An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA01-366-2


Filed: 6 May 2003

v.                        Rowan County
                            Nos. 00 CRS 9716, 9717
SCOTTIE LEE LEWIS                    00 CRS 5308

    Appeal by defendant from judgment entered 16 February 2001 by Judge W. Erwin Spainhour in Rowan County Superior Court. Heard in the Court of Appeals 17 April 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Jane T. Hautin, for the State.

    Richard D. Locklear, for the defendant.

    LEVINSON, Judge.

    Defendant appeals from judgment and conviction of first degree kidnapping and two counts of first degree rape. For the reasons set out below, we conclude that defendant had a fair trial, free of prejudicial error.
    A complete recitation of the evidence presented at trial is not required for the resolution of issues presented by this appeal. Briefly summarized, the State's evidence tended to show the following: C.S., the victim in this case, testified that on 8 July 2000, she was trying to buy marijuana. She contacted two acquaintances, who arranged a meeting between C.S. and defendant at a local roadhouse. C.S. arrived at the bar around 3:30 P.M., and stayed until 7:00 P.M., when she left in her own car, accompanied

by defendant. They drove for an hour or so, making several stops. Sometime after dark C.S. and defendant drove to a rural area off Price Road, in Rowan County. Defendant claimed that his cousin would meet them there and would sell C.S. marijuana. However, shortly after they arrived, defendant asked C.S. for a hug and when she refused, he became enraged, “slammed [her] down on the ground,” and choked C.S. with his forearm until she became unconscious. When she regained consciousness, defendant was engaging in nonconsensual intercourse with her. He demanded that she also perform oral sex on him, and when she refused to do so, he continued to rape her and then choked her again. When defendant stopped the sexual assault, C.S. tried to get into her car, but defendant would not let her drive. Instead, he choked her until she again lost consciousness. When C.S. awoke the next time, she “was being driven around in the car miles away.” Defendant then drove C.S. to another wooded area, where he raped her a second time. Following the second assault, defendant apologized for his behavior, and C.S. dropped him off at his parents' house.
    C.S.'s testimony was corroborated by testimony from other witnesses to whom she had described the attack. After leaving defendant at his parents' house, C.S. went to a Pantry convenience store, where she was assisted by a clerk who called 911 for emergency services. The clerk testified that C.S. said she had been “accosted” and choked, and that she appeared to be badly injured. C.S. was taken from the store to Rowan Regional Medical Center, where she was treated for her injuries. An emergency room

nurse testified that when C.S. arrived at the hospital, she was covered with leaves and mud, had numerous lacerations, abrasions, and bruises around her face and neck, was very distressed, and vomited repeatedly. While at the hospital, C.S. also spoke with Detective Tim Wyrick of the Rowan County Sheriff's Department. Wyrick testified that C.S. appeared to have been “beaten pretty bad” and looked “like she had been hit by a truck.” C.S. told Wyrick that the defendant had raped her, and picked defendant's picture from a photographic lineup. Wyrick later arrested defendant, who gave the officer a statement saying that he and C.S. had consensual sex on 8 July 2000.
    Other evidence included a videotape made at the Pantry store and an audiotape of the 911 call made from the store. The defendant also presented several witnesses, whose testimony regarding the events of 8 July 2000 did not contradict the material aspects of C.S.'s testimony.
    Following a trial, defendant was convicted of assault with a deadly weapon inflicting serious injury, two counts of first degree rape, and first degree kidnapping. Judgment on the assault with a deadly weapon inflicting serious injury was arrested (01 CRS 04), and defendant was sentenced to consecutive prison terms for the remaining offenses. Defendant appeals from these convictions.

    Defendant presents two arguments on appeal. He argues first that “the trial court improperly instructed the jury on first degree kidnapping” because “the facts supporting said charge are

essential elements [of] the charge of first degree rape[.]” On this basis, defendant contends that the court's instruction on kidnapping “subject[ed the defendant] to multiple punishments for the identical offense” in violation of the Double Jeopardy Clause of the U.S. Constitution. We disagree.
    Preliminarily, we address certain violations of the N.C. Rules of Appellate Procedure. Defendant failed to object to the court's jury instructions at trial, and thus did not preserve this issue for appellate review. This violates N.C.R. App. P. 10(b), which provides in pertinent part that:
        (b)(1)In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling. . . . (2) . . . A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection. . . .
N.C.R. App. P. 10(b)(1) and (2) (emphasis added). Defendant also failed to preserve the issue of whether the trial court's instructions on first degree kidnapping constitute plain error. Under N.C.R. App. P. 10(c)(4), “a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.” As defendant did not assign the court's instructions

as plain error, he did not preserve the issue for appellate review for plain error.
    “[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10.” N.C.R. App. P. 10(a). In the instant case, defendant failed to properly assign error to the trial court's instructions. Although defendant cites assignment of error one (1) as the basis for his first argument, this assignment of error asserts that the trial court “improperly instructed the jury on assault with a deadly weapon inflicting serious injury.” (emphasis added). None of defendant's assignments of error challenge the court's instructions on first degree kidnapping. This is in violation of N.C.R. App. P. 10(c)(1), which provides in pertinent part:
        [e]ach assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned.

Defendant also failed to include the jury instructions in the record on appeal, a violation of N.C.R. App. P. 9, which provides in pertinent part:
        The record on appeal in criminal actions shall contain: f. where error is assigned to the giving or omission of instructions to the jury, a transcript of the entire charge given. . . .

N.C.R. App. P. 9(a)(3)f. Finally, defendant raises a question of constitutional law on appeal. However, “[c]onstitutional issues not raised and passed upon at trial will not be considered for the

first time on appeal.” State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001) (citing State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988)).
    The Rules of Appellate Procedure “are mandatory and a failure to follow the Rules subjects an appeal to dismissal.” State v. Castor, 150 N.C. App. 17, 23, 562 S.E.2d 574, 579 (2002). However, in the interests of justice, and pursuant to our authority under N.C.R. App. P. 2, we elect to review defendant's argument.
    Defendant was convicted of first degree rape, in violation of N.C.G.S. § 14-27.2 (2001), which provides in relevant part that:
        (a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse: . . . .
        (2) With another person by force and against the will of the other person, and: a. Employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon; or b. Inflicts serious personal injury upon the victim or another person[.]

Defendant was also convicted of first degree kidnapping under N.C.G.S. § 14-39 (2001), which defines the offense in relevant part as follows:
        (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, . . . 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 or any other person[.] . . . .
        (b) There shall be two degrees of kidnapping . . . If the person kidnapped . . . [is] seriously injured or sexually assaulted, the offense is kidnapping in the first degree and is punishable as a Class C felony. . . .

N.C.G.S. § 14-39(a)(2)(3) and (b) (2001).
    Defendant argues that under the facts of this case his conviction of both kidnapping and rape violated the prohibition against double jeopardy. “[T]he Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. That guarantee . . . protects against a second prosecution for the same offense after acquittal[,] . . . a second prosecution for the same offense after conviction[, and] . . . multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 664-65 (1969). N.C. Const. art. I, § 19 provides similar protections. “[A] restraint, which is an inherent, inevitable feature of such other felony” cannot be the basis of a conviction for kidnapping, as this would “permit the conviction and punishment of the defendant for both crimes [in] . . . violat[ion of] the constitutional prohibition against double jeopardy.” State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). However, “'two or more criminal offenses may grow out of the same course of action,' and there is no barrier to convicting a defendant for kidnapping, 'by restraining his victim, and also of another felony to facilitate which such restraint was committed, provided the restraint, which constitutes the kidnapping, is a separate, complete act, independent of and

apart from the other felony.'” State v. Oxendine, 150 N.C. App. 670, 675, 564 S.E.2d 561, 565 (2002) (quoting Fulcher at 524, 243 S.E.2d at 352), disc. review denied, __ N.C. __, __ S.E.2d __ (2003).
    Defendant contends that any evidence that he restrained C.S. would necessarily be identical to the evidence supporting the use of force in the rape. However, C.S. testified that after defendant raped her the first time, she tried to get in her car and drive away. Defendant rendered her unconscious and forced her to ride to another secluded spot where he raped her a second time. We conclude that C.S.'s testimony, that defendant knocked her out, put her in the car, and drove to the location of the second rape, was evidence of a “separate, complete act, independent of and apart from” the rapes. Id. Accordingly, we hold that the trial court did not err by allowing the jury to convict defendant of first degree kidnapping. This argument is overruled.

    Defendant next argues that the trial court committed reversible error by denying his motion to dismiss for insufficiency of the evidence. We disagree.
    Defendant is also in violation of the Rules of Appellate Procedure as regards this argument. Although defendant moved for dismissal at the close of the State's evidence, he failed to renew the motion at the close of all the evidence, and thus did not preserve the issue for appellate review. N.C.R. App. P. 10(b)(3) provides that:
        A defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action. . . . If a defendant makes such a motion after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case of nonsuit made at the close of State's evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.

Nor did defendant assign as plain error the insufficiency of the evidence, as required by N.C.R. App. P. 10(c)(4). We conclude that defendant did not preserve this issue for appellate review.
    In addition, defendant cites assignment of error two (2) as the basis of his argument. However, assignment of error two asserts that the trial court's jury instruction on assault with a deadly weapon inflicting serious injury “was tantamount to a recapitulation of the evidence” and was thus “an improper characterization of opinion by the trial [court].” This allegation does not address the sufficiency of the evidence. In another assignment of error defendant asserts that the evidence was insufficient to convict him of first degree rape; however, on appeal defendant only challenges the evidence to support his conviction of kidnapping, and does not discuss the sufficiency of the evidence of rape. None of defendant's assignments of error correspond with his argument that the evidence was insufficient to convict him of first degree kidnapping. Nonetheless, we will review his argument on its merits.
    Defendant does not articulate which element of first degree kidnapping is unsupported by sufficient evidence, and our own

review reveals that evidence of each element was presented at trial. Instead, defendant essentially recapitulates his first argument that there was no evidence of kidnapping separate from the force and restraint that is inherent in commission of a first degree rape. This contention, which is discussed above, is without merit. This argument is overruled.
    For the reasons discussed above, we conclude that the defendant's trial was free of prejudicial error. Accordingly, we find
    No error.
    Judges McGEE and McCULLOUGH concur.
    Report per Rule 30(e).