An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA 02-513


Filed: 1 July 2003


v .                         Alamance County
                            No. 99 CRS 52737, 52781

    Appeal by defendant from judgment entered 28 January 2000 by Judge Leon Stanback, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 13 February 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Christine M. Ryan, for the State.

    Stowers & James, P.A., by Paul M. James, III, for defendant- appellant.

    HUDSON, Judge.

    Defendant appeals judgments entered upon convictions by a jury of one count of first degree kidnapping, one count of robbery with a dangerous weapon, and one count of conspiracy to commit robbery with a dangerous weapon. The trial court consolidated all charges into the kidnapping judgment and sentenced defendant to a minimum of 58 months and a maximum of 79 months in the custody of the Department of Corrections. On appeal, defendant contends (1) that the trial court erred in allowing a police officer to offer certain opinion testimony; (2) that the trial court erred in denying defendant's motion to dismiss for insufficiency of the evidence; and (3) that the trial court erred in instructing the jury on defendant's flight. For the following reasons, we find no error.

Factual Background
    The State's evidence tended to show that in early July 1999, the complaining witness, George McCollum, received a cellular phone call from an acquaintance, Sirdirrah Curry (“Curry”). During the phone conversation, Curry told McCollum that a female friend of hers wanted to meet him, and McCollum agreed to meet her. The friend, defendant Shontrail Russel, called McCollum on his cellular phone and the two arranged to meet on 10 July 1999 at 8:30 p.m. McCollum drove to the meeting place and picked defendant up in his car. Once in the car, defendant suggested that they get a room at the Motel 6, and McCollum agreed.
    Once inside the motel room, defendant asked to use McCollum's cellular phone to call her mother about giving her children medication. McCollum allowed her to use the cellular phone, but he did not hear any conversation during the call. Approximately two to five minutes after the call, McCollum heard a knock on the motel room door. Defendant went to the window, pushed the curtain aside and looked out. Despite McCollum's repeated instructions not to open the door, defendant unlocked and opened the door, at which time three masked men entered the motel room.
    One of the masked men carried a gun and announced that this was a robbery. The three men overpowered McCollum, tying his hands behind his back and covering his eyes with duct tape. The three men then physically assaulted McCollum, repeatedly hitting him on the head, and demanded that McCollum give them all of his money. McCollum told the assailants where his money was, and the three mentook between $1,500 and $1,600 in cash. The three men left the motel room, leaving McCollum tied up and blindfolded. Shortly thereafter, McCollum was able to free himself and summon help.
    As a result of the attack, McCollum sustained three fractured bones in his face and a lacerated scalp. The physician who treated McCollum testified that McCollum's injuries were serious. McCollum testified that the injuries were extremely painful and that the pain lasted for four to six weeks.
    During the attack, none of the three men threatened or harmed defendant in any manner. A review of McCollum's cellular phone records revealed that three telephone calls to telephone number 513-9998 were placed from McCollum's cellular phone at 9:02 p.m., 9:02 p.m., and 9:04 p.m. on the night of the attack. McCollum did not know the number called, and the calls were placed at the time defendant was using McCollum's cellular phone. Another call was made to the same number at 11:11 p.m., after the cellular phone had been stolen from McCollum, and at the time McCollum was being treated at the hospital. A final call was made at 3:34 a.m. the next morning. McCollum made none of the calls at or after 9:02 p.m. Police later determined that the number 513-9998 was the pager number of defendant's boyfriend.
    On 12 July 1999, Detective Parker of the Burlington Police Department received information that defendant could be found at the apartment of Trish Logan. Detective Parker went to Logan's apartment with several officers and asked to search the apartment. Logan refused to allow the search. The detective left theapartment, but stayed in the building. Approximately fifteen minutes later, defendant came out of the building, at which time defendant was arrested pursuant to several unrelated warrants.
    Upon defendant's arrest, her photograph was placed in a photo lineup with five other photographs of people approximately the same age, gender, race and physical description. McCollum viewed the photo lineup and identified defendant as the woman he was with in the motel room. The officers then read defendant her rights and placed her under arrest.
    Defendant initially denied any involvement in the robbery at the motel room, but later admitted that she was part of a plan to rob McCollum along with Curry and three black males. Defendant told officers that Curry knew that defendant was meeting McCollum at 9:00 p.m. and that Curry and three black males had followed defendant and McCollum to the motel. Defendant further admitted that when she was inside the motel room, she paged 513-9998 and hung up. After paging that number, she heard a knock on the door, then opened the door and let the men inside. She stated that McCollum would not give the men his money, so they tied his hands, taped his mouth and beat him.
    Defendant first argues that the trial court erred in allowing a police officer “to testify as to the officer's opinion as to what evidence was required to prove a conspiracy conviction when the officer was not tendered and approved as an expert witness.” We disagree.    Rule 701 of the North Carolina Rules of Evidence provides that lay witness testimony “in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” N.C. Gen. Stat. . 8C-1, Rule 701. Further, Rule 704 provides that “[t]estimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” N.C. Gen. Stat. . 8C-1, Rule 704.
    The ruling of the trial court as to whether a lay witness may testify in the form of an opinion is reviewed under an abuse of discretion standard. State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001). Thus, a ruling by the trial court to allow a witness to provide opinion testimony will not be disturbed absent a “showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.” State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985).
    During cross-examination of Detective Parker by defense counsel, the following exchange took place:
    Q. Other than that physical evidence and, of course, the apparent injuries that you saw on Mr. McCollum, in which you have done to investigate this case, as far as making two arrests, has it been based on anything --

    A. Actually three arrests, Mr. Dawson, if you count her as well as the other two males.

    Q. The two additional arrests? The males?

    A. Uh-huh.
            Q. Was it based on anything, any other evidence, any other testimony, or anything other than what came from Miss Russell?

    A. With regard to the other two, the other two arrests that were made, that came from basically what Miss Russell supplied me with. Now, obviously with her arrest, it was, um, something other than what she supplied me with. It was, obviously, what Mr. McCollum was able to do as far as the new line-up.

    Q: Let's talk about what Mr. McCollum provided you with.

    A. Sure.

    Q. Did he provide you with, as far as Miss Russell is concerned, anything other than the fact that they were supposed to be there? He never told you he was to be there for sex; is that correct?

    A. Not originally, no.

    Q. And originally he never told you about him needing that medical assistance that he referred to initially?

    A. Not, not in our first contact, no.

    Q. And so, other than what Mr. McCollum, because in fact Shontrail was there in the room, other than that and for whatever reason that he told you they were there together, has there been any other independent evidence pointing to an agreement or conspiracy to rob Mr. McCollum that, that Miss Russell entered into?

    A. You're going to have to rephrase that. I'm sorry.

    Q. I've already asked you, as far as Miss Russell's statements, about any other people. You also have interviewed and talked to Mr. McCollum; is that correct?

    A. That's correct.

    Q. All right. Considering both of those sources of information --

    A. Hers and his?

    Q. Right.

    A. Okay.

    Q. -- and, and I'm saying excluding her own statements that you wrote in your follow-up --
            A. Okay.

    Q. -- and that of, also, later on Miss Timmon's, other than that, is there any independent, anything that points to the actual crime of conspiracy of an agreement with Sirdirrah Curry and those two Mebane individuals?

    A. Other than what Miss Russell, um, said herself, that she conspired to do this, no.

    Later on re-direct examination, the prosecutor asked Detective Parker the following questions:
    Q. Is there any significance, do you place in your training and your experience as a police officer, Detective, do you place any significance on more than one person committing a crime as to whether a conspiracy was committed?

    [Defense Counsel]. Objection.

    The court. Overruled.

    A. Yes.

            Q. And what type of significance do you place and what type of evidence do you look for?

    A. If the person was there --

    [Defense Counsel]. Objection.

    The Court. Overruled.

    Q. Go ahead.

    A. If the person, you have two people involved obviously, um, and that they're at a particular crime scene, um, if there is, a crime is committed such as will happen to Mr. McCollum, if a person, even if one person is there, um, and it would be just common knowledge perhaps if that person could not have done it by themselves that they would have had to have the assistance of somebody else; in this case, the guys that came into the room. The simple fact that there was just more than one person there.

    Q. Do you place any significance on the fact that besides Miss Russell's statement, do you place any significance on the fact that she used Mr. McCollum's cell phone and dialed a pager number as opposed to aregular telephone?

    A. Yes.

    Q. What significance do you place on that? What would that indicate to you if she got in the room, used a phone and dialed three times to a pager number?

    [Defense Counsel]. Objection, your honor.

    The Court. What was your question?

    Q. What significance do you place on that as to whether that is a conspiracy or not or what type of evidence?

    [Defense Counsel]. Objection, your honor.

    The Court. Overruled.

    Q. What type of evidence?

    A. I would say direct evidence. I mean, why would she not call a normal number? Why would she call a pager if she was intending to call her mother to check on her kids, and then of course what number -- I mean, did she know Mr. McCollum's cell phone number to put in the pager so that the person who she was paging could actually call her back? Normally when I get a page on my pager from somebody, there's a number on it for me to call back. Did she know what his cell phone number was?

    Q. Do you know what was put in the pager number?

    A. No.

    Q. She ever tell you?

    A. No.

    Q. Do you place any significance on whether there was a conspiracy and whether she was involved in a conspiracy to commit armed robbery, and whether she was involved in the armed robbery, and whether or nor she looked out the, moved the curtain and looked out the window?

    A. Yes.

    Q. When you were there at the scene that night, was there some type of artificial lighting out there, um, so that -

    A. Outside the door?
    Q. Outside the motel room.

    A. Yes.

    Q. So, if someone pulled the curtain back and you saw three or four guys with --

    [Defense Counsel]. Objection on what she saw.

    The Court. You may approach.

        (Sidebar discussion off the record).

    Q. You heard the testimony. Do you place any significance on the fact that if someone opens a curtain and sees guys with this over their face -- I'm not going to put it over my face -- do you place any significance in that --

    A. Yes.

    Q. -- Detective, in your training and experience?

    A. Absolutely.

    Q. As to whether there was a conspiracy?

    A. Obviously. I mean, it's obvious that at that particular time of year, we're talking about July of, in the midsummer. Why would somebody have a toboggin over their face as hot as it was outside? That, in my training, would indicate that somebody is fixing to, would be fixing to commit some sort of an illegal act by trying to disguise their looks.

    First, we note that the defendant opened the door to this line of questioning by initially inquiring of Detective Parker whether there was any independent evidence of a conspiracy other than defendant's statements to the police. Further, we believe that Detective Parker's testimony was based upon his training and experience as a law enforcement officer and that it was both rationally based on his perception and helpful to the determination of fact in issue. A review of this testimony shows that the prosecutor elicited from this witness the facts he relied on ininvestigating an alleged conspiracy. There was no attempt by the prosecutor to elicit from the witness an opinion as to whether the jury should find that there was in fact a conspiracy. Thus, we find no abuse of discretion on the part of the trial court. This assignment of error is overruled.
    Defendant next argues that the trial court erred in denying defendant's motion to dismiss based on the insufficiency of the evidence to sustain convictions of armed robbery, conspiracy to commit armed robbery and kidnapping. We disagree.
    In ruling on a defendant's motion to dismiss, “the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense.” State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The issue of whether the evidence presented constitutes substantial evidence is a question of law for the court. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 66, 296 S.E.2d at 652; see also State v. Mercer, 317 N.C. 87, 343 S.E.2d 885 (1986). Our courts have repeatedly noted that “[t]he evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal.” State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991) (citations omitted); see also State v. Patterson, 335 N.C.437, 449-50, 439 S.E.2d 578, 585-86 (1994). “If all the evidence, taken together and viewed in the light most favorable to the State, amounts to substantial evidence of each and every element of the offense and of defendant's being the perpetrator of such offense, a motion to dismiss is properly denied.” Mercer, 317 N.C. at 98, 343 S.E.2d at 892 (citations omitted).
A. Conspiracy
In State v. Massey, this Court held that
        A criminal conspiracy is an agreement between two or more persons to do an unlawful act or do a lawful act in an unlawful way or by unlawful means. In order for a defendant to be found guilty of a conspiracy, it must be established by competent evidence that the defendant entered into an unlawful confederation for the criminal purposes alleged. While a conspiracy may be established from circumstantial evidence, there must be such evidence to prove the agreement directly or such a state of facts that an agreement may be legally inferred. Conspiracies cannot be established by a mere suspicion, nor does a mere relationship between the parties or association show a conspiracy. If the conspiracy is to be proved by inferences drawn from the evidence, such evidence must point unerringly to the existence of a conspiracy.

State v. Massey, 76 N.C. App. 660, 661-62, 334 S.E.2d 71, 72 (1985) (citations omitted).
    Here, the State introduced evidence showing that the defendant admitted that she was part of a plan along with Curry and three black males to rob McCollum. Defendant agreed to arrange for McCollum to take her to a certain motel, and that Curry and the three men would follow them there. She further agreed to page her boyfriend's pager number as a signal, and then open the motel roomdoor and let the men in. This evidence, taken in the light most favorable to the State, clearly establishes that defendant entered in to an agreement with one or more other persons to commit an unlawful act.
B. Armed Robbery
    The law on acting in concert is as follows:
        [I]f two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.

State v. Wilson, 354 N.C. 493, 506, 556 S.E.2d 272, 282 (2001), overruled on other grounds, State v. Millsaps, 356 N.C. 556, 567, 572 S.E.2d 767, 775 (2002). For the purposes of acting in concert, “[a] person is constructively present during the commission of a crime if he or she is close enough to be able to render assistance if needed and to encourage the actual perpetration of the crime.” State v. Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784 (2002), cert. denied, 123 S.Ct. 495, 154 L.Ed.2d 403 (2002) (citations omitted).
    Here, defendant was more than just constructively present during the robbery of McCollum. She actively participated in the commission of the robbery in that she facilitated the arrival of the three men into the motel room by sending a signal to a pager and then opened the door for them when they knocked. After the three men entered, they severely beat Mr. McCollum and threatened him with a firearm. This evidence, taken in the light most favorable to the State, sufficiently shows that defendant acted inconcert with the three men in committing the armed robbery.
C. Kidnapping
    G.S. . 14-39 defines the crime of kidnapping as follows:
        (a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any 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 . . . (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 . . . .

N.C. Gen. Stat. . 14-39(a) (2001). In North Carolina, there are two degrees of kidnapping: “If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured . . . the offense is kidnapping in the first degree.” N.C. Gen. Stat. . 14-39(b) (2001).
    “A restraint which is an inherent, inevitable element of a felony such as armed robbery will not sustain a separate conviction for kidnapping under N.C. Gen. Stat. [.] 14-39(a).” State v. Davidson, 77 N.C. App. 540, 542, 335 S.E.2d 518, 519-20 (1985), disc. review denied, 315 N.C. 393, 338 S.E.2d 882 (1986). In determining whether the kidnapping was an integral part of another crime,
        [t]he 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, [or that the victim was] subjected to the kind of danger and abuse the kidnapping statute was designed to prevent.
Mann at 303, 560 S.E.2d at 782 (citations and internal quotations omitted).
    In Mann, the defendant lured a co-worker to his apartment, where he severely beat her, then transported her to several ATMs to withdraw money. The defendant eventually forced the victim into the trunk of her car, and subsequently shot and killed her. On these facts, our Supreme Court held “that the restraint to which defendant subjected [the victim] far exceeded that necessary to and inherent in the armed robbery. Beating her and forcing her into the trunk 'subjected [her] to the kind of danger and abuse the kidnapping statute was designed to prevent.'” Id.
    Here, the defendant not only conspired to rob McCollum with a firearm, but also participated in the commission of the robbery. The State introduced evidence that showed that the restraint used against McCollum included tying his hands behind his back, placing duct tape over his eyes, and threatening him with deadly violence if he left the room. We believe that this level of restraint exposed him to greater danger than that inherent in the armed robbery itself and was “the kind of danger and abuse the kidnapping statute was designed to prevent.” Thus, the State introduced sufficient evidence to sustain the kidnapping conviction and this assignment of error is overruled.
    Finally, defendant argues that the trial court erred in instructing the jury on defendant's flight. We disagree.
    The instruction given to the jury was not that flight was conclusive evidence of guilt, but that the jury could considerevidence of flight “together with all other facts and circumstances in this case in determining whether the combined circumstances amount to an admission or show consciousness of guilt. However, proof of this circumstance is not sufficient in itself to establish defendant's guilt.”
    In State v. Brewton, the defendant left the scene of a murder, went briefly to his mother's home nearby, and then checked into a hotel where he remained until he turned himself in to the police the following day. On these facts, our Supreme Court held that an instruction on flight was justified. 342 N.C. 875, 878-79, 467 S.E.2d 395, 397-98 (1996).
    Here, defendant left the scene of the robbery and kidnapping. Two days after the robbery, the police received information that defendant could be found at the apartment of another individual. The police went to the apartment and asked to search the apartment, which request was denied. The police left the apartment, but stayed in the building. Approximately fifteen minutes later, defendant came out of the building, at which time she was arrested. Thus, we believe that there was sufficient evidence of defendant's flight to justify the given instruction, and this assignment of error is overruled.
    No error.
    Judges MCGEE and STEELMAN concur.
    Report per Rule 30(e).

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