An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1130


Filed: 20 May 2003


         v.                        Onslow County
                                No. 01 CRS 56149

    Appeal by defendant from judgment entered 18 April 2002 by Judge Thomas D. Haigwood in Onslow County Superior Court. Heard in the Court of Appeals 19 May 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General William H. Borden, for the State.

    McCotter, McAfee & Ashton, P.L.L.C., by Rudolph A. Ashton, III, and Terri W. Sharp, for defendant-appellant.

    CALABRIA, Judge.

    Defendant Michael Allen Murphy was charged with assault with a deadly weapon and felonious restraint. The State's evidence tends to show that defendant and Rene Hackett (“Hackett”) had been dating since February 2000, and had enjoyed a good relationship until episodes of domestic violence began to occur. On 22 September 2001, defendant called Hackett and told her that he wanted to talk to her about his desire to stop drinking and abusing drugs. Hackett agreed to meet him at the home of a mutual friend, Earl Hawkins (“Hawkins”), to discuss the matter further. At about 8:30 p.m. on the evening of 22 September 2001, defendant picked up Hackett outside of her father's home. When she got intodefendant's pickup truck, Hackett immediately noticed that he had been drinking. In fact, Hackett observed an empty beer bottle in the truck. Despite her reservations, however, Hackett got into defendant's truck to go to Hawkins' house.
    While en route to Hawkins' residence, defendant began to accuse Hackett of having an affair--accusations which she denied. Despite her repeated denials, defendant grew angrier and angrier. Suddenly, defendant grabbed the back of Hackett's neck with his right hand, and holding her by the hair, smashed the side of her face against the steering wheel. Defendant also held a knife to Hackett's throat and told her that he was going to kill her. Defendant continued to drive, using one leg and Hackett's head, which was pressed against the steering wheel, to steer. Defendant used his other leg to operate the floor pedals of the truck. When Hackett attempted to get defendant to release his grip, he would tighten his grasp. Defendant continued driving past the road that led to Hawkins' house; and though Hackett tried to calm him down, defendant told her that he was taking her somewhere to kill her.     After driving a little further, defendant slowed. While making a right turn, defendant loosened his hold to negotiate the turn and dropped the knife. Hackett used this opportunity to pull away from defendant and escape the confines of the truck. Defendant attempted to stop Hackett from escaping by grabbing the back of her shirt, but the shirt ripped off, and Hackett was able to escape. Hackett also lost a shoe in the process. Once free,Hackett ran to the car behind her and asked for help. The driver let Hackett into the car.
    Defendant, following Hackett, ran to the car and began to bang on it. He opened one of the car's passenger doors, demanding that Hackett get out. In response, the driver accelerated and drove off. Defendant got back into his truck and followed the car, honking his horn. Defendant then pulled up beside the car in which Hackett was riding, screaming at her to get out. The driver proceeded to the police station, running at least one red light, while trying to evade and lose defendant.
    Defendant presented the testimony of Hawkins, a friend, who stated that defendant had been at his house prior to the 22 September 2001 incident involving Hackett, and that defendant had not been intoxicated. Hawkins also stated that when defendant returned to his house later that evening, he appeared to be injured--having a big red spot on his right eye and a knife cut on his right arm. Another witness, Pat Miller, who was a neighbor of defendant, testified that she too saw a cut on defendant's arm after the 22 September 2001 incident with Hackett. Finally, defendant's mother testified as to a voice mail message allegedly left by Hackett, saying rude things to and about defendant.     At the close of all of the evidence, defendant renewed an earlier motion to dismiss. This motion was denied. The jury subsequently found defendant guilty of felonious restraint, but acquitted him on the charge of assault with a deadly weapon. Defendant again renewed his motion to dismiss and moved forjudgment notwithstanding the verdict, which were both denied. The trial court then entered judgment on the jury verdict, sentencing defendant to 25-39 months imprisonment. Defendant appeals.
    By his second and fifth assignments of error, defendant argues that the trial court erred in denying his motions to dismiss and/or judgment notwithstanding the verdict. Defendant contends, “[a]t best, the evidence supported a charge of false imprisonment.” We disagree.
     “A motion to dismiss is properly denied when there is substantial evidence of (1) each element of the offense charged and (2) that the defendant is the perpetrator of the crime.” State v. Chapman, ___ N.C. App. ___, ___, 572 S.E.2d 243, 246 (2002), disc. rev. denied, ___ N.C. ___, ___ S.E.2d ___ (2003). “Substantial evidence” has been defined as that quantum of “evidence from which a rational finder of fact could find the fact to be proved beyond a reasonable doubt.” State v. Davis, 130 N.C. App. 675, 678, 505 S.E.2d 138, 141 (1998). In ruling on a motion to dismiss, “'[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. Bumgarner, 147 N.C. App. 409, 412, 556 S.E.2d 324, 327-28 (2001) (citations omitted).
    As to the propriety of the trial court's denial of defendant's motion for judgment notwithstanding the verdict made after the jury returned its verdict, we note that the motion in question is moreappropriately termed a motion to set aside the verdict as being against the weight of the evidence, which is addressed to the sound discretion of the trial court and reviewable only upon a showing of an abuse of that discretion. See State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985). An abuse of discretion occurs “where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
    To obtain a conviction for felonious restraint, the State must show that the defendant intentionally and unlawfully restrained a person, without that person's consent, and that defendant moved the person from the place of initial restraint by transporting him/her in a motor vehicle or other conveyance. State v. Wilson, 128 N.C. App. 688, 693, 497 S.E.2d 416, 420 (1998). The offense of false imprisonment is properly submitted to the jury only if the State cannot show the element of transportation by motor vehicle or conveyance. See id.
    In the light most favorable to the State, the evidence tends to show that defendant picked up Hackett, his “off and on again” girlfriend, on the evening of 22 September 2001 under the guise of taking her to a mutual friend's house to talk to her about his desire to stop drinking and abusing drugs. However, it soon became apparent that defendant had other intentions, when he began to accuse Hackett of cheating. Although Hackett denied those accusations, defendant got progressively angrier--suddenly grabbingHackett by the back of her neck and holding her by the hair and smashing the side of her face against his truck's steering wheel. Defendant also held a knife to Hackett's throat and told her that he was taking her out to kill her. As defendant drove on, past the road that would lead to the friend's house, to which the two were supposed to be traveling, he maintained a tight grip on Hackett's hair and again, told her that he was taking her somewhere to kill her. It was only when defendant had slowed down to execute a right turn that his grasp on Hackett loosened so that she could escape.
    While defendant would argue to the contrary, we conclude that this evidence meets all of the elements of felonious restraint. Hackett consented to going to the residence of Hawkins, and defendant failed to take her there. In fact, he drove past the road leading to Hawkins' house. Here, the transport of Hackett in defendant's vehicle may have been consensual at the outset, but that transport became non-consensual when defendant grabbed Hackett and held her by her hair, holding a knife to her throat, and told her that he was taking her out to kill her. Fortunately, Hackett was able to escape from defendant before he transported her to a place where his threats could be carried out. Since all of the elements of the offense of felonious restraint including movement from the place of initial restraint by transportation in a motor vehicle, the trial court properly denied defendant's motions to dismiss and to set aside the verdict as being against the weight of the evidence. Defendant's second and fifth assignments of error are then overruled.     By his first assignment of error, defendant argues that “[i]t was plain error to allow the State to continuously question witnesses about prior acts of violence committed by [him], even though objections were sustained.” Again, we disagree.
    It is well settled that where the trial court sustains an objection, but the objecting party fails to move to strike any answer given to the question objected to, that party will not then be heard to complain on appeal. See State v. Walker, 139 N.C. App. 512, 520, 533 S.E.2d 858, 862 (2000). Moreover, this Court recently held that the trial court's general instruction at the beginning of the trial that the jury must disregard a question and answer when an objection is sustained by the court, was sufficient “to prevent any prejudicial effect produced by the [court's refusal] to strike the improper testimony.” State v. Strickland, ___ N.C. App. ___, ___, 570 S.E.2d 898, 905 (2002), cert. denied, ___ N.C. ___, ___ S.E.2d ___ (2003). The Court further held, “Since the trial court sustained defendant's objection, it had no duty to strike the testimony or issue a curative instruction.” Id.
    In the case sub judice, the trial court gave an instruction similar to that given in Strickland at the onset of trial. The court instructed the jury,
        When I sustain an objection to a question, you as a juror must disregard the question and answer, if one was given, and draw no inference to the question or answer or speculate as to what the witness would have said if I had permitted the witness to answer the question.On several occasions during trial proceedings, defendant objected to the prosecutor's questioning of witnesses about prior bad acts committed by defendant, and the court sustained each of those objections. Defendant, however, failed to move to strike the answers and the court did not issue any further curative instruction to the jury. In accordance with Walker and Strickland, supra, we conclude that defendant can show no prejudice--plain or otherwise, under these facts. Hence, this assignment of error is also overruled.
    Defendant has specifically abandoned his remaining assignments of error. In light of all of the foregoing, we hold that defendant received a fair trial, free from prejudicial error.
    No error.
    Judges MARTIN and McCULLOUGH concur.
    Report per Rule 30(e).

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