court. Mrs. Stocks also identified defendant in open court as the intruder holding the shotgun. The evidence further tended to show that defendant owned a light-colored Ford Probe automobile with chrome trim and hubcap rims, which he was observed driving the afternoon of 2 November 2000. Defendant's automobile was identical to the automobile Tony observed backed into the field next to the Stocks' residence on the evening of the robbery. Taken in the light most favorable to the State, this evidence sufficiently supports a finding that defendant was the perpetrator of the offense charged. The trial court therefore properly denied defendant's motion to dismiss the charge of first-degree burglary, and we overrule this assignment of error.

    Finally, defendant contends there was insufficient evidence to support the charge of second-degree kidnapping. Defendant asserts that the restraint of the victims in this case was inherent in the robbery and did not constitute a separate act supporting the charge of kidnapping. Because the restraint of the victims was not a separate act, argues defendant, the trial court erred in denying his motion to dismiss the charge of second-degree kidnapping.     Section 14-39(a) of the North Carolina General Statutes provides that:
        (a) 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, or any other person under the age of 16 years without the consent of a parent or legal custodian 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) (2001). “If the person kidnapped wasreleased in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree and is punishable as a Class E felony.” N.C. Gen. Stat. § 14-39(b) (2001).
    The term “restrain” in section 14-39(a) “connotes a restraint separate and apart from that inherent in the commission of the other felony.” State v. Johnson, 337 N.C. 212, 221, 446 S.E.2d 92, 98 (1994). “Thus, for a kidnapping charge to stand, the removal of the victim from one place to another must clearly be a removal which is independent from the movement necessary for the commission of the underlying felony.” State v. Joyce, 104 N.C. App. 558, 567, 410 S.E.2d 516, 521 (1991), cert. denied, 331 N.C. 120, 414 S.E.2d 764 (1992).
    In the instant case, the evidence tended to show that, after moving the Stocks to the bedroom and robbing Mr. Stocks of cash and a check, defendant and Lane forced the Stocks into a bathroom with a shotgun, closed the door, and proceeded to ransack the residence. The intruders threatened to kill the Stocks if they emerged from the bathroom. We conclude that there was sufficient evidence of restraint not inherent in the armed robbery to support the charge of kidnapping. The separate restraint of the Stocks was unnecessary to the act of robbery, inasmuch as no weapons or valuables were kept in the bathroom, nor did defendants seek to ransack the bathroom, as they did other rooms in the residence. See Joyce, 104 N.C. App. at 567, 410 S.E.2d at 521 (determining that, where victims of an armed robbery were moved from the frontof a store into a bathroom, “[t]he removals were not an integral part of the crime nor necessary to facilitate the robberies, since the rooms where the victims were ordered to go did not contain safes, cash registers or lock boxes which held property to be taken,” and therefore the charge of second-degree kidnapping was proper); see also State v. Allred, 131 N.C. App. 11, 21, 505 S.E.2d 153, 159 (1998) (concluding that, where the victim was forced from a bedroom into the living room in order to prevent him from hindering defendant and his accomplice from perpetrating the robberies against the other occupants of the residence, such removal was not an integral part of any robbery committed against the victim, but a separate course of conduct supporting a charge of second-degree kidnapping). Defendant's final assignment of error is overruled. We therefore turn to defendant Lane's assignments of error on appeal.

    Defendant argues that the trial court erred in denying his motion to dismiss the charge of robbery with a dangerous weapon against Mrs. Stocks. Defendant contends that there was insufficient evidence that Mrs. Stocks' wallet was taken by use of a dangerous weapon, or that her life was thereby endangered. This argument is without merit.
    As stated supra, the trial court must view all of the evidence in the light most favorable to the State upon a motion to dismiss. See Pierce, 346 N.C. at 491, 488 S.E.2d at 588. The essential elements of robbery with a dangerous weapon are: “(1) the unlawful taking or attempted taking of personal property from another, (2) the possession, use or threatened use of firearms or other dangerous weapon, implement or means, and (3) danger or threat to the life of the victim.” State v. Donnell, 117 N.C. App. 184, 188, 450 S.E.2d 533, 536 (1994). To be found guilty of robbery with a dangerous weapon, “the defendant's use or threatened use of a dangerous weapon must precede or be concomitant with the taking, or be so joined with it in a continuous transaction by time and circumstances as to be inseparable.” State v. Hope, 317 N.C. 302, 306, 345 S.E.2d 361, 364 (1986). Where a continuous transactionoccurs, “the temporal order of the threat or use of a dangerous weapon and the takings is immaterial.” State v. Green, 321 N.C. 594, 605, 365 S.E.2d 587, 594 (1988), cert. denied, 488 U.S. 900, 102 L. Ed. 2d 235 (1988).
    Applying the foregoing principles to the case sub judice, we conclude that the State introduced substantial evidence of defendant's guilt of robbery with a dangerous weapon. The evidence tended to show that defendant, together with two other men, forced his way into the Stocks' residence by breaking open the door, threatened the Stocks with a shotgun, confined them to a bathroom, threatened to kill them, and removed Mrs. Stocks' wallet from the residence. We conclude that the State presented sufficient evidence to support a finding that defendant took the wallet by use of a dangerous weapon that threatened the life of Mrs. Stocks. See State v. Olson, 330 N.C. 557, 567, 411 S.E.2d 592, 597 (1992) (holding that, where the defendant fatally injured the victim in the process of escaping from the victim's home after removing items from the victim's home, the evidence was sufficient to support a reasonable finding that the defendant's use of the gun was so joined by time and circumstances to the taking as to make the use of the gun and the taking parts of one continuous transaction). We overrule this assignment of error.