STATE OF NORTH CAROLINA
v. Rowan County
Nos. 00 CRS 9716, 9717
SCOTTIE LEE LEWIS 00 CRS 5308
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.
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.
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).