An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1423


Filed: 3 June 2003


         v.                        Guilford County
                                Nos. 01 CRS 23782, 90739
GEORGE AVERY BOYD                    

    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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