NO. COA02-391

NORTH CAROLINA COURT OF APPEALS

Filed: 04 February 2003

    Appeal by defendant from judgments entered 6 September 2001 by Judge J. Marlene Hyatt in Clay County Superior Court. Heard in the Court of Appeals 8 January 2003.

    Roy Cooper, Attorney General, by Jay L. Osborne, Assistant Attorney General, for the State.

    Kay S. Murray for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Michael Edward Woods, appeals convictions of first- degree kidnapping, robbery with a dangerous weapon, felonious breaking and entering, felonious larceny, possession of a firearm by a felon, and conspiracy to commit armed robbery. He argues four assignments of error. For the reasons discussed herein, we reverse and remand in part and find no error in part.
    The State's evidence tended to show that on the morning of 9October 2000, Katherine Moreland answered a knock at her door. A man, later identified as Donald Ladd, asked to use her phone. Moreland retrieved her portable phone, but when she attempted to hand it to Ladd, he pulled out a gun and ordered her to “get down.” While Ladd was screaming at Moreland, she noticed that another person was present. She was then told to get up and was kicked in the ribs twice by a “bulbous brown work boot with a steel cleat.” The other person present, grabbed Moreland by the arm so harshly that she heard the tendon in her elbow crack. The other person then struck her on her head such that it sent “chills and pain down [her] spine.”
    Moreland was forced into her home against her will and tied to a chair with a cord from a window blind. The other person asked her for the combinations to the safes in her home. Moreland answered that she did not know the combinations. He asked where her valuables were kept and Moreland told him. The other person took Moreland's wedding and anniversary rings from her fingers and stood guard over Moreland while Ladd went through the house gathering the valuables, including cash, coins, jewelry, guns, and her purse and wallet.
    At one point, both Ladd and the other person were standing over Moreland with guns pointed at her head. After raiding the home, the other person told Moreland to remain in the chair forthirty minutes or he would stab her when she was leaving work or when she was at the grocery store.
    Shortly after the two men left her home, Moreland was able to free herself and run to a neighbor's home. Her neighbor called the police.
    At trial, Moreland identified defendant as the other person because she said she recognized his voice. She also stated that Ladd referred to the other person as “David.” Defendant was also identified by Ladd as the other person present during the robbery.
    Defendant was found guilty of first-degree kidnapping, robbery with a dangerous weapon, felonious breaking and entering, felonious larceny, possession of a firearm by a felon, and conspiracy to commit armed robbery. He was sentenced to 133 to 169 months for kidnapping (00 CRS 696); 117 to 150 months for robbery, breaking and entering and larceny (00 CRS 697-98); 20 to 24 months for possession of a firearm by a felon (00 CRS 700); and 46 to 65 months for criminal conspiracy (01 CRS 189). Each of the sentences imposed were to be served consecutively.
    By defendant's first assignment of error, he argues the trial court erred in denying his motions to dismiss the first-degree kidnapping charge. This assignment is based upon two specific contentions: (1) that there was insufficient evidence that the kidnapping was an act separate and apart from the armed robberysuch that his right against double jeopardy was violated; and (2) that there was insufficient evidence to show that Moreland suffered serious injury. We disagree.
    In considering a motion to dismiss, the only issue for the trial court is whether there is substantial evidence of each essential element of the charged offense and of the defendant being the perpetrator. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996).
    In State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978), our Supreme Court held that certain felonies, including armed robbery, cannot be committed without some restraint of the victim and that restraint which is an inherent, inevitable feature of the other felony may not be used to convict a defendant of kidnapping. “The key question . . . is whether the kidnapping charge is supported by evidence from which a jury could reasonably find that the necessary restraint for kidnapping 'exposed [the victim] to greater danger than that inherent in the armed robbery itself.'” State v. Pigott, 331 N.C. 199, 210, 415 S.E.2d 555, 561 (1992) (quoting State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981)).    
    In State v. Beatty, 347 N.C. 555, 495 S.E.2d 367 (1998), the robbers put duct tape around the victim, Koufaloitis's, wrists, forced him to lie on the floor, and kicked him in the back twice. Our Supreme Court held that the binding and kicking were not inherent, inevitable parts of the robbery, and that these forms of restraint exposed the victim to a greater danger than that inherent in the armed robbery itself. Id. (citing State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981)).
    In the instant case, Moreland was forcibly knocked to the ground, moved into her home, kicked twice in the ribs, grabbed by the arm, hit in the head, tied to a chair with a cord and left tied to the chair. These were sufficient restraints not inherent in the robbery to support the submission of the kidnapping charge to the jury.
    The trial judge submitted first-degree kidnapping to the jury based upon the victim suffering a serious injury. A serious injury is one that causes great pain and suffering. N.C.P.I. 120.12. Whether serious injury has been inflicted must be determined according to the particular facts of each case and is a question the jury must answer under proper instruction. State v. Hensley, 90 N.C. App. 245, 368 S.E.2d 208 (1988).
    There was evidence that Moreland was kicked twice in the ribs with a steel-cleated boot, dropped approximately three feet, which cut her leg and jeans, had her arm twisted so tightly she heard a tendon in her arm crack, lifted by her hair approximately one foot off the ground, thrown approximately 30 feet into a dining roomchair with such force that the chair broke, and was tied so tightly with a cord that she did not have feeling in her hands for approximately three days. This evidence was sufficient to support the submission of the “serious injury” element of first-degree kidnapping to the jury.
    By his second assignment of error, defendant argues the trial court erred in denying his motion to dismiss the conspiracy to commit armed robbery charge based on insufficiency of the evidence. We disagree.
    Criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means. State v. Jackson, 103 N.C. App. 239, 244, 405 S.E.2d 354, 357 (1991), aff'd, 331 N.C. 113, 413 S.E.2d 798 (1992) (citations omitted). The existence of a conspiracy may be established by direct or circumstantial evidence. State v. Lyons, 102 N.C. App. 174, 183, 401 S.E.2d 776, 781, cert. denied, 329 N.C. 791, 408 S.E.2d 527, aff'd, 330 N.C. 298, 412 S.E.2d 308 (1991). Armed robbery is the endangering or threatening of human life by the use or threatened use of firearms or other dangerous weapons in the perpetration of or even in the attempt to perpetrate the crime of robbery. See N.C. Gen. Stat. § 14-87(a) (2001).
    The State put on evidence that: (1) defendant's cousin, Floyd Woods, told him about the Moreland house and the safes; (2)defendant told Ladd about the house and suggested they rob it; (3) Ladd pulled what reasonably appeared to be a gun on Moreland; and (4) Moreland saw defendant point a gun to her head. There was substantial evidence of each element of conspiracy to commit armed robbery, and this charge was properly submitted to the jury.
    By his third assignment of error, defendant argues that his conviction and sentencing for armed robbery and larceny violated his right against double jeopardy. The State concedes that judgment on the felonious larceny charge should be arrested.
    In State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988), our Supreme Court held that felonious robbery was a lesser included offense of armed robbery and that a conviction for both charges violated the constitutional guarantee against double jeopardy. Id. Likewise, larceny is a lesser included offense of armed robbery. State v. Cobb, 150 N.C. App. 31, 563 S.E.2d 600, rev. denied, 356 N.C. 169, 568 S.E.2d 618 (2002). The bill of indictment for the felonious larceny charge alleged that defendant had taken a 12- gauge shotgun, a .38 revolver, and other firearms. The bill of indictment for the robbery with a dangerous weapon charge showed that these items were among those supporting the robbery charge. Defendant's conviction for felonious larceny should be arrested, even though this charge was consolidated into the judgment for robbery with a dangerous weapon.    By his final assignment of error, defendant argues the trial court erred in denying his motion for change of venue. He further argues that it was plain error for the trial court to not recognize that it was impossible for him to be tried before a fair and impartial jury. We disagree.
    A county has a recognized interest in having a defendant tried locally. State v. Vereen, 312 N.C. 499, 324 S.E.2d 250, cert. denied, 471 U.S. 1094, 85 L. Ed. 2d 526 (1985). Whether to transfer venue is a matter firmly within the discretion of the trial court and will not be overturned unless the court manifestly abused that discretion. N.C. Gen. Stat. § 1-83 (2001); Smith v. Barbour, ___ N.C. App. ___, 571 S.E.2d 872 (2002). A defendant must “establish specific and identifiable prejudice against him as a result of pretrial publicity” as well as show that jurors with prior knowledge decided the case, that he exhausted his peremptory challenges, and that a juror objectionable to him sat on the jury. State v. Billings, 348 N.C. 169, 177, 500 S.E.2d 423, 428, cert. denied, 525 U.S. 1005, 142 L. Ed. 2d 431 (1998).
    Defendant argues that venue should have been changed because of three newspaper articles reporting the crime. However, pre- trial publicity alone does not automatically render a change of venue necessary. State v. Soyars, 332 N.C. 47, 418 S.E.2d 480 (1992). The jurors all stated they had not formed any opinionsthat they could not set aside and would be able to listen to the evidence as presented and disregard anything else they may have heard. Defendant has not presented any specific prejudice against him and has not shown that a juror objectionable to him sat on the jury.
    Defendant further argues that it was plain error for the trial court to fail to recognize that the impaneled jury could not render an unbiased decision.
    Plain error is an error “'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'” State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)).
    Under plain error review, we do not find it probable that without a change of venue, the jury would have reached a different verdict. In the instant case, there was a large amount of evidence against defendant. There was substantial evidence of every element of every charge that defendant faced. There was also no evidence that any juror could not give impartial consideration to the evidence as a whole. Consequently, we hold defendant has failed to demonstrate that the trial court committed plain error in denyinghis motion for a change of venue and overrule this assignment of error.
    We reverse and remand for entry of an order arresting judgment on defendant's conviction for felonious larceny in case 00 CRS 698. As to the balance of defendant's convictions, we find no error.
    REVERSED AND REMANDED IN PART; NO ERROR IN PART.
    Judges MARTIN and HUDSON concur.
    Report per Rule 30(e).

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