NO. COA02-1423
Appeal by defendant from judgment entered 2 May 2002 by Judge
A. Moses Massey in Guilford County Superior Court. Heard in the
Court of Appeals 2 June 2003.
Attorney General Roy Cooper, by Assistant Attorney General V.
Lori Fuller, for the State.
J. Clark Fischer for defendant-appellant.
TYSON, Judge.
George Avery Boyd (“defendant”) appeals from his convictions
of first degree kidnapping and assault inflicting serious injury
and sentence to a term of 120 to 153 months imprisonment. We find
no error.
I. Background
Defendant and Cheryl Williams lived together in an apartment
in Greensboro, North Carolina. On 9 July 2001, defendant and
Williams hosted some friends at the apartment. All were drinking
alcohol and using cocaine. Williams and her friend, Valerie, had
just returned from the liquor store when defendant began “jerking”
Williams around. Williams testified that defendant was trying tointimidate her, asking her “What [are] you going to do” while he
pushed her around and pulled at her clothes.
Valerie left the apartment and defendant pushed Williams into
the bedroom. Defendant tore Williams' clothes, and ripped off her
denim shirt, her bra, her shorts and her panties. Defendant put
his hands over Williams mouth and turned the air conditioning fan
on high so that nobody could hear Williams' screams. Defendant
began hitting Williams, and repeatedly pushed her head down into a
pillow with such force that one of Williams' teeth was knocked out.
During the assault, a police officer knocked on the door.
Defendant retrieved a knife from the kitchen and told Williams that
“If you say anything, I will cut your throat.” Defendant also
unsuccessfully tried to tie up Williams. Williams testified that
she was scared and afraid for her life.
Eventually, Williams was able to escape from the apartment.
Williams found Valerie and, as they were planning to find a place
for Williams to spend the night, defendant rode up on his bike,
grabbed Williams, and dragged her home. Upon returning to the
apartment, defendant began hitting Williams again and pushing her
head into the pillow. Before defendant went to sleep, he told
Williams that “When I wake up, I'm going to kill you, but you
better not move.” Once defendant fell asleep, Williams left.
Defendant did not offer any evidence.
II. Issue
Defendant's sole argument on appeal is whether sufficient
evidence of restraint to support kidnapping that is separate fromthat necessarily required to accomplish the assault on Williams was
presented to survive defendant's motion to dismiss.
III. Restraint
Defendant asserts that the only evidence of restraint occurred
while the assault was in progress and was part of the assault
itself. Defendant argues the restraint did not constitute a
separate kidnapping offense.
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the charged
offense.
State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434
(1997)
. “'Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.'”
Id. at 717, 483 S.E.2d at 434 (quoting
State v. Olson, 330 N.C.
557, 564, 411 S.E.2d 592, 595 (1992)).
Defendant was convicted of first degree kidnapping and assault
inflicting serious injury. The kidnapping indictment alleged that
defendant kidnapped Williams by unlawfully restraining her and for
the purpose of terrorizing her. Defendant argues that the
restraint was an inherent and integral part of the assault. “The
restraint required for kidnapping must be an act independent of the
intended felony.”
State v. Ackerman, 144 N.C. App. 452, 457, 551
S.E.2d 139, 142 (2001)(citations omitted). Our Supreme Court has
stated that:
“a person cannot be convicted of kidnapping
when the only evidence of restraint is that
'which is an inherent, inevitable feature' of
another felony,” but evidence of actions
constituting additional restraint can support
such a conviction. The additional restraintmay consist of actions that increase the
victim's helplessness and vulnerability.
State v. Prevatte, 356 N.C. 178, 252, 570 S.E.2d 440, 481 (2002).
(Citations omitted).
Williams, the victim, testified that
defendant got a knife and threatened to kill her if she spoke after
the police knocked at the door. Williams further testified that
defendant would not let her leave the bed, even to use the
bathroom, and as a result she ended up urinating in the bed.
Finally, before going to sleep, defendant told Williams that he
would kill her when he woke, but that she “better not move.”
Defendant's actions were separate and distinct from the
assault, and constituted restraint not necessary to facilitate the
assault on Williams. Defendant's actions increased Williams'
helplessness and vulnerability, and exposed her to greater danger
to that inherent in the assault.
See State v. Beatty, 347 N.C.
555, 559, 495 S.E.2d 367, 370 (1998).
This assignment of error is
overruled.
After careful review of the record, briefs and contentions of
the parties, we find no error. Defendant received a fair trial,
free from the error he assigned and argued.
No error.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).
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